Dulcamara, SA c. ENTEL. s / Collection Pesos.
Buenos Aires, March 29, 1990.
Considering: 1) against the decision of the Constitutional Court of the Court of Appeals in the Federal contentious fs. 554/564 which, by repealing part of the decision at first instance rejected, in whole, demand Dulcamara introduced by SA to obtain recognition for differences in cost variation, considering that the index used was unrepresentative of the evolution of market values \u200b\u200band higher financial costs allegedly suffered by it in connection with capital exposure to inflation, the charm brought the extraordinary remedy of fs. 567/594 which was granted to the extent that he questions the interpretation of provisions of a federal nature, and denied as it is based on the alleged arbitrariness of the decision, which gave rise to the complaint that runs through rope.
2) The extraordinary appeal is formally appropriate, whenever the issue is "under review" the scope of federal rules of nature, such as those contained in Law 12,910 and Dec. 3772/64, 3875/75, 2348/76 and 1619/86, and the final decision of the superior trial court is contrary to the claims that the appellant based on them (Bug t. 302, p. 1366-Rev. LAW, t. 1982-A, p. 579 -, and L. 106.XXII. "Lo Iacono, Osvaldo J. and Another v. National Council for Technical Education" from 13.10.1988).
3) That, in effect, Dulcamara, SA promoted this application, aimed to recover the amount corresponding to the items already mentioned, considering, first , that the rate of change of original costs agreed by the parties on the basis of so-called "telephone index" does not adequately represent the evolution of market values, why should develop a new system that would cost adjustment consider the inputs actually employed in the work in accordance with the provisions of art. 3, para. c) dec. 3772/64.
requested also to be granted the highest financial costs that, in his opinion, had committed capital from exposure to inflation.
4) That answer both parties that the plaintiff knew the variation clauses costs that would govern the contract since the submission of its offer, as well as Dulcamara, SA voluntarily submitted to the arrangements without reservation, it should determine whether, in accordance with the provisions of art. 1 of dec. 2875/75- corresponds access the applicant's claim.
Said order, whose implementation in the "sub lite" is not disputed, dated 10/10/1975, attempted to solve the supervening distortions in the adjustment. Made under the provisions of art. 6 of Law 12,910, the dec. 2875/75 had its origin, as expressed in its preamble, "in the economic situation International and its impact on the domestic market, coupled with the more affluent sectors recorded in majority of the population "who were" disagreements in the relationship between different elements before making the composition and integration costs, as well as circumstantial shortages of various building materials in place.
These situations led to the need to modify the calculation methods adopted variations of contract costs, leaving them safe "that this does not affect guiding principles of tendering and contracting of works and are enshrined in the sanctity of contracts and respect due to equality between the bidders 'and just trying to avoid the harmful consequences of supervening and unforeseen events', impossible to be resolved in accordance with the agreement and against which all bidders have been found in the same situation. " From this perspective, the legislator added that this would meet "not only the provisions and purposes of Act 12,910, but also the requirements of commutative justice, in accordance with the prescribed by art. 1198 Coll. Civil equitably improve the effects of contract have become too onerous provision of the parties as a result of unforeseen circumstances.
Art. 1 of dec. 2875/75 decided, therefore, that "the liquidation committee instituted by art. 3 of dec. 3772/64, should see significant distortions in settlement systems cost variations included in the implementing agreements, should resolve based on background and well-founded conclusions, the adoption of a new mechanism that suits the conditions at the time of execution of work, fairly reflecting the true cost variations produced during that period. "
From the foregoing, we conclude that to be viable the adoption of a "new methodology" as referred to in art. 1, cited above - "no and for the recognition of the cost variations in itself "- it is essential that the distortions coming from supervening events and unpredictable and that they are also significant, ie, that have special importance, as the conjunction of such requirements, consistent with those provided in art. 1998, Cod. Civil-constitute the factual assumptions that are appropriate to apply the standard.
not affected by it as provided in arts. 1 and 4 of dec. 2348 / 76, insofar as these provisions were limited to "establish in general the causes that led to the inequity of the assessments of changes in costs, so that The new mechanism allows to make the adjustments necessary to attain the objective pursued by the above mentioned decree (the 2875/75) and also leave the bases, under which the corresponding payments must be made of existing contracts in the pending implementation "(consid. 4 º) dec. 2348/76).
