CHAPTER 6 .- adhesion contracts or prefabricated
6.1 .- Concept of contracts of adhesion
Most relationships to procure goods or services, whether minimum as large sums of money, held by the required use of preprinted documents, predisposed clauses that the consumer can not negotiate or modify.
As above mentioned, these are referred to legal contracts of adhesion and is recognized in our law of the consumer.
These types of contracts are doctrinally defined generally, for any legal relations. Reach for example, inter alia, to contracts that predispose the credit card issuers for the accession of the banks or merchants to its system. That is, not specified exclusively for consumer relations, and because of that, for clear understanding of consumer contracts are referred to as prefabricated.
Based on the provisions of the Consumer Act, it follows the concept of contract of adhesion: that clauses which have been established unilaterally by the supplier of goods or services and / or approved by the administrative authority of the State, without the consumer may counter offer, discuss or amend its content.
They must be printed in Castilian language, with bold letters at first sight for normal vision. Bearing in mind that the additional clauses to the preset does not change by itself the nature of the contract of adhesion.
The provisions of the Consumer Act reach every consumer written contract, ie in the form presented in series or any other similar procedure.
From now on we will refer specifically to unfair terms included in these contracts.
A new consumer law took effect in July 2004, he joined necessary advanced features that are required for this type of contract, such as those implemented in several countries to consumer protection.
Most important in this connection was established by law that Clauses that limit consumer rights, should be written prominently, can be quickly and easily understood. That the termination clause of the contract is only permissible if it is intended to both parties or only for consumer.
Clear examples of adhesion contracts are given by the so-called contracts for the supply of utilities (Electricity, Water, Gas, Telephone, Internet, Cable TV, Financial Services and Banking, University Services, Car Rental, Insurance, Prepaid Health, etc.).
6.2 .- Origin of the contracts
To ascertain the degree of acceptance of these contracts binding the consumer in the world, need to go back to the post-war industrial era.
There was then a strong manufacturing industry in full development, at the initiative of the business of manufacturers and entrepreneurs from Europe and the U.S. embarked on the massive and powerful serial production resulting from the recent completion of the Second World War.
Indeed, it offered the possibility to continue production without requiring more labor or new buildings, thanks to the return of soldiers and factory space vacant at the time.
mode is implemented as a result such as making car series, and the economic division of the production units. Its result was a fixed and immovable; was offered the car with a set price that prevented the buyer to any negotiation or amendment.
is significant that this potential market capitalism gave rise to the typical contract of adhesion, the need to facilitate the conclusion of the contract between producer and consumer. Today is the contract for excellence and massively used for the provision of goods or services of any kind.
6.3 .- The privileged and powerful part
weak consumer market in our socio-economic, and powerful party insiders, are producers, industrial companies, manufacturers, traders and brokers of goods and services.
They are those who direct negotiations with the consumer mass, initiating relationships with them through advertising offers and concrete-in most of the celebrations, adhering to their contracts preprinted forms. Contrasting
of this powerful economic superiority, the consumer appears alone and weak against adhesion contracts and the like, the only possible option to accept without discussion. Otherwise, they should decline, without joining and wasting in most cases, the only possibility offered by the market to buy goods or hire a needed service to their living choice.
These written consumer contracts, in general, and despite its legality, are presented honest buyer certain obligations unexpected or ill-informed, so obvious. They are in the content of the clauses are incorporated and biased (so prerredactada) in the general conditions which are attached subscribers. These conditions are indisputable, that companies have decided in advance are incorporated into the content of future contracts. With these guidelines come on the market, offering goods or services, a universe made up of countless individuals.
consumers to purchase goods and services must sign the acceptance of these general terms of which are:
· Immovable,
· Immutable
· and standardized,
as evidenced by its zero input and involvement in drafting them and, consequently, unable to discuss its terms are accepted or not. Brindárseles without the slightest possibility to change prices, terms, conditions, extras or other tradable alternatives, consumers are forced to contract unilaterally.
Hence, the legal doctrine it characterized as a "contract without a subject" as they are now meaningless participation or willingness of the consumer.
