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THE PRICE OF DECLARING THAT THE PRICE HAS BEEN PAID (ART. 1876 OF THE CIVIL CODE)
This commentary analyses a recent decision which held that, if the parties at the sale declare that the price has been paid, the seller will not be able to prove that he did not really receive the price. The decision relies on the wording “no proof will be admitted against this” of art. 1876, which is deemed applicable to the relationship between the parties inasmuch as it would bear witness to the evidentiary value of public instruments laid down in art. 1700. The commentary criticises this decision, since art. 1876 grants certain consequences to the clause that the price has been paid only regarding third parties, as can be seen not only in the wording of this article, but also in the sources which inspired it. The commentary also criticises the evidentiary value which the decision grants to public instruments, as well as the practical consequences which this brings along for everyday commercial practice.
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JURISPRUDENTIAL ANALYSIS OF THE ANNULMENT ACTION BASED ON A RECOGNITION ERROR IN THE GENETIC CORRESPONDENCE WITH THE CHILD
The principle of biological truth is established as a founding principle of the filiation Chilean system. However, nowadays the preponderance of the coincidence between legal filiation and genetic correspondence between father and son is being questioned. This article aims to reflecton this topic regarding the figure of recognition. Exploring, in particular, what the jurisprudential answer has been regarding the possibility to cancel this act when the one who recognizes paternity alleges that he has incurred in an error discovering, afterward, that the child is not biologically his. Finally, a critical balance is presented, proposing to understand in a restricted manner the scope of the annulment action based on a recognition error, which will have to fulfill certain requirements to prosper. In the instances in which the action is denied, the filiation will stand, despite not being based on biological truth, so that recognition operates as an exception to this principle. This is justified by the purpose sought by the institution, which determines that genetic correspondence is not, in all cases, a quality of the son that possesses relevance to vitiate consent.
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BASES FOR A CHILEAN LAW OF UNJUSTIFIED ENRICHMENT, TOWARDS THE ABANDONMENT OF A UNITARY APPROACH
This article, after formulating a general critique of the prevailing approach in the national doctrine regarding unjustified enrichment, makes a schematic reconstruction of the Law of unjustified enrichment and presents a typology of cases that give or should give rise to restitution actions. Several archetypal cases of unjustified enrichment are identified and the differences of the corresponding actions are exposed with regard to their functions, requirements and restitution measures. After outlining the legal regime that the Chilean Civil Code associates with each archetypal case, it is proposed that the non-regulated cases be assimilated to those that are, in order to apply the most appropriate rules to them. Finally, it is proposed to abandon the unitary approach that has prevailed in the national doctrine and move towards a study of the particularities of the archetypal cases of unjustified enrichment, so that the unregulated cases are assimilated to those that are, applying to those the rules that are most appropriate.
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THE ASSESSMENT OF THE FINANTIAL CONSUMER’S SOLVENCY AS A MANIFESTATION OF CONSUMPTION SAFETY AND ITS IMPACT ON THE CIVIL LIABILITY OF THE BREACH LENDER
This paper analyzes and reflects on the civil liability of the lender in case of breach of the duties circumscribed to the solvency assessment of article 17 N of the Consumer Rights Protection Act. To this end, the paper studies the nature of the duties established in the norm in its connection with consumer safety duty, and from there, determines the civil liability regime applicable to the case of non-compliance and the scope that this presents in some elements of the respective civil liability.
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UNFORESEEN CONDITIONS IN LUMP SUM CONSTRUCTION CONTRACTS AND ITS APPLICATION TO THE WORKSITE
Rule 2 of article 2003 of the Chilean Civil Code enables the contractor to request a revision of the contract price when unforeseeable circumstances cause increased costs. This paper revisits the norm in light of certain general legal principles in order to challenge the extension and legal foundation that it has traditionally been attributed with. This work also offers certain parameters that guide the renegotiation process between the parties or the determination of the price increase by the tribunal, when applicable. This work concludes with a review of the clauses most commonly used to alter the rule’s effects, as well as the convenience of their inclusion. The mentioned rule has been analyzed by adopting unforeseen site conditions as the base case, since it is a recurring cause for relevant disputes between the parties in the construction industry.
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THE SYSTEM OF DAMAGE-LIMITING CLAUSES: INVENTORY AND PERSPECTIVES
Liability provisions in contract law have led to feverish debate in France. Initially, French law granted validity to provisions limiting or excluding liability even while barring such applications in the case of malicious intent or gross negligence. however, on October 22, 1996, the situation changed when the commercial division of the French Cour de Cassation handed down its ruling in the Chronopost case.
This article will review the current status of clauses restricting damages, the recent application of Chronopost jurisprudence and perspectives for the future of such provisions.