The Absence of Commutativity in Derisory Provision’s Figure in the Ecuadorian Commerce Code

Abstract

Ecuadorian commerce law system has a new figure since 2019: derisory provision. It seeks the weak party’s protection in a commerce contract when the balance has been broken. However, its absence of commutativity standard does not satisfy a court’s needs to achieve justice and apply it without hesitation due to the absence of precedents and laws. In order to understand the absence of commutativity we studied the contracts classification, the contractual balance on its different moments and, through a comparative analysis, how other jurisdictions have developed the concept. We defined the scope of derisory provision harmonically and according to the legal system, with its norms and principles. We proposed a series of useful elements applied by different jurisdictions to be taken into account by the ecuadorian judge when determining the absence of commutativity on derisory provision’s configuration process.