From that perspective, and given that the applicant has not demonstrated that the distortion it has been reported by unforeseeable events held at the time of the contract, his claim to respect must be rejected, no need to ponder whether the distortion invoked falls into the category of "significant" as required by this legislation.
5) That same approach must be taken regarding the claim of the plaintiff in order to be granted the highest financial costs resulting from exposure of capital to inflation. This application is based on which, according to the contractor during the period between the time of investment and the date of payment agreed generate higher financial costs recoverable in both the advancement of the investment has an economic value included in the offer and comparable the cost of money in the market.
Indeed, dec. 1619/86 invoked by the plaintiff does not apply to the case, as she explicitly recognizes fs. Penultimate paragraph 421, and fs. , 584 B, paras. 2 º and 3. If we also consider that Dulcamara, SA expressly accepted the adjustment formula and terms of payment set out expressly in the contract terms, must be presumed, to the extent that the statements were adapted to the requirements of the MeSH. 2348/76- 2875/75 and the contractor estimated changes in prices that could arise in the "price of money" of the presentation of the respective certificates and the corresponding payment. To this we must add that, while recognizing the variation in costs was made in accordance with the procedure laid down in dec. 2348/76- financial cost was included in it, and as such received by the contractor, with their own adjustments. Intended to bring greater recognition, in contrast to an unjust result in mind both admit, in case a dual purpose for the contractor: the calculated to offer additional performance and detention of the capital which, being already recognized in the price of the work not be accepted.
therefore be declared admissible the special appeal and confirmed the original ruling. With costs. - Henry S. Petracchi. - Augusto C. Belluscio. - Charles S. Fayt (by vote). - Jorge A. Bacqué. Vote
Fayt doctor.
1) That the room IV of the Court of Appeals Federal contentious as, in reversing in part the ruling in the previous instance, rejected the suit filed in its entirety, with costs in both instances. Against that decision, the plaintiff filed an extraordinary appeal, answered, was granted to the extent that he questions the interpretation of federal rules and denied nature as it is based on the alleged arbitrariness of the decision, which gave rise to the complaint that runs through rope.
2) That Dulcamara, SA initiated this lawsuit against the National Telecommunications Company to obtain a review of public works contract, both parties joined and claimed, therefore, recovery the difference resulting from applying the scheme cost variances originally agreed, the proposed amendments to the annexes added to the original brief.
argued for it during the execution of the work, the scheme cost variations became established clearly unrepresentative of the evolution of market values, both as to the adjustment formula in itself and as related to the depreciation of the amounts paid as a result of inflation.
said that the cost variation formula prescribed was based on the evolution of the index "of the cost of construction of a building phone Federal Capital type, commonly called "telephone index, which is prepared by ENTel its composition, as stated in the letter of demand is not provided by the state company for contractors. Nevertheless, the plaintiff expressed comparing this indicator with
other inputs representative of those most influential on the work, drawing the conclusion that this was sufficiently established and appropriate in relation to the expectations of changing values \u200b\u200bof "opus." He said that once
that work began on the premise distorted reality stated, as different indices of inputs exceeded the conventionally used established. To prove this assertion, taken as parameters of comparison, the indexes published by the National Institute of Statistics and Census' general health facility construction, "" petroleum wholesalers "and the Argentina Chamber of Construction UOCRA to the" hand of official work of the specialist. " He said such differences
determine the appropriate development of a new cost adjustment system that takes into account the reality of actual inputs used in the work in accordance with the provisions of art. 3, para. c dec. 3772/64.
