SUPREME COURT OF JUSTICE

APPEAL BOARD OF CIVIL

Magistrate

Namen WILLIAM VARGAS

Bogota, DC, first (1) June two thousand and nine (2009)

Discussed and approved by Chamber of three (3) December two thousand and eight (2008)

REF .: 05001-3103-009-2002-00099-01

The appeal filed by the defendant against the ruling issued by the Civil Chamber of the Superior Court of the Judicial District of Medellín decided, the March 5, 2007, in the ordinary process Piedad Cristina Villa de Toro, Lina Maria, Alexander and Natalia Toro Villa, Fernando Leon of Perpetual Help Guide Toro Vallejo and Ltda., against the Promoter and Recreational Tourism Projects SA Detur S.A. in liquidation.

BACKGROUND

1. main way sued declare breach of promise and subsequent sale of 17 shares in the company Village Country Club SA the absence of transfer and delivery, order their resolution ordering the return of $ 119 million indexed to interest from February 25, 1997 until paid, return to Guide Ltda. of $ 28,568,923 indexed management fees, plus interest from the May 4, 2002 until settlement and, in lieu thereof, the absolute invalidity of legal transactions expressed, restore the amounts paid duly updated and recognize their commercial interests to the maximum legal rate (cdno. 1 fls. 32 and 33).

2. petendi cause, was based, in summary, as follows:

a) On February 5, 1997, Guide Ltda. and Detur SA celebrated promise of sale of 17 shares in the company Village Country Club SA with a total value of $ 119 million, paid by the purchaser promisor.

b) Being allowed in the promise, with accepting the other hand, the October 8, 1997, the purchaser promisor ceded his contractual position to the applicants, who for breach of Detur SA they have not received the shares acquired, or his name recorded in the book of shareholders, and prevented from usufruct, or negotiate freely represent their rights.

c) Guide Ltda. without legal basis covering the maintenance quotas May 1997 to March 1999, configuring a payment not because of what, because have not received the shares nor enjoyed the club (cdno. 1 fls. 29 -31).

3. On accepting the application, the defendant was personally served, in whose defense he resisted the claims proposing so-called peremptory exceptions of no breach, inappropriateness and ineffectiveness of the promise of sale and compensation; Also, sued in a counterclaim for payment of 50% of the value of management fees and maintenance, with default interest and monetary correction, to all of which the counterclaim was opposed excepcionando lack of standing on both sides, failed contract because of the non-payment (cdno 1 fls 53-62;.. cdno 2 fls 198-203 and 206-212..).

4. The judgment handed down on 15 November 2005 by the Ninth Circuit Civil Court, denying the claims of the original and welcoming those made in the counterclaim, was revoked by the second instance to access the petitum of the former and condemn the defendant to pay the amounts ordered (cdno. 1 fls. 100-108).

THE JUDGMENT OF THE COURT

1. After warning the procedural requirements, fundamentals and requirements of action for rescission of contract articles from 1546 [2] and 1609 of the Civil Code, particularities and conditions of effectiveness of the promise of commercial sale, the judge reminded second grade the pact to register the purchaser promisor as a member of the club by official registration books and the Chamber of Commerce of Medellin, once the developer deliver "facilities and provisions thereof and was issued in the name of peace and one committed buyer safe in every respect, "noting, for the day of the preliminary business ownership Guide Ltda. for completing 5 shares 22 17 promised for sale, unaffected by the statutory prohibition regarding the ownership of more than 15 shares it is a preparatory act and noted the absence of registration of the assignees in the corresponding registration book after delivered facilities, payment by the purchaser promisor being credited as cash receipt issued by Detur SA 9697 the February 25, 1997, leading to the prosperity of the claims of breach and termination of contract.

2. Then addressed the objections filed against the principal claim.

About the lack of compliance based on an agreement to pay fees for services caused by actions of the club termination, perfected with a cross-checks to independent promise, comprising

