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Search Results
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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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Contractual penalty for the breach of the promissory sale of a real state
This commentary analyses a recent decision which declared that a preliminary agreement regarding the sale of an apartment was null and void, since it did not fulfil the requirements of a promissory contract. The court also rejected the sellers’ claim of liquidated damages for CLP $ 40 000 000 on account that it would cause an unjust enrichment. Special attention is drawn both to the features of the contract and to the available mechanisms that allow the moderation of the liquidated damages, which enable a more balanced solution to the one reached by the court.
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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.
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INTERNATIONAL SALE OF GOODS: THE OBLIGATION TO RENEGOTIATE IN THE CASE OF SUPERVENING CHANGE IN CIRCUMSTANCE
The paper analyzes the obligation to renegotiate a contract in the case of hardship or supervening change in circumstance from the perspective of the uniform law of the Vienna Convention on Contracts for the International Sale of Goods and specifically the application of the Unidroit principles on International Commercial Contracts contained in Article 7(2) of said convention on the integration of those principles. The paper concludes that such an approach is appropriate and serves as an attractive option for domestic Chilean law in this field.
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DUSTING OFF THE CIVIL CODE. ABOUT SERNAC’S EXECUTIVE RESOLUTION ON THE INCORPORATION OF DELIVERY DATES OF REAL ESTATE PROJECTS IN OMMUNICATIONS PRIOR TO THE SIGNING OF PURCHASE AND SALE PROMISES
Sernac’s Executive Resolution No. 277, issued on April 21, 2025, addresses the inclusion of delivery dates for real estate projects in communications prior to the signing of preliminary sales agreements. This article offers acritical analysis of the interpretative ruling, highlighting both its strengths and its conceptual ambiguities and normative limitations. It examines the legal nature of SERNAC’s circulars and rulings, their limited normative scope and legal effects, as well as the contractual consequences of breaching preliminary real estate agreements. The discussion also considers the role of Chilean civil law and, in particular, the application of Article 1554 of the Civil Code in promises subject to indeterminate conditions. The article concludes that, although the ruling reinforces certain valuable consumer protection elements, Sernac has missed a meaningful opportunity to clarify –more precisely and with greater technical rigour– the scope of real estate suppliers’ obligations.
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THE PRICE OF DECLARING THAT THE PRICE HAS BEEN PAID (ART. 1876 OF THE CIVIL CODE)
This commentary analyses a recent decision which held that, if the parties at the sale declare that the price has been paid, the seller will not be able to prove that he did not really receive the price. The decision relies on the wording “no proof will be admitted against this” of art. 1876, which is deemed applicable to the relationship between the parties inasmuch as it would bear witness to the evidentiary value of public instruments laid down in art. 1700. The commentary criticises this decision, since art. 1876 grants certain consequences to the clause that the price has been paid only regarding third parties, as can be seen not only in the wording of this article, but also in the sources which inspired it. The commentary also criticises the evidentiary value which the decision grants to public instruments, as well as the practical consequences which this brings along for everyday commercial practice.