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THE INEFFICACY APPLICABLE TO THE ACTS CARRIED OUT BY THE REPRESENTATIVE WHOSE MANDATE HAS EXPIRED AND THE PROTECTION OF THIRD PARTIES IN GOOD FAITH
This commentary contains a critical review of a decision by the Supreme Court about the kind of inefficacy applicable to contracts carried out by an agent whose mandate had expired. The Court concluded that the absolute nullity for lack of will should be applied, and not the unenforceability of the acts. At the same time, this commentary analyzes the omission in the decision regarding the application of the protection of good faith of third parties which is contained article 2173 of Civil Code. Finally, some projections are made about the place that the nullity and the unenforceability occupy inside of a general theory of ineffective contracts.
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THE PRINCIPLE OF PROPORTIONALITY IN PRIVATE LAW: A GENERAL APPROACH AND A PARTICULARIZATION FROM A CONSUMER PROTECTION PERSPECTIVE
The principle of proportionality, rooted in ideals of balance and reasonableness, is challenged at the legal level given its equivocal formulation. In public law, it is generally referred to as limiting the State’s discretion and protecting the rights of individuals through a threefold examination of adequacy, necessity, and proportionality in a strict sense. Such an analysis cannot be simply transferred to private law, either because it could end up eroding the logic of private autonomy, or because relations between private individuals cannot be qualified by the extent to which public policies affect fundamental rights. On the contrary, an evaluative weighing of the rights assigned to each party must be carried out, whether this exercise is done ex ante by the legislator, or ex post by the court. Hence, it is proposed that, unless there is an express or implicit redirection to the constitutional meaning of the principle, the balance between the rights of individuals must be observed in the light of criteria that are proper to private law, such as accepted good behavior (boni mores) and good faith. For these purposes, it is also postulated that in consumer law only a particularization of these rules can be observed, but this does not detract from the fact that their basis can be observed in other private law relationships, where there is a weakness of one of the parties, so that the principle of proportionality, based on ideas from the private law sphere, also serves as a corrective element.
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ON THE ADVANTAGES OF LIMITING THE EFFECTS OF THE DIVIDE BETWEEN DUTIES TO ACHIEVE A SPECIFIC RESULT AND DUTIES OF BEST EFFORTS ON THE ROLE AND BURDEN OF PROVING THE DEBTOR’S FAULT
The distinction between duties to achieve a specific result and duties of best efforts has given place to important uncertainties in Chilean law, particularly regarding the role and burden of proving the debtor’s fault. In part, these uncertainties are a consequence of the difficulties in reconciling the idea of duties of best efforts with the limit that Chilean law imposes between obligation and liability for breach of contract. After reviewing the position of case law and legal scholarship in this regard, this paper suggests that the recognition of duties of best efforts in Chilean law does not require to accept its alleged consequences in the role and burden of proving the debtor’s fault.