MEDICAL ATTENTION CONTRACT. JURIDICAL NATURE^*
Pedro Alfonso LABARIEGA VILLANUEVA^**

Original Text (Spanish) PDF

SUMMARY
I. Introduction. II. Concept of the contract of medical attention. III. Theories that attempt to explain the juridical nature of the contract of medical attention. IV. Acontractualist hypothesis. V. Theory of the mandate contract. VI. Thesis of the lease of services. VII. Hypothesis of the lending of professional services. VIII. Theory of the lease of work. IX. Thesis of the work contract. X. Thesis of the innominated contract. XI. Hypothesis of the contract sui generis. XII. Theory of the atypical contract. XIII. The mixed contract thesis. XIV. The multiform or proteiform contract theory. XV. Corollary.

"To practice medicine and to cure
does not consist of cutting or not cutting,
to apply a remedy or not to apply it; rather,
it consists of doing these things in a certain manner".¹

I. INTRODUCTION

There is not the slightest doubt that the practice of medicine results in a greatly complex activity, as the practice of any liberal profession can, perhaps because the benefits of the profession or the way in which it is carried out are abundantly variable.

It is also unquestionable that the doctor, in the practice of his profession, can, as any other professional, generate obligatory juridical relations with the recipients of his services. These relations are the ones that normally originate in an agreement of wills or a medical attention contract,² although exceptions exist, as for example, when the patient transitorily lacks his will (e.g. in the case of the unconscious victim), whether it be because he is incapacitated (e.g. the schizophrenic) or because his ability is limited (e.g. someone underage), situations in which the representatives are the ones who put into play their own will or, perhaps, nobody. In this way, a type of management of another’s business becomes concrete, one in which the doctor is the manager.

In fact, a contract cannot exist between the doctor and the hotelkeeper who called him to the bedside of a tourist who suddenly becomes ill in his lodging; nor between the doctor and the witness of an automobile accident who picks up a wounded, unconscious person on the freeway and takes him to the doctor’s clinic. It is evident that the hotelkeeper and the al­truist have acted impelled out of humanitarian reasons, as managers of another’s business or, if one wishes, as tacit attorneys of the person who suffered the acci­dent. They should not, therefore, pay professional fees to the physician, since there is no personal connection whatsoever that unites them to the victim.³

As is evident, the topic to be approached concerning this interesting con­tract is broad. However, it is convenient to emphasize that the agreement of wills between the doctor and the patient should be circumscribed to the hypothesis which proposes that the doctor practices as a free professional in his role as therapist. On this occasion, the topic to be developed refers to the legal nature of this situation. Of course it is not easy:

…to define the contract of medical services, to distill its essential characters and its disinterested obligations, that constitute its effects; in addition the same difficulty exists for other conventions that, likewise, establish themselves in a way normally tacit (for example, with lawyers or architects) and no one ever thought in denying its existence. They can, on the other hand, albeit with difficulty, delimit with much precision the obligations that for the parts engender the contract under study. The principal obligation of the client —we anticipate— will be an obligation of giving (do ut) (honoraries), but the basic obligation of the doctor is not that of giving (health, for example), but of doing (faciat) (what is necessary to obtain it); or, more appropriately, it is not about an obligation of results; rather, it is one of means. It is within this modern category of obligations of means or of diligence —the most, by the way, whose ultimate and fundamental end finds itself outside of the same obligation— where it is possible to place the contractual responsibility of the doctor. It is not so much his obligation to give the ill person health (at least, on some occasions, because ad imposibilia nemo tenetur) as much as to contribute everything that depends on him to be able to give it to him; which results in adding to the classical and elemental conception of the simple obligation of doing, an element of good will, of special dedication, of resolute effort of the one obligated.⁴

II. CONCEPT OF THE CONTRACT OF MEDICAL ATTENTION

Although we will only deal with some aspects of said contract, it is con­venient to have an idea more or less approximate concerning this. We are dealing with an agreement of wills by which a medical profesional⁵ obligates himself to offer his medical services or with medical assistance to the client whereby the client commits himself to remunerate the physician.⁶

De Lorenzo expresses that the medical or medical assistance contract is the one that has as its object a medical benefit, according to the promotion, prevention, restoration and/or rehabilitation of health.⁷

The General Mexican Law of Health describes medical attention as: "the sum of services that are provided to the individual, with the end of protecting, promoting and restoring health" (article 32).

A sentence exists as part of the Court of French Cassation of May 20, 1936, that is now a classic precedent, because of the great transcendence that has had a share in the doctrinal discussion concerning the existence of a contract of medical services, in which it was judged clearly and forcefully:

That between the doctor and the client a true contract is formed that fulfills the obligation for the physician, if not of curing the patient, then that of lending assistance in such a way that it appears to enunciate an ordinary care, if not conscientious and concerned, exempting exceptional circumstances, according to the rules of the practice, and the voluntary violation of this contractual obligation is sanctioned by a responsibility of the same nature, that is to say, a con­tractual one.⁸

An obligated referential frame, then, results since the theory exists that rejected the contractual nature of the lending of medical services, with which we will deal later on.

For its own part, the Spanish Supreme Tribunal recognized the contrac­tual thesis of this contract in the sentence on November 7, 1940 while signaling that: "The contract… broad mold that without a doubt covers superior and very qualified services from which people like doctors exercise the so-called professions and liberal arts...".⁹

With a foundation in the abovementioned, basically one must distinguish two hypotheses:

a) Direct relations between the physician and the client. In this situation, medical attention is granted with a base in an expressed agreement or tacit where both intervene (the existence of a contract is currently admitted by all of the authors and by jurisprudence, but the discrepancy is prominent according to the legal nature).

b) Complicated contractual relations. In this case we should include situations where the physician is the one who contracts his services with a hospital, with an insurance company or other similar hypothesis, while the clients contracts with such legal people in order to receive medical assistance, without detriment of the matrices over its public or private nature.¹⁰

Concerning the most appropriate term used to name the passive subject of said contractual relation, the doctrine still does not find the most pre­cise, since patient is synonymous to "sick person", but it also denotes the one who exercises the virtue opposite of the vice of anger. Sick person is an appellation not very suitable for he who goes to the doctor without ailing from any sort of sickness, although he can believe something else —a subjective sick person—. Client is a denomination that use has limited, perhaps excessively so, to commercial practice as equivalent to a buyer.¹¹

User of health services, the first word multipurpose while the whole phrase is not, employed by the General Law of Health relating to "every person who needs and obtains those who grant the sectors publicly, socially and privately, in the conditions and according to the bases that for every modality are established in this law and other applicable dispositions" (article 50).¹²

After these explanations, it is feasible to use the above-mentioned phrases indistinctly, choosing the most appropriate for each occasion.

It is no less complicated, it turns out, besides, to determine the juridical nature of the contract —of civil right— with which we are concerned today – which regulates the relation between the doctor and the user of the medical services and the rights and obligations of both parts, since throughout its history it has been evolving gradually the with the idea of praise it of erroneous or superfluous aspects.

The matter is polemic, not only for the different theories that doctrine and jurisprudence present, but also for the practical interest that this question presents, since the election of the solution that is adopted will determine the applicable juridical classification.

III. THEORIES THAT ATTEMPT TO EXPLAIN THE JURIDICAL NATURE OF THE CONTRACT OF MEDICAL ATTENTION

Already we have expressed that normally the juridical relation that is born between the doctor and his client arises when he needs his medical services or medical assistance and, by virtue of it, a reciprocal assent is granted by means of the concert of wills. Of course doctrine and jurisprudence have analyzed this establishment; they admit with a character of generality the probability of the existence of a contract in relation described above. However, a series of cases that with some frequency presents us with the practice, which by introducing hundreds of matrices do not fit completely in the ordinary and habitual hypothesis. They are, in my opinion, the source of discrepancy with regard to the juridical nature of medical attention. In regard to this diverse theories have been established. We take this opportunity to review: mandate, lease of services, rendering of professional services, lease of work. Contract of work, nameless contract, contract sui generis, mixed contract, and multifarious contract.

IV. ACONTRACTUALIST HYPOTHESIS

Though this appearance has been abandoned as an object of study, it turns out to be convenient to know argumentations in the measure in which they help us understand the reasoning of other theories.

The French jurists represented by Aubry and Rau are the ones who by denying the contractual character of the relationship doctor-user of the medical services (doctor-patient for others), they support the thesis that argues that the acts that emerge out of the exercise of a literary, scientific or artistic profession cannot be directly motive, object of a contract; consequently he who promised them cannot be civilly bound to fulfill his promise. From this that the commitment contracted by a physician to treat a patient (or by an attorney defending a cause) does not produce against them contractual any contractual action. In such a virtue, the acts of exercise of a literary, scientific or artistic profession —they say— do not constitute either a location of services or even a civilly obligatory contract. The intelligence of the human being —they add— does not live in the trade nor in are the fruits of this intellect. The above-mentioned acts are a gentility of he who offered them, in such a way that the moral sense, as juridical principles, would censure the pretension of he who tried to reclaim damages and prejudices for an failure of the offering or of such a promise.¹³

Now then, the authors themselves accept the obligatory force of the contracts whose object consists of realizing a thing or of producing (opus), despite that the above-mentioned action had a hand in artistic talents; thereby, they consider civilly effective the commitment acquired by a painter to elaborate a painting or by a writer to deliver a work for its publication or representation. Although —according to them— this already is a contract of company or of a work completed. Nevertheless, they grant juridical efficiency to the promise of remuneration agreed in favor of the professional for his valuable acts (operae). Such a promise of remuneration is valid, they say, and obligatory, aside from that its execution can be demanded before the forum.¹⁴

Under all circumstances, this thesis is concreted in double foci: the typical one of the juridical Roman tradition relative to the medical profession and the generic consideration, also of Roman type, that proclaimed "nemo ad factum cogi potest" (Nobody can be bound to act —to realize a certain conduct—). In fact, in Rome, the exercise of medicine at first was underestimated, to the point of considering it to be irreconcilable with the dignity of the citizen, so that practically only the slaves professed medicine, and naturally they did this free of charge; later, while being honored and exalting oneself to the above-mentioned activity it was considered that the physician was providing a friend’s service, in such a way that the generous character of his art manifested itself in the special gratification, "honoso", that is, reward for honor (from here that of "honoraries" or professional fees), just retribution —not counter lending— for his services.¹⁵

This theory, besides being scientifically erroneous, occurs in a dissonant way with the requirements of life today and, precisely because of this, is objected unanimously.¹⁶ Certainly, the physician who develops his profession can, as any another professional, commit himself to his clientele by means of obligatory links, perfectly licit and valid. Today, the doctor cannot be denied the power to live by the practice of medicine; his right to honoraries, as counter lending to his services in the area of a normally onerous contract, such as recognizing that the clientele is also authorized by the same agreement, to demand of the physician the conduct and diligence that he promised to execute.

