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Shares sell agree d by an apparent director of a non-profit corporation
The paper analyzes a judgment of the Court of Appeals of Antofagasta that seller, a non-profit corporation, acted through directors whose election was later annulled in an electoral proceeding. The corporation, together with one of its members, argued that the contract lacked the will of the seller, and that its object was unlawful, because it violated a judicial prohibition to agree contract on the shares, which, however, at the time of the lawsuit had been revoked. The analysis presented in this commentary critically supports that judicial decision, based on the treatment corresponding to the acts entered by apparent directors and the scope of the nullity that derives from the violation of a judicial prohibition to enter into acts and contracts.
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FORFEITURE CLAUSES AS A MANIFESTATION OF A PARTY’S POWER TO TERMINATE A CONTRACT
The treatment afforded to resolutory clauses by Chilean legislation is limited to their express incorporation into forfeiture clauses inherent in purchase and sale agreements. Such little regulation, coupled with the limited use spared to them by Chilean legal scholars, much like the codifier did, trans- lates into a narrow application to cases of contract non-performance.
That is why, by resorting to such historical background, books of au- thority and case law as may be relevant, this paper aims to determine the legal nature of forfeiture clauses and how they operate in order to better their use as a contractual remedy in the interest of unpaid creditors.
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Non-existence and simulation
This comment analyzes the position of the Supreme Court, that consists of ruling the non-existence of a simulated sale of inheritance rights. In this sense, it is reviewed if non-existence has a place in the Civil Code, and if this is the sanction for simulated contracts.
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INSURABLE LIABILITY UNDER CHILEAN LAW
This paper is aimed at reviewing synthetically the kinds of liability which can be insured in domestic law, thereby outlining a concept of “insurable risk” for this particular form of insurance. For this purpose, the first section expounds the types of liability which are not insurable or which are generally excluded from the most commonly used policies (fines, contractual obligations, penal clauses, and liability for breach of contract under certain circumstances). The second part contains a detailed analysis of the forms of tort liability which can be insured in Chile (for own deeds, for another’s acts, for the facts of things, and strict liability).
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CONSIDERATIONS ON THE BAN ON FORFEITURE OF PROPERTY FURNISHED AS SECURITY (PACTUM COMMISORIUM) CLAUSES AND PACTUM MARCIANUS EXCEPTIONS THERETO
The prohibition of the Comissory pact is one of the most ancient institutions in private law of guaranties, who’s origin goes back to roman law. The study of the regulations that establish it demonstrates that its juridical discipline does not properly express its dogmatic fundaments. Furthermore, the prohibition of lex commisoria, purposed to prevent the creditor from taking advantage of its debtor and conceal usurary loans, does not compare to the absolute prohibition of the Comissory pact ex intervallonor of its similar, the Martian pact. Once the loan contract has been celebrated, the risk is displaced to the creditor, therefore the protection of the debtor’s interests through this instrument is no longer justified.
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INTERNATIONAL SALE OF GOODS: THE OBLIGATION TO RENEGOTIATE IN THE CASE OF SUPERVENING CHANGE IN CIRCUMSTANCE
The paper analyzes the obligation to renegotiate a contract in the case of hardship or supervening change in circumstance from the perspective of the uniform law of the Vienna Convention on Contracts for the International Sale of Goods and specifically the application of the Unidroit principles on International Commercial Contracts contained in Article 7(2) of said convention on the integration of those principles. The paper concludes that such an approach is appropriate and serves as an attractive option for domestic Chilean law in this field.