La excepción del contrato no cumplido en el ámbito de la contratación administrativa

Abstract

This article discusses the merits of the exception of non-performance in the field of administrative law, issue on which both national doctrine and the “Tribunal de lo Contencioso Administrativo” (Court of Administrative Litigation Law) show dissimilar positions. The most recent judgments of that Court reject the application of the exceptio non adimpleti contractus , considering that the failure of the public agency does not authorize the contractor not complying with its obligations. In disagreement with the position of the Court, we estimate that it must be allowed, as a general rule, the operation of the institute in the field of public contracts, provided that certain conditions are observed. This because the breach of the public agency operates as a justification and consequently eliminates the illegality of the failure of the contractor. Consequently, the administrative act of unilateral termination of the contract, which is based on a breach of the contractor that is justified by the failure of the counterparty, it is unlawful for being flawed in their motives.