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The effects of discharge over third party securities
This paper analyzes the effects of the discharge over securities granted by third parties in favor of an insolvent debtor. The thesis we support is that discharge is a personal legal benefit granted to the insolvent debtor, who shall have a substantive defense in case any of its creditors intends to collect any balance of a pre-bankruptcy claim. Due to its personal nature, such defense does not benefit any third-party guarantor.
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SOME CHALLENGES IN APPLYING ARTICLE 2519 OF THE CHILEAN CIVIL CODE. A SYSTEMATIZATION OF THE CURRENT STATE OF AFFAIRS
The purpose of this article is to examine the provisions of article 2519 of the Chilean Civil Code, specifically focusing on the interruption of prescription in cases involving multiple parties, and addressing the unique considerations that arise in the context of exchange obligations and non-contractual solidarity
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Related parties’ credits included in a mercantile current account and faithfulness of financial statements. Comment of the Supreme Court’s judgement of July 31, 2020, N. 29.982-2019
The paper analyzes a Supreme Court’s judgement which confirmed, with a reduction, the fines imposed on managers of a public corporation by the former SVS. The firm reported in the financial statements some long-term credits, which debtors where related companies. It did not take steps to collect them in a considerable period of time, on the grounds that they had been included into a mercantile current account with few movements. The supervisor reclassified the credits as long-term, and concluded that the financial statements contained false information. An analysis validates critically this judicial decision, and offers an alternative basis for it, built on the content of the commercial current account contract.
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THE ENTIRE AGREEMENT CLAUSE OR INTEGRATION CLAUSE IN THE CHILEAN LAW OF CONTRACTS
This paper deals with the entire agreement clause in the Chilean law of contracts. It argues that the entire agreement clause has the function of promoting legal certainty, by precisely defining the terms and conditions of the contract based on the intention of the parties. The legal effect of the clause is to limit the declarations, promises and binding agreements to what is stated in the text of the signed contractual document, depriving all preliminary and contemporary communications to the signing of the contractual document of legal effect to integrate the terms and conditions of the contract. It further argues that the entire agreement clause has no impact on the criteria for contractual interpretation, on the implications of an implied term, on liability for misrepresentation, and on future variations or modifications of the contract. Lastly, it is argued that the clause is generally valid in the Chilean law of contracts, except in consumer law.
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LEASE OF OFFICES AND BUSINESS PREMISES, PANDEMIC AND RENT ABATEMENT
This commentary analyses a recent decision which applies art. 1932 of the Civil Code to the coronavirus pandemic, which is qualified as a “legal defect” that would release the lessee from paying rent. Special attention is drawn to the criteria under which the pandemic is brought under this provision, as well as the fact that the lessee was released for the total amount of the rent and was granted the possibility of withholding the payment while the enjoyment of the leased good was restricted.
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RAWLS AND TORT LAW: A CRITIQUE OF RIPSTEIN
The article challenges Arthur Ripstein’s theses on the place of private law (and tort law in particular) in John Rawls’ theory of justice. According to Ripstein, Rawls’ theory of justice grants private law a certain independence by exempting it from the distributive injunctions of the principles chosen in the original position. This conclusion has two bases, one negative and the other positive. On the negative side of the argument, Ripstein claims that Rawls’ original position does not lend itself to guiding the design of institutions, especially those institutions with a deontological structure such as tort law. On the positive side, Ripstein resorts to the idea of a division of responsibility between citizens and social institutions (an idea that Rawls presents in “Social Unity and Primary Goods”) to demonstrate Rawls’ commitment to a pre-institutional conception of ownership and to the independence of private law that would ensue. The article argues that Ripstein is wrong in neglecting the role of the original position and the principles chosen in that position and exaggerates the consequences for private law of the division of responsibility between citizens and institutions.