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THE LEGAL NATURE OF THE LACK OF EFFECTS: A PROPOSAL FOR INCLUSION IN THE SYSTEM OF INEFFECTIVENESS OF THE CHILEAN CIVIL CODE
This article argues that the lack of effects is a form of ineffectiveness of a functional, extrinsic, partial, strict, subsidiary nature –and not always a sanction– aimed at protecting certain third parties harmed by the conclusion of a legal transaction. Likewise, it postulates the viability of configuring a general theory of unenforceability that is feasible to act beyond the cases expressly contemplated in the Chilean civil code, as long as it frames its scope of action within the contours drawn by its system of ineffectiveness and the necessary balance between the expansive effect of contracts and the protection of third parties.
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THE INEFFICACY APPLICABLE TO THE ACTS CARRIED OUT BY THE REPRESENTATIVE WHOSE MANDATE HAS EXPIRED AND THE PROTECTION OF THIRD PARTIES IN GOOD FAITH
This commentary contains a critical review of a decision by the Supreme Court about the kind of inefficacy applicable to contracts carried out by an agent whose mandate had expired. The Court concluded that the absolute nullity for lack of will should be applied, and not the unenforceability of the acts. At the same time, this commentary analyzes the omission in the decision regarding the application of the protection of good faith of third parties which is contained article 2173 of Civil Code. Finally, some projections are made about the place that the nullity and the unenforceability occupy inside of a general theory of ineffective contracts.
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RECOGNITION OF A CHILD AND BIOLOGICAL TRUTH: ARE EFFECTIVE THE RECOGNITIONS BY COMPLACENCE AND BY CONVENIENCE IN CHILEAN LAW?
It is known that the Chilean parents-children relationship system, since the entry into force of the Act number 19,585, of 1998, is based fundamentally on the biological truth, since it does not demand to the parent who recognizes his or her child to prove the biological truth, it may produce a dissociation between recognition and biological truth, originating what has been called within foreign Laws the recognition by complacence and recognition by convenience. The present work aims to explain both figures, to determine their validity in Chile and in case of being valid, to determine if they are affected or not by another cause of ineffectiveness, according to the rules of the Chilean Law.
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CONCEPTUALIZATION OF INEFFICIENCY AND LACK DISABILITY IN SPANISH LAW
In the present work one tries to think about the concept of inefficiency in the juridical Spanish classification, and his distinction with the invalidity and contractual nonexistence. The analysis of the different doctrinal existing positions does not facilitate an unanimous distinction. We consider, after the study of the doctrine and jurisprudence, to the nonexistence as a category autonomous and independent from the contractual invalidity, since it is the own norm, in this case the civil Spanish Code, in diverse rules that we analyze, the one who leads us to the suppositions of contractual nonexistence in the cases of lack of essential requirements in the contract, since they are the cases of absence of assent, of object and of reason, which will be an object of arrested study.
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ABOUT THE SANCTION FOR UNFAIR TERMS IN CONSUMER LAW
This article examines the sanction applicable to unfair terms in Chilean consumer law, in light of a recent decision of the Supreme Court (Case No. 34713-2023), which classified as unfair an acceleration clause contained in a mortgage loan agreement. The judgment is of particular interest as it expressly resolves the doctrinal debate concerning the nature of the invalidity provided for in Article 16 of Law No. 19,496, holding that it amounts to absolute nullity. The article sets out the facts of the case, systematises the main doctrinal positions on the sanction for unfairness, and reviews the evolution of case law on the matter. Finally, the authors argue that the solution adopted by the Supreme Court is only partially correct, although it is commendable insofar as it is grounded in existing law: it recognises the public policy character of the control of unfair terms and allows for a coherent integration of the Consumer Protection Act with the general regime of nullity, without resorting to de lege ferenda constructions.
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Unilateral termination clauses without cause. an attempt of characterization from civil law
The purpose of this article is to characterize the right of unilateral termination ad nutum or without cause given by the contract to the parties, from the point of view of the Chilean Civil Law. This is done by establishing their legal status and scope of action. The article studies the juridical nature of this clauses, the distinctions with other similar figures, the requirements necessary for their use, their effects and their annulment. This allows us to understand the right of unilateral termination without cause as a remedy of contractual origin that safeguards the future interest of the parties that do not wish to continue with the contract.