conservation by the defendant of the 17 actions to guide April 2002 to pay half the value of maintenance fees under Article 55 of the bylaws, supported by letters of June 21, 1996 and March 21, 2000 and in the testimonies of Rodrigo Solorzano Jose Pelaez and Martha Elena the Uribe Velasquez Dolores, concluded that indeed the true disposition "was not then the existence of the promise of sale as a real legal act, but that she tried to conceal the real intention of the parties" consisting of a payment in kind for extinguish the benefit acquired by Detur SA to cancel the fees due to Ltda Guide. for services rendered, while on "(...) this other clauses contained in this document that improperly 'promise of sale' was called" generator duty to transfer the shares and register the plaintiff "and / or" assignees in the book of shareholders, once the club delivered to equipping them and issued the peace and safe without obligation actors "pay maintenance fees for facilities that had not been delivered" in addition, since that time there were no laws or regulations of the Corporation Country Club Executives, nor "agreed stipulation in the sense that the obligation to pay arose maintenance fees or administration by GUIDE LTDA", with the promise the formalization of the agreement, according to the witness Jose Andres Arango Toro, that I completed the project, Detur SA made official "all he owed actions," all of which, he said, the proposed exemption does not materialize because the facts and demonstrated not enervate the claims, compliance with the applicants and the failure of the defendants being tried, generating and the resolution and restitution ordered.

Check considered impróspera except inappropriateness and ineffectiveness of the sales contract, based on the lack of improvement of promise and lack of cause be a simple exchange of fees, to be proven true intention of the parties and non-compliance the defendant and also rejected the compensation, the monetary obligations acquired being demonstrated by Detur SA and not by Ltda Guide.

3. As for the restitution of the management fees paid without legal basis, after mentioning the regulations on the requirements and the commencement of legal personality, appearing Detur SA the statutes of the Corporation Country Club Executives, as owner of 17 shares of Village Country Club, the wording of Articles 16, paragraph b) and 55, is required to pay 50% of its value until a certain date and while they were in his possession, without being proved his assumption by Ltda Guide.

In this vein, he added, it is appropriate restitution, not being tried agreement whereby Guide Ltda. Acquired the obligation to pay maintenance fees, even at 50%, and the testimony of Ivan Dario Aramburu, Ricardo Wills Horacio Mejia and Jose Rodrigo Solorzano Peláez, his credit, concluding with the statement of Martha Elena Dolores Velasquez Uribe, the agreement on the late payment of maintenance fees inactive, because in 1994, when the pact payment fees actions, society did not exist Village Country Club SA created in 1995 and amended in 1997 its regulations under

negotiation with the former Executive Club Medellin conditioning linking the payment of maintenance fees unsold shares at the time of delivery of the club conviniéndolo 50% by Detur SA and its partners in the pact acceptors not involved professionals' fees in shares or those who had acquired, unknown, also if it notified the amendment agreed to COMMITTING buyers.

4. Finally, to the Tribunal, the prosperity of the claims of the original proceedings implicitly leads to the denial of those contained in the counterclaim for the payment of management fees and maintenance, due to the Corporation Country Club SA, more interest and indexation.

DEMAND FOR APPEAL

Contains a demand charge, to the study and decision is required.

SINGLE CHARGE

1. support the first of the grounds of Article 368 of the Code of Civil Procedure, accuses the ruling by indirect violation of Articles 1530, 1540, 1542, 1546, 1613 to 1615, 1618, 1622, 1849, 1880, 1882, 1929, 1930 of the Civil Code, 403, 406, 416, 870, 861, 905, 922, 924, 925, 943 of the Commercial Code and Article 89 of Law 153 of 1887, as a result of factual errors that led to Court to declare the failure of the non-transfer of shares when the bargaining was actually associate with other acts between the same parties, the assessment of which leads to a different conclusion, since the absence of the former and registration obeyed benefit from an agreement to pay 50% of the costs of administration and maintenance of the club.

2. The appellant criticizes the judge for stopping basically in the letter of the promise and the subsequent sale to sustain the payment of the share price and the lack of transfer of rights, scope subtracting the contractual reality of alienation perfected by agreeing to pay fees in shares, omitting previous pacts suspensory thereof and the registration of titles to benefit the acquirer in the payment of 50% of the maintenance fees, privilege as the project developer had the

defendant and cling to the sixth clause of the promise without considering the demand of peace and except as provided for in the final part for the move, which meant being up on management fees.

3. Find demonstrated celebration Detur SA and guide Ltda. November 25, 1992, a preliminary agreement for the provision of services related to the development of the Village Country Club $ 120 million project, paid to settle in shares at the end of the club, the note addressed concorde by the administrative manager Ltda Guide. The June 21, 1996 the legal adviser to the Village Country Club, ratified in the 3rd clause of the contract of services between the developer and the applicant company, stipulation unattended by the Court, incurring manifest error of fact, for such a clear agreement did not require the promise to realize the payment of fees.

