General Considerations on Simulation in the Civil Code

Abstract

There are certain situations in which third parties are entitled to ignore the existence of a particular contract, and thus the rights and obligations arising from it. One such situation is simulation, which is thus considered to be an exception to the enforceability against third parties of the contract. Simulation is the legal transaction consisting in the conclusion of a contract ostensibly intended to give the impression of creating a legal situation different from the real one and of another secret contract containing the true legal relationships which the parties intend to establish in reality. The general and abstract purpose of any simulation is to conceal the content or the existence of the real agreement of will from third parties. For the existence of simulation, it is sufficient that the secret act preceded the apparent act or was simultaneous with it, even if the document recording the secret act was drawn up after the apparent act was committed. It is essential that the agreement between the parties, i.e. the agreement in the sense of a legal transaction (negotium), predates or is contemporaneous with the apparent act.