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DUSTING OFF THE CIVIL CODE. ABOUT SERNAC’S EXECUTIVE RESOLUTION ON THE INCORPORATION OF DELIVERY DATES OF REAL ESTATE PROJECTS IN OMMUNICATIONS PRIOR TO THE SIGNING OF PURCHASE AND SALE PROMISES
Sernac’s Executive Resolution No. 277, issued on April 21, 2025, addresses the inclusion of delivery dates for real estate projects in communications prior to the signing of preliminary sales agreements. This article offers acritical analysis of the interpretative ruling, highlighting both its strengths and its conceptual ambiguities and normative limitations. It examines the legal nature of SERNAC’s circulars and rulings, their limited normative scope and legal effects, as well as the contractual consequences of breaching preliminary real estate agreements. The discussion also considers the role of Chilean civil law and, in particular, the application of Article 1554 of the Civil Code in promises subject to indeterminate conditions. The article concludes that, although the ruling reinforces certain valuable consumer protection elements, Sernac has missed a meaningful opportunity to clarify –more precisely and with greater technical rigour– the scope of real estate suppliers’ obligations.
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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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NATURE OF THE NULLITY OF UNFAIR TERMS IN CONTRACTS WITH CONSUMERS OR MICRO OR SMALL ENTREPRENEURS. ON THE CONSISTENCY AND FUNCTIONALITY OF THE REGIME OF ABSOLUTE NULLITY CONTEMPLATED IN THE CIVIL CODE
This article, after briefly exposing the two main theses about the nature of the nullity contemplated in Law No. 19,496 regarding unfair terms, examines whether the regime of absolute nullity exhibits the dysfunctions accused by a certain sector of the doctrine. An attempt is made to show that all objections to the consistency and functionality of the application of said regime are defeatable and that they do not justify the construction, through interpretation, of a special regime. It is postulated that the regime of absolute nullity, correctly understood, is not only functional, but is also more protective than an alleged, incomplete and uncertain special regime.
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THE PRINCIPLE OF PROPORTIONALITY IN PRIVATE LAW: A GENERAL APPROACH AND A PARTICULARIZATION FROM A CONSUMER PROTECTION PERSPECTIVE
The principle of proportionality, rooted in ideals of balance and reasonableness, is challenged at the legal level given its equivocal formulation. In public law, it is generally referred to as limiting the State’s discretion and protecting the rights of individuals through a threefold examination of adequacy, necessity, and proportionality in a strict sense. Such an analysis cannot be simply transferred to private law, either because it could end up eroding the logic of private autonomy, or because relations between private individuals cannot be qualified by the extent to which public policies affect fundamental rights. On the contrary, an evaluative weighing of the rights assigned to each party must be carried out, whether this exercise is done ex ante by the legislator, or ex post by the court. Hence, it is proposed that, unless there is an express or implicit redirection to the constitutional meaning of the principle, the balance between the rights of individuals must be observed in the light of criteria that are proper to private law, such as accepted good behavior (boni mores) and good faith. For these purposes, it is also postulated that in consumer law only a particularization of these rules can be observed, but this does not detract from the fact that their basis can be observed in other private law relationships, where there is a weakness of one of the parties, so that the principle of proportionality, based on ideas from the private law sphere, also serves as a corrective element.
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STANDING TO SUE OF THE PUBLIC PROSECUTOR’S OFFICE TO CLAIM ABSOLUTE NULLITY IN THE INTEREST OF MORALITY OR THE LAW
Among the subjects entitled to request the declaration of absolute nullity of an act, article 1683 of the Civil Code mentions the public ministry. This legitimation presents two interpretative difficulties; the first one, that the former can act “in the interest of morality or the law”, which is usually opposed to a pecuniary interest; on the other hand, that the latter has evolved in terms of organic structure, content and powers. Given these difficulties, two theses can be put forward; the first, aims to conclude that the Public Prosecutor’s Office has lost such powers; the second, which this work defends, is that it maintains them. For these purposes, the modifications experienced by the Public Prosecutor’s Office are analyzed and arguments are made to give practical use to said article.
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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.