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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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EXCEPTION CLAUSES IN ARGENTINE PRIVATE INTERNATIONAL LAW, WITH SPECIAL REFERENCE TO HISTORICAL AND COMPARATIVE ASPECTS
This paper examines the exception clauses in Argentine Private International Law, which were given legislative form in the Civil and Commercial Code in 2015. It identifies the comparative sources on which they draw and traces their origins, since our working hypothesis concerns their current operation and projected use by legal practitioners. Methodologically, the study relies on comparative case law, in light of the scarcity of domestic decisions. The article provides a structured analysis of the proximity principle and the exception clause, addressing their relationship, content, and scope, and proposes a typology. Building on their characteristics, comparative assessment, and the relevant scholarship, it advances proposals for their application. Among statutory models, Swiss law serves as a primary reference, and, in our view, the Belgian Code offers the most precise and modern formulation. The clause’s exceptional character is linked to outcomes that would otherwise be manifestly arbitrary or unsuitable for the case; it should be invoked only when necessary.
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THE ALLOCATION OF FRAUD RISKS IN BANK CHECKING ACCOUNT CONTRACTS AND THEIR RELATED CONTRACTS UNDER CHILEAN LAW
This paper proposes a general theory on the distribution of fraud risks in bank checking account contracts under Chilean legislation, which allows determining when the risk should be assumed by the bank, and when by the current account holder.
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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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THE PRINCIPLE OF NON-ARBITRARY DISCRIMINATION AS A LIMIT TO CONTRACTUAL FREEDOM IN COMMON CONTRACT LAW: FORMULATION FROM CHILEAN LAW
This article aims to examine the principle of non-arbitrary discrimination in Chilean common contract law, based on the regulation that this principle has achieved in European law, examining its justification and its possible alternatives for incorporation into our legal system. To this end, it is proposed to conceive it as a consequence of the constitutionalization of private law; it admits that it is a manifestation of human dignity applicable to every individual and, finally, to outline it as a limit to the freedom of contract, opting for this last alternative based on certain rules contained in Chilean contract law that allow it to be understood as such.
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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.