4. Complains of assessing the testimony of Ivan Dario Masses Aramburu, Horacio Wills Ricardo Mejia, Martha Ellen Dolores Velasquez Uribe, Hugo Restrepo Gallego León, Rodrigo Solorzano Jose Pelaez, Duke Fernando Becerra, Jose Andres Arango Toro, Yaneth Giraldo Hincapie and José dew Sacred Heart Horacio Londoño Escobar, some by omission and other partial appreciation, therefore, show the agreement to settle the fees with actions, not transfer to the buyer and record your name, after the reduction in profit of management fees, for which purpose the defendant contractors billed according to the number of shares, quotas in some time recognized by Guide Ltda .; Restrepo Gallego told they could also opt for cash payment of benefits, as did he and Pelaez Jose Rodrigo Solorzano mentioning the promise as a way to guarantee the ownership of shares, because of being in power should cover contractors 100% of the quotas under the statutes of the club, when agreed to settle nonexistent fees actions; and, although the sentencing instance, says the appellant, discrete enjoy autonomy in assessing the evidence, its valuation can be combated by the manifest error of fact, assuming an event or without the objective content of the test, as happens in this matter of obvious and important way, it being understood that despite the payment of the 17 actions did not transfer and registration, ignoring the agreement of the retain the defendant to pay 50% of administrative expenses, Indeed credited with copious testimony referred, severed by the Court.

5. criticizes the judge for inapreciar the statement by the representative of Guide Ltda., Accepting the trading of the shares with the agreement of fees and recognizing that in good faith and without delay defrayed maintenance fees from June 5, 1997, month by month, until April 16, 1999, the date on which the error was noted, recognizing not only the trading of the shares, but the payment of maintenance fees; the ignorance is also a lack of appreciation of the documentary evidence and the expert; Communication of June 21, 1996, the judge, dispenses with the passage in which guide Ltda. accepted as payment for their actions fees Village Country Club SA at a rate of $ 7 million each, where the scope of bargaining is not itself or the promise inherent in which no

express agreement this was taken into account also in the letter Ltda Guide. he accepted even work risk, without contract and that the relationship was formalized at the time that he deems most opportune defendant; in the communication of March 21, 2000, mentioned by the Court but with a "misunderstanding scope and wrong once," shares the agreement fee and the obligation to pay monthly maintenance fees are recognized; purchase invoices and receipts showing payment of 50% of administrative expenses in exchange for not transferring 17 shares, the transferor having them for the benefit of the discount as the applicants without good reason did not pay management fees, no They could get the peace and safe passage required for the shares, proof of which is the absence of such request; although the Court referred to in Article statutes allowing preferential payment of dues, it does not appreciate that this situation is allowed to postpone the transfer and registration of shares, stopping at the tax part of the extra fees.

The expert report presents the appellant notes that in the books of Detur SA, cash receipts from the payment of management fees and management actions that correspond to appear Guide Ltda., For the defendant, as well as the entry in the guide books fertilizers for administration, leaving both companies registered in the values and concepts of these concepts, citing the judge only cash receipt for payment of the actions to conclude implementation of Guide Ltda., ignoring the check was the result of the operation of instruments exchange for equal values for shares redeemed fees, regardless of comprehensive content business which included the benefit of the 50% share of support, while keep the promoter of the project .

6. Finally, in his sense, the ad quem, ignored the dependence of the various acts, "alienation of shares, promissory purchase agreements and individuals for the full implementation of the provision and transfer of shares," forgetting the existence of this economic unity, mutual cause for the transfer of 17 shares.

CONSIDERATIONS

1. It raises the appellant, the configuration of a business acts colligation between different devices (transfer of shares, promissory purchase and related covenants) linked by a bond of interdependence confluent a defining mutual economic unit because of the share sale, Unknown by the judge to define the issue out of this reality locked in the preliminary agreement as a result of the factual mistakes arising from the omission or erroneous assessment of the evidence, ostensible, transcendent and incidents in the decision.

Such understanding, to the right decision, it involves determining if the Court decided outside the claimed bargaining colligation, generating errors defendants, as claimed by the appellant, or whether on the contrary, did not incur the reproaches reported.

2. Captured in these terms the question, colligation, bond, bonding, articulation, coordination or bargaining hypothesis heterogeneous atañederas connectedness describes a number of legal, distinct, autonomous and independent relations with its own individuation, discipline and function, linked by one functional or teleological teleological to obtain a practical, social or economic link only result, the structure requires a constant series of pacts, ab Origen (at source) and in fine (in the end), and functional union or devices acts.