Variant of the acontractualist thesis

There are those who argue that the obligations of the therapist with his patient come from a professional order whose origin and raison d’être inhabits the law, not a contract. These make clear that the physician is obligated to grant his services to the patient, but if he fails in the exercise of his profession it does not constitute breach of contractual obligation, but a violation of legal and professional obligations. They are based not only on the above-mentioned Roman precedents and in how problematic it results to establish honoraries and the consequent benefit due to the art of healing, but also in the criterion that French jurisprudence adopted —articles 1382 and those following the Civil Code analogous to article 1910 of the federal Mexican Civil Code— to sustain the possible responsibility of the doctors in the performance their activity, almost uninterrupted until the year 1936.¹⁷

But, as already was expressed with discrepant spirit,¹⁸ the existence of a contract having been recognized, it is not understood why, among the obligations that from it are derived, there cannot be the one of respecting professional rules. Even when they precede the contract, they can form part of its content and, consequently, their transgression will imply contractual violation. What’s more, Peytel and Falcimaigne show that the doctor obligates himself, not that currently and previously he finds him obliged, from outside, for the law or the regulation.¹⁹

In Spanish doctrine, basically two are the objections that are opposed to the existence of the contract: a) illegality of the object for dealing with the human body, and b) character of the liberal profession not regulated. With regard to the first one, it is explained that those who speak about the unlawfulness of the contract for dealing with the human body confuse the contractual object that, in reality, is not the human body, but rather, some services granted by a professional and in counter lending the payment of some honoraries. In such a virtue, the human body will be the place where the services that are the object of the contract are carried out, but never directly the contractual object; this obstacle by not having found justification must be eliminated. As for the second objection, it is argued that freedom —which distinguishes the liberal profession— endures in some aspects, as the acceptance or absence of acceptance of the client, and especially in the way the professional operates in his activity; but it is never so absolute that it is not regulated normatively, be it a question of the statutes of the college of professionals or of deontological codes that the minimal duties of the doctors establish.²⁰

V. THEORY OF THE MANDATE CONTRACT

The above-mentioned theory has its origin in Roman law, since the work in Rome was fundamentally executed by the slaves, in such a way that the contracts were rare whose objective element was the presentation of free work.²¹

In effect, in Rome, the art of medicine was introduced towards s. VI b. C., when some powerful families needed the services of skillful Greek slaves in Hipócrates’s art. One must not forget that in the brilliance of Imperial Rome, the patrician families counted on —among their servants— a doctor, a poet, a grammarian, a musician, etc. The freedmen, then, were predominant —during a long time— in the free exercise of medicine, so much so that they achieved great venerability and important fortunes. With the walk of time, the above-mentioned professionals were insufficient to attend to the population, so Julius Cesar invited many free foreign doctors so that they would take up residence in the city. The physicians’ reaction did not take long. Captivated by the canonries, numerous physicians answered to the summons, since not only did they convert into Roman citizens, but they also received honors and privileges, to such a point that the Romans —previously foreign to this office— opted for this profession. Certainly, excesses in the exercise of such an occupation were not lacking, which was acrimoniously censured by Primer "the Censurer" or Plinio "the Naturalist", among others. Nevertheless, the reputation and the prestige of the physicians was elevated with the education of medicine, practiced already under Septimio Severo’s sceptre (193-211 a. C.) and catalogued among the most liberal arts.²²

Now then, the leases in Roman law were of two types: that of the lease of the thing (locatio conductio rei), in which he is the driver who pays the mercy for the use of a thing, and that of the lease of work (locatio conductio operis) in which it is the locator who pays the work ordered by him; both, especially the second one, allowed many varieties. For example, the lease of services is a subtype of the lease of something. It could be about the services of a slave. Here it is not so much the slave himself who is leased as much as his mercenary work. This becomes more ostensible when he is not a slave but instead a freedman who places his services; then it is no longer a question of a hired thing, but of operae locatae (locatio conductio operarum), being the freedman himself the leaser who works, as the slaves do, in exchange for a mercy (mercenarius). Here the remuneration must be proportional to the work produced by the leaser: his obligation is dare operas and is divisible.²³

In this way, the lease —locatio— was a figure appropriate for harboring the benefit of servile works.²⁴ From there all the possible services could be an object of lease, lawful and honest, when they belonged to the category of mercenaries, among who were definitely not found those from the intellectual professions; that is, the ones borrowed by attorneys, doctors, professors, land-surveyors, etc.²⁵

This meant that, on the one hand, to distinguish liberal occupations (operae liberales) from servile ones (operae), where the activity of intelligence and of spirit for not being unusually valuable, they could not constitute the object of an obligatory civil contract, and consequently, it lacked the inexecution of the contracted remuneration.²⁶ They had, then, a different legal regime.

It is from there that the intellectual professionals submitted their activity to the mandate, which was fundamentally free.²⁷ In such a virtue, the doctor lent a service as a friend, as the patient’s attorney,²⁸ in which case the free mandate implied not paying for the medical services. The application of the above-mentioned rule was not as absolute as it could have appeared in principle.²⁹ A procedure was designed then so that the physician, already a free professional, not being a slave, could have remuneration for his activity. The social praxis was imposed and generated the elaboration, by the lawyers, of the distinction between professional fees and mercies.³⁰ This artifice —of aristocratic aspect— permitted that that which was received for the purpose of executing a mandate was never considered as a value of exchange for the service lent —mercy— rather that it was understood as a gratefulness, a recognition, a prize of honor, never as a profit —from there comes that of professional fees—.³¹ Reason why, as we said previously, the occasion did not arise to protest it through the actio mandati contraria.³² Nevertheless, during the classical period, one could already charge said stipends through the per­secutio (actio) extra ordinem.³³ Exception such as this dealing with indispensable professional fees per extraordinariam cognitionem to that classical rule mandatum gratuitum esse debet.³⁴

In sum, according to what was previously stated, it is inferred that the mandate —essentially free— disciplined, in Rome, the professio­nal intellectuals’ activity, while the leasing regulated service work. Concretely, the doctor-client relation was regulated in Roman law as a mandate contract, in which the one mandating was the patient, the representative was the physician, and the commission was reduced to guarding the health of the patient.³⁵

The assimilation to the figure of the mandate has been criticized, with a foundation, by jurist expedients.

The doctrine, complemented by the legislation and on occasion by jurisprudence, finds various reasons to estimate that the mandate contract is not the appropriate one for regulating the relations between physician and client:

a) The mandate only regulates juridical acts,³⁶ while the medical acts are material acts even when they can provoke juridical consequences.

Clearly and specifically, article 2546 of FCC establishes it in this way, in the same way than article 1703 of the Italian CC, not in the same way as articles 1984 of the French CC and 1709 of the Spanish CC. It is from here that the spirit of the legislator, while conditioning the mandate, always refers to juridical acts and matters (administrating, settling, transferring property, mortgaging, putting actions into practice, hiring, acquiring obligations..., etc.), and it does not refer to material acts nor deeds, that are clearly the ones that the physician carries out, considering the mission that in unison is assigned, work that consists of a technical function and not of an exercise of juridical acts.³⁷

b) To catalogue the doctor-client relation as a mandate implies applying the juridical regimen, a part of the above-mentioned contract, this is not congruent with the legal spirit that should be encouraged by the above-mentioned relation.³⁸

In regard to this, it is convenient to examine the reach that article 2562 of the FCC and 1719 of the Spanish CC (paralleling in essence) can have, since its application would lead us to illogical and incoherent consequences. The above-mentioned precepts indicate that the attorney should subject himself to the instruc­tions of the one mandating. Where then was the so boasted inde­pendence that should govern the exercise of intellectual activities? The doctor does not have any reason to follow in his work the indications of the user of his services. This one —Fernández points out—³⁹ cannot in an immediate and concrete way establish the limits of his activity in the technical realm, since he carries out his profession conserving total au­tonomy in the development of his activity because he possesses special knowledge.

In this sense, professional consciousness is the supreme norm that gov­erns those who practice the liberal professions; not only can they adjust their actions to said consciousness, but they are also obligated to do so.⁴⁰

In such a way, neither the representative (the doctor) remains subject to the instructions of the patient (the one mandating), as should be the case according to the law, and therefore without the liberty of following his criteria in the execution of the man­date, because it is precisely the doctor who acts with his characteristic of professional independence and liberty, once a patient admits his therapeutic propositions;⁴¹ nor is the object of the commission in the topic analyzed, is —as was already exhibited previously— the realization of juridical acts; nor much less does it have as an object the management if the businesses of the person mandating with third parties. So the doctor carries out his activity and acts in his own name, although to the advantage of the other as well. In sum, as we already know, the person mandated is normally free; commonly it includes the representation, it follows a juridical result, it requires three juridical relations (the person mandating, the representative and third parties), it has as a cause substitution... all of which is not adjusted to the contract between the client and the physician.⁴²

c) On the other hand, it is inexact that intellectual activity not be sus­ceptible to economically evaluate itself; in addition, freeness is not particular to the actual essence of the mandate, according to article 2549 of the FCC, as much as it can be free it can be onerous; and in last instance, the granting of a mandate implies authorizing the representative to carry it out, on account of the person mandating, a juridical act or a series of acts of this nature (articles 2546 of the FCC; 1869 and 1871 of the Argentinean Civil Code), which, we insist, is not in agreement with the care of the patient nor with the services that the doctor lends.⁴³

d) Another one of the theses emphasizes the essential revocability of the mandate (articles 2595, and particularly 2596 of the FCC), that does not permit the indemnity of the harms and damages if they are produced, which is not the most appropriate nor equitable that occurs in the professional-client relation.⁴⁴

e) One more posture maintains that the sociological substratum that was the base of support for this theory has disappeared. In fact, both professionals dedicated to intellectual tasks as well as those who realize material work deserve consideration.⁴⁵ Let us not forget that it was because of this that Roman law considered said relations as mandate contracts.