On the depreciation of capital invested by its exposure to inflation The complainant alleged that the offer took into account the impact of this phenomenon during the year preceding the time of its proposal, but from the beginning of the work, the pace of currency depreciation was increased substantially.
founded his claim on the arts. 1 of dec. Ratified by law 2875/75, 21 250, and 1 and 4 of dec. 2348/76 which, in its view, require the principals of public works to establish a new mechanism for the recognition of cost variations to fit the oscillations truths while performing tasks where it is found that the contract is not representative of the market reality.
Finally, said the art. 4 of dec. 2348/76 order to recognize the "financial expenses" incurred by public works contractors, which in the case, in its discretion is manifested by the higher incidence of depreciation on capital invested, the effect of increased inflation .
3) That the respondent opposed the progress of the action on the basis of the following arguments:
a) On the reformulation of the rate adjustment, said the contractor who had previously carried out the building extension Rio IV , knew the workings of the "telephone index" and before the opening of the tender or contract signing made no request for clarification or qualification with respect to "price variation clauses, which imported full acceptance of them and without prejudice to subsequent challenge. He said
best adjustment clause were the price of labor, so they agreed, is for the client a patrimonial right protected by art. 17 of the Constitution, to which he added that changing the formula of variation of costs would cause injury to the principle of equality must prevail in any competition with the consequent damage to the other bidders. He noted
that has not invoked the occurrence of unforeseen situations and subsequently received the signature of the contract to make possible the application made.
From the legal point of view indicated by the untimeliness of the claim being made after the limitation period set out in dec. 3772/64.
challenged the plaintiff's claim of using only two items to make the new index that seeks to be attached wall and graphs designed to demonstrate that the rate "phone" did not suffer any distortion in terms of the MeSH. 2875/75 and 2348/76. The latter, he said, do not apply to cover cost overruns that have the contractor for if it were true would be safe from any operating deficits, disappearing, hence the business risk inherent within any commercial activity.
Finally, raised as a defense background and lack of action by the plaintiff to promote this view because although it was entitled to request renegotiations in administrative proceedings, could only require compliance or resolution in the courts.
b) as it pertains to higher financial costs orders stated that, in fact, the claim was intended to protect the integrity of the gain of the contractor, which is inadmissible for lack of foresight in the calculation only due to his own clumsiness and challenged by that the indices used to measure the quantum of loss suffered thereby.
4) That the house, to resolve as it did, it took into account the following:
A. Regarding the claim to modify the rate of adjustment: a) self-acceptance of the plaintiff, after reviewing agreed prevents it requires the change in court as this would give a contradiction to their own actions, b) only admissible reformulation of the mechanics of setting when checking the existence of supervening and unforeseen circumstances at the time of conclusion of contract generate a significant distortion of the result of the operation, according to the provisions of dec. 2875/75; c) from the report of the expert, the "telephone index" was notable differences with the general level of building drawn up by the INDEC and similar prepared by the Argentina Chamber of Construction, d) attempting retroactively apply an index on the values \u200b\u200bof the inputs actually used when the contract was terminated by mutual agreement and without any reservations, it is not permissible; e) The index proposed by the plaintiff is not valid to demonstrate the distortion of the originally agreed, then at that time was considered necessary inputs to carry 100% of the work, f) if there was damage because they are not fulfilled all the tasks but some of them, the applicant should have assessed the circumstances at the time of termination; g) regarding the lack the composition of the index "Book" is inadmissible because despite that fact, the contractor accepted without reservations.
B. As for the higher financial costs of capital from exposure to inflation: a) the contractor's proposal envisaged the alleged inflation during successive time lag between the submission of the respective certificates and the corresponding payment, increasing the prices listed in this and on that basis as it claimed, so that the claim of having a new calculation of these costs, violates the equal bidders, b) the expert's report does not show that exceptional circumstances existed that would have generated an unexpected loss to the company that would compel the Administration to compensate; c) the contractor assumed a business risk and the State can not guarantee its best business or a certain income level; d) the inflationary process during the execution of the contract did not present oscillations trim exceptional e) does not apply to case dec. 1619/86, f) is not possible to upgrade the capital invested which implies the usefulness of the contractor and give it a "Plus" as if it were a financial activity, as this matter recognize the advantages of both activities and made only one: the work.
