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FORFEITURE CLAUSES AS A MANIFESTATION OF A PARTY’S POWER TO TERMINATE A CONTRACT
The treatment afforded to resolutory clauses by Chilean legislation is limited to their express incorporation into forfeiture clauses inherent in purchase and sale agreements. Such little regulation, coupled with the limited use spared to them by Chilean legal scholars, much like the codifier did, trans- lates into a narrow application to cases of contract non-performance.
That is why, by resorting to such historical background, books of au- thority and case law as may be relevant, this paper aims to determine the legal nature of forfeiture clauses and how they operate in order to better their use as a contractual remedy in the interest of unpaid creditors.
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CONSIDERATIONS ON THE BAN ON FORFEITURE OF PROPERTY FURNISHED AS SECURITY (PACTUM COMMISORIUM) CLAUSES AND PACTUM MARCIANUS EXCEPTIONS THERETO
The prohibition of the Comissory pact is one of the most ancient institutions in private law of guaranties, who’s origin goes back to roman law. The study of the regulations that establish it demonstrates that its juridical discipline does not properly express its dogmatic fundaments. Furthermore, the prohibition of lex commisoria, purposed to prevent the creditor from taking advantage of its debtor and conceal usurary loans, does not compare to the absolute prohibition of the Comissory pact ex intervallonor of its similar, the Martian pact. Once the loan contract has been celebrated, the risk is displaced to the creditor, therefore the protection of the debtor’s interests through this instrument is no longer justified.