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THE NOTION OF NON-NEGOTIATED TERM AND ITS IMPORTANCE IN THE EFFECTIVE APPLICATION OF INCORPORATION AND FAIRNESS CONTROLS
The concept of a non-negotiated term is examined as a fundamental concept in the task of delimiting the objective scopes of application of incorporation and fairness controls. It is argued that the defining characteristics of a non-negotiated term are contractuality, pre-disposition and imposition. It is specified that, if generality is added to the aforementioned characteristics, the regarding non-negotiated term may also be qualified as a standard term. Within the framework of the treatment of the characteristics of non-negotiated terms, aspects in which national jurisprudence has been erratic and which have had an impact on the protection of the adherent are clarified. In particular, it is clarified that the predisposition alone is a sufficient indication to presume that there has been no possibility of negotiation; it is also clarified that the mere fact that certain data is filled in by the client or that the client can choose between different terms which one, specifically, will govern the contract, does not imply a transformation of the chosen term into one negotiated individually, much less does it imply the entire transformation of the contract into one freely discussed.
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ABOUT THE SANCTION FOR UNFAIR TERMS IN CONSUMER LAW
This article examines the sanction applicable to unfair terms in Chilean consumer law, in light of a recent decision of the Supreme Court (Case No. 34713-2023), which classified as unfair an acceleration clause contained in a mortgage loan agreement. The judgment is of particular interest as it expressly resolves the doctrinal debate concerning the nature of the invalidity provided for in Article 16 of Law No. 19,496, holding that it amounts to absolute nullity. The article sets out the facts of the case, systematises the main doctrinal positions on the sanction for unfairness, and reviews the evolution of case law on the matter. Finally, the authors argue that the solution adopted by the Supreme Court is only partially correct, although it is commendable insofar as it is grounded in existing law: it recognises the public policy character of the control of unfair terms and allows for a coherent integration of the Consumer Protection Act with the general regime of nullity, without resorting to de lege ferenda constructions.
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THE DIES A QUO ON EXTINCTIVE PRESCRIPTION IN THE CONTEXT OF DAMAGES ARISING FROM DEFECTIVE SANITARY PRODUCTS. A COMPARATIVE APPROACH
The extinctive prescription of the action for compensation for damage caused by defective medical devices is characterized by the complexity involved in determining the moment from which the period begins to run. This problem invites us to reflect on whether the computation of the limitation period will start from the consumption of the drug, or from the moment the damage manifests itself. In this paper, we propose to make a comparative exposition of the matter by reviewing our legal system, the French and the Spanish ones.
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SUPPLEMENTARY FUNCTION OF CONTRACTUAL GOOD FAITH AND DERIVED DUTIES OF CONDUCT. AN ANALYSIS IN THE LIGHT OF MODERN CONTRACT LAW
This article, after identifying and referring to the institutional functions performed by contractual good faith, focus on the supplementary function and the derived duties of conduct. The first part of the work is devoted to the discussion regarding the disadvantages and disadvantages of recognizing a supplementary function to good faith. The second part, bearing in mind the content of various harmonization instruments, presents a non-exhaustive catalog of duties of conduct that could derive from the supplementary function attributed to good faith, making reference to its current or potential recognition in Chile.
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The right to adequate food in Chile and its necessary inclusion as a fundamental right in Chile’s new Constitution
Amid the process of constitutional reform in Chile, this article addresses the historical, factual and international human rights arguments that justify the incorporation of the right to adequate food as an autonomous right in the new Constitution. Subsequently, the body of this text assesses the impact of this new constitutional right on Chilean private law, especially regarding the consumer protection regime and the right to be informed. The text argues that, ultimately, a constitutional right to adequate food will allow to extend the current norms on truthful and adequate information for consumers, contributing to a better guarantee of other human rights intrinsically related to food, such as the right to health.
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About the arbitrability of the consumer conflict in Chile: basic supply for a structural replanting
This work addresses the arbitrability of the consumer conflict in chilean law, as a starting point for the rethinking of the entire arbitration system on consumer issues in Chile. It deals with arbitrability in its subjective and material manifestations, and reviews the effects generated in this area by the inalienability of consumer rights, the imperative nature of the norms of Law No 19.496, about protection of consumer rights, and the scope of art. 230 of the Organic Code of Courts, about prohibited arbitration.