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Related parties’ credits included in a mercantile current account and faithfulness of financial statements. Comment of the Supreme Court’s judgement of July 31, 2020, N. 29.982-2019
The paper analyzes a Supreme Court’s judgement which confirmed, with a reduction, the fines imposed on managers of a public corporation by the former SVS. The firm reported in the financial statements some long-term credits, which debtors where related companies. It did not take steps to collect them in a considerable period of time, on the grounds that they had been included into a mercantile current account with few movements. The supervisor reclassified the credits as long-term, and concluded that the financial statements contained false information. An analysis validates critically this judicial decision, and offers an alternative basis for it, built on the content of the commercial current account contract.
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Exclusion of the right of withdrawal in online contracts with consumers in case of goods unsealed after delivery, not suitable to be returned for reasons of protection of health or hygiene
The right to withdraw from the contract is especially relevant today in the contracting of goods and services between businessmen and consumers, particularly in online contracting. In the Spanish legal system, such right is recognized in Royal Legislative Decree 1/2007, of November 16, which approves the consolidated text of the General Law for the Defense of Consumers and Users and other complementary laws. However, among the exclusions to the exercise of this right, the case of the supply of sealed goods not suitable to be returned for reasons of health protection or hygiene and that have been unsealed after delivery is contemplated. In the present work the elements of such exclusion are analyzed, the ineptitude of the good to be returned, characteristics of the “seal”, as well as information that must be provided to the consumer for the exclusion to operate, based on the sentence of the Court of Justice of the European Union, of March 27, 2019, case C 681/17, which admits the exercise by a consumer of the right of withdrawal in case of online purchase of a mattress that is unsealed for testing.
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AGAIN ON ART. 2332 OF THE CC AND THE DIES A QUO OF THE STATUTE OF LIMITATIONS FOR TORT ACTIONS
This commentary deals with the judgment of the Supreme Court that returns to the old literal interpretation of art. 2332 of the CC, determining that the statute of limitations of the tort liability action is computed from “the perpetration of the act” and not from the damage, its manifestation or knowledge by the victim. It will be shown that, in order to resolve the case in the same sense, that is, to declare the action time-barred, it was not necessary to resort to the abandoned interpretation, but rather it was sufficient to establish that the damage had occurred at the same time as the causal event, so that the real discussion lay in determining whether it was necessary for the victim to become aware of the wrongful act in order to start the computation of the limitation period.
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HEALTHCARE LIABILITY DUE TO MEDICAL NEGLIGENCE. A PROPOSAL FOR SYSTEMATIZATION
This article aims to systematize the liability of public and private health institutions as a result of medical negligence, through a dogmatic analysis of the problem and the decisions of seventy rulings selected for the study, as they substantiate such liability in various ways or resolve different systematic assumptions. The article includes a conclusions section that highlights the main findings of the study.
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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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LINKED CONTRACTS IN ITALIAN LAW EXPERIENCE. SOME REMARKS FOR A RECEPTION IN CHILEAN LAW
Linked contracts have arisen an increasing interest in Chilean Civil Law. Yet, either as contratti collegati or collegamento negoziale, they have been studied in Italy for almost a century. The author argues that an attentive analysis of the Italian dogmatic discussion can reveal new perspectives for the study of contractual connection in Chile. Thus, given that Italian doctrine has framed this figure upon institutions also present in Chilean Private Law, such as contractual liberty, cause or partial voidness, an appropriate application of the comparative law method can provide new insights for a Chilean dogmatic approach.