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Editorial
La prescripción es una institución que sigue presentando múltiples perplejidades. Tanto en su versión como modo de adquirir el dominio, como en aquella que configura un modo de extinguir acciones, tiene un tratamiento parcialmente unificado en el Código Civil chileno; aunque ello es más bien aparente y solo ha sumado vicisitudes que la dogmática y los tribunales deben explicar y sortear constantemente.
La prescripción extintiva ha merecido profundos estudios. Su falta de tratamiento organizado, dentro del Código Civil y en las diversas leyes especiales que la prevén, y las disímiles características que ostenta según el tipo de acción que se quiera ejercer, terminan por configurar un contexto sin sistematización. Este escenario tan amplio y complejo, en último término, desplaza la certidumbre y seguridad jurídica, valores en los que esta institución, precisamente, encuentra parte de su justificación.
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DURESS AS A VICE OF CONSENT. A READING FROM THE STANDARDS OF DECISION
This article addresses the problem of the lack of implementation of arts. 1456 and 1457 of the Civil Code that regulate duress as a vice of consent. After analysing the dominant position between civil law scholars, it is proposed to take a new look to those legal provisions. In particular, it is proposes to conceive of art. 1456 as divided in two parts. The first one establishes a rule as to when duress has to be considered verified, on the basis of an in abstract assessment of the potential cases (the reactions to be considered would be those of a reasonable person). The second one takes care of the border-line cases produced by the previous rule: in this sense, it is read as establishing a standard that facilitates decision-making on the basis of an assessment of the similarities or the differences between the case at hand and two cases that are taken as models of concurrence or absence of duress. This approach takes notice of the problems regarding the proof of emotions, but does not dispense from the need of a careful justification of the decision finally taken.
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CLASS ACTION BY CREDITORS IN THE FACE OF THE COSTS OF EXTERNALITY AND OBSTRUCTION
This article seeks to relate two topics that are relevant to understanding the procedural alternatives that arise when we face class action by creditors, meaning when various creditors pursuing payment of debts from the estate of a common debtor are faced. In this regard, the legislation considers various means to initiate this class action. However, in the aforementioned context, two categories of costs arise which affect the obtaining of an efficient result, understanding as such the scenario that minimalizes the costs that creditors, the debtor and the justice system assume in order to achieve suitable allocation of the debtor’s resources. I refer to the costs of externality and obstruction. Both the manner in which these costs appear in Chilean legislation and certain proposed solutions shall be the primary matter of analysis in the present work.
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RIGHT OF RELATIONSHIP OF THE CHILD WITH DIFFERENT PEOPLE OF THEIR PARENTS, ESPECIALLY WITH THEIR GRANDPARENTS
Taking as a case study the broad right of relationship of the child –consecrated in international instruments– with people other than their parents, its foundations and characteristics are critically analyzed, as well as the ways in which it is approached by different legal systems, to then contrast the narrow Chilean legislation with decisions of the last years of our superior courts, that slowly open the door to the reception of modern conceptions based on the interest and benefit of the child; interest that they build for these cases in the affections created and maintained over time, with all the complexity or questioning that their weighting may have.
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SUSTAINABLE CONTRACTUAL CLAUSES AS A WAY FOR SMALL AND MEDIUM-SIZED ENTERPRISES TO BECOME A DRIVING FORCE FOR SUSTAINABILITY IN GLOBAL SUPPLY CHAINS
In the modern world, contracts favour social purposes by providing a good setting for the regulation of sustainability. Within this framework, this article points out the inequality in bargaining power between lead companies and their suppliers that has hitherto not been extensively explored in the literature. This is emphasised by transnational laws, whose focus is on the role of buyers for the implementation of sustainability in global supply chains. Thus, suppliers, usually small and medium-sized enterprises, are mere rule followers, which could make them vulnerable. It is postulated here that is possible to overcome this by bottom-up activities – that is, the negotiation of sustainable contractual clauses including the input of small and medium-sized enterprises, and compromises by the parent company in capacity-building for them. This implies a repurposing of the contract, bringing small and medium-sized enterprises to the centre and making them aware of their power and co-responsible for the spread of sustainability. Buyers should be amenable to this change since it would allow production according to their values, opening their reach to potential new markets and also complying with law, which is more stringent every day in terms of sustainability. This rationale is complemented in the article by examination of a real case and a consideration of the anatomy of a sustainable contractual clause according to these suggestions.
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BASES FOR A CHILEAN LAW OF UNJUSTIFIED ENRICHMENT, TOWARDS THE ABANDONMENT OF A UNITARY APPROACH
This article, after formulating a general critique of the prevailing approach in the national doctrine regarding unjustified enrichment, makes a schematic reconstruction of the Law of unjustified enrichment and presents a typology of cases that give or should give rise to restitution actions. Several archetypal cases of unjustified enrichment are identified and the differences of the corresponding actions are exposed with regard to their functions, requirements and restitution measures. After outlining the legal regime that the Chilean Civil Code associates with each archetypal case, it is proposed that the non-regulated cases be assimilated to those that are, in order to apply the most appropriate rules to them. Finally, it is proposed to abandon the unitary approach that has prevailed in the national doctrine and move towards a study of the particularities of the archetypal cases of unjustified enrichment, so that the unregulated cases are assimilated to those that are, applying to those the rules that are most appropriate.