Clausula abusiva: Retencion en garantia en contratos de construcción, internacional FIDIC.

Abstract

This research addresses the problem of the widespread inclusion of the retention clause in construction contracts signed between private business parties in Colombia, despite the absence of explicit legal regulation. Although this figure is commonly used as a protection mechanism against contractual breaches, it is often applied under conditions that create imbalances detrimental to the contractor, thereby violating the principles of objective good faith and proportionality. The objective is to determine whether the retention clause can be classified as abusive, through a structural, functional, and normative legal analysis. The methodology is qualitative, using a legal-dogmatic and comparative approach, based on a documentary analysis of laws, jurisprudence, national and international doctrine (particularly Spanish law and FIDIC contracts), and a review of actual private construction contracts. The results show that this clause is often unilaterally imposed by the employer without reasonable limits or effective refund guarantees, creating an unjustified advantage in contracts that are formally symmetrical. The discussion suggests that the clause should be reviewed and regulated based on principles of equity and contractual balance, even in B2B contexts. This research provides a basis for future studies on other potentially abusive clauses in private contracting.