5) The plaintiff states in his extensive extraordinary remedy grievances of a different nature, the former linked to the intelligence that the lower court assigned to the game rules, in his opinion, is wrong and the latter linked to the appreciation of factual circumstances and violation of the expert reports that would disqualify the ruling under the doctrine of this Court on arbitrariness.
6) That the federal appeal is filed any time from the subject under discussion involves the interpretation and application of provisions federal nature (Law 12,910 and MeSH. 3772/64, 2875 \\ 75, 2348/76 and 1619/86) and the resolution of a quo is contrary to the claims that the plaintiff based on those rules (Bug t. 302, p . 1366 and decision of 10.13.1988, "in re": L. 106.XXII. "Lo Iacono, Osvaldo J. and Another v. National Council for Technical Education).
7) That, as has been a debate in this instance the solution to adopt depends on the scope to be given to the legal consequences of public works contract signed between the parties and the interpretation is carried out federal standards "above "cited.
8) That, in principle, it should be noted that contracts are administrative a species within the genus of contracts, characterized by special features such as one of the parties involved is a state legal person, that his object is constituted for a public purpose or of the Administration and are explicitly or implicitly embedded clauses exorbitant private law.
9) That if this is so, that fact does not prevent that apply to contracts with the rules governing such an institute in the Civil Code, since the latter is for those general principles of which can not be away.
10) That, therefore, conclude that imposing the administrative contract is subsumed in definition contained in art. 1137 Coll. Civil and that, therefore, are applied, to the extent not inconsistent with its own characteristics outlined above, the provisions of Book II, Section III, Title I, of the legal system.
11) By virtue of these principles this court has held that the best adjustment clause is the price of labor, which is so agreed to the parties a patrimonial right protected by art. 17 of the Constitution (Bug doctrine t. 137, p. 47, t. 145, p. 325, t. 184, p. 137-Rev. THE LAW, v. 15, p. 261 -) and that the administrative contract is a law for the parties therefore invalid seek its amendment on the basis of more equitable outcomes to be gained by applying a different adjustment formula as agreed upon (acc. 02/09/1989 Case, "in re": M. 459.XX . Marocco and Company., SA v. National Highway s / regular).
also this Court has ruled that the law of the tender or contract law consists of the statement, specifying the object of the contract and the rights and obligations of the bidder, and with notes for clarification or book accepted by the parties to improve the agreement. The lack of such a reservation detract from appellant's attempt to support his claim and subsequently altered by judicial contract terms (conf 12/29/1988 Case, "in re": R.82.XXII. "Radeljak, Juan C. c. General Administration of Ports s / regular).
corresponds to this procedure to add that the rule is the manifestation of the will of administrative contract is the contractor's adherence to terms prefixed by the state. The merger of wills is operated without discussion because the offeror must accept the contract terms prepared and drafted by the bidder. Otherwise, the offer would be unacceptable and rejected, and the award did not observe such guidelines would be tainted by illegitimacy (Failure t. 308, p. 618-Rev. LAW, t. 1986-D, p. 397 -).
Finally, we must remember that it is settled jurisprudence of this Court that the contracts should be interpreted and implemented in good faith and in accordance with what the parties likely understood or could understand, working with care and foresight, principles applicable to the field of administrative contracts (acc. 06/09/1988 Case, "in re": J. 88. XXI. "Juan M. de Vido and children, in Com Soc. by Accs. c. National Highway s / invalid resolution "and their appointments). As well it is possible to require the parties consistent behavior, oblivious to changing unhealthy behaviors, and must be rejected all action involving an act incompatible with the confidence that, thanks to his previous actions, has occurred in the other contracting party.
