最高法院:在建设合同中,若你的行为容忍了违约,则原定期限并不确定迟延 — Cubillos Lama
Contracts

最高法院:在建设合同中,若你的行为容忍了违约,则原定期限并不确定迟延

最高法院认定,发包人对承包人违约的容忍会产生合同期限的默示延长,因此迟延仅自发包人表明其终止合同意图之时起算;据此,在所分析的案件中,迟延确定于2021年11月,而非2020年1月,并建议记录任何违约情形并订立清晰的延期条款,以避免未来诉讼中的风险。

Contracts2026-01-22更新日期:2026-06-25作者: Joaquín Cubillos Macaya
分享邮件WhatsAppLinkedIn

Supreme Court: in construction contracts, the original deadline does not set the default if your conduct tolerated the breaches

If your company has construction, work-execution, or service contracts with agreed deadlines, this judgment affects you directly. The First Chamber of the Supreme Court (Docket No. 40,168-2025, November 5, 2025) established that the principal's tolerance of the contractor's breach generates a tacit extension of the deadline, and that the default does not begin from the original expiration of the contract, but from the moment the principal expresses its will to terminate. The point is no small matter: in the analyzed case, that difference determined the calculation of the entire loss of profits.

What it may mean

A construction contract signed on September 6, 2019 set a deadline of four months, expiring on January 6, 2020. The contractor delivered only 4 of the 6 agreed works. As of November 12, 2021, the works remained unfinished.

The principal sued for resolution of the contract and compensation for damages. The courts upheld the claim and ordered the contractor to pay $12,500,000 for consequential damage, $7,208,994 for loss of profits, and $5,000,000 for moral damage. But the principal was not satisfied: it sought to have the default counted from January 2020 —and not from November 2021— in order to raise the compensation quantum.

The Court rejected that argument. The principal's own behavior for almost two years, accepting progress and keeping the contractual relationship in force, generated a tacit extension of the deadline. Retroactively dating the default to January 2020 would have meant disregarding its own acts. The start date of the default was set on November 12, 2021, when the principal unequivocally expressed its will to dispense with the contractor.

The appellant invoked an infringement of art. 1551 No. 1 of the Civil Code —which regulates default when there is an express deadline— together with other rules on evidence and contractual liability. The Court did not enter into the merits: it determined that the tacit extension was a fact established by the trial judges, outside the scope of cassation, unless an effective violation of the rules regulating evidence was proven. It was not proven.

What you can do

If you are the principal or contracting party in construction or works projects, the most immediate risk is one of evidence and documentation. Tolerating breaches without leaving a written record of reservations, protests, or conditions is equivalent, for judicial purposes, to accepting that the deadline was moved. Communications of deadline extension or reservation of rights are not formalities: they are what allow you to maintain that the default began on the original date and not on a later one.

Does your works team leave a written record every time it accepts progress past the deadline? Request a review of your protocol of reservations and works communications before your conduct sets the default date.

Three concrete actions:

  1. Review the construction or service contracts in force to verify whether they have clauses that expressly regulate the extension or its waiver. Many contracts are silent on this point, which leaves the determination of the deadline to the conduct of the parties, exactly the scenario of this ruling.
  2. Implement a documentary-management protocol for breaches: emails, works minutes, reservation letters. If the contractor does not comply and you keep paying, coordinating, or receiving progress without protesting, that conduct may be read as tacit acceptance of a new deadline.
  3. If you are in an active construction lawsuit and the default was established by the trial court, assess with your lawyer whether the facts underlying that determination were correctly proven. Cassation on this point has a very narrow space, but not a non-existent one: it requires identifying the infringed rule with precision, not just disagreeing with the assessment.

If any of these points raises questions —the extension clauses, the documentary protocol, or an ongoing lawsuit—, a 30-minute diagnostic session is enough to size up your gaps. Schedule here.


If you want to review your construction contracts in light of this ruling or assess the risk in ongoing litigation, schedule your consultation with Cubillos Lama


This content is informational and does not constitute legal advice for a specific case.

Link to the ruling: Supreme Court Docket No. 40,168-2025

这项法律动态是否影响到您的企业?

让我们探讨如何为您提供帮助。

联系我们 →

不错过任何法律动态

直接在您的邮箱接收我们的快讯。

订阅 →