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CONTRACT WHICH BENEFITS THE AGENT AND THE ABUSE OF AUTHORITY BASED ON THE (PRESUMED) INTENT OF THE PRINCIPAL
This commentary analyses the case of an agent who takes advantage of the wide scope of the mandate in order to obtain personal benefit at the expense of the principal. Instead of admitting that such acts fall under the text of the contract, the Supreme Court resorted to the presumed intent of the principal, according to which the latter would have not agreed to such unfavourable terms. Although such criterion contributes to tackle frequent cases of abuse of authority, the reference to a presumed intent is too vague and involves a risk for legal certainty. This commentary recommends instead to separate the cases where the agent carries out a poor business within the scope of the mandate from those in which the text those faculties are exploited in bad faith to his or her own advantage.
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BRIEF REVIEW OF LIABILITY FOR INTERFERENCE OF CONTRACTS COMPETITOR IN CHILE IN LIGHT OF THE COMMON LAW
This article seeks to make a contribution to a better understanding of liability for interfering and inducing the breach of contracts made by rivals, a novel area of tort law in Chile. Section i introduces the problem which is particularly conspicuous in relation to non-compete clauses. Section iibriefly describes tort liability for interfering with another’s contract, the paradigm followed in France that has had a clear influence upon part of the Chilean legal doctrine. Section iii, the main chapter of this paper, examines the tort of inducing breach of contract typified in the LCD; it reviews the conditions for attributing tort liability for this conduct in the light of English law; and it emphasizes the need for requiring bad faith and intention if liability is to be consistent with the freedom to compete. Section iv concludes that the future Chilean case law could impose tort liability for negligently bad faith interference with another’s contract or adhere to an even more conservative position that confines liability to the tort of inducing breach of contract, as happens in the English Law.
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Dissolution of a limited liability company due to resignation based on serious reason and absence of affectio societatis
The Court of Appeals of Talca, when reviewing a complaint appeal filed against an arbitration judgement derived from a demand for dissolution of a LLC, decides on its admissibility, based on the resignation for “serious reason” in the face of administrative mismanagement and the loss of the affectio societatis and the consequent termination of the company. In this context, the Court revokes the arbitration judgment, declares the company dissolved, and in the effort to achieve this task, conceptualizes and refers to the nature and place in the corporate structure of the affectio societatis, attributing to its absence a justifying character for the resignation of the partner. These observations deserve a critical analysis that could lead to a diverse conclusion from that reached by the Court.