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CONTRACTS INTERPRETATION: BETWEEN LITERALISM AND INTENTION
The paper addresses article 1560 of the Civil Code, concerning the interpretation of contracts. There is a suspicion that this provision lacks application. The paper tackles the issue first by analyzing the provision pragmatic side of language (what is it for?), and then its semantic side (what does this provision mean?). The paper identifies symbolic, techni- cal, conceptual, and interpretative features of the provision under study. Under such framework of analysis, it is emphasized, among other things,
i) the usefulness of the provision to determine what does judges must interpret (not how),
ii) the contribution of the provision to the understanding of what literality stands for in interpretation, and
iii) to focus on the intentional actions of parties –rather than their state of mind– so as to face the hard issue of knowing the intention of the contracting parties.
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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.
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ACQUISITIVE PRESCRIPTION OF CONTINUOUS PREDIAL SERVITUDES OF ANY KIND. RE-INTERPRETATION OF ARTICLE 882 OF THE CIVIL CODE
The doctrine and jurisprudence, in accordance with the provisions of article 882 of the Chilean Civil Code, have traditionally held the impossibility of acquiring discontinuous easements through by acquisitive prescription. This work points out the problems generated by this position as well as the misunderstanding on which is based, from the common law, and afterwards included in the French civil code and in the rest of the nineteenthcentury civil codes who followed the later. Likewise, this paper analyzes the alternative interpretations existing in the comparative law and their possible application in Chile in order to overcome the misunderstanding, notwithstanding the legislative amendments that have allowed the elimination of the error. Finally, in order to avoid the application of a provision which leads to erroneous results, this work proposes a reinterpretation of the article 882 and exhibits its legal basis.
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LAW REPORT: VALIDITY OF AN USUFRUCT FOR NINETY YEARS IN FAVOR OF JOINT-STOCK COMPANY IN CHILEAN LAW
This law report provides an opinion on the following issues: the scope of application of the prohibition established in the final paragraph of article 770 of the Chilean Civil Code to establish usufructs that exceed 30 years; and the possibility of constituting a usufruct for a company for a period of 90 years over real estate. It is concluded that said prohibition established in article 770 is only applicable to corporations and foundations, and not for a joint-stock company; further, that a usufruct constituted for a period of 90 years in favor of a stock company over a real estate is perfectly valid in accordance to Chilean law, especially given that in our law it is possible that there are usufructs for more than 90 years, as well as other figures that allow the use and/or enjoyment of a thing to be transferred for 90 or more years and that have been used in practice without their terms having been considered excessive.
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WELL-BEING: AN CRITERION TO DETERMINE THE BEST INTEREST OF THE CHILD
The concept of the BIC presents doctrinal and judicial challenges in its definition and application. This paper, through a brief literature review and case analysis, argues that the BCI has at least seven uses and that article 7 of Law No. 21.430 can serve as ageneral and supplementary rule. Three cases are examined: one involving a direct and regular relationship, a protective measure and a request for a change of name. In each instance, decisions are made under the ISN, using different rules that allow the BIC to operate in different ways. Article 7 of Law No. 21.430 incorporates rules to ensure that judicial decisions are aligned with the BIC in all matters involving children or adolescents. Regarding the determination of the BIC in judicial reasoning, several standards refer to well-being as a criterion. It is suggested that the well-being of the child involved is a crucial factor. To implement this criterion, the concept of subjective well-being is used, which allows for the application of instruments to measure the well-being of the child and to avoid harmful decisions for the child involved.
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LEASE OF OFFICES AND BUSINESS PREMISES, PANDEMIC AND RENT ABATEMENT
This commentary analyses a recent decision which applies art. 1932 of the Civil Code to the coronavirus pandemic, which is qualified as a “legal defect” that would release the lessee from paying rent. Special attention is drawn to the criteria under which the pandemic is brought under this provision, as well as the fact that the lessee was released for the total amount of the rent and was granted the possibility of withholding the payment while the enjoyment of the leased good was restricted.