Spanish jurisprudence, for its own part, granted —in isolated theses— the juridical classification of mandate to the contract realized by the people who exercise the liberal professions.⁴⁶ Afterwards, the Spanish Supreme Tribunal ratified the above-mentioned resemblance when declaring as a mandate the relation between the attorney and his client; criteria that the doctrine marks out when signaling that one cannot extend to all types of contracts verified by a liberal professional, and concretely a doctor, for the special characteristics of the examined case, and particularly of the realization of services that an attorney can carry out, since his activity is infinitely variable.⁴⁷

In this regard, the criteria of the Mexican federal tribunals has been very explicit when declaring: "between the contract of the lending of services, and the mandate, there are great similarities, that often make it difficult to distinguish when it concerns one of those contracts or another; moreover, not because of this should they be confused, since their legal effects are very different…".⁴⁸

In Mexico, the jurisprudence of the Supreme Court of Justice had been reiterating as applicable criteria the complementariness of the norms of the mandate for the lending of professional services contract; this in support of article 2406 of the Civil Code of the Federal District and Territory of Baja California of 1884, jurisprudence that lost its validity when said article was modified; this occurred while entering into action the new Civil Code of the District and Federal Territories of 1928, where while lending of services contract was regulated (article 2606) the legislator eliminated said complementariness. However, the Supreme Court of Justice maintained said jurisprudence until Appendix 1917-1995, in which a note appears warning that said criteria is no longer valid, since "the current text of the precepts that governs the contract of the lending of professional services (article 2606 of the Civil Code of 1928) no longer remits as complimentary the norms of the mandate, which is the theme of the thesis".⁴⁹

Without a doubt, the spirit of Roman law has permeated at a higher or lower degree the regulation that from these matters contain a large part of the modern Civil Codes, in addition to our own (articles 2546-2604 of the FCC, specifically 2547.2),⁵⁰ the French (articles 1984-2010),⁵¹ the Spanish (articles 1709-1739, concretely 1711.2),⁵² the Italian (articles 1703-1730);⁵³ also the Swiss one about the obligations (articles 394-396),⁵⁴ the German (662-676);⁵⁵ particularly the Chilean is very elo­quent when declaring in its article 2118: "The services of professionals and careers that assume long studies or to which is linked the power of representing and obligating another person in front of third parties, subjects itself to the rules of the mandate".

In sum, the reasons and arguments that have been contributed in order to attribute the nature of mandate to the medical contract are not consistent nor are they therefore convincing. It is clear, then, that the hypothesis of the mandate is today completely surpassed in its old application to the la juridical relation doctor-client. Perhaps, a hypothesis would tolerate the formation of the contract of mandate, for when a doctor, because of absence from a happening, sickness or an analogous cause, temporally entrusts another colleague to take his place and substitute him near his particular clientele, to whom he presents him and insists so that he accepts.⁵⁶ Neither would said hypothesis imply a mandate, since such physician assistance is of material content.⁵⁷

VI. THESIS OF THE LEASE OF SERVICES

A considerable part of the doctrine thinks that the doctor-patient contract is a lease in which a person promises another the lending of services —without considering its result— and this last one promises a remuneration of any type; in our law, a price in money.⁵⁸

In classical Rome three possibilities existed for regulating labor rela­tions: a) work is given to he who solicits in exchange for a remuneration by daily wages or by piece work (locatio conductio operarum); b) turning in a finished work, and being entrusted by another’s account (lo­catio conductio operis), and c) selling a product realized by one’s own account (emptio venditio). The subordinated contract was governed through the contract of lease, since in the transaction said subordination does not present itself to the person for whom one works. In any way, yielding the same energies of work was thought of as something unworthy of a free person. Such appreciation had a great gradation. At the end of the final spectrum there were a series of activities —the liberal arts— that remained, in principle, outside of the frame of locatio conductio and that merited better social consideration. Through them, therefore, a mercy could never be charged, but an economic compensation could be —the professional fees—.⁵⁹ That is why when the mandate admitted remuneration; it degenerated­ in lease of services.⁶⁰

Basing himself on this same line, Enneccerus, in Germany, considered that the contract of the lease of services can have as an object those of any nature, be they corporal or intellectual, of an order more or less elevated, as much as attorneys, doctors, architects and other liberal professionals; all which means that all services given by these professionals should fit in the mold of the lease of services, since "it is not the profession of the obligated one nor the type of service that justifies the rating given to the contract".⁶¹

Now then, it is convenient to clarify that the doctor does not promise to cure the patient; rather, he promises to give the care that his profession indicates in order to facilitate his recovery.

The majority of the Spanish doctrine in this matter coincides in signaling that the relations begun by these professionals in the performance of their activities are, generally, included within the contractual figure of the lease of services that regulates article 1544 of the CC.: "In the lease of work or services, one of the parts obligates itself to execute a work or to lend to the other a service for a certain price". Or a doctrinal concept that broadly permits us major content: "contract by which one of the parts obligates himself to unfold regarding the other determined activity polarized in the work, in exchange for a proportional remuneration at the same level as the time, the quality or the difficulty fo the developed work".⁶²

So then based on what was mentioned above, given that the Spanish Civil Code does not contain a specific regulation of the contract of the lending of intellectual services, it is not an obstacle that the physician assistance fit within the figure of the contract of services lato sensu. The pri­mordial object of this contract is the acting through an ordered series of services that the doctors (as any other professional) is obligated to give in exchange for some honoraries and, of course, conserving an absolute independence.⁶³

On the other hand, one can categorize as complete contracts those in which the person who seeks a professional establishes his problem —of any type of order: a doctor in the case with which we are concerned today, but we can also think of the lawyer or architect— and solicit the professional who attempts to resolve it.⁶⁴

Now then, the doctrine estimates that if the parts do not configure specifically the determined contract as that of work or of services properly said, nothing hinders one in considering contracts of services properly said those in which the work of the professional encompasses the whole resolving process of a problem of juridical order or of medical that urges the lender. In these cases, we can understand that a professional commits himself to realize all that is within his reach to solve the problem and to accomplish, in this way, the end sought by the client, but not to the attainment of the result that the borrower attempts.⁶⁵

Hispanic jurisprudence confirms this tendency from the sentence of October 27, 1899, and the walk of time ratifies this position clearly and openly in posterior sentences that come from prototypes like the one from February 16, 1935. In this sense, it is worth it to recognize the one from June 2, 1960 whose eloquence is manifest and illustrious when declaring:

According to the theory today prevalent in the scientific camp, the relative contract to the exercise of a liberal profession, it is not anything other than a lease of services, since from the point of view of the juridical classification, it cannot have an account more than the constitutive elements of the contract, and these are identical like in the one that has as an object the lending of a material work as in the one whose object is the intellectual lending, and although in an eventual and secondary way the management of the contract of mandate or powers of repre­sentation can be entrusted to the attorneys, in its essence the services of the lawyers as the other people who exercise the liberal professions, they do not constitute more than a mo­dality of which the juridical tradition and our Civil Code call contract of the lease of services, since, according to the Sentence of January 18, 1941: "the ample mold of the contract of lending or lease of services covers without a doubt, the superior services and the very qualified of which, like the doctors, the aforementioned profe­ssions and liberal arts perform".⁶⁶

In front of the hypothesis in which the contractual lending is a technical and professional lending, it becomes evident that the Spanish Supreme Tribunal does not hesitate in classifying this contract of the lease of services.

However, Fernández⁶⁷ criticizes said authority for including the relative con­tracts in the exercise of the liberal professions in the realm of the contract of the lease of services, being that he makes an error, since all of the professionals’ contracts cannot be disciplined under sole criteria, because his action offers very diverse shades and possibilities for enclosing said activity in such a generic triangle.

Those who reject that this theory be applicable to the liberal professionals argue —in addition— that it is the power of the client of a doctor to revoke the contract at any moment, which, they say, does not exist in the lease of services.⁶⁸

Others argue that the contract of the lease of services means a type of subordination of should lend the service to he who orders it, what is not adjusted to the doctor-patient relation, since it would result paradoxical that the patient would submit the professional to his dependence and would give him instructions. So then —according to these authors— the figure being discussed is not adjusted to the reality that the elements compose, the elements that play in the relation between the doctor and his client.⁶⁹

VII. HYPOTHESIS OF THE LENDING OF PROFESSIONAL SERVICES

The Napoleonic Code and the majority of the occidental civil codes, influenced by it, followed the criteria of Roman law when considering the lending of professional services a type of the contract of the lease of services.⁷⁰

But the Mexican regimen, different from those mentioned above, sets itself apart from that imperative tendency when rating such activities as the contract of the lending of professional services (articles 2606-2615).

For Mexican juridical doctrine: "it is a contract by virtue of which, one of the parts, called professionist, through a remuneration that takes the name of honorary, is obligated to carry out benefiting another, who we could call client, certain jobs that requires a technical preparation, and on occasion, a professional title for its exercise".⁷¹

It has been, then, a merit of the Mexican legislator having changed the denomination of these contracts naming them of the lending of professional services.⁷² In this way, they are separated from generality in order to assign them their own regulation.

