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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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The implications of the integrating function of good faith with respect to the obligation to deliver in the contract of sale: subversion, restriction and warranty
In light of an obiter dictum issued by the Supreme Court regarding the scope of the seller’s obligation to deliver, this work seeks to determine the legal implications of integrating, through the principle of good faith under Article 1546 of the Civil Code, the obligation to transfer ownership in the contract of sale. The central thesis is that such integration, as proposed by the Court, subverts the general rule concerning the scope of the seller’s obligation, restricts the regime of eviction, and transforms the obligation to deliver into one of warranty.
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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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THE MANDATE TO COLLECT AS A FORM OF ASSIGNMENT AND THE ACCEPTANCE OF THE ASSIGNMENT THROUGH LITIS CONTESTATIO
This commentary analyses a recent decision which declared that the assignee of a credit, despite not having notified the debtor of the assignment, may nonetheless collect the credit as long as he appears as agent of the original creditor. Special attention is drawn to the complicate mechanism chosen by the assignee/agent in order to collect, which is based in an erroneous interpretation regarding the time and manner in which the assignment must be notified.