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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 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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APPLICABILITY OF THE CHILEAN CONSUMER RIGHTS LAW TO THE INFLUENCER’S PUBLICITY
This document presents a critical appraisal regarding the application of the Chilean Consumer’s Rights protection Law (No. 19.496) to the so-called “opinion leaders” commonly known as influencers. To that end, the consumer relationship is described in its purest form, constructed between the supplier and the consumer, where the first one provides goods or services to the second, with the peculiarity that, in the object of the analysis, the consumer got seduced or -better yet- influenced by the actions of the “opinion leaders”. The author proceed to examine specific consumer rights applicable to this topic, such as the right to be free to choose (article 3° letter a); the right to a truthful and timely information (article 3° letter b]) and the ones related to prevent a correct false advertising (article 28). Subsequently, supported by the review of national and international legislation, authors and case studies, the document continues to configure specific obligations for the suppliers and influencers to comply according to the standards of their professions and its duties as the stronger part of the consumer relation that allows to assign civil or infractional responsibility, as appropriate. Finally, the document concludes exploring the actions prescribed by the law for nonobservance or non-compliance with said analyzed obligations.
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THE SCOPE OF SAFETY DUTIES’ BREACH IN MASS EVENTS: A VIEW FROM CONSUMER LAW
This paper aims to delve into the scope of safety duties’ breach by mass events organizers. Considering that massive shows’ trend is becoming more common in Chile and they represent a source of potential risk for attendees, this research analyzes mass events from a consumer law perspective. While being a topic omitted by Chilean doctrine, this paper focuses on the relationship between mass events and the consumer protection law, pointing out the specifications related to mass events’ safety duties. Furthermore, this article put the emphasis on the actors involved (legal and material consumer as well as the intermediary and real supplier) and the contract which confirms this relationship. The breach of safety duties’ scope gains importance when analyzing the diverse liabilities depending on the type of supplier. Finally, the means of exoneration for suppliers are exposed.
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MANUFACTURER VS. SELLER LIABILITY UNDER ARTICLE 23 OF THE CONSUMER RIGHTS PROTECTION LAW
This paper will examine the current state of the system of product liability in Chile. In absence of law that regulates the fabricant’s liability, will discuss the general rules of the chilean private law. In lack of treatment in a civil case law on the subject, as there are product liability judgments, will investigate whether through the consumer law would be possible to pursue fabricant’s product liability. The hypothesis of this work is that under article 23 of consumer law it is possible to reach the joint responsibility of the manufacturer and seller.
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The business behind death. Park cemeteries as non-traditional financial suppliers
This article presents a commentary about the decisión of the 3rd Local Police Court of Maipú, confirmed by the Supreme Court, in which, after analyzing various elements of the promise of sale that the consumer contracted with a cemetery, it was determined that the business was, actually, similar to a leasing, and included the provision of a financial product, being possible to apply rules of Law No. 18.010 in conjunction with Law No. 19.496.
Although this qualification allows greater protection to the consumer against what may be considered a hidden financial product, the concept of “direct credit” allows a better explanation of the contract, allowing to understand that the operation carried out is a money loan, but it’s granted in a fictional way to the consumer.