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Ex Notitia Contractus: The Evolution of Notification in Contracts from Roman Law to the Modern Mexican Legal Framework

Writer's picture: Front Desk, IBGFront Desk, IBG

Introductio (Introduction)


The acta notitiæ (act of notification) in contractual relationships has been a crucial point of legal debate since antiquity. The fundamental question remains: quando efficax sit notitia contractus—is a notification deemed effective ex nunc (from the moment it is sent) or ex tunc (from the moment it is received)?


From ius Romanum (Roman law) to contemporary Mexican law, the interpretation of contractual notifications has evolved alongside the necessity for legal certainty (certitudo iuris). This article explores the historical development of notification rules, tracing their origins in ius civile (civil law), their refinement in European doctrine, and their modern codification in Mexican ius mercatorum (commercial law) and ius civile (civil law).


Ius Romanum: Formatio Obligationum Contractualium et Munus Notitiæ (Roman Law: Formation of Contractual Obligations and the Role of Notification)


Roman law, the foundation of ius commune (common law of continental Europe), classified contracts based on the method of perfection (modus perfectionis), emphasizing the manifestation and transmission of consensus ad idem (mutual agreement).

1. Contractus reales (pacta re perfecta): Perfected upon the delivery of the object, such as mutuum (loan) or commodatum (gratuitous loan).

2. Contractus verbales (pacta verbis perfecta): Formalized through solemn oral expressions, as in stipulatio (verbal contract).

3. Contractus litterales (pacta scriptis perfecta): Perfected upon inscription in written records.

4. Contractus consensuales (pacta solo consensu perfecta): Formed by mere agreement, without requiring formalities.


Although Roman law did not explicitly theorize about the tempus perfectio consensus (moment of perfected consent in distant agreements), it generally adhered to the theory of reception (theoria receptionis), requiring the manifestation of will to reach the other party to create a binding obligation. This principle evolved into a key element in the later formation of modern civil and commercial law.


Evolutio Europaea: Consensus in Contractibus Inter Absentes (European Evolution: Consent in Contracts Between Absentees)


As ius commune (common law tradition) developed in medieval Europe, jurists refined the doctrine of contractual perfection in long-distance agreements (contractus inter absentes). Several schools of thought emerged:


1. Theoria declarationis (ex sententia declarante – Theory of Declaration): The contract is perfected when the acceptor declares consent.

2. Theoria expeditionis (ex missa notitia – Theory of Expedition): The contract is perfected when the acceptor dispatches acceptance.

3. Theoria receptionis (ex percepta notitia – Theory of Reception): The contract is perfected when the acceptance reaches the offeror.

4. Theoria informationis (ex cognita notitia – Theory of Information): The contract is perfected when the offeror consciously acknowledges the acceptance.


The predominance of theoria receptionis in ius continentale (continental law systems) solidified its adoption in ius hispanum (Spanish law) and later in ius mexicanum (Mexican law).


Ius Mexicanum: Receptio Theoriarum Notitiæ in Iure Civili et Mercatorio (Mexican Law: Reception of Notification Theories in Civil and Commercial Law)


Mexican law, inheriting its tradition from ius hispanum (Spanish law) and ius romanum (Roman law), codified the theory of reception as the general principle governing contractual notifications and the perfection of consensus obligatio (binding consent).


Codex Civilis Mexicanus (Mexican Civil Code)


The Código Civil Federal, in Articulus 1805, establishes:


“Si oferta fit personae praesenti, sine tempore determinato ad acceptandum, auctor obligationis liberatur si acceptatio statim non fit. Haec eadem lex valet in communicationibus telephonicis vel electronicis ubi consensus immediate exprimi potest.”


(“When the offer is made to a present person, without a fixed term for acceptance, the author of the obligation is released if acceptance is not made immediately. This same rule applies in telephone or electronic communications where consent can be immediately expressed.”)


Although this provision regulates contractus inter praesentes (contracts between present parties), it serves as an analogia legis (legal analogy) for contracts inter absentes (between absentees), reinforcing theoria receptionis by requiring that consent materialize only upon reception by the offeror.


Codex Mercatorius Mexicanus (Mexican Commercial Code)


The Código de Comercio, modified in Lex 29 Maii 2000 (Law of May 29, 2000), clarified that in contractus mercatorii inter absentes (commercial contracts between absentees), consensus perficitur ex tempore receptionis acceptationis (consent is perfected when acceptance is received by the offeror).


Thus, unless otherwise stipulated (pactum contrarium – contrary agreement), contractual notifications take effect upon reception, ensuring greater certitudo iuris (legal certainty) in commercial transactions.


Applicatio Practica et Considerationes Hodiernae (Practical Application and Contemporary Considerations)


In the digital age (saeculum digitale), contractual notifications have adapted to new media—electronic mail, digital contracts, and blockchain records. The Supreme Court of Justice of the Nation (Suprema Curia Iustitiae Nationis) has ruled that electronic acknowledgments of receipt (probatio receptionis electronica) and secure communication platforms are necessary to prove legal notification.


Key Practical Considerations in Mexico


1. Stipulare formam notificationis in contractu (Define the notification method in the contract): Specify whether notifications can be made via email, instant messaging, or if registered mail is required.

2. Adhibere probationem receptionis (Ensure proof of receipt): Use read confirmations, digital timestamps, or blockchain registration.

3. Pacta notificationis in contractibus clarificare (Clarify notification clauses in contracts): Explicitly state whether theoria expeditionis or theoria receptionis applies.


Conclusio (Conclusion)


The law of contractual notifications has evolved significantly from ius Romanum to contemporary Mexican jurisprudence. Today, theoria receptionis remains the predominant principle, safeguarding certitudo contractuum (contractual certainty) by ensuring that notifications take effect only when received by the intended party.


Nonetheless, the digital transformation of commerce requires new approaches to notification doctrines, demanding lex contractus (contract law) to explicitly define modern methods of notitia validatio (notification validation). The adaptability of ius mexicanum to emerging technologies will determine its effectiveness in preserving the fundamental principles of contractual certainty (certitudo iuris), good faith (bona fides), and legal stability (stabilitas iuris).


As global trade and digitalization advance, the principles governing contractual notifications will continue to evolve, reaffirming the necessity of clear, enforceable, and technologically adaptable legal frameworks. Fiat iustitia! (Let justice be done!).

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