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Search Results
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COMPATIBILITY OF THE RESOLUTORY ACTION WITH THE CONVENTIONAL RESOLUTION
A legal problem related to the resolution of the contract is analyzed, which can be verified in a judicial and traditional modality that requires the exercise of resolutory action and, on the other hand, the conventional one, emanating from the agreement of the parties. Here the thesis of the compatibility of the resolution action in the modality of judicial resolution will be defended, even though a resolutory clause has been stipulated. The preference for compatibility is based on the assumption of the conventional resolution as a power available unilaterally to the creditor, who may decide not to exercise it and opt for the judicial resolutory action, which is understood to be incorporated in all bilateral contracts, unless there is an explicit clause that states otherwise.
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The capacity of exercise: a critical analysis of the rules of the civil law and the need for a modernization, beyond the interpretation of the article 12 of the international convention on the rights of persons with disabilities
The norms on capacity established in our Civil Code and the rigid and dichotomous system that they protect require an updating. This work aims to account for the need to review the current capacity to act system and its adaptation to reality (beyond that biased interpretation of article 12 of the Convention that dispenses with a civil reading). Today there are flexible mechanisms that allow everyone, with or without disabilities, who has difficulties in exercising their rights, to act validly in the legal field. Such models seek to promote respect, as much as possible, for the autonomy of the will, without implying neither the lack of protection of subjects who are by definition vulnerable, nor the fall of the principle of legal certainty, nor an unfair advantage that favor in a special way over others contracting parties. The recent reform of the Spanish Civil Code seems to shed some light on that balance.
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A CONCEPTUAL APPROACH BETWEEN THE DAMAGE AND ITS IMPORTANCE IN THE DIES A QUO OF THE STATUTE OF LIMITATION IN THE TORTS DAMAGE ACTION. A NECESSARY PROPOSAL REGARDING OF ARTICLE 2235 OF THE ECUADORIAN CIVIL CODE
In Ecuadorian Law, article 2235 of the Civil Code offers an answer regarding the accounting for the statute of limitations in the action for torts. However, the rule generates a discussion when certain cases are not covered or protected by the classical interpretation. The foundational interpretative rule understands that the calculation of the prescription must be from the verification of the wrongful act, understanding that the act has been perpetrated there. Nevertheless, this provision does not contemplate all types of damage, specifically hidden damage, and continued damage. This generates a conflict between the rule of the Torts Law that all damages must be compensated against the security in the legal relationships that the Statute of limitation seeks. Therefore, it is necessary to delimit the concept of compensable damage to understand and know how these types of damages have been conceived according to their consummation in time from an Ecuadorian conception. Accordingly, it will be possible to analyze the statute of limitation and how it has acted in case law and comparative law. In which, there is already a solution that determines the beginning of the statute of limitation in each case of hidden damage and continuing damage. In this way, a current solution will be proposed for the calculation of the statute of limitation in Ecuador.
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EFFECTS OF FULFILLMENT OF DISCLOSURE REQUIREMENTS FOR CORPORATION’S SHARE TRANSFER AGREEMENTS: STATE OF THE QUESTION AND NEW PROPOSAL
The paper investigates the meaning of the enforceability provided by the disclosure requirements that Chilean Corporations Act demands in the shareholders’ agreements on the transfer of shares. After critically reviewing the national literature and case law, it is argued that the annotation of the agreement in the firm records and its deposit in the company in practice involve little publicity, consistent with the fact that, in the rest of the statute, the register of shareholders lacks projection towards third parties, such as an acquirer of shares. In this way, the effectiveness provided in the norm does not have a different scope from the effectiveness of civil law: imposing the existence of the contract –not its obligatoriness– as part of the legal reality.
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Constitutional acknowledgement of children and youth and its impact on liability for parents
This paper is built from the possible constitutional acknowledgement of children and teenager’s rights as well as parental joint responsibility on the new Chilean Constitution. Based on this premise, we have focused on parental liability resulting from the damages committed by their children. For that purpose, we argue that the current parental liability system on the Chilean Civil Code requires a complete update, replacing the elements of subsidiarity and habitability to parental joint responsibility and progressive autonomy of the child as main elements to address parental liability under the scope of a new Constitution.
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The air transport contract and the emergency by COVID-19: the chilean aeronautical statute front the cancellation of flights by force majeure and the reactivation of post-pandemic air traffic
The Coronavirus health emergency has paralyzed or slowed down an important part of economic activities, including passenger air transport, causing the cancellation of flights, which translates into a case of contractual breach of the carrier against the passenger. In order to address what response is followed by our legislation against a cancellation due to a force majeure –assuming that the pandemic by COVID-19 is one–, this paper pretends, first of all, resolve the issue regarding the regulations applicable to the air transport contract. Later, the general hypotheses of non-performance of the air transport contract by non-execution of the trip in the agreed terms, and what rights does the passenger have against said non-compliance. Next, the options of the passenger facing a flight canceled by force majeure, and the effects that the latter produces in the contract are discussed. Finally, are analyzed the duties and obligations of the air carrier once the activity has been reactivated, and the liability that it bears for an eventual contagion.