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Search Results
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IS IT POSSIBLE TO APPLY THE ECONOMIC ANALYSIS OF CONTRACT LAW AND CONSUMER LAW?
This article aims to justify the application of the L&E, both to Chilean contract law and consumer law, through the principles of good faith and consumer protection, respectively. This work highlights the application of the principle of efficiency as a relevant criterion in contract matters, and above all, in relation to consumer law. Although the justification for the application of the L&E to contracts and consumer law is the same, its application is different. In this way, the L&E would be applied to contract law through the principle of good faith, or the theory of general clauses, recognizing the principle of efficiency as a contractual principle, and to consumer law through the principle proconsumer.
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THE NOTION OF NON-NEGOTIATED TERM AND ITS IMPORTANCE IN THE EFFECTIVE APPLICATION OF INCORPORATION AND FAIRNESS CONTROLS
The concept of a non-negotiated term is examined as a fundamental concept in the task of delimiting the objective scopes of application of incorporation and fairness controls. It is argued that the defining characteristics of a non-negotiated term are contractuality, pre-disposition and imposition. It is specified that, if generality is added to the aforementioned characteristics, the regarding non-negotiated term may also be qualified as a standard term. Within the framework of the treatment of the characteristics of non-negotiated terms, aspects in which national jurisprudence has been erratic and which have had an impact on the protection of the adherent are clarified. In particular, it is clarified that the predisposition alone is a sufficient indication to presume that there has been no possibility of negotiation; it is also clarified that the mere fact that certain data is filled in by the client or that the client can choose between different terms which one, specifically, will govern the contract, does not imply a transformation of the chosen term into one negotiated individually, much less does it imply the entire transformation of the contract into one freely discussed.
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GOOD FAITH AS LEGAL NORM
Good faith in Contract Law has the form of a general clause. Its application presupposes a delegation to the judge of a power to determine in particular cases the specific content of the legal duties or the legal effects implied in a contract. In order to carry this task forward, the judge must assess all the circumstances specific to the case in light of the values and purposes to which good faith points at. Its application, therefore, presupposes the exercise of a delegated but strictly directed power, aimed at specifying the meaning of the good faith standard. The need for such a standard stems from the lack of exhaustivity of the norms of Contract Law. Thus, good faith allows alleviating the unsatisfactory results brought forth by a formalistic application of the Law of Contract and also giving due consideration to the changes in economic and social circumstances which were unforeseeable to the legislator. In this sense, good faith fosters a coherent application and a development of Contract Law that is consistent with its foundational goals and values.
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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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EXPANSION AND LIMITS OF OBJECTIVE GOOD FAITH – WITH REGARD TO THE “PROYECTO DE PRINCIPIOS LATINOAMERICANOS DE DERECHO DE LOS CONTRATOS”
Good faith is a legal concept in ongoing expansion, as the text of theProyecto de Principios Latinoamericanos de Derecho de los Contratos indicates. However, the vague limits of this notion demand caution when applying it. This article describes the main functions fulfilled by good faith in modern legal systems by considering their recent historic evolution, and suggests the limits which should be observed when laying it down in the law and applying it in legal practice, in order to avoid its abuse.