The foundation and motivation of this change is in the exposition of motives of the Civil Code of 1870 in which the editing committee of such ordering explained that it appeared an attack against human dignity to these contracts of lease, because the lease, it said, should refer to things, and we cannot consider without de­grading man as a thing of work, which is not rentable merchandise, that can be given in lease; rather, that human dignity urges a different denomination for these contracts; and they were called lending of services; the above-mentioned Committee added that this contract resembled the mandate more than it did the one of lease. It expressed: in the contracts of the lending of services, if one wishes the work would be more material; in contrast, in the contract of mandate, it would be more intellectual. In any case it is a matter of degrees.⁷³

In effect, the Mexican Civil Code of 1928, influenced by the ideas of Planiol and Demogue, distinguished the contract of the lending of professional services, as a contract different from a mandate:

Bestowing one and another from a their own special reglamentation, given that in the mandate the object are always juridical acts and the representative acts in his name or at least on account of the person mandating, in such a way that the professionist ordinarily realizes material acts and he does not act in the name of or on account of the client, he simly exercised his profession, as occurs with the doctor who submits a patient to a treatment, with the notary who studies the antecedents of a contract, gives advice to the parts and writes a document, etc.⁷⁴

We consider that this opinion shares the criticisms directed against the theory of the lease of services; among others, the one about the subordina­tion of the professor (doctor, attorney...) to the client (the one who commissions —ar­ticle 2611 of the FCC, caput—), for which said dependence —as was already expressed— does not adjust to the reality that they compose the elements that play in the relation doctor-patient.

Another is the one relative to onerousness that several of the precepts establish as a fundamental element of the lending of professional services (articles 2606 and 2613 of the FCC), which does not always exist in the relations with the physicians.⁷⁵

So then, on the one hand, if lending does not imply onerousness, it does not fit in with the concept that provides the doctrine nor in the notion that one infers from the current legal regulation, since it is not different. On the other hand, there is no reason why the same regulation would have to apply —since one hypothesis is onerous and the other is not— , which is incoherent, because the obligations of the professional are the same, as much for one relationship as for another.

One more refers to the fact that in the rendering of professional services, on occasion one confers to the professor a mandate so that he realize certain juridical acts, as is the case of an attorney to whom is constituted a judicial representative (article 2614 in fine of the FCC) —besides that the special mandate for judgments or certain contentious administrative matters can only be conferred to persons with registered titles (article 26 of the general law of professions)— or to an engineer to whom one grants power so that he carry out certain juridical acts before the authorities or third parties, which is incongruous, particularly with the doctor, since he —without more— performs his profession realizing material acts quotidianly without behaving in name and on account of another.

Also it has already been settled that it is an error to discipline under the same criterion all the contracts of the professionals, because in practice each of them —particularly that of medical services— manifests tonalities that escape an omni-comprehensive model.

VIII. THEORY OF THE LEASE OF WORK⁷⁶

In Roman law —expresses D’Ors— the lease of things or services (whose mercy the conductor pays) is different from the lease of work (locatio conductio operis) in which the leaser is he who pays the mercy for the work whose execution he provides. It is not a question of the quantities of work, but of a work entrusted, that the conductor must deliver finished, concerning a thing that the leaser has placed in his hands with the above-mentioned end. Nevertheless the final foreseen delivery, the obligation of the lease, is to do (facere), and therefore, is not fractionable. The operation of the conductor could be very diverse: to construct, to make, to instruct, to transport, to heal, etc. The contract that used to be made with the doctor seems to be preferentially this one (D. 9, 2, 7, 8: ex locato), although, as we already indicated before, if the doctor was a slave or a freedman, it could be configured as lease of services; if a real retribution was not convenient, rather some professional fees intervened, they were reclaimable as extra ordinem (D. 50. 13. 1, 1).⁷⁷

With this precedent, there are authors who judge that the relation doctor-patient constitutes a lease of work (werkvertrag), which implies thinking necessarily about a result or opus. Those who support this position argue that if in many cases the obligation is about means, it does not exclude the result in surgical, aesthetic, or laboratory cases. In addition, the opus can as much imply the favorable result as on not involved, which will depend on the content of the contract and on of its interpretation.⁷⁸

A clear example of a contract of work in the exercise of medicine is when the professional makes himself responsible for judging and making clear in a document what is the state of health of the person. The placement of dental prostheses is another case.⁷⁹

Also the physician can obligate himself to express an opinion about any medical subject that is required of him; the hypothesis is adaptable to that of the legal judgment.

On the other hand, we can consider that when realizing an operation one promises a first result that is a correct execution. However, one should not forget the limitations that the law imposes on the autonomy of the will: if the professional undertakes to achieve a concrete result, the contract is void for unlawfulness of the object, when it is put at risk —in order to obtain said result— the health, physical integrity or the life of the individual, since in that case the human person is established (res extracommercium) in objective element of the relationship, which is illicit (article 1271 of the Spanish CC).⁸⁰

At this point, we must clarify what we understand as lease of work. It is a question of a contract by means of which one of the parts —the businessman— obligates himself to produce a result of work and another part —the constituent— to pay a remuneration (article 2626 of the FCC), understanding as work any result in producing for the activity or the work, like for example, the production or modification of things, the creation of an artistic or immaterial work. It turns out, then, that the businessman commits himself to carry out a work, that is, an obligation of this result: the opus.⁸¹

In Italian law, while qualifying the relation doctor-patient as a work contract, it is done in a peculiar fashion, since the Italian Civil Code distinguishes, on the one hand, the contracting of projects and services that are designated as appalto (articles 1655 and 1677), and on the other hand, the contract of work, specially the contract of intellectual work (articles 2229-2238) that obviously regulates intellectual professions.⁸²

Indeed, article 2222 understands the contract of work "as that by which a person is obligated to fulfill, in exchange for a retribution of work or of a service, with work being preferredly his own, and without a link of subordination with the principal, applying the norms of this Chapter, except for that the relation have a particular discipline in Book IV".

Three traits are enough for the Italian doctrine⁸³ for typifying the inte­llectual work:

1) Intellectual Character of the lending or that in this one intelligence or the culture predominates at the circumstantial use of the manual work. In such a virtue, the lendings developed by intellectual professionals are intellectual, which are determined by law in relation to the necessary requirements for their exercise. Concretely, the labor of doctors and pharmacists are regulated by the law of February 16, 1913;

2) Discretion in the exercise of borrowing; and

3) Fulfillment of an activity as object of the presentation with independence of the result.

This it is the normal supposition; it is not discarded that the casuistry foresees a result, especially when the delivery of a work is agreed.

With regard to the word result, Messineo⁸⁴ indicates that this must be understood in the sense that this same one consists of the final success of the professional activity and not as if the result has to constitute an economic advantage for the constituent. Such is the meaning, for example, of the cases of legal assistance and of sanitary assistance, also in which there is consequence as much if the controversy is resolved with the relief of the constituent (sick person) as the medical care with the death (or with the recovery) of the same one.

In Belgian law, the jurists show that they must examine the relations between the physician and the client in the frame of a lease of industry or contract of company, regulation which is in article 1.779.3 of the Civil Code as a variety of the lease of work that does not imply subordination. By means of it, and after heated discussions, this system of lease of industry has been imposed among the indoctrinated, with a base in that rule that it indicates: "There exist three classes of lease of work or industry... 3) that of the businessmen of works as a result of adjustments or budgets".⁸⁵

Jurisprudence and some out-standing French doctrine have qualified, from the 19th century, this contract as mandate. Nevertheless, to make changes appear when some French jurists maintain that doctor-client relations are a contract of lease of work; an opinion that is consolidated, being helped by the judgment of the Court of Cassation of July 13, 1959.⁸⁶

Now then, the Mazeaud⁸⁷ indicate that in France the sphere of the lease of works is very wide, since it is not restricted to manufacture and construction, not at least in the cases in which the task is executed on a corporal thing, but it spreads to the purely intellectual work, including, then, the relations of the doctors, attorneys, particular teachers, etc., with his clients. The above-mentioned opinion takes 1710 and 1779 of the French CC as a base. In this respect, owner or client is the one that entrusts the work, contractor who executes it; this one in the special contracts is designated by his profession: attorney, architect, doctor, hotel manager, etc.

In the Spanish juridical regimen, both doctrine and jurispru­dence consider that the doctor-patient relationship as lease of work is an exceptional case, since the general rule —as we already know— is to considerer it as a lease of services. This position takes root in the difference that subsists between such contracts. While in the lease of services one looks to develop an activity, in the lease of work one attempts the useful result of said activity. The ambiguous cases should be considered as lease of services when the result does not depend upon the person who carries out the work. Now then, there are authors who maintain that the services, object of the lease of work contract, do not necessarily have to be material; they can be object of professional services.⁸⁸

For that reason, with the skill of an expert, Gitrama⁸⁹ affirms that it is evident how the division between both types incarnates the paradigm of the modern dis­tinction between obligations of means or of diligence and obligations of results. In these, the debtor commits himself to fulfill, in every case, a determined lending, with the subsequent acceptance of all the risks of the company and with the obligation, if this is the case, of conserving first in order to reintegrate afterward. On the contrary, in the obligations of means, all of the activity of the debtor is directed at obtaining a finality superior and exterior to the contract that connects him.⁹⁰ The debtor finds himself compelled to doing or partially not doing with purposes toward that broader end, but without the obtainment of said end or the failure of it intervening in a definite way in the efficiency of the contract.

Precisely, with a base in what has been exposed, Gitrama himself recognizes that although to certain professionals one can entrust and demand the rigorous fulfillment of a task (to the architect and to the constructor a building, to the engineer and to the constructor a bridge, to the painter a portrait, to the pharmacist a formula), to the doctor one cannot no seriously require the alleviation of a patient. The doctor can never commit himself with certainty to cure nor achieve a concrete and precise result concerning the health of a patient, in a way that not obtaining it would provoke responsibility. In this order of ideas, every act, every medical treatment implies a risky situation.⁹¹

The doctor —we insist— should not obligate himself to reach a certain result as a corollary of the fulfillment by the client of the treatment that is prescribed and even less so, if the patient, more or less veiledly, refuses to obey him. The physician can only commit and obligate himself to offer to the client diligent care, according to his deontological principles and to the information that up until that moment science and perhaps technology provide,⁹² as is the case of the piezoelectric extra-physical lithotripter, modern artifact that through shock waves he disintegrates renal stones.

