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SOME CONSIDERATIONS RELATED TO THE CHILEAN MARITIME TRANSPORTATION CONTRACT UNDER THE BILL OF LADING REGIME FROM THE PERSPECTIVE OF THE NEW CONTRACT LAW
The new Contract Law that has emerged from the CISG has meant a change in the way of conceiving the contract, the breach and the way of structuring the contract remedies in case of breach. In this way, the modern doctrine has made its efforts to prove that the rules of the new Contract Law can be applied in Chile and, therefore, the remedies in case of contract breach are also applicable. In this context, the present work aims to analyze the Chilean maritime transportation contract under the Bill of Lading regime from the perspective of the new Contract Law and to examine how this new conception influences the notion of breach and the remedies in case of contract breach, emphasizing the compensation remedy.
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COMPENSATORY DAMAGES FOR BREACH OF BILATERAL CONTRACTS AS AN AUTONOMOUS REMEDY IN CHILEAN PRIVATE LAW
The present work aims to determine if, while facing breach of contract, the creditor can opt indiscriminately among claiming the termination of the contract, specific performance, or damages compensation; or whether that choice is limited only to the termination of the contract or specific perfor- mance, in both cases together with damages compensation. In order to do that, this work also analyses the articles contained in the Chilean Civil Code and the model which the new contract law offers nowadays in this matter.
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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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“ANY PARTY MAY TERMINATE THE SERVICE AT ANY TIME”. A STUDY ON THE BASIS AND SCOPE OF APPLICATION OF ART. 2009 OF THE CHILEAN CIVIL CODE
This work analyzes the foundation and scope of the rule of unilateral termination without cause (ad nutum) as stated in Article 2009 of the Chilean Civil Code, within the context of the “lease of intangible services”. This rule, frequently invoked in practice, has received limited doctrinal attention. The study reveals that, contrary to widely held beliefs, the rule is not based on the prohibition of perpetual obligations or the alleged intuito personae nature of the contract, but rather on the nature of the service for which the rule was designed.
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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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Contractual penalty for the breach of the promissory sale of a real state
This commentary analyses a recent decision which declared that a preliminary agreement regarding the sale of an apartment was null and void, since it did not fulfil the requirements of a promissory contract. The court also rejected the sellers’ claim of liquidated damages for CLP $ 40 000 000 on account that it would cause an unjust enrichment. Special attention is drawn both to the features of the contract and to the available mechanisms that allow the moderation of the liquidated damages, which enable a more balanced solution to the one reached by the court.