Consumers, moreover, is not empowered to adjudicate or studying in most cases by itself, the adequacy and intelligence of the content of commercial contracts. The undersigned these types of consumer contracts, logically belongs to a mass audience and neophyte bidders therefore write the terms so that you find intellectually impossible to understand what your obligations. Hence the presence of clauses of ambiguity, typographical or small (the famous "fine print"), today while legally controlled, is still used by many unscrupulous people who do not abide by existing legislation, as we see in Annex of the forms of contracts of adhesion.
The full contents of some contracts, only learned in the art can understand or interpret. And if we try to read it slowly at the time of hire, urge us to developers-any excuse-to limit the time of reading material to gain acceptance as signed, because it means a higher sales commission for them.
Another important and very damaging, is the inability to envision future contractual legal figures must necessarily assume the consumer in the different stages of development needs required by contract.
This legal uncertainty and insecurity are exemplified in the so-called "related contracts" that is, you sign only a form contract, which actually involves several, for example, savings plans: the actual savings plan + insurance + life + insurance contract vehicle lien.
Another example, in the famous banking product packages and in one form: a contract for credit card + checking + savings + insurance, etc.
We add to the above, that its membership is obtained by true "masters", trained in courses and seminars and hired by companies to sell their products.
are the same producers or promoters of contracts which, in some cases, former teachers misinform the consumer; impossible promise bonuses prizes, gifts, which subsequently are not respected in future contractual stages, indicating only the favorable characteristics of the product.
The reciprocal contractual terms are avoided or omitted to be negative for retail management. (Eg: model changes, default interest, extraordinary expenses, voluntary insurance, freight, debtors pledge, collateral requirements, preexisting conditions, etc.)..
On the contrary, the responsibility for these cunning Sellers are not compromised, as inexplicably lack of legal regulation-is obvious your name, address and signature, and only sometimes a simple stamped without signature or seal with a barely legible, and the only thing that is stamped on the particular contract, is the signature of the consumer, which does not demonstrate to us that a real statement of intent, as this is rather an imposition. 6.4 .-
Evident contractual imbalances
The complex nature
legal, technical or scientific prefabricated these contracts, it causes imbalances apparent contract with its unquestioned validity, objectively observing that:
a) The consumer usually by understandable hurry to acquire a good or a service contract, deliver large sums of money, or committing to them through securities firm credits such as the Promissory Notes or the lyrics, completely ignoring the responsibilities and obligations it is assuming;
b) There is, contractually, a number of challenges and responsibilities for the consumer and the predisposing minimum, eg in any contract there the incomprehensible lack of penalties for the latter (in case of partial or total failure);
c) The key part is strengthened economically, thanks to its investors and free-time about it, "that is the consumers (eg automotive industry and their respective companies prior savings, credit card issuers and banks, etc.).
d) The contract also manifest disproportion between the meager resources available to normal consumers with the power of information, suitable human organization and advanced techniques of business. Groups enables the consumer to exhaust his claim; example, is the familiar mechanics derive from job to job so that finally exhausted and demoralized, cease your complaint. Conversely, if a company claims the consumer, since its inception as pressing, choking, and ends up drowning in family conflict.
6.5 .- Warnings for membership
The above are some of the reasons for the current conflicts facing everyday consumer.
irregular results which are checked daily; true disloyalty to the law become the urgent need to raise awareness for the consumer is not over-current situations countless unreasonable, "nor with any maneuver in whole or in part contradictory to his knowledge and intentions.
For the protection and consumer protection should require application-to the full extent of the letter of the law imposes, "the following conditions:
1. That at the time of signing a contract of adhesion, the principles of safety, choice and freedom, not foreign to them.
2. That in each of the different stages in the contract is perfected, the offeror complies with the duty to provide the maximum transparency, written information timely, relevant, truthful, accurate, effective and sufficient of the terms, procedures and other conditions attached to it.
3. That in the performance or execution of the contract, guarantees and services offered are appropriate and realistic, providing, where appropriate, that the responsibilities and consequences for breach of contract be made without further delay.
4. Accepted general conditions do not involve any unfair methods or contrary to their rights. In case of conflicting provisions or dubious content, they will be interpreted in favor of the consumer (in dubio pro-consumer). Concerning
above, can and should the consumer, to safeguard their rights, exercise of assent, which goes beyond their consent, ie that despite signing a contract and accept the deal, has the possibility reserved by law to further study the instrument, or to proceed with the revision. So to detect one or more unfair terms in their contract, is entitled to make representations to that effect have not agreed.