Therefore, the criterion of assimilation to the locatio operis does not adapt to the essence of the relationship, since the doctor, as we mentioned earlier, is not obligated to cure, rather, to procure the means so that this can happen, which, on the other hand, cannot be made certain nor can even be promised. Occasionally, for example in a reconstructive or aesthetic surgery, the resul­t becomes the protagonist of the situation triggered; neither, in this case, could the doctor assure it completely in the sense that he satisfy the interested one, being able to accept perhaps a type of relative obli­gation of result and not without always handling the principles re­ferred to the means (mechanisms) to achieve it.⁹³

In addition, the subscribers of this thesis confuse the essential results with the chronological results, particularly in cases that are cited in support of the criteria, as are surgical operations: thus, in peritonitis of appendicular etiology, the chronological and material result is the extirpation of the appendix, and the essential, the curing of the patient. Plus if the material result would circumscribe itself within the means that the physician should procure in order to reach the curing, reason by which that terminology proves ambiguous and inadequate.⁹⁴

IX. THESIS OF THE WORK CONTRACT

According to this thesis, juridical relations by which medical professionals (law, architecture, etc.) lend their services should be governed by the work contract, that is to say, as a labor relation.

Bayón Chacón y Pérez Botija⁹⁵ thinks that work in all of its manifestations is a way of life and every agreement concerning it can be framed within the right of work. Arguments such as the socialization of many liberal professions, the constant transfer of intellectuals to the lists of companies, allow us to project that in the future every connection that has as an object the lending of professional services could be considered as a juridical-labor relation. This juridical discipline —adds Bayón himself—⁹⁶ should revolve around the concept of professionality.

This perspective of the laborization of work relations considers that both the liberal professional —employed with a permanent character to the ser­vice of a company— and the person with an office open to the public who does not have said persistence to the nexus, because they deal with cases concerning the lending of services by another’s account, are submitted to a labor relation.⁹⁷

This expansive wave of labor law seems to have waned, since at the present time we witness a backward movement in laborization, with an advance in civil relations of the lending of services, according to what Martín Valverde records.⁹⁸

In comparable legislation, Swiss law, when regulating the contract of liberal professions in article 361 of the Federal Code of Obligations, considers it as a work contract when ordering that to the lending that supposes a special scientific or artistic culture, carried out in exchange of some professional fees, the norms of the work contract will be applicable.

On the other hand, Spanish jurisprudence corroborates in several sentences that the liberal professions are included in the work contract while signaling that the nature of both does not differ substantially. Subsequent criteria lead to delimit said criterion in order to establish that the relation of services of the doctors of social security is a special juridical relation within the contract of work.⁹⁹

On the contrary, the Supreme Court of Justice of Mexico has established in isolated criterion: that not all those who lend a service or receive it remain subject to the laws of work, since the legislator never thought of including the lending of professional services in the work contracts to which constitutional article 123 refers; that in the debates of the Constituent it was declared, in a categorical way, that en said article neither was the work of the lawyers included, nor that of the doctors, nor in general that of other professionals; only the professional will be given a salary when among the service of a company or of an individual as an employee, but not because of the fact that while he exercises his profession he works, but rather because his professional work categorizes him as an employee by an income or a salary.¹⁰⁰

The civilist stance is very clear regarding this, since it deals with a direct and private relation between a doctor and a client; it is doubtless that it should be governed by the Civil Code. Whereas if the physician is obligated to exercise his profession, his intellectual work, totally or partially, exclusively or relatively connected to a public or private organism, it is broadly accepted by the doctrine that it concerns a labor relation.¹⁰¹

Neither does Fernández Hierro agree that a labor connection exists between the physician and the client when wielding as the cardinal reason that the professional relation lacks dependence and subordination, characteristics of it. In addition, he warns that it is impossible to pretend that a professional adapt himself to the technical instructions coming from the client, since this would completely denaturalize his activity.¹⁰²

X. THESIS OF THE INNOMINATED CONTRACT

If the doctor-patient relation does not fit within the lease of work nor in the lending of services nor in any other figure, some authors have catalogued it as innominated.¹⁰³ Thus teach Pont, Garçonnet, and César Bru, for whom it is not possible to include a medical service within a specific contract.¹⁰⁴

Puig Brutau¹⁰⁵ admits how very reasonable the name of innominated is and he argues that a determined juridical relation cannot germinate solely and exclusively from the combined rules around one sole typical figure; as for the others, the rash attempt of comparing at all costs this contract to one of the nominated juridical figures would leave the problem without a solution. For him, the qualification of innominated contract indicates that this is about searching for the most adequate response to each of the established problems.

We can say that innominated contract is the one which does not have a nomen iuris in the system of the law.¹⁰⁶

Now then, the terminology of typical and atypical contracts is replacing this, since what is essential is not to lack a name in the law, rather to not havea particular discipline.¹⁰⁷

Kornprobst¹⁰⁸ refers to how complicated it is to classify the medical contract within the categories foreseen by the French Civil Code. Then, he thinks that said contract belongs to the broad range of innominated ones, constituting a type in its genre, a position that is shared by a vast sector of doctrine and jurisprudence.

The qualification of the relation that we now examine as nominated or non-nominated depends on the conclusion adopted about its juridical nature. If said relation does not fit in any of the contracts regulated by the law, we will face a non-nominated contract.

Now then, the contracts celebrated by professionals can only be considered as non-nominated when they do not fit in any contractual type such as the mandate, the borrowing of services, etc.¹⁰⁹ In this order of ideas —Garçonnet— indicates that the contract that the client reveres with his attorney or doctor is a non-nominated contract fully valid (in French law), which obliges everything agreed upon specifically and tacitly and all the consequences emerging in equity, the use or the law, according to its nature, and to whose execution cannot remove one of the parts without going back on one’s words or enriching oneself at the expense of another.¹¹⁰

Of course, the relationship that in the development of the profession, object under study, goes in concert with those who exert it and the particulars has a specific name in the Mexican juridical ordering: medical attention (article 32 of the Law of Health), in the same way that this happens with the Italian Civil Code of 1942 that speaks specifically of prestazione d’opera intellettuale in its article 2230.

There are those who, in order to refute said denomination, affirm that contractual relationships concerning the lending of professional work are not non-nominated. Rather, their flaw is an excess of names, since they can be qualified as mandates or as leases, whether they be of services properly said or of work.¹¹¹

XI. HYPOTHESIS OF THE CONTRACT SUI GENERIS

Precisely the act of considering this contract as a type in its class of non-nominated contract has provoked some authors to place it as a contract sui generis, with certain peculiarities, and to appreciate that the acts relative to the exercise of the medical profession cannot be included in the parameter of a determined contract, rather, they constitute a new contractual figure with proper substantivity and independent of the contractual molds established in modern legislations of the influence of Roman law and, by consequence, that should be governed by the rules of common law in the matter of obligations.¹¹²

An important French doctrine (Savatier, Malaurie, Aynés, Pont, Garçonnet) qualifies the medical contract as a contract sui generis.¹¹³ One of the first matters that that doctrine raised was to determine the reach that would be given to the locution sui generis.¹¹⁴ From the scientific point of view, Jordano affirms that such a name seems to be an unexpressive term.¹¹⁵ In this sense, without assigning it a relevant juridical connotation, possibly the expression sui generis has been used to refer to the extraordinary peculiarities that are given a place in the lease of medical services, which he affirms is a "contract of a range certainly elevated over the common of the others concerning that the duties of lending of one of the parts fall upon an object as qualified as the human body".¹¹⁶

Nevertheless, there are doctrinarians who judge the expression sui generis contract as approximately equivalent to that of an atypical contract, because this is a more precise word.¹¹⁷ Others, inquirers, warn: is it not instead that the use of such an expression implies the desire to avoid confrontation of the problematic that it establishes?¹¹⁸

XII. THEORY OF THE ATYPICAL CONTRACT

Argentinean authors such as Mosset Iturraspe and Trigo Represas,¹¹⁹ or Spanish authors like De Lorenzo support this opinion. In fact, in Spanish civil law the medical or medical assistance contract’s character is private, personal, consensual, bilateral or plurilateral, informal, normally onerous and remunerative, although it can be free, commutative, of means and not of ends, being able to cover multiple forms: written or verbal, tacit or explicit, direct or indirect, individual or collective, private, public or semipublic. With a base in such characters, De Lorenzo¹²⁰ affirms these deals with a non-nominated or atypical contract, since it does not appear among the ones defined by the Civil Code, as it happens, for example, with the one of transaction, society, etc. Within the lease of services, the one about medical lending can be catalogued as a subtype, although —to tell the truth— it does not appear to have a sole classification, since on occasion it presents itself disguised as a contract of work and others as a contract of creation or enterprise (for example, in surgical intervention); because of this and because of its polifaceted nature, the non-nomination moves toward an atypicality sui generic.

Now then, the doctrinal definitions of the atypical contract revolve around two data: on the one hand, that the juridical instrument mentions the contract, and on the other hand, that it regulate it. Some doctrinarians, when they discard the first, they conceptualize it as "that contract for which the law has not prearranged a particular juridical discipline¹²¹ or like contracts that lack specific regulation".¹²² Also as, "contract that, even having a specific name or juridical denomination perfectly coined and that it is identified in the traffic —as much as for doctrine and jurisprudence, as much as sometimes in certain laws— lacks, however, its own normative discipline, inexistent in special codes and laws".¹²³ Other concepts consider the two notes when defining them as contracts "that lack the legal recognition and normative discipline".¹²⁴

In sum, despite that the behavior of the doctor encompasses multiple possibilities for lending, it is doubtless that in each concrete case its juridical nature can delimit itself, and it this were not feasible, then we could think that this deals with a non-nominated or atypical contract.

XIII. THE MIXED CONTRACT THESIS

This thesis holds that relationships between professionals and their clients should be classified as mixed contracts.

