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THE ENTIRE AGREEMENT CLAUSE OR INTEGRATION CLAUSE IN THE CHILEAN LAW OF CONTRACTS
This paper deals with the entire agreement clause in the Chilean law of contracts. It argues that the entire agreement clause has the function of promoting legal certainty, by precisely defining the terms and conditions of the contract based on the intention of the parties. The legal effect of the clause is to limit the declarations, promises and binding agreements to what is stated in the text of the signed contractual document, depriving all preliminary and contemporary communications to the signing of the contractual document of legal effect to integrate the terms and conditions of the contract. It further argues that the entire agreement clause has no impact on the criteria for contractual interpretation, on the implications of an implied term, on liability for misrepresentation, and on future variations or modifications of the contract. Lastly, it is argued that the clause is generally valid in the Chilean law of contracts, except in consumer law.
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CONTRACT AT PARTS BETWEEN THE OWNER AND THE CREW OF AN ARTISANAL FISHING VESSEL
The paper analyzes the judgment in a case in which the owner and the crew of an artisanal fishing vessel entered what the General Act of Fisheries and Aquaculture calls a “contract or partnership at parts”. The plaintiff crew brought an action for enforcement of this contract, requesting that the shipowner be ordered to pay the difference of a final liquidation of the fishing for several seasons, as well as its share in the sale of the catch quota to a third party. The commentary highlights the difficulties raised by the distinction between contracts which distributes a percentage of the profit of the business between parties, and partnerships, as well as the (contingent) place of legal entity in the latter.
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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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La excepción de contrato no cumplido frente a la destrucción parcial de la cosa arrendada. Corte Suprema, 3 de marzo de 2020, rol n.° 3.660-2018
Una de las cuestiones más espinosas que plantea el derecho de los contratos es la relación entre las disposiciones generales, tales como aquellas establecidas en el título “Del efecto de las obligaciones” (libro 4o, título xii del CC), y aquellas que el legislador dispone para cada contrato en particular. El caso objeto de este comentario pone de manifiesto este problema en el contexto del arrendamiento, particularmente en la hipótesis de perecimiento parcial de la cosa arrendada y la omisión del arrendador de proceder a su reparación, lo que motivó al arrendatario a suspender el pago de las rentas asilándose en la llamada excepción de contrato no cumplido del art. 1552. El rechazo de dicha excepción por parte de la Corte Suprema ofrece una interesante perspectiva de análisis sobre los límites del art. 1552 y sobre la lógica detrás de la regulación especial en materia de arrendamiento frente al deterioro de la cosa arrendada. (...)
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THE SO-CALLED TRANSFER-BARRED PLEDGE CONTRACT
The new regulation of non-possessory pledge, contained in Law No 20,190, is distinguished, as axes, a security agreement and a real right of pledge. This paper examines the rules set for the contract and try to fix their contractual nature or merely conventional, its characters and, in particular, its solemn character like his other requirements, the effects it produces, its extinction and conventions established by law as possible to add to it.
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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.