Simulation contract
Introduction
There is contractual simulation when voluntarily, and in order to avoid possible creditors or to avoid any of the obligations linked to the true contract, the same legal transaction has been agreed upon by the parties through a duplicity of contracts; one of them apparent (simulated contract) and another non-apparent (disguised contract), the latter being the true one and, therefore, the one that must prevail, although the business has been covered with the appearance of the formalized contract only to mask the true deal. Simulation is, ultimately, the declaration of an untruthful content of will, consciously issued and in agreement between the parties, to produce, by deception, the appearance of an unreal legal transaction, which does not exist, or that is different from that which has actually been carried out. The detection of cases of contractual simulation is certainly complex and sometimes rebellious. To this end, the jurisprudential doctrine has established a technique based on not requiring full evidence but rather based on presumptions or indications that facilitate the analysis of the facts and that help to obtain unquestionable conclusions regarding the classification of a contract as a simulated contract.
Signs of contractual simulation
The indications, or presumptions, that usually reveal the existence of simulation and that the courts highlight in their resolutions, are mainly:
FIRST.- The indication of "tempus suspectus", the fact that the questioned transfer is carried out in a suspicious period, after the transferor has contracted one or several debts that seriously compromise his assets, or in anticipation of that situation, and with the purpose of removing the transferred asset from the actions that creditors may bring to collect their credits.
SECOND.- The indication of "affectio", the kinship relationship existing between the subjects of the contract that favors the certain existence of collusion between the contracting parties with the purpose of concealment and fraud.
THIRD.- The so-called "omnia bona" indication, the fact that the transferor gives up all his assets, with the purpose of thus frustrating the success of the actions that may be taken against him.