The doctrine judges said contracts as those "in which lendings, stipulations or ‘causes’ of various atypical contracts are mixed".¹²⁵ Or as those in which "within a sole contract of lending elements that belong to different types of contracts come together".¹²⁶

Said idea applied to the medical contract conceives it as a "lending of services contract in which there are elements from various contracts, concretely from the lease of work, from that of services, and from the mandate contract". According to this opinion, there are various elements that combine: that of the lease —without differences between that of work and that of services—, the material obligations arise; of the mandate, the faculty of granted revocation at any moment to the person mandating.¹²⁷

The critique of this position rests, in the first place, in that it does not distinguish the elements of the contract of work from those of services that it understands as convergent in the relationship doctor-client that it examines. Furthermore, it is not clear what the author wished to express with material obligations, since, if this means that such contracts must fall upon objects with objective materiality, that is to say, with physical existence, neither the leasing of services nor of the work are linked necessarily to material lending. And that, despite that the regulation of the contract of work was structured for the construction of material works, nevertheless, today it is accepted that it can also included immaterial goods.¹²⁸

Regarding the mandate, "the faculty of revocation granted at any moment to the person mandating", that Ataz López argues is the distinctive piece that would appear, does not constitute any element of the mandate, since it forms part of the regulation of the same one. So the elements that said author understands as amalgamated cannot be appreciated as such, so that from there one can infer certain relationships such as mixed contracts. What’s more, the doctrine considers that they are the causes of two contracts the one that should merge in a single cause so that one can speak of a mixed contract.¹²⁹

Whichever be the notion that is meant by cause, it is not feasible to hold that causes of two different contracts concur in everyday relationships of professionals like doctor, lawyer, etc.¹³⁰

XIV. THE MULTIFORM OR PROTEIFORM CONTRACT THEORY

This way of thinking emerges in Argentina with Mosset Iturraspe and Deveali,¹³¹ who think that the contract of medical services is polymorphous, since the services that are given can configure more than one contract: location of services or of work, mandate or management of others’ business. This is that the relationships with a professional can disguise different contractual forms.

In Spain, Gitrama and Santos Briz¹³² make reference to this idea when signaling that the nature of the medical contract is variable and proteiform, for the multiplicity of the hypothesis in that it can have its origin and its effects.

Regarding this, we agree with the doctrine when we express that it is possible to affirm that a certain relation is hybrid, in the sense that it can admit diverse contractual forms, according to the circumstances of the concrete case. But it is not feasible to assert that it is a contract with many forms; because the contract, once it emerges, is such or such, one or another, but not various.¹³³

XV. COROLLARY

After examining various points of view about the juridical nature of the contract of medical services, we warn that there does not exist a theory that sufficiently satisfies and imposes itself as definite.

Furthermore, we have proved that one cannot reduce to one single type of contract the activity of the doctor, given the way of exerting the profession and to the great diversity of medical specialties, since it is not easy to conjugate these aspects, to configure a generic one and to raise it with singular character to all of the cases, to all of the variants born of the exercise of the liberal profession, since it would part from an excessive juridical generality and, in consequence, would lack strength, its juridical nature being diluted to apply itself to concrete cases.¹³⁴

In front of this panorama, the doctrine recommends —in order to determine the juridical nature of the contract that occupies us— to analyze with care the concrete content of the juridical relationship with a base in two factors: the form in which the doctor exercises his profession (individual and independent medical exercise; private and dependent medical exercise, and public, dependent medical exercise) and the activity that it realizes in each concrete case.¹³⁵

Our final reflection —perhaps rash and obstinate— inquires if it will be possible to reunite the characteristic elements that the doctrine has provided, and to conform the contract of medical services, or of medical attention, whose own regulation establishes itself in the Civil Code or in the Law of Health, where the directives or fundamental guidelines that the varied shades contemplate that generate the medical services. Offer, of course, of lege ferenda en pro of a nominated contract typical and autonomous. I think that the circumstances are given and the instruments exist, since the object of the medical contract is singular and is clearly determined; the consent is so special because the object upon which it falls is very delicate, since it counts on a specific regulation; the subjects are obviously the sick persons, although on occasion they are individuals not sick people that in order to satisfy certain requirements of administrative character, they should necessarily carry out an exam or a diagnosis, thus they must consult the medical professional, or interview with him for mere prevention purposes; and the obligations of the parts also are clearly determined, although the casuistry has the capability of blending them.

