Absolute or Relative Simulation? Lawful or Unlawful? Analysis of Supreme Court Judgment No. 1399 of December 21, 2023

Abstract

In the field of legal transactions, juridical traffic is often distorted by the complex figure of simulation, a mechanism capable of obscuring the true nature of agreements and generating intricate legal dilemmas. This article examines a complex case of simulation in which judicial practice once again scrutinizes the legal concepts underlying this phenomenon. This commentary analyzes the causa simulandi and its role in the simulation process —whether as an external, contingent element distinct from the cause of the simulated agreement or as a structural and defining component of any simulation. Consequently, it also explores the lawfulness or unlawfulness of the simulated agreement, with particular emphasis on the specific purpose pursued (causa concreta) in the simulation. Ultimately, the analysis concludes that, in all cases —including the one at hand— the focus should be on the true underlying transaction (negocio disimulado) rather than on the apparent simulated agreement (negocio simulado).