Search Results
Search Results
-
ILLEGAL UNDERINSURANCE AND CONTRA PROFERENTEM INTERPRETATION OF THE INSURANCE CONTRACT
This decision of the Corte de Apelaciones de Coyhaique is relevant from two points of view: on the one hand, it determines that the “replacement value” of the insured thing instead of its real value cannot be agreed as a parameter to determine a situation of underinsurance and the application of the Proportional Rule, as this would infringe the meaning of the mandatory rule of art. 553 of the Chilean Commercial Code. On the other hand, it constitutes an opportunity to appreciate a situation of incompatibility of clauses, a field of application of the rule of contractual interpretation contra proferentem. In both cases, the court considers the protection of the insured as paramount in determining the meaning of insurance law.
-
ABOUT THE SANCTION FOR UNFAIR TERMS IN CONSUMER LAW
This article examines the sanction applicable to unfair terms in Chilean consumer law, in light of a recent decision of the Supreme Court (Case No. 34713-2023), which classified as unfair an acceleration clause contained in a mortgage loan agreement. The judgment is of particular interest as it expressly resolves the doctrinal debate concerning the nature of the invalidity provided for in Article 16 of Law No. 19,496, holding that it amounts to absolute nullity. The article sets out the facts of the case, systematises the main doctrinal positions on the sanction for unfairness, and reviews the evolution of case law on the matter. Finally, the authors argue that the solution adopted by the Supreme Court is only partially correct, although it is commendable insofar as it is grounded in existing law: it recognises the public policy character of the control of unfair terms and allows for a coherent integration of the Consumer Protection Act with the general regime of nullity, without resorting to de lege ferenda constructions.
-
EXCEPTION CLAUSES IN ARGENTINE PRIVATE INTERNATIONAL LAW, WITH SPECIAL REFERENCE TO HISTORICAL AND COMPARATIVE ASPECTS
This paper examines the exception clauses in Argentine Private International Law, which were given legislative form in the Civil and Commercial Code in 2015. It identifies the comparative sources on which they draw and traces their origins, since our working hypothesis concerns their current operation and projected use by legal practitioners. Methodologically, the study relies on comparative case law, in light of the scarcity of domestic decisions. The article provides a structured analysis of the proximity principle and the exception clause, addressing their relationship, content, and scope, and proposes a typology. Building on their characteristics, comparative assessment, and the relevant scholarship, it advances proposals for their application. Among statutory models, Swiss law serves as a primary reference, and, in our view, the Belgian Code offers the most precise and modern formulation. The clause’s exceptional character is linked to outcomes that would otherwise be manifestly arbitrary or unsuitable for the case; it should be invoked only when necessary.
-
STANDING TO SUE OF THE PUBLIC PROSECUTOR’S OFFICE TO CLAIM ABSOLUTE NULLITY IN THE INTEREST OF MORALITY OR THE LAW
Among the subjects entitled to request the declaration of absolute nullity of an act, article 1683 of the Civil Code mentions the public ministry. This legitimation presents two interpretative difficulties; the first one, that the former can act “in the interest of morality or the law”, which is usually opposed to a pecuniary interest; on the other hand, that the latter has evolved in terms of organic structure, content and powers. Given these difficulties, two theses can be put forward; the first, aims to conclude that the Public Prosecutor’s Office has lost such powers; the second, which this work defends, is that it maintains them. For these purposes, the modifications experienced by the Public Prosecutor’s Office are analyzed and arguments are made to give practical use to said article.
-
DUE DILIGENCE ACCORDING TO THE UNGP: ANALYSIS OF ITS UTILITY TO DETERMINE THE DUTY OF CARE INFRINGEMENT ON THE CIVIL LIABILITY JUDGMENT
Considering that Chile does not have an exhaustive Due Diligence law or regulation in accordance with the UNGP, the purpose of this paper its to identify connection points between UNGP’s Due Diligence and the violation of a duty of care needed to establish civil liability. We argue that UNGP’s Due Diligence is useful to the civil court to rule the case, since it allows to specify diligence criteria to establish a duty of care infringement such as foreseeability, control of the activity and intensity of the impacts; through UNGP’s impact typology and its severity and control parameters, constituting a framework that conceptualizes what implies a human rights risk or what is dangerous to human rights, within companies or business holdings activities. The analysis of UNGP’s utility is proposed under the International Human Rights Law obligation to protect human rights falling under the civil jurisdiction, considering the problem posed by national doctrine and case law regarding how to determine what is foreseeable, what is under control, as well as what is dangerous, in order to be able to attribute civil liability.
-
NATURE OF THE NULLITY OF UNFAIR TERMS IN CONTRACTS WITH CONSUMERS OR MICRO OR SMALL ENTREPRENEURS. ON THE CONSISTENCY AND FUNCTIONALITY OF THE REGIME OF ABSOLUTE NULLITY CONTEMPLATED IN THE CIVIL CODE
This article, after briefly exposing the two main theses about the nature of the nullity contemplated in Law No. 19,496 regarding unfair terms, examines whether the regime of absolute nullity exhibits the dysfunctions accused by a certain sector of the doctrine. An attempt is made to show that all objections to the consistency and functionality of the application of said regime are defeatable and that they do not justify the construction, through interpretation, of a special regime. It is postulated that the regime of absolute nullity, correctly understood, is not only functional, but is also more protective than an alleged, incomplete and uncertain special regime.