12) That these principles have particular importance in the administrative contractual relationship, as the inviolability of the agreement on the basis of the selected proposal, it is inevitable to guarantee that bidders will not see denied their right to participate in the tender on equal terms .
13) That car is not disputed that the plaintiff knew what the terms of variability of costs that would govern the contract from the time of bidding and, by studying them, fully aware of the prevailing economic reality in the country, voluntarily submitted to those without reservations or clarification.
14) that it must dismiss the grievance concerning the ignorance of the composition of "telephone index. This is so because the alleged ignorance of the methodology used by the client to determine the rates of adjustment is not a circumstance sufficient to obtain a greater recognition that the originally agreed, because this issue could and should be remedied, if any doubt had the contractor for the appropriate method by consulting the competent authority. Especially when, according to uniform administrative practice (Article 17, Law 13 064) attended the plaintiff the right to request clarification it deemed appropriate. In such conditions, lack of exercise of that power is only attributable to their own behavior, which leads to determine the inappropriateness of invoking to support their claim.
15) You must analyze whether the dec. 2875/75, whose application in the "sub lite 'has not been discussed is a rule requiring the client to change the formulation of cost variation adjustment in any case where the system does not reflect the reality of values market or to be from such alteration requires the existence of supervening and unforeseen events that reflect a substantial distortions the financial and economic equation of the contract.
16) That this Court has established that the supervening injury, the product of an extraordinary and unpredictable, has rendered the clause "rebus sic stantibus" considered implicit in every contract, even in the administrative-by application of art. 1198 Coll. Civil law text as 17,711, it being understood that such a doctrine "requires a serious imbalance of trade-offs occurred as a result of unforeseen and extraordinary events subsequent to the contract" (Failure t. 266, p. 61-Rev. THE LAW, t. 124, p. 778 -). It must also be involved in alterations of this nature not have been foreseen by the parties, or events which, if known, would have given the contract under other conditions. Therefore, the theory of foresight can not be applied to correct predictable considerably greater than that to which the parties agree, and that the principle always remains the strict enforcement of the agreement: "pacta sunt servanda" (Failure t. 301, p. 525-Rev. THE LAW, t. 1980-B, p. 701 -).
17) You also note that it is a rule in the interpretation of laws to give full effect to the intent of the legislature, all of their computing requirements so that align with the national legal left and the principles and guarantees of the Constitution. That purpose can not be ignored by the judges on account of any technical imperfections of legal instruments, since they, as servants of the law for the realization of justice, should not dispense with the "rationale" and the spirit of the standard. Exegesis of the law requires extreme caution because of the care that intelligence to be assigned can not lead to loss of a right, or that excessive formal rigor of reasoning does not denature the spirit that inspired its enactment. In this task, it is always advisable to adhere strictly to the words of the law and the spirit that nourishes it has to be determined in pursuit of a rational application that eliminates the risk of paralyzing formalism, and it is necessary to look at all times a valuable interpretation of the rules, legally, they wanted to send (Bug 307 t. , p. 1018 and appointments, among many others-Rev. THE LAW, t. 1986-A, p. 423 -).
18) That the dec. 2875/75, issued under the provisions of art. 6 of Law 12,910, as stated in its preamble, had its origin "in the international economic situation and its impact on the domestic market, coupled with the more affluent sectors recorded in majority of the population" that occurred "Disagreements in the relationship previously existing between the various elements that make the composition and integration costs, as well as circumstantial shortages of various building materials in place."
