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THE REFORM 2.0 TO THE LAW OF SECURITIES IN FRANCE. OVERVIEW OF THE MAIN INNOVATIONS AND BRIEF REFERENCES TO THE PREVIOUS POSITIVE LAW
The purpose of this paper is to present the content of the recent and important reform to the French Law of Securities, as well as a brief overview of the previous law. The objective of the reform, carried out by means of Ordinance No. 2021-1192 of September 15, 2021, is none other than to complete and finalize that of the year 2006. For this, the legislator focuses on the modernization and simplification of a large part of the guarantees, thus contributing to the promotion of legal certainty, which is so essential in this matter. Indeed, being a fundamental pillar of the contemporary economy, credit rests largely on the idea of trust that the creditor deposits in terms of the chances of obtaining reimbursement. This objective is achieved, essentially, through the implementation of guarantees. At the end of this panorama, we will be able to judge whether or not the modifications introduced to the French legal system are capable of responding to the objectives of modernization, legal certainty and others that the authors of the reform have proposed.
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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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ABOUT THE ARTICULATION BETWEEN THE LEGAL GUARANTEE AND THE VOLUNTARY GUARANTEE IN THE CHILEAN CONSUMER LAW: CONCURRENT TERM AND RESIDUAL TERM
The deficient legislative technique used by the LPDC to regulate the conformity guarantee regimes, has implied the emergence of various interpretative doubts, among which is the eventual extension of the term of the legal guarantee –and its effects– to all temporary effectiveness of a possible voluntary guarantee.
A systematic reading of the LPDC and its liability statutes lead to a negative response, supported on the basis of its internal rationality and the interpretation of the rules of guarantees, in line with those that establish duties of information and publicity.
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CONSIDERATIONS ON THE BAN ON FORFEITURE OF PROPERTY FURNISHED AS SECURITY (PACTUM COMMISORIUM) CLAUSES AND PACTUM MARCIANUS EXCEPTIONS THERETO
The prohibition of the Comissory pact is one of the most ancient institutions in private law of guaranties, who’s origin goes back to roman law. The study of the regulations that establish it demonstrates that its juridical discipline does not properly express its dogmatic fundaments. Furthermore, the prohibition of lex commisoria, purposed to prevent the creditor from taking advantage of its debtor and conceal usurary loans, does not compare to the absolute prohibition of the Comissory pact ex intervallonor of its similar, the Martian pact. Once the loan contract has been celebrated, the risk is displaced to the creditor, therefore the protection of the debtor’s interests through this instrument is no longer justified.
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COMPARED RESOURSES RELATIVE TO THE DETERMINATION OF A CAUSAL LINK. AN ANALYSIS FOCUSED ON EVENTS RELATED TO HEALTH RESPONSABILY
The scientific certainty linked to technological development impacts on victims in this xxi century, particularly, in the accreditation of the causal link, which is always necessary to justify a tort action. Sensitive trials, many of them related to public health, largely shows the problem we intend to study. Comparative law has exposed this difficulty, arriving at solutions that show an interest into make flexible rules of evidence in favor of the proposed causality. We’ve found in our research the recourse to the solidarity responsibility, and to a lesser extent the proportionate responsibility, as well as the evidential presumptions by way of diverse mechanisms of causal inference. These solutions represent responses of legal adaptation which have been observed in order to provide guarantees to the damaged that, in a scientific doom scenario, has been affected twice: whether about their apparent damage, whether about the causal uncertainty that threatens her compensation.