Notes
* Translated by Diana Hernández Holtzman.
** Researcher at the Legal Research Institute.
1 Aristoteles, Ética a Nicómaco: "quemadmodum mederi et sanere non est secare aut non secare, medicamento purgare aut non purgare; set sic affectum haec preaestare".
2 Kornprobst (Contrat de Soins Medicaux, Pais, 1960, number 27) denominates it facultative assistance contract; while Forges and Seuvic (Hospitalité, Paris, 1983) as medical contract. A large part of Spanish doctrine qualifies it as medical services contract; in fact, that is how Fernández Costales, J. titles his book, El contrato de servicios médicos, Madrid, Civitas, 1988. In this sense, the Spanish Supreme Tribunal, through the sentence of October 23, 1989 has considered, "…that to determine the authentic nature of a contract the reality of its content should prevail, manifested by the acts realized in its execution , concerning the denomination that the parts of formalizing it by writing attribute to it". The cursive writing is my own.
3 What is more, all interference in the matters of another, in principle —illicit— ‘culpa est inmiscere se rei ad no pertinent’ Pomponio exclaimed (fr. D., 50, 17); that is to say, all interference in the matters of another is illicit; in any case, the urgency would justify it even if he intervened surgically to the collapsed, without his consent, if he is found unconscious.
4 Gitrama González, M., "Configuración jurídica de los servicios médicos", en varios autores, Estudios en Homenaje..., Valladolid, 1965, t. I. p. 334.
5 The idea of professionalism here does not have legal implications; nevertheless, it is illustrative to know that it exists, when a person commits to a determined activity in his modus vivendi, that is to say, that through the realization of said activity it gains the economic means for his survival and that of his family. In sum, it is important to be capable of generating economic resources realizing a certain activity; but to have the intention is more so, or the enthusiasm, of truly and effectively employing said aptitude as a means of personal subsistence. Cfr. Alonso Pérez, M. T., Los contratos de servicios de abogados, médicos y arquitectos, Barcelona, J. M. Bosch, 1997, p. 35.
6 "It is a contract by virtue of which a medical professional, by means of a remuneration that takes the name of professional fees, obligates itself to lend to a patient services of medical attention, limited to the environment of the preparation that the professional possesses"; cfr. in Casamadrid Mata, O. R.. La atención médica y el derecho sanitario, México, JGH eds., 1999, p. 43.
7 Lorenzo, A. de, El contrato de prestación de servicios médicos, cited by Fernández Cos­tales, op. cit., note 2, p. 65.
8 "Il se forme entre le médicin et son client un véritable contrat comportant pour le practicien l’engagement, sinon bien évidemment, de guérir le malade, du moins de lui donner des sois non pas quelconques, mais conciencieux, attentifs et réserve faite des circonstances exceptionelles, con­formes aux dones acquises de la science; la violation, méme involuntaire de cette obligation contractuelle, est sanctionée par une responsabilité de même nature, également contractuelle"; Arrêt de la Cour de Casation francesa, May 20, 1936, Recueil periodique de jurisprudence de Dalloz, 1936, t. I, p. 88.
9 One can see also the sentences of the Spanish Supreme Court on April 17, 1952, January 22, 1930, February 4, 1940, etcetera; particularly the sentence on May 20, 1986, mentioned by Fernández Costales in Law 1986. The emphasis is our own.
10 It deals with suppositions that cannot be contracted which we support fully. See Fernández Costales, op. cit., note 2, p. 20.
11 Gitrama González, M., op. cit. note 4, p. 334; and Fernández Costales, op. cit., note 2, p. 110, who supports Gitrama’s opinion.
12 Article 51 of the above-mentioned classification is necessary: "the users will have a right to obtain opportune health benefits of suitable quality and to receive professional and ethically responsible attention, such as respectful treatment worthy of professionals, technicians and aids". The italics are my own.
13 Aubry y Rau, Cours de droit civil français, 4th ed., Paris, Imprimerie et Libraire Generale de Jurisprudence, t. V, paragraph 371 bis, p. 388.
14 Idem.
15 Gitrama González, M., "Configuración jurídica de los servicios médicos", en various authors, Estudios de derecho público y privado..., Valladolid, Universidad de Valladolid, 1966, vol. I, p. 341.
16 Idem. They support the acontractualist thesis: Mignon, M., "Le fondament juridique de la respon­sabilité civile des médicins et chirurgiens", Recueil Dalloz periodique et critique de jurisprudence de legislation, et de doctrine, 1950, p. 121. In France, they are opposed: Demogue, Traité des obligations en general, Paris, LAR, 1923, t. VI, num. 181; Josserand, Cours de droit civil positif français, 3rd ed., Paris, LRS, t. II, num. 490; Mazeaud-Tunc, Tratado teórico y práctico de responsabilidad civil, 5th ed., trans. by Luis Alcalá-Zamora y Castillo, Buenos Aires, EJEA, 1962, t. I, vol. II, num. 508; Planiol-Ripert, Tratado práctico de derecho civil francés, Habana, Cultural, 1927-1945, t. VI, num. 524; Savatier, Traité de la responsabilité civile, 2nd ed., Paris, LGDJ, 1962, t. II, num. 775.
17 Article 1382 of the French Civil Code is the starting point of extracontractual responsibility, in general by illicit acts: Tout fait quelconque de l’homme qui cause à autrui un dommage oblige celui par la faute duquel il est arrivé à le rèparer.
18 Mazeaud, op. cit., note 16, num. 206, p. 2; Planiol-Ripert, op. cit., note 16, num. 532.
19 Peytel, A., La responsabilité medicale, Paris, 1935, p. 21.
20 Fernández-Hierro, Responsabilidad civil médico-sanitaria, Pamplona, 1983, pp. 20 and 21.
21 Schulz, F., Derecho romano clásico, trans. by Santa Cruz Teigeiro, Barcelona, Bosch, 1960, p. 520.
22 Bonet Ramón, F., "Naturaleza jurídica del contrato de mandato", RDP, Spain, 1941, p. 161.
23 D’Ors, A., Derecho privado romano, 3rd ed., Pamplona, Universidad de Navarra, 1977, paragraphs 500 and 509.
24 Fernández Barreiro, A. and Paricio, J. (Fundamentos de derecho privado romano, 2nd ed., Madrid, Centro de Estudios Ramón Areces, 1993, p. 364) express: "reasons of a social type circumscribe the susceptible services of this contract to jobs of a material or of a service type, excluding that of intellectual nature or the ones of the liberal professions".
25 Hernández Tejero, J., Lecciones de derecho romano, Madrid, Publication Service of the Law Faculty of Complutense University, 1993, p. 364 (the italics are our own); Longo, G., word: "Mandato. Diritto romano", NDI, t. X, p. 105. Leaser was the one who was obligated to provide the thing or the work —qui locat opus faciendum— conductor the one who must carry out the work. In this was way the leaser is the one who pays the mercy and the conductor is the one who receives it, Ulpiano, L. 13, paragraphs 5, 6, 10 d., locat, XIX, 2; Petit, E., Tratado elemental de derecho romano, translation from the 9th French ed. by Ferrández, Mexico, Ed. Nacional (reimp.), 1971.
26 The authors that first denied that the acts derived from the exercise of a literary profession, scientific or artistic, could directly constitute the object of a contract, later they granted juridical efficiency to the promise of remuneration made in favor of the professional for its inestimable acts. Such a promise of remuneration is valid, they said, and obligatory, and its execution can be judicially followed; idem.
27 Iglesias, J., Derecho romano. Instituciones de derecho privado, 9th ed., Barcelona, Ariel, 1985, p. 452. Paul expressed; "The mandate is null, if it is not free because it brings its origin of diligence and friendship [amicitia romana]: retribution is contrary to diligence, because when money intervenes it comes closer to lease and conduction [locatio-con­ductio]", D. 17.1.1, 4. "If because of remunerating he mediated gratification there will be mandate action", Ulpiano, D. 17, 13, 1, 6.
28 Ihering (El fin en el derecho, trans. by Diego Abad de Santillán, Puebla, Cajica, 1961, nums. 55-58) shows that in Rome, as in all of the towns —and among individuals— of primitive civilization, there was a crude idea about work; only the corporal type deserved retri­bution, since it consisted in a sensible act translated into a palpable result. Intellectual work was not work, because it does not require effort nor suffering, and while not exhausting the individual, it does not confer the right to claim a salary. Translated, as it is, in the lawyer’s advice, prescriptions of the physician, explanations of the professor, it is also rewarded with words —"May God pay you"— but without giving anything. Because of this —explains Ihering—, in Rome it was considered avarice to be paid for intellectual performance. The one that was paid was manual labor, and because of this it was so despised.
29 Bonet Ramón, F., op. cit., pp. 55-57, cited by Alonso Pérez, M. T., op. cit., note 5, p. 63. See also Savatier, Jean, La profession liberale. Etude juridique et pratique, Paris, LGDJ, 1947, pp. 26 and 27.
30 Bonet Ramón, F., Naturaleza jurídica..., cit., previous note.
31 The concept of professional fees is opposed to that of salaried; a distinction that currently is irrelevant in the sense that both are indispensable; Alonso Pérez, M. T., op. cit., note 5, p. 63.
32 Iglesias, J., op. cit., note 27, p. 414. The action of mandate could be interposed by the attorney against the one mandating, in order to demand precisely the fulfillment of the normal obligations originated by the mandate contract (D. 17, 1, 5, 8.10.27; G. 3, 161. I. 3.26, 8.13; C.4.33.16.).
33 Amirante, L., word "Locazione", NDI, t. IX, p. 994. It dealt with an extraordinary Roman procedure that since the emperor Dinclesiano was transformed into normal or ordinary, of which a magistrate knew from beginning to end (D.50.13).
34 Arias Ramos, Derecho romano, Madrid, 1947, pp. 392 and 393.
35 Gitrama González, M., op. cit., note 15, p. 347; Alonso Pérez, M. T., op. cit., note 5.
36 One can consult De Diego, Instituciones de derecho civil, Madrid, 1959, t. 11; Sierra, P., word "mandato", Nueva Enciclopedia Jurídica; García Valdecasas, "La esencia del mandato", RDP, Spain, 1944; Sánchez Medal, R., De los contratos civiles, 3rd ed., Mexico, Porrúa, p. 256; Lozano Noriega, F., Contratos, 2nd ed., Mexico, ANNM, 1970, p. 435.
37 Fernández Costales, op. cit., note 2. In this sense the Mexican Supreme Court of Justice was pronounced, qualifying the distinction between juridical acts and material ones as essential difference. Isolated sentence. SJF, t. XXXVII, Ritzau Kurt, February 28, 1933, p. 1214.
38 Ibidem, p. 39.
39 Idem.
40 Lenel, "El mandato retribuido", RDP, Spain, 1928, pp. 369 and 370.
41 Does the physician perhaps need to accept the indications of the client in his treatment? Should he render accounts? Does he have a right to the reimbursement of the expenses and to the indemnification of the damage that he could suffer for the exercise of his profession? It is evident, then, that the principles of the mandate would here provoke certainly absurd results; ibidem, p. 70. The doctors —says De Diego— are not representatives of their clients, because they do not do for that reason any juridical act, rather that they lend their ministry and their services taking advantage of the other; De Diego, op. cit., note 36, p. 128.
42 Gitrama González, M., op. cit., note 15, p. 351.
43 Yungano et al., Responsabilidad profesional de los médicos, 1st reprint of the 2nd ed., Buenos Aires, Universidad, 1982, p. 90. "The mandate is a contract by which the representative is obligated to carry out on account of the person mandating the juridical acts that he entrusts him" (articles 2546 of the Argentine CCF and 1869 of the Argentine CC). Malaurie, F. and Aynés, L. (Cours de droit civil. Les contrats speciaux, Paris, Cujás, 1994/1995, pp. 277, 288) consider that Roman freeness of the mandate marks the actual regulation of the same one and they say that by its nature —not by its essence— it is free; they admit a commercial mandate that is onerous, and to which the rule of free revocability does not apply.
44 Fernández-Hierro, op. cit., note 20, p. 26.
45 Gitrama González, M., op. cit., note 15, pp. 349 and 350.
46 Sentences from February 22 and June 14, 1907.
47 Fernández Costales, op. cit., note 2, p. 38.
48 SJF, t. XXI, p. 886. ACD, González y González, Ernesto, September 24, 1927.
49 Cfr. appendix to the SJF, 1917-1995, t. IV, thesis 742, civil matter, p. 542. The appendix to the SJF, 1917-1988, confirmed what was said in article 2406 of the Civil Code of 1884; cfr. thesis 1041 and 2256.