These situations led to the need to modify the calculation methods adopted variations of contract costs, leaving them safe "that this does not affect guiding principles of bidding and contract work, such as enshrining the sanctity of contracts and due respect for equality among bidders, 'and just trying to avoid the harmful consequences of supervening facts and unpredictable' impossible be resolved according to the agreement and against which all bidders have been found in the same situation. "
Add the legislature that this would meet" not only the provisions and purposes of Act 12,910, but also the demands of a commutative justice, in accordance with the prescribed by art. 1198 Coll. Civil equitably improve the effects of contract have become too onerous provision of the parties as a result of unforeseen circumstances. "
Accordingly, art. 1 of dec. 2875/75 provided that:" The liquidation committee instituted by the art. 3 of dec. 3772/64, should see significant distortions in systems variations settlement costs included in the contracts in progress, should be resolved on the basis of history and well-founded conclusions, the adoption of a new mechanism to suit the conditions existing at the time of execution of work, fairly reflecting the true cost variations produced during that period. "
19) That the above and based on performance criteria listed above, must be concluded that to be viable the adoption of a new methodology as provided for in art. 1, cited above, requires that the distortions coming from supervening and unforeseen events that are significant, ie having real importance.
This is so because of recitals transcripts show that the conjunction of those conditions, consistent with those provided in art. 1198 Coll. Civil budgets are actually making from the implementation of the standard.
20) It may be objected that if, as stated in the consent. 14 - The clause "rebus sic stantibus" is implicit in every contract administration, intelligence made no sense or would be receiving something already planned.
However, this does not happen, as far as warning that the said decree was issued on a hitherto unprecedented economic situation in the country, at times when the effects of commonly called "Rodrigazo" is made present in full force on contracts concluded by the State, the public interest involved in them and the need to prevent stoppage of the works undertaken, they essential to the issuance of a rule that would authorize the Administration to be able to alter the contracts without recourse to the courts.
21) That the foregoing in any way alter the provisions of ss. 1 and 4 of dec. 2348/76, as they were limited to "establish in general the causes that led to the inequity of the assessments of changes in costs, so that the new mechanism allows to make corrections necessary to attain the objective pursued by the above mentioned decree (the 2875/75) and also leave the bases, under which the corresponding payments must be made of existing contracts in the pending execution "(consid. 4, dec. 2348/76).
Also, he established the components of the price that henceforth should be considered in the systems adopted changes in costs and settlement of those proceedings (arts. 1 and 4, Decree above).
There is therefore in the text with a rule that is in conflict with the interpretation given above for the application limits of dec. 2875/75, and she is the one that best harmonizes with the principles "above" statements governing administrative procurement.
22) That pursuant to the weighted average is not appropriate the plaintiff's claim that the system be reformulated cost variances adjustment originally agreed in the contract that led to this war.
In fact, the applicant has not demonstrated or even alleged that the distortion which states that occurred was a result of supervening facts or unforeseeable at the time of the contract, which his attempt to invoke the decree referred to purposes of obtaining a favorable economic outcome in this process, becomes unacceptable. This needs to be
added that has not shown the existence of a significant distortion as arising from the report as an accountant during the tendering period, February to June 1983 - the "telephone index" showed an evolution of 1.68 with a monthly average of 13.48%, the index of the cost of building-level general-prepared by the INDEC 1.69 and 14% respectively and the index of the Argentina Chamber of Construction-General-level 1.78 and 15, 50%.
addition, for the performance period (September 1983-June 1984), the expert determined for the indexes before above a ratio of 4.57, 4.70 and 3.87, respectively, and a monthly average of 18.40%, 18.70% and 16.20%, in that order.
Based on these data, the expert concluded, after analyzing the development of indices, ratios and averages transcripts "that there were no significant differences between them.
23) What things should be clarified so that the difference obtained by the applicant intends to compare the evolution of the rate originally agreed, with one average value of inputs used in the work actually completed.
Such an approach is invalid to the extent that we see that the work was halted by the contractor's own when he had made up 48% of it, and that the contract was subsequently terminated by mutual agreement of both parties.
In these conditions, it is shown irrepresentatividad of "telephone index" calculated on 100% of the work, obviously the use of certain materials to greater variation in their values \u200b\u200bat the beginning of the work, always authorize a change in variation clauses contractually agreed costs.
On the other hand, if the contractor was deemed not suitable to their economic interests to continue the work to his office and said so without reservations, not valid to claim that the other party takes over the damages that the plaintiff's own conduct caused him.
