Once again the Supreme Court, through its Permanent Civil Chamber, in Cassation N°1487-2014-Huaura, has ratified a position, to say the least, questionable. I am strictly referring to the criterion according to which, in a process of granting a public deed (hereinafter, POEP) it is not possible to discuss the validity of the contract whose formalization is the object of the claim.
The Supreme Court, suggesting an (apparent) jurisprudential trend, supports its position on two arguments: (i) that the claim object of the POEP is restricted to the formalization of the document containing the contract and not to question its validity; and, (ii) that the summary proceeding (where the POEP is processed) is not the appropriate one to carry out a sufficient evidentiary analysis of the nullity or validity of the contract.
Although the position of the Supreme Court, at first sight, seems to be logically structured, this is not so, since it is: (i) conceptually insufficient; (ii) legislatively equivocal; and, above all, (iii) jurisprudentially inconsistent.
In the first place, it is conceptually insufficient because even though the claim in the POEPs is the formalization of a contract document, it cannot be lost sight of the fact that said claim has as one of its constituent facts, and therefore one of the preconditions for the claim in question to be protected, the validity of such contract.
Secondly, it is legislatively ong because it completely omits any reference to article 220° of the Civil Code, which admits the possibility of a magistrate “declaring” ex officio the nullity of a contract, clearly without this representing a violation of the right of defense of the parties, or the principle of procedural congruence, since, as our doctrine has already warned, the judge should not declare ex officio the invalidity of the contract, but rather assess it and determine whether or not the claim raised is supported or not.
Thirdly, it is jurisprudentially inconsistent with the logic followed in one of the Civil Cassatory Plenums of obligatory observance, in which a totally opposite criterion to the one mentioned in the judgment under analysis has been pointed out.
In fact, if we look at rule 5.3. of the Fourth Plenary Cassation (on Eviction due to precarious occupation), it will be recalled that the Supreme Court has stated that in eviction proceedings (which, curiously, are also processed in summary proceedings) it is possible for the magistrate to assess the validity of the contract on which the possession alleged by the defendant as a defense is based.
On the one hand, it indicates that the summary proceeding is not the appropriate way to establish the validity of a contract (in the POEPs); and, on the other hand, at the same time, it indicates that it is possible to analyze the validity of a contract on which the possession is based (in the eviction proceedings), both being subject to summary proceedings.
However, the inconsistency, always at the level of the Plenary Civil Cassation Courts, continues if we analyze the possible results of the VIII Plenary Civil Cassation Court in which it is being discussed whether the sale of a marital property by only one of the spouses is considered as a null or valid but ineffective contract, a situation that was presented in the sentence under comment.
The inevitable question is the following: w hat will happen in the event that it is determined that these contracts are null and void, according to the cassation under analysis, the EEPP should be granted without further consideration; however, is it legally possible to grant an EEPP with respect to a contract that has already been considered null and void by the Supreme Court itself? The most reasonable answer is in the negative.
The problem lies in the fact that the Supreme Court fails to realize that, rather than an impossibility with respect to the determination of the validity of the contract in a POEP, what actually exists is the need not to “close our eyes” to contracts that are manifestly invalid, and therefore inadmissible to be formalized.
Although the conceptual and legal argument would be sufficient to reject the position assumed by the Supreme Court regarding the impossibility of determining the validity of contracts in POEPs, I consider that it is essential to determine, as I have tried to do in this commentary, the impact of the Plenary Cassations in this type of process in order to verify the inconsistency of the Supreme Court itself in the logical and argumentative criteria it has followed to support its position.