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Search Results
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Property right on data
Nowadays, data is one of the most valuable resources in the digital economy. However, there is no special regulation to determine who is their owner, nor is there regulatory clarity on how the different property rights over this type of resource and other related intangible assets coexist. Therefore, in this article, a legal analysis is proposed that distinguishes the data from its content, data bases and the knowledge extracted from techniques and disciplines applied to the data, to identify on which intangible goods it is possible to exercise a property right, in accordance with the Constitution and the rules of Chilean private law. In this sense, this work will demonstrate that, although data cannot be the object of a property right in the terms of the Civil Code, its content, bases and studies, can be protected by other types of rights recognized in our legislation.
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RECOVERING OF CHECKS DRAWN TO PAY THE BALANCE OF A COMMERCIAL CURRENT ACCOUNT AND PROTESTED BECAUSE OF EXPIRATION
The paper analyzes the judgements on a case in which the concessionaire of a well-known car brand, with which had a current account contract, drew two checks for paying its balance that were subsequently protested because of expiration. The plaintiff claimed for a sum of money, but did not establish whether the cause of action was based on the checks or in the current account contract. This commentary highlights the effects of a current account contract in a business relationship and the difficulties posed by such an ambiguous claim.
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Contractual penalty for the breach of the promissory sale of a real state
This commentary analyses a recent decision which declared that a preliminary agreement regarding the sale of an apartment was null and void, since it did not fulfil the requirements of a promissory contract. The court also rejected the sellers’ claim of liquidated damages for CLP $ 40 000 000 on account that it would cause an unjust enrichment. Special attention is drawn both to the features of the contract and to the available mechanisms that allow the moderation of the liquidated damages, which enable a more balanced solution to the one reached by the court.
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Non-existence and simulation
This comment analyzes the position of the Supreme Court, that consists of ruling the non-existence of a simulated sale of inheritance rights. In this sense, it is reviewed if non-existence has a place in the Civil Code, and if this is the sanction for simulated contracts.
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Family, disability and succession. Some ideas for a new chilean Constitution
This paper aims to propose that the new Constitution should established in a special way the protection of minors descendants and disabled people as members of the Family. In accordance with this, and based on the existence of freedom of disposition of the deceased through the rules of succession due to death, it will be argued that restrictions on that freedom must be based not on the social function of property, but rather the protection of family members whenever they are descendants or persons with disabilities, thus justifying the transition from a forced allocation with a hereditary nature to one of a maintenance nature, as has been proposed in some compared systems.
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Property quality and consumer safety
The present commentary analyses the case Servicio Nacional del Consumidor con Inmobiliaria Francisco de Aguirre Limitada, in particular the judgments of the Court of Appeals and the Supreme Court on the occasion of the hearing of an appeal and, later, cassation on the merits; which dealt with the scope of application of Law No. 19,496 on the Protection of Consumer Rights. To this end, and after briefly summarizing the facts, we will explain the legal problem posed by the concepts of quality and safety and their relationship with the applicable regulations. In turn, we will present the arguments of the Court of Appeals and the Supreme Court in this regard, with special consideration of the dissenting vote of the Member Attorney Ms. Chaimovich on distinguishing the rights of safety from the quality of housing within the consumer relationship. With this, we intend to achieve an adequate understanding of the matters excluded from the law and the distinction between the rights it protects.