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Search Results
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CONSTRUCTION AGREEMENTS IN CHILE. ECONOMIC AND JURISPRUDENCE ANALYSIS
Construction agreements, and especially those of lump sum, are designed not only to transfer the price risk from the principal to the contractor, which is the party that is in the best position to evaluate and control said risk, but for eliminating or mitigating the problems that arise from the information asymmetry between the contracting parties, including the phenomena known as adverse selection and moral hazard. If these phenomena are effectively controlled, it can be concluded that this type of contract will tend to promote market efficiency, reduce transaction costs and maximize the so-called social surpluses of cooperation. The measure in which these contractual designs ultimately reach their objectives depends on the value that, in reality, the jurisprudence attributes to them. Analyzing the recent jurisprudence of the Chilean high courts of justice, it can be concluded that, in general, judges tend to respect these contractual mechanisms. -
THE BORDER BETWEEN VICTIM’S EXCLUSIVE FAULT AND CONTRIBUTORY NEGLIGENCE ON THE BASIS OF CHILEAN JURISPRUDENCE
This article refers to the victim’s fault in its two aspects: exclusive fault of the victim and contributory negligence. On the basis of the Chilean Supreme Court jurisprudence, it demonstrates that they correspond to two separate institutions, which play different roles in judgment of civil liability. Exclusive fault is an argument to prove the absence of liability of the defendant, but it doesn’t entail a legal analysis of the victim’s conduct, but only a factual explanation for agent’s conduct. Contributory negligence, instead, presupposes the defendant’s liability, that’s why it requires such legal analysis. In this case, is necessary to demonstrate that with respect to the victim’s conduct concur the legal requisites to elevate it from a simple condition to a cause of the accident, according to standard causality criteria. These requisites are not addressed in this paper.
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DAMAGES RESULTING FROM DIVORCE (DOCTRINE AND JURISPRUDENCE IN ARGENTINA)
This paper seeks to examine the scholarly and jurisprudential developments in Argentina concerning compensation for damages caused by divorce. Traditionally, Family Law was deemed impervious to the rules of tort. however, in recent years a new hermeneutic has appeared which applies the general principles of civil liability to damages arising from family relationships, and especially the losses caused by divorce.
The paper takes into account developments in case law, scholarly writing and reforms to the Civil Code and the various solutions proposed to amalgamate the particular characteristics of family relations and family law, and the changes in the framework of modern law of damages.
The paper addresses each option for liability (in contract or tort) and notes applicable jurisprudence.
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ON THE OPP ORTUNITY TO CLAIM THE ABANDONMENT OF THE PROCEDURE: THE CRITERION OF THE THIRD CHAMBER OF THE SUPREME COURT
Classic doctrine and jurisprudence understand that the abandonment of the procedure has no time limit for its filing, as long as an enforceable judgment has not been ruled on. Thus, the general rule on the time limit for the filing of incidents, set out in Article 85 of the Code of Civil Procedure, is not applicable to it. However, a series of rulings handed down by the Third Chamber of the Supreme Court have changed this approach. Based on an argumentative evolution, which began with an argument of procedural good faith, this Chamber has considered that the rule of article 85 of the Code of Civil Procedure is applicable to the incident of abandonment of the procedure. The aim of this paper is to show this evolution and to give an account of the problems of interpretation that can arise when considering this rule applicable.
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THE CASSATION APPEAL IN PLENARY SESSION: AN ASSESSMENT AFTER THIRTY YEARS
Article 780 of the code of civil procedure, incorporated into Law No. 19374 of February 18, 1995, which allows the Supreme Court in plenary session to hear cassation appeals in cases of jurisprudential dispersion originating within the Court itself, has been scarcely applied, and its impact on the development of generalized guidelines for the interpretation of laws affecting civil and commercial matters is practically nil. This was anticipated early on by some Chilean legal scholars. What these scholars failed to foresee is that, in the few cases where the Supreme Court in plenary session heard cassation appeals, subsequent lower courts would disregard the doctrines established by the Court without further explanation, thus calling into question not only equality before the law but also the predictability of the interpretation and application of important institutions of Chilean private law. The article offers an explanation of how the aforementioned results were obtained and concludes with a defense of the jurisprudence unification purposes underlying this procedural mechanism.
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Civil liability for damages arising from natural phenomena. A jurisprudence review
This article presents a review of the Chilean jurisprudence concerning claims for civil liability for damages arising from natural phenomena. It reveals an evolution in the matter. The situation changed from a period in which damage caused by natural phenomena in strict sense did not give rise to demands for liability to a period in which the claims associated with such phenomena abound. All of which is the product of a new conception of natural phenomena, which are no longer seen as fatality, but as a hazard that could be avoid with a proper risk management.