Laesio enormis constitutes an objective defect in legal transactions arising from the inequality of the performances owed by each party to the contract, a defect that violates the principles of equity and justice in bilateral, commutative, and onerous contracts.
The Civil Chamber of the Supreme Court of Justice, in its cassation judgment SC10291 of July 18, 2017, has addressed laesio enormis, establishing the requirements under which the existence of said defect is configured in relation to the sale, namely: i) that it concerns real property, ii) that the difference between the fair price at the time of the contract is enormous, that is, that the price paid for the real property is less than half or more than double the fair price, iii) that the legal transaction is not aleatory, iv) that the action for rescission has not been waived, v) that the property subject of the legal transaction has not been lost in the hands of the buyer, and vi) that the action for rescission is exercised within the legal term of four years.
The action for rescission, which is the action by which a contract or obligation can be rendered ineffective, may be brought by either of the parties involved in the legal transaction, since by establishing the condition of "more than double or less than half" of the value of the real property, the legislator sought to provide security and protection to both parties to the legal transaction. Thus, either the buyer or the seller may bring the action: the buyer may exercise this action when he has paid more than double the fair price of the real property, and the seller, in turn, may bring it when he has sold for less than half of said value, such that in the course of the judicial proceeding the existence of this imbalance in the contractual burdens must be proven.
On the other hand, and in relation to the rescission of the contract due to contractual imbalance, the buyer or the seller may request the rescission of the legal transaction, such that if the action is brought by the seller, the buyer against whom it is exercised may complete the fair price with a deduction of one tenth, and when the action is brought by the buyer against the seller, the latter also has the option to accept the rescission of the contract or to return the excess received increased by one tenth.
Another of the elements that the highest judicial instance of the ordinary justice system sets forth in its cassation judgment is the fair price, with respect to which it has stated that this is an element that is measured in relation to the time of celebration of the legal transaction, since this is usually a value at the time of the sale, but at the time of carrying out the action for rescission it may have increased or decreased, also determining that the most suitable means for determining this fair price is technical evidence.
In conclusion, we can establish that laesio enormis is a defect that affects the economic performances of the contract when it concerns real property, and it may affect either of the parties involved in the legal transaction, since it occurs when one buys for more than double or sells for less than half. But in turn, the law contemplates how one can attempt to reach a point of contractual balance through the rescission of the contract, the payment or return of the surplus value or that which is lacking to reach the fair price, all with the knowledge and acquiescence of the other party.