The diversity of agreements concerning a set of business contracts with its structural and functional uniqueness, no confluence, create or produce one. Teleological or functional linkage of the various legal transactions is inseparable, essential and indivisible, in toto, in complexu, in balloon, and leads to the only persecuted practical, economic or social function, being necessary to the final realization of a unitary interest own, autonomous and different feasible for the combination of several devices acts, each with its identity, type, discipline and function.

In this context, the bargaining colligation, is discarded in the presence of a single treatment, and because it is a simple act, either by combining elements of different types negotiable legal or social criminality, prays for his ex novo creation, well by link elements typical contracts with other native (eg, complex, mixed and atypical contracts), where strict sense, becomes impossible, also because of lack of bargaining plurality.

In a similar sense, the simple plurality of business, either per se determines the bargaining confluence. It is necessary, a link, link or teleological or functional binding of the various agreements with legal significance, one over another or for all, "in the sense that one of them receives the influence of the other (unilateral dependency), or in the sense that this influence is reciprocal (bilateral dependency). The link of dependence may also arise because of a simultaneous contest, and a sequence of events arranged in chronological order. In particular there may be: a) a colligation of genetics, amending or extinctive nature, manifested in the fact that a business exerts its influence on the formation, in the modification or termination of another; b) a colligation of a functional nature and effectual, manifested not only in the fact that one business is founded on the relationship arising from the other, but, more generally, in the fact that acts of private autonomy tend the pursuit of a common result; c) a colligation of nature, so to

speak, 'mixed', ie genetic and functional at the same time "(Lina Bigliazzi GERI, Humberto Breccia, Ugo and Francesco D. BUNESLLI NATOLI, Civil Law, Volume I, Volume II, trad . esp. Fernando HINESTROSA, External University of Colombia, Bogotá, 1992, p. 942).

Indeed, the discipline negotiable certain categories, the order or the parties can establish a link of interdependence, subordination or subjection prestacional or bargaining with genetic, structural, functional, reciprocal or unilateral, generating (eg, regulatory or type contracts and specific development contracts; preliminary and final business), amendment (ad exemplum, business ascertainment) or extinguishment (eg infirmatorio business, "mutual consent", revocation).

Coordination, acts functionally o'clock in the production of final effects when prestacional or bargaining, colligation seeks an end or practical result unit, convergent and based on common interest immediate antecedent of the one end.

Under these assumptions, the bargaining range is tied by the functional and teleological interdependence and, although each retains its kind bargaining legislation individuality, its effectiveness is reciprocal conditioning.

It is also particularly required the confluence of the various contracts in a unit function, ie, "the unity of interest globally pursued, which does not exclude that such interest is held through various contracts, which are characterized by an immediate interest , independently identifiable, which is instrumental or partial regarding unitary interest pursued by all the contracts. In the coalesced contracts must therefore identify the partial cause of each of the contracts and the understanding of the operation "(C. Massimo Bianca, Diritto civile, T. III, Il contratto. Giuffre Editore, Milan, 1987, p. 457 seq.).

It treats, as it has mentioned the Court, "many contracts that, while retaining its typical identity and therefore being subject to the rules all their own, are yet coalesced together, functionally and relationship of mutual dependence, to the point that the vicissitudes of one, to a greater or lesser extent, may affect other cases in which it is the duty of judges to establish carefully and based on the evidence gathered if, in addition to the purposes of each of contracts concluded, or not a general objective set and wanted by the parties. (...) Thus, the coalesced contracts as the doctrine teaches, no single atypical contract with mixed because "... but a combined plurality of contracts, each of which responds to an autonomous case, even when a whole tend to the realization of a unitary and complex economic operation, then the criterion of distinction is not that formal, unity

or plurality of contract documents, and that a contract can result from several texts and, instead, a single text You can collect several contracts. The criterion is substantial and results from the unit or plurality of causes ... "(Francesco Galgano The Legal Business Chapter IV Section 2 No. 26......); in other words, there will be contractual connection when concluded several agreements must be understood that from the legal point of view can not be treated as absolutely independent, because their nature and structure so requires, or because then it would be pointless layout interests set articulated by the parties and by the instrumental combination in question "(Cass. Civ., judgment of October 6, 1999, exp. 5224, CCLXI, Vol. I. p. 531).

