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The implications of the integrating function of good faith with respect to the obligation to deliver in the contract of sale: subversion, restriction and warranty
In light of an obiter dictum issued by the Supreme Court regarding the scope of the seller’s obligation to deliver, this work seeks to determine the legal implications of integrating, through the principle of good faith under Article 1546 of the Civil Code, the obligation to transfer ownership in the contract of sale. The central thesis is that such integration, as proposed by the Court, subverts the general rule concerning the scope of the seller’s obligation, restricts the regime of eviction, and transforms the obligation to deliver into one of warranty.
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ABOUT START RUNNING OF LIMITATION ACTIONS FOR BREACH OF CONTRACT
The enforceability rule to establish the computation of the extinctive prescription period constitutes the general rule in the law of obligations.
Its traditional interpretation assumes it as a simple matter, the exception of which is the obligation subject to a term or condition precedent. The existence of the credit and the action for its execution or fulfillment constitute the essential trace for its understanding. However, as will be demonstrated in this work, this understanding is not satisfactory, at least in its traditional understanding, to set the time of the prescription of the indemnity action derived from breach of contract. It will be reasoned and concluded that the indemnity action for breach of contract will not apply without the manifestation of the damage.
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THE SOUNDNESS OF FREE WILL AS A FUNDAMENTAL PRINCIPLE OF CHILEAN CONTRACT LAW
Faced with the question of the foundations of the binding effects of contracts, the free will principle dominates the Chilean dogmatic analyses as the cornerstone of contract law. Despite its ascendancy, this traditional approach hides methodological and substantive tensions that ultimately compromise its ability to comprehend contemporary contractual practice correctly, especially as it seeks to account for contract law as a whole. In this regard, this paper pursues a double objective: to expose these tensions from a dogmatic perspective and to explain in what sense the methodological commitments this approach assumes require, at least, reconsideration. -
THE EVENT GIVING RISE TO CONTRACT NON-PERFORMANCE AND SECTION 1547 OF THE CHILEAN CIVIL CODE
By merely construing the sections in our Civil Code and, in particular, Section 1547 thereof, Chilean legal scholars point out that the event giving rise to contract non-performance, that is to say, one of the factors to establish contract liability, arises upon the presence of two elements: failure to fulfill an obligation due and the fact that such failure hails from fraudulent or negligent conduct on the part of the debtor, the debtor’s negligence being an essential element of contract liability. Throughout this paper, we intend to show that contract liability as set forth in the Civil Code may arise in the absence of the second element, that is to say, without fraud or negligence on the part of the debtor, and that, therefore, the scope of application of Section 1547 of theCivil Code is limited to the failure to fulfill certain obligations to perform an act only, which means that it is not general in nature. As a result, depending on the type of obligation, the Civil Code provides for both an event giving rise to contract non-performance based on the debtor’s negligence, leading to subjective contract liability, and another event which makes no value judgment on the debtor’s conduct, leading to objective contract liability.
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ABOUT THE OBLIGATIONS ARISING FROM MARRIAGE IN ECUADOR: DO THEY ACTUALLY HAVE A CONTRACTUAL SOURCE?
While the Ecuadorian Constitution and the Identity and Civil Data Organic Law define marriage as a union, the Ecuadorian Civil Code labels it as a solemn contract. Irrespective of the nomenclature used by the constituent assembly and the legislator, we aim to deepen in the analysis of the allegedly contractual character of marriage at the sight of the theory of obligations. We conclude that, although marriage might have similarities with the notion of directed contract, it is not actually so, as the source of its obligations is not contractual but legal. Marriage is a legal transaction that merely modifies a person’s civil status, and it is only as a consequence of the new status that the spouses acquire obligations directly from the law. Finally, the question arises as to whether marriage is moving towards a regime that allows the parties, by maximizing the principle of autonomy of the will, to configure the union with greater freedom.
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NEW TRENDS IN THE UNDERSTANDING AND FUNCIONING OF THE JOIN AND SEVERAL OBLIGATION. AN ANALYSIS FROM THE INSTRUMENTS OF HARMONIZATION OF CONTRACTS LAW AND ITS POSSIBLE RECEPTION IN CHILEAN CIVIL LAW
The joint and several obligation, a multi-secular institution with great practical application, has been the subject of new analyses on its structure and operation. These analyses have been made within the modernization process of the law of contracts, principally on the basis of various European harmonization instruments, but extend to other regions. This paper tries to explain the way in which passive solidarity is being understood in this new context and its potential impact on the Chilean Civil Code, either by the possible amendment of certain of its provisions or, by the change in the way they are construed.