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Search Results
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Latent defects and the claim for damages for professional negligence under art. 1861
This work analyses a recent decision which declared the liability of a seller of a highly complex product, the defects of which were not timely identified. Special attention is drawn to the possibility to claim damages pursuant to art. 1861 independently from the aedilitian remedies, as well as the impossibility of excluding the rules on latent defect through the aliud doctrine. Moreover, this commentary critically approaches the analysis of negligence of the seller in view of his professional qualifications.
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LA CESACIÓN UNILATERAL DEL CONTRATO DE OBRA PREVISTA EN EL ART. 1999 INC. 2° DEL CÓDIGO CIVIL
El art. 1999 inc. 2° del Código Civil faculta al mandante de la obra para hacerla cesar anticipadamente, reembolsando al artífice los gastos y dándole la utilidad que le habría reportado de haberse ejecutado completamente. No obstante, tratarse de una disposición con orígenes en Robert Pothier y el Código Civil francés, presente en la mayoría de los códigos herederos de esta tradición, no abundan en nuestro país comentarios doctrinarios ni jurisprudencia reciente que permita ilustrar el supuesto de hecho y la naturaleza de sus efectos. -
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.
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ARTICLE 1698, PARAGRAPH 1, OF THE CHILEAN CIVIL CODE AS A BLANK RULE: THE BURDEN OF PROOF AND THE JUDICIAL DISTRIBUTION OF THE BURDEN
This paper analyzes art. 1698 paragraph 1 of the CC, and in particular the consideration of this as the rule of burden of proof applicable to specific cases that require the application of a rule of distribution of the burden of proof and trial. The study shows that the precept in question does not have that scope, and that it is ultimately a blank standard. This could only acquire a real operational meaning if it is integrated with the requested legal effect, which is the criterion that allows the types of facts and the need for proof of them to be singled out in each case, essential elements for the application of the distribution of the burden of evidence and the rule of judgment. That is, it is the reliable way to answer the key question: who has to prove what?
Having established the above, this paper addresses the issue of the need to clarify the normative distribution of the burden of proof with judicial adjustments through three specific instruments, which raise the difficulty of discerning whether, strictly speaking, they are phenomena that are located in the evidentiary formation or whether they represent means to modify the distribution of the burden of proof in specific cases. -
INDEMNITY CLAUSES AND THE IMPLICATIONS OF THE PROHIBITION TO CONDONE FUTURE MALICE IN ECUADORIAN CIVIL LAW
Indemnity clauses are agreements that are frequently inserted in contracts between sophisticated parties. They have been imported into civil systems because they are effective tools for risk allocation and future contingency mitigation. One of their categories is the covenant by which the beneficiary remains indemnified from damages caused to third parties, even if they have acted with fraud or gross negligence. However, Article 1481 of the Ecuadorian Civil Code prohibits the remission of future fraud. Based on this, the validity of this type of clause has been questioned for supposedly falling under such prohibition. This paper examines whether indeed the stipulation entails forgiveness of future fraud or, on the contrary, if both figures have elements that differentiate them from each other. In this way, the possibility of accepting the validity of the clause will be proposed.
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DUSTING OFF THE CIVIL CODE. ABOUT SERNAC’S EXECUTIVE RESOLUTION ON THE INCORPORATION OF DELIVERY DATES OF REAL ESTATE PROJECTS IN OMMUNICATIONS PRIOR TO THE SIGNING OF PURCHASE AND SALE PROMISES
Sernac’s Executive Resolution No. 277, issued on April 21, 2025, addresses the inclusion of delivery dates for real estate projects in communications prior to the signing of preliminary sales agreements. This article offers acritical analysis of the interpretative ruling, highlighting both its strengths and its conceptual ambiguities and normative limitations. It examines the legal nature of SERNAC’s circulars and rulings, their limited normative scope and legal effects, as well as the contractual consequences of breaching preliminary real estate agreements. The discussion also considers the role of Chilean civil law and, in particular, the application of Article 1554 of the Civil Code in promises subject to indeterminate conditions. The article concludes that, although the ruling reinforces certain valuable consumer protection elements, Sernac has missed a meaningful opportunity to clarify –more precisely and with greater technical rigour– the scope of real estate suppliers’ obligations.