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NATURE OF THE NULLITY OF UNFAIR TERMS IN CONTRACTS WITH CONSUMERS OR MICRO OR SMALL ENTREPRENEURS. ON THE CONSISTENCY AND FUNCTIONALITY OF THE REGIME OF ABSOLUTE NULLITY CONTEMPLATED IN THE CIVIL CODE
This article, after briefly exposing the two main theses about the nature of the nullity contemplated in Law No. 19,496 regarding unfair terms, examines whether the regime of absolute nullity exhibits the dysfunctions accused by a certain sector of the doctrine. An attempt is made to show that all objections to the consistency and functionality of the application of said regime are defeatable and that they do not justify the construction, through interpretation, of a special regime. It is postulated that the regime of absolute nullity, correctly understood, is not only functional, but is also more protective than an alleged, incomplete and uncertain special regime.
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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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THE COMMITTED INTEREST IN THE DECLARATION OF ABUSIVE TERMS AS JUSTIFICATION OF THE ACTION FOR THE GENERAL INTEREST
This article will demonstrate that SERNAC can bring an action for the general interest against abusive clauses. The basis is the interest involved in the declaration of abusiveness. The effect of the action is an infringement conviction, the nullity of the stipulation, and the cessation of the supplier’s conduct.
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Nulity of abuse clauses in reservations, promises of sale and purchase signed by consumers of homes marketed in green
This work analyzes the sentence handed down in Sernac against Socovesa S.A., and another (2020) that pronounces on a claim derived for the defense of the collective interest of consumers by virtue of the special procedure established in article 53 of Title IV of the LPDC. The action is based on the different abusive clauses that the defendants maintain in the adhesion contracts that they usually enter into with consumers during the process of buying a house using the so-called green modality; These are the reserve for the home purchase operation, the contract of the promise of sale and the contract of sale with a mutual mortgage. The study focuses specifically on the claims related to the declaration of nullity of certain clauses that were rejected in the judgment of the first instance that was confirmed by the Court of Appeals of Santiago. Consequently, it reflects on the nature of reservations as an adhesion contract, on the interpretation of article 138 bis of the LGUC in the light of consumer rights and also, on the object of the clauses of accordance.