50 Zamora y Valencia (Contratos civiles, Mexico, Porrúa, 1981, pp. 182 and 190) thinks that said precept confuses the mandate with the lending of services contract, because it requires that the person to whom the communication is directed, offer to the public the exercise of his profession, which should have been situated in the chapter that regulates the lending of professional services. Sánchez Medal (op. cit., note 36, p. 282) comments, furthermore, that the Mexican Civil Code of 1870 considers that the lending of services in general was more similar to the mandate, because of this he regulated it immediately afterward, without dedicating dispositions in particular to the lending of professional services. While the Mexican Civil Code of 1884 considered the lending of professional services as a type of mandate, and it ordered that the regulating dispositions of the mandate functioned as complimentary of the lending of professional services contract (article 2406). It was until the Civil Code of 1928 where both contracts had their own special regulation. And where the dispositions relative to the mandate ceased being complimentary to the lending of professional services. The two last lines are our own addition.
51 Troplong considers that the French Civil Code receives the doctrine of the Roman lawyers of considering the services lent by liberal professionals such as mandate; De l’echange et du louage, Brussels, 1841. p. 232. In the same sense, Baudry-Lacantinerie, Traité theoriqué et pratique de droit civil, 3rd ed., Paris, 1907, p. 187.
52 In positive Spanish law, the definition that article 1709 of the CC gives of the mandate and still the exception to the principle of freeness consigned in article 1711, 2nd paragraph, seem to authorize —because of the vagueness of their defining terms— the doctrine so arduously held by Troplong. The vagueness and lack of precision of the concept that the Spanish CC offers, permits one to perfectly enframe the services lent by liberal professionals. Besides that the presumption of the cumbersomeness of the mandate was introduced precisely in order to include in the figure of the mandate the services lent by the above-mentioned professionals, who —in another way— had to be considered as innominated contracts; Alonso Pérez, M. T., op. cit., note 5, pp. 165, 166 and 167.
53 Ruggiero, R. de, Instituciones de derecho civil, Reus, t. II, vol. 1, 1977.
54 Said precept expresses —in the 2nd paragraph— that all of the lending of services that are not regulated by the norms of another contract are submitted to the mandate. Therefore, —according to what Thelin, M. H. teaches in La responsabilité civile du médecin, Lausana, 1943, p. 17— the rules of the mandate play the role of masterful-key-joker, for lack of other particular dispositions. It is an operative pretext that permits us to enframe in a flexible juridical dizziness the obligations of the doctor and the dentist; Gitrama González, M., op. cit., note 15, p. 348.
55 The BGB maintains the freeness of the mandate.
56 Gitrama González, M., op. cit., note 15, p. 351.
57 Fernández Costales, op. cit., note 2, p. 40.
58 Article 1493 of the Argentine Civil Code says: "there will be lease, when two parts are obligated reciprocally, one to... lend service; and the other to pay for this... service, a specific price in money". Article 2606 of the Mexican Federal Civil Code points out: "The person who lends and the one who receives professional services, can fix, in common agreement, retribution owed by them". Colin y Capitant, Curso elemental de derecho civil francés, Madrid, Reus, num. 703, 1981; Bonet Ramón, "El mandato retribuido", RDP, 1935, p. 397; see Fernández Costales, El contrato del arquitecto en la edificación, Madrid, 1977, pp. 98 and ss.
59 Gómez-Iglesias Casal, Ángel, "De la locatio conductio al contrato de trabajo", Civitas, num. 70, March-April 1995, p. 182.
60 De Diego, op. cit., note 36, p. 129.
61 Enneccerus, Derecho de obligaciones, 3rd ed., Barcelona, Bosch, 1948, vol. II, 1st part, p. 458. Thus, the BGB declares in its paragraph 611.2 that they can build the object of the lease of services contract, services of all type, which is interpreted as protector under said rubric of the contract that binds clients to superior professionals (lawyers, doctors, private professors).
62 Bonet Ramón, "Naturaleza jurídica…", cit., note 58, p. 397; Gitrama González., M., op. cit., note 15, pp. 366 and ss. The French law from April 19, 1951 that would regulate the exercise and organization of the professions of doctor, surgeon, dentist and midwife, likewise leaves room for a glimpse of the thesis of the lease of services.
63 Blanco Soler, RCI, 1943. p. 654.
64 Alonso Pérez, M. T., op. cit., note 5, p. 156.
65 Idem. It is from explored law that the obligations that the doctor contracts are of means and not of results.
66 Sentence cited by Fernández Costales, El contrato de..., cit., note 2, p. 46. The cursives are my own.
67 Idem.
68 Ataz, cited by Alonso Pérez, M. T., op. cit., note 5, p. 68.
69 Yungano, op. cit., note 43, p. 91.
70 Sánchez Medal, R., op. cit., note 36, p. 282.
71 Lozano Noriega, F., Contratos, 2nd ed., Mexico, Ed. Luz, 1970, p. 485. In the same sense, Sánchez Medal, op. cit., note 36, p. 283.
72 Idem.
73 Idem.
74 Sánchez Medal, op. cit., note 36, p. 282. In the same sense, jurisprudential criterion 742 —not in force— of the Mexican Supreme Court of Justice; cfr. Appendix to the SJF, 1917-2000, p. 542.
75 The payment of professional fees is the principal obligation of the client, which prescribes two years after the date in which professional services were no longer lent out (article 1161-I of the FCC).
76 The foreign right is a mosaic of denominations. The lease of work or industry for France and Belgium; contract of a company, according to Switzerland; contract of work for Germany. Diversity reigns, then, in the denomination, while not in the characterization.
77 D’Ors, A., op. cit., note 23, paragraph 509.
78 Yungano, op. cit., note 43, p. 92.
79 Fernández Costales, op. cit., note 2, pp. 93 and 94. Gitrama González, M., op. cit., note 15, p. 357; Durry, G., "La nature de l’obligation du dentiste qui realise une prothèse", RTDC, 1974, pp. 160 and 161. In the BGB they specifically apply these guarantees of the contract of another, when this concerns the technical elaboration of a dental prosthesis.
80 Alonso Pérez, M. T., op. cit., note 5, p. 159.
81 Yungano, op. cit., note 43, p. 93. Demogue, op. cit., note 16, t. V, num. 1237.
82 Ibba, "Professioni intellettuali e impresa", RDC, num. 4, Italy, 1982, pp. 353 and ss. In the Italian Civil Code, the acontract of intellectual work is a type from the autonomous work genre. See book V, title III.
83 Cited by Fernández Costales, El contrato de..., cit., note 2, p. 48.
84 Messineo, Manual de derecho civil y comercial, Buenos Aires, EJEA, 1971, t. IV, p. 241.
85 Fernández Costales, El contrato de..., cit., note 2, p. 48.
86 Among others: Planiol and Ripert, op. cit., note 16, t. Xl, p. 21; Baudry Lacantinerie and Wahl, Traité theorique el pratique de droit civil, Paris, 1908, t. XXIV, num. 379; Colin y Capitant, op. cit., note 58, t. II, num. 1085; Laurent, Los principios de derecho civil francés, Puebla, 1914, num. 333.
87 Mazeaud, Lecciones de derecho civil, trans. by Alcalá-Zamora y Castillo, Buenos Aires, 1962, t. IV, p. 322.
88 Lacruz Berdejo, Elementos de derecho civil, t. II, vol. III, p. 183; Ballesteros, Sistema de derecho civil, Madrid, 1983, vol. II, pp. 462 and 479; Albaladejo, Derecho civil, t. II, vol. III, p. 220.
89 Gitrama González, M., op. cit., note 15, p. 353.
90 In this sense see Marton, G., "Obligation de résultat et obligation de mohines", RTDC, 1954, p. 516. Mengoni, "Obligazione di risultato e obligazione di mezzi", RDC, 1954, pp. 188-190.
91 Gitrama González, M., op. cit., note 15, p. 354.
92 Ibidem, p. 355. In this sense, a part of the Argentine doctrine (Alsina Atienza, Busta­mante Alsina, Bueres) thinks that the placement of work does not necessarily imply the attainment of a result, when the opus —they say— does not have a certain result (treatments of patients with a reserved prognosis) what is promised is the diligent execution of the work, but not the reestablishment of health: Achaval, A., Responsabilidad civil del médico, Buenos Aires, Abeledo-Perrot, 1983, p. 220.
93 Yungano, op. cit., note 43, p. 93. The cursives are my own.
94 Idem.
95 Bayón Chacón and Pérez Botija, Manual de derecho al trabajo, Madrid, 1970, vol. I, p. 29.
96 Bayón Chacón, "Del contrato de trabajo al contrato profesional de servicios", in various authors, Catorce lecciones sobre contratos especiales de trabajo, Madrid, 1965, p. 371.
97 Alonso García, Curso de derecho del trabajo, Barcelona, 1985, p. 303.
98 Valverde, Martín, "El discreto retomo del arrendamiento de servicios", Cuestiones actuales del derecho del trabajo, Madrid, 1990, p. 214. García Oviedo (Tratado elemental de derecho social, Madrid, Espasa, 1948) expressed that the "work contract is the old lease of services contract socialized".
99 Generic sentence is the one from February 3, 1961; relative are the ones from December 4, 1980 and September 17, 1981, and very particularly the one from November 19, 1973. The last one is qualified as atypical labor relation.
100 SJF, t. XXI, García J., Cristóbal, September 3, 1927, pp. 671, 1223; in the same sense: t. XXV, Moreno Sánchez, F., April 26, 1929, p. 2257.
101 Gitrama González, M., op. cit., note 15, p. 361. The Mexican Supreme Court of Justice has considered that the same individual can, on the one hand, lend professional services to a company and, on the other hand, have with the same company a labor relation. He calls this the duality of the lending of services; cfr. t. CX I, Manuel Larrauri Ibarrola, February 13, 1952, p. 1099.
102 Fernández-Hierro, op. cit., note 20, p. 31. The Mexican Supreme Court of Justice mentions the direction and the dependency of the worker as characteristics of labor relations; cfr. t. CX, Gremio Unido de Trabajadores del Rastro, Empleados de Carnicerías y Similares de Tampico, October 3, 1951, p. 134.
103 Article 1143 of he Argentine Civil Code indicates that, "the contracts are nominated or innominated, depending upon whether the law designates them or not, under a special denomination".
104 Pont, Des petits contrats, t. I, num. 825; Garçonnet and César-Bru, Traité théorique et pratique de procedure, t. I, p. 53, cited by Fernández Costales, op. cit., note 2, p. 61.
105 Puig Brutau, Fundamentos de derecho civil, Barcelona, Bosch, 1985, t. II, vol. II, pp. 433 and ss.
106 Jordano Barea, J. B., "Los contratos atípicos", RGLJ, 1953, p. 59.
107 Castán Tobeñas, J., Derecho civil español común y foral, t. III: Derecho de obligaciones, 16th ed., Madrid, Reus, 1992, p. 467.
108 Idem.
109 In this sense, Savatier, J., La profesion liberale. Etude juridique et pratique, Paris, LGDJ, 1947, p. 215.
110 Garçonnet, Traité théorique et pratique de procedure civil, 1912, t. I, num. 255, cited by Gitrama González, M., op. cit., note 15, p. 232.
111 Alonso Pérez, M. T., op cit., note 5, p. 171.
112 Fernández Costales, op. cit., note 2, p. 63. In the same sense, Lesage P. et al., Éléments de responsabilité civile médicale, le droit quotidien de la medicine, Québec, Yvon Blais Eds., 1995. p. 14.
113 Savatier, "Responsabilité medicale", Juris classeur de la responsabilité civile et des assurances, t. IV, XXXA.
114 Malaurie, F., Cours de droit civil. Les contrats speciaux, Paris, editions Cujas, 1994-1995, p. 23.
115 Jordano Barea, J. B., op. cit., note 106, pp. 59 and 60.
116 Gitrama González, M., op. cit., note 15, p. 373.
117 Alonso Pérez, M. T., op. cit., note 5, p. 72 (note 47).
118 Gitrama González, M., op. cit., note 15.
119 Mosset Iturraspe and Trigo Represas, Responsabilidad civil del médico, Buenos Aires, Astrea, 1979, p. 104. Trigo Represas, Responsabilidad civil de los profesionales, Buenos Aires, Astrea, 1978, p. 75.
120 De Lorenzo, cited by Fernández Costales, op. cit., note 2, p. 65.
121 Cicu y Messineo, Trattato di diritto civile e commerciale, vol. XXI, t. I; Messineo, F., Il contrato in genere, 1st reimprint from 1973, Milan, pp. 683 y ss.
122 Castán Tobeñas, J., Derecho civil..., cit., note 107, 1993, t. IV, p. 15.
123 F. Rivero Hernández cited in Lacruz Berdejo, J. L. et al., Elementos..., note 88, 1994, t. II, vol. I, p. 514.
124 Diez-Picazo, L., Fundamentos de derecho civil patrimonial, Madrid, 1993, t. I, p. 360.
125 Alonso Pérez, M. T., op. cit., note 5, p. 73.
126 Diez-Picazo, op. cit., note 124, p. 73.
127 Ataz López, J., Los médicos y la responsabilidad civil, Madrid, Montecorvo, 1985, pp. 146 and 147.
128 Alonso Pérez, M. T. op. cit., note 5, p. 171.
129 Messineo, op. cit., note 121, pp. 702 and 703; Jordano Barea, "Contratos mixtos y unión de contratos", ADC, 1951, pp. 321 and ss.; Castro Lucini, F., "Los negocios jurídicos atípicos", RDN, July-December 1974, p. 16. Particularly concerning the cause, Castro y Bravo, F. de, El negocio jurídico, Instituto Nacional de Estudios Jurídicos, 1971, pp. 257 and ss.
130 Alonso Pérez, M. T., op. cit., note 5, p. 172.
131 Mosset Iturraspe, op. cit., note 119, pp. 104 and ss; Deveali, "Naturaleza de los profesionales y sus clientes", La Ley, Buenos Aires, num. 35, pp. 713-719.
132 Gitrama, "Configuración…", cit., note 15, p. 37; Santos Briz, "La responsabilidad civil de los médicos en el derecho español", RDP, 1984, p. 666.
133 In that sense, see among others, Alonso Pérez, M. T., op. cit., note 5, p. 170.
134 Fernández Costales, op. cit., note 2, p. 68.
135 Idem.