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Search Results
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The misleading advertising: a problem of provider excusability or consumer recognoscibility?
The purpose of this work is to address what some of the judgments of our courts have come to call erroneous advertising in order to determinate whether, in fact, we are facing a new advertising category or, on the contrary, it constitutes the negative face of advertising misleading. The method used has been to review the judgments of the Santiago Courts of Appeal that have alluded to it between the years 2015 to 2018, critically analyzing them, based on excusability of the supplier’s error and its recognoscibility by the consumer, nothing that we are not faced with a kind of advertising other than misleading and that the use of it is unnecessary, a matter that affects The scope of Law 19.496 on the Protection of Consumer Rights, since there being a supplier error, recognized by the supplier there is no trust to protect, so civil law must to returned to.
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APPLICABILITY OF THE CHILEAN CONSUMER RIGHTS LAW TO THE INFLUENCER’S PUBLICITY
This document presents a critical appraisal regarding the application of the Chilean Consumer’s Rights protection Law (No. 19.496) to the so-called “opinion leaders” commonly known as influencers. To that end, the consumer relationship is described in its purest form, constructed between the supplier and the consumer, where the first one provides goods or services to the second, with the peculiarity that, in the object of the analysis, the consumer got seduced or -better yet- influenced by the actions of the “opinion leaders”. The author proceed to examine specific consumer rights applicable to this topic, such as the right to be free to choose (article 3° letter a); the right to a truthful and timely information (article 3° letter b]) and the ones related to prevent a correct false advertising (article 28). Subsequently, supported by the review of national and international legislation, authors and case studies, the document continues to configure specific obligations for the suppliers and influencers to comply according to the standards of their professions and its duties as the stronger part of the consumer relation that allows to assign civil or infractional responsibility, as appropriate. Finally, the document concludes exploring the actions prescribed by the law for nonobservance or non-compliance with said analyzed obligations.
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The persuasive purpose of advertising and its dangers with regards to consumer credit
Consumers decisions respond to stimuli. These can be conditioned by a variety of tools and, pursuant to them, alter tastes and preferences. The poor attention of consumer law on this subject, usually focused on the standards of clarity and truthfulness of advertising, neglect that consumers may be persuaded to make sub-optimal decisions. In the context of consumer credits, this can be proved observing the emphasis given by the law to the transmission of certain informational content in advertising (v.gr., the financial cost of the operation), but that, absent of a regulation that considers the problems derived from the individuals’ bounded rationality, the protective tool seems insufficient. The tendency to highlight the positive elements of consumption, displacing those that involve some degree of sacrifice, stimulate people to seek the financing for unnecessary consumption or in conditions that might be harmful, leading -in the most extreme situations- to over-indebtedness.
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EFFECTS OF FULFILLMENT OF DISCLOSURE REQUIREMENTS FOR CORPORATION’S SHARE TRANSFER AGREEMENTS: STATE OF THE QUESTION AND NEW PROPOSAL
The paper investigates the meaning of the enforceability provided by the disclosure requirements that Chilean Corporations Act demands in the shareholders’ agreements on the transfer of shares. After critically reviewing the national literature and case law, it is argued that the annotation of the agreement in the firm records and its deposit in the company in practice involve little publicity, consistent with the fact that, in the rest of the statute, the register of shareholders lacks projection towards third parties, such as an acquirer of shares. In this way, the effectiveness provided in the norm does not have a different scope from the effectiveness of civil law: imposing the existence of the contract –not its obligatoriness– as part of the legal reality.
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ABOUT THE ARTICULATION BETWEEN THE LEGAL GUARANTEE AND THE VOLUNTARY GUARANTEE IN THE CHILEAN CONSUMER LAW: CONCURRENT TERM AND RESIDUAL TERM
The deficient legislative technique used by the LPDC to regulate the conformity guarantee regimes, has implied the emergence of various interpretative doubts, among which is the eventual extension of the term of the legal guarantee –and its effects– to all temporary effectiveness of a possible voluntary guarantee.
A systematic reading of the LPDC and its liability statutes lead to a negative response, supported on the basis of its internal rationality and the interpretation of the rules of guarantees, in line with those that establish duties of information and publicity.
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LEGITIMATION AND PUBLICITY REGARDING THE REGISTRATION OF A SEPARATION OF GOODS AGREEMENT
The Supreme Court rejected an appeal on the merits filed to reverse the dismissal of a third-party possession. The basis for this decision was that the act of awarding the rights to a property because of the liquidation of a community derived from a conjugal community and the payment of an alimony for which a person transferred the remaining percentage of rights to favor of their ex-spouse required a differentiated treatment, distinguishing it from the separate property agreement entered in the same instrument. Specifically, the discussion focused on the role of registry entry with respect to adjudication, which the third party considered was expressly required by law, but whose origin results from the general rules that inform the Chilean registry system, without forgetting the particularities of the conjugal community regime.