24) It is necessary to note that the claim of the applicant making the matter public works contract in a business without business risk, which obviously is a contradiction in itself.
The appellant admits, however, that this risk is limited to that which comes from his fault or negligence, but denied that the lack of provision for foreseeable constitutes one of these two hypotheses, which destroys the validity of its own premise.
Finally, this Court shares the view of a quo about what is not acceptable that the state, through contract, becomes the guarantor of a certain income level contractor that is ultimately what is intended in the "sub lite."
25) That as far as higher financial costs order, as already mentioned the difference which recovery is attempted for this concept is the damage, according to the plaintiff, it causes an increase in the inflation rate during the duration of the contract relative to that expressed in the period preceding the bid, that is what the applicant called "compensation for exposure to inflation."
This application is based on the opinion of the contractor that the higher financial costs under the MeSH. 2348/76 and 1619/86 supplementary is that between the time of investment according to each period execution, according to work plan and the agreed payment date, for the advancement of investment by the contractor has an economic value, that he even in his tender and is equal to the cost of money in the market.
26) That, in the first place, the decree 1619/86 does not apply to the case expressly acknowledged by the plaintiff and it only seeks to rely on the legal principles contained in that provision on the grounds that they were already embodied in 2875/75 DeCS and especially the 2348/76.
27) That is the case to reiterate that the applicant expressly agreed the adjustment formula and payment terms contained in the respective clauses members of the contract, which allows to assume that, to the extent that the statements were adapted to the requirements of the MeSH. 2875/75 and 2348/76, it estimated its price increase on the basis of the alleged inflation during successive time lag between the submission of the respective certificates and the corresponding payment.
28) That this is so because the contractor to make his proposal should act in full knowledge of things (Arg art. 902, Cod. Civil), since the magnitude of all public works and the interests at stake in them , require action in order to anticipate any eventuality that could negatively affect the performance of the work, the effect of adopting appropriate measures circumstances require a person, time and place (art. 512, Code. Civil Judgments doctrine t. 300, p. 273) and if the bidder made an error in inflation expectations, it would come from a culpable negligence which prevents invocation (Arg art. 929, Cod. Civil Judgments t. 303, p. 323, Cons. 10).
29) That, moreover, in the "sub lite" has not been established that inflation rates have undergone a change such that, by his institution, proving the remedy sought.
In fact, if you look at the picture made by the plaintiff, we note that at the time of the offer made in March 1983, recorded rates of 16% and 13% for two months January February that year. The attempt to compute the average of the previous year to measure the rates tendered in March, April, May and June 1982, is unacceptable given that the economic policies pursued in those months was set aside with the change in government and from at that time, rates rose significantly and then constantly fluctuate between 10% and 17% monthly.
Moreover, the signing of the contract, the evolution of inflation reached 21.4% monthly, which authorized the contractor to make reservation for the current claim or request a breakdown of financial costs and particularized study in terms of art. 4 º of dec. 2348/76.
If it did not, obviously it was because there was no reason, because as stated in the period immediately preceding the tender and the signing of the contract, the evolution of the cost of living indicators had no significant difference with the verified during the time of execution of work, months in which this index ranged between 21.4% and 12.5% \u200b\u200bmonthly.
30) That, further, even assuming there was any difference between the calculations made and the actual inflationary developments in the cost of living index commonly used to measure the evolution of this phenomenon, it would not be compensable. It should be
Please note that as the contract was concluded in accordance with the provisions of dec. 2348/76, the financial cost was included in the method of cost variations, and thus, was perceived by the contractor with its own adjustment. The intention to charge a new rent for a period ranging from invested capital is actually paid until the certificate matter so much as recognize the plaintiff a dual purpose: to offer and the estimated additional return of capital by the immobilisation .
This position is not reasonable because if they chose to build a work and receive earnings for that work, it can not then be required to pay an income by investing in the work.
therefore Case confirmed fs. 554/564. With coasts on the charm (art. 68, Cod. Procedure). - Charles S. Fayt.
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