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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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STANDING TO SUE OF THE PUBLIC PROSECUTOR’S OFFICE TO CLAIM ABSOLUTE NULLITY IN THE INTEREST OF MORALITY OR THE LAW
Among the subjects entitled to request the declaration of absolute nullity of an act, article 1683 of the Civil Code mentions the public ministry. This legitimation presents two interpretative difficulties; the first one, that the former can act “in the interest of morality or the law”, which is usually opposed to a pecuniary interest; on the other hand, that the latter has evolved in terms of organic structure, content and powers. Given these difficulties, two theses can be put forward; the first, aims to conclude that the Public Prosecutor’s Office has lost such powers; the second, which this work defends, is that it maintains them. For these purposes, the modifications experienced by the Public Prosecutor’s Office are analyzed and arguments are made to give practical use to said article.
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The incompatibility of the remedies against the “prestación irrisoria” according to the ecuadorian Commercial Code
The new Commercial Code enshrines the prestación irrisoria for the first time in our legal system. Its purpose is to ensure that the obligations that each contractual party acquires are symmetrical. Nonetheless, the Code offers three incompatible consequences should the contract have a prestación irrisoria: absolute nullity, resolution and adapting the contract. For that reason, we propose that the adequate consequence for a prestación irrisoria should be the relative nullity, since that solution is compatible with the adaptation of the contract.
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ORIGIN OF THE JOINT TREATMENT OF THE RELATIVE NULLITY AND THE RESCISSION IN TITLE XX OF BOOK IV OF THE CHILEAN CIVIL CODE
The objective of this paper is to demonstrate that the joint treatment of the rescission and the relative nullity in the 20th title of 4th book of the chilean Civil Code is no way an accident or a mistake. On the contrary, that situation has an unnotice historical explanation in the origins of calledlaesio enormis.
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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 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.