Non-Exceptional Contractual Clauses: the Ecopetrol Case

Abstract

The parties involved in a contract are free to agree on the terms and conditions under which they intend to develop the subject matter and assume the responsibilities that they entail. The only limits to party autonomy are public and legal order and moral codes. This work questions, from a qualitative, hermeneutic, and analytic perspective, the limitations of such autonomy in the private contracts signed by Ecopetrol, in which parties agree on clauses similar to those in the state contracts. We defend the thesis that the theoretical foundations of the clauses in the state contracting should not be applicable in the private nature contracts. There are charac-teristics like self management in the administrative area that do not happen in private law, and are an important aspect in the face of a domineering or abusive position. Therefore, the parties have the legal viability to agree on clauses that give unilateral powers to one of them, such as the early termination of the contract or the ap-plication of contractual penalties