More recently, he said, "[s] in attempt to draw up a finished concept of the phenomenon in question, but eager, rather, to emphasize the elements that stereotype, we can say that it operates, and it seems obvious to point out, in the inexorable course of a plurality of independent contracts (two or more), among which there is a bond of dependence that, legally, or can transcend beyond their training, performance or validity, or as well as points out the doctrinante Renato Scognamiglio, 'dos elements become necessary to be able to speak of business in coalition: a plurality of business and the connection between themselves' (negociale Collegamento in Scritti giuridici, Vol I, Cedam, Milan, 1996, p. 119.) ... without saying it, only in the presence of two or more contracts, which considered themselves have their own self-government and autonomy, it is central, there may be mentioned phenomenon, which excludes all cases where there is only one contract or, as is try one complex, mixed or atypical among other tipologías-, because he is taking elements of different types legally pre-established contractual or do not correspond to one of the contractual forms provided in the positive norms, but ultimately implies the existence of a single legal business (bargaining unicum) "(c. civ. September 25, 2007, [SC-116-2006], exp. 11001-31-03-027-2000-00528-01).

In this regard, memorase, regulation of certain contractual types by law, and others, by the customs and practices of legal transactions, that is, contracts with structure and discipline rules (legal criminality) or social (social criminality) the lack of management (atypical) for its genuine appearance, fully primary or by combination or mixture of various typical categories whose essential elements come together to form a different union contract or essential elements of some typical contracts with other native or just the creation of new elements, that is, resulting from the combination of elements or features of one or more typical categories constituting a single unit type and -Contract mixto- and a unitary consideration in exchange for various contractual obligations of different types - contracts "twins" - prays two types of benefits where one party corresponding to one of these and the other to a different -Contracts "double type" - (Cass. civ. October 22, 2001, [SC-198-2001], exp. 5817; G. DE NOVA, contrattuale type Il, pp. 174 ff .; F. BUSNELLI, tipicità and atipicitá nei contratti, Milano, 1983; Costanza, Il contratto atypical, Milan,

1981, p. 2 et seq.) And contracts unions, presentable by "a) just outside Union. Different contracts types, independent of each other, they appear united outwardly without any subordination with respect to each other ... b) Union with unilateral or bilateral dependence. The various contracts that appear united outwardly types are wanted as a whole. Is established between them, the parties mutual dependence in the sense that one or the other or a dependent of the other, but not vice versa. Such intention of the parties must appear expressed or implied. In the latter case, it may be of economic relations mediate between different services ... Except for the purposes of validity and revocation, in which one also implies the other, they are judged by the standards of the type to match. c) Union alternative. A condition linking the various contracts so that if the positive development does not occur or if the negative happens, is understood either completed contract "(Cass. Civ., Judgment of May 31, 1938, vol. 46, p. 57 ; March 25, 1941, December 5, 1956; August 12, 1976;. December 13, 2002, exp 6462) and whose appearance, of course, is more common for the demands of modern traffic exercise contractual freedom, freedom of contract and private autonomy operative, remain eligible as interests likely to seek recognition and protection rules, comply with the law and, in particular, public order and decency.

Accordingly, the plurality bargaining, relationship or teleological colligation, unitarity and functional uniqueness projected on a common, single, convergent or homogeneous single purpose-oriented practical purposes not likely to be made by each singular contracts but under and all together, without creating a new, autonomous or unique business coligado characterizes the contract, whose function is performed by the coordinating conjunction and, thus, becomes own distinct; uniqueness and plurality of interests pursued does not result in a single type, remaining at all times the union of all.

In a technical sense, the unitary consideration of the requirement established by the teleological or functional nexus of business to discipline the mutual interests in the field of a consistent purpose in the unit overall practical results derived from the intentio communis of the parties to reach it imposes a only effect the inherent binding with each individual unique business, thus transcending the role and the specific effect of each business by its final articulation (C. COLOMBO C., OPERAZIONI economiche and negoziale collegamento, Padova, 1999; C. DI NANNI, negoziale Collegamento and complessa funzione, in Riv. dir. comm. 1977 I, p. 279 ff .; and F. DI SABATO., and pluralità Unità di negozi, in Riv. dir. civ., 1959, I, . p 412 e ss .; FERRANDO G., I contratti collegati. Principi della tradizione e tendenze innovative, in Contr and Print, 2000, 1, p 127 ff .; and GB, Ferri, nella Cause and type theory... the giuridico negozio, Milano, 1966. B. MEOLI, I contratti collegati nelle esperienze Giuridiche Italian and francese, Napoli, 1999; F. Messineo, Contratto collegato, dell'Enc voce. dir, X, Milano, 1962, 48).