Or in case the supplier violates the obligation to act in good faith at any stage of the contract or violate the duty to inform or the law of antitrust or fair trade, the consumer may request cancellation of the contract or one or more of its clauses From the "fine print"
expression fine print in their progress and widespread use, has a dual meaning. The oldest, refers to a clause unreadable typeface minimum features, the second called by extension to those clauses surprising, unexpected or unprecedented, not considered in the negotiations, which were not part of the game.
With regard to the fine print first expression, the literal, we note that:
Since the publication of the amendment to the law in July, the letter of all adhesion contracts are signed in the country should have a minimum size of 2.5 milímetros.Cláusulas that do not comply with the new rules will have no effect.
ended that day across the country to issue the fine print in contracts of adhesion. This under the implementation of reforms to the Consumer Law (N º 19.496), passed by Congress, which establish a minimum of 2.5 mm high for the size of the letter of these legal texts.
also maintains the rules that prevents drawing up contracts in another language than in English Castilian and maintain an adequate contrast between form and substance of the document. All this, so that it is easily readable for the parties involved.
For this breakthrough, the SERNAC reminds consumers that, under this law, contract provisions that do not respect the minimum size required for the letter (2.5 mm) shall be inoperative.
6.6 .- Letra ant
This important reform to the law of consumer rights, place a standard measure of the size and legibility of the written word circulating in numerous contracts of adhesion, such as those established telephone banks and Isapres situation was not regulated until the entry into force of the new consumer law.
For decades, the letter ant, prevented many Chileans, especially seniors, to know fully the details of the documents they signed, giving rise to a number of surprises and subsequent problems related to obligations or benefits to which they gave up after signing the claims in the SERNAC contrato.Numerosos revealed the damage produced the fine print among consumers, an issue that changed with the enactment of the new rules.
6.7 .- Anti unfair
Hundreds of pages could be written with respect to the legal theories on unfair terms, national and international, that shape the Institute of unfair terms.
And thousands of pages could be written about the suffering and the moral and economic damage they cause to millions of families of consumers, malice and evil intent of unfair.
Just as easy to define the terms or unfair as unfairly affecting consumers in the comparison between the rights and obligations of both parties, it is difficult to transcribe the damage it causes to consumers that the law calls inequitable.
6.8 .- A brief history
abusive contract
This practice is trying to reverse came from the mid-nineteenth century, by doctrine and European legislation, in America from the 40's of this century. And in both continents violate the various theories, definitions and interpretive guidelines for implementing the law of unfair.
From the beginning, were presented as exaggerated terms. It sought a solution on the basis that while these clauses restricted the rights of consumers, not enough to undermine the effectiveness of the other clauses, otherwise it threatened the very nature of the contract. That is, it should primarily protect the validity of the contract, despite the negative aspects for the consumer.
Already in the 70's, these vexatious or unconscionable clauses in the law caused a real crisis contractual. In parallel, generating decaying economic system in the contract talks, a sort of ingrained bad business practice, which resulted in unworthy economic abuses against the weakest part of society, the consumer.
6.9 .- The weak part
abused contractual Step: acceptance.
The same was done spontaneously and freely, covering the whole range of contract clauses. In this case the consumer did not realize that included provisions contrary to their knowledge or desires.
Because of the will or good faith, the consumer was in the event contract with the unpleasant surprise of the existence of such clauses whose deleterious effect was evident in all its magnitude. Unquestionably
had from the consumer insight or intention towards them. And yes ignorance or ignorance of its harmful consequences. By error or confusion about the true legal sense conceptual content or having those clauses, it is assumed that all contractual start, the intervention of bad faith and deceit do not was a casual thing.
Faced with these terms or clauses, the consumer is subjected to or suffering from something that does not know exactly why it is contrary to what is desirable and becomes the victim of a powerful cause or above which must be filed VOID .
International Consumer Movement in accelerated action discovers the planted unilateral contract terms drawn up for the massive purchase of goods and services. Those that germinated after the conclusion of the contract, and its growth stifled their right of choice. Flowering annihilated him in good faith and finally ended its fruit with the economic interests of consumers.
The existence of such clauses, the most serious evidence of direct injury to the rights of consumers, without arrangements or business practices that are generated through them, for that to be allowed, giving rise to other types of abusive arrangements. That confusion created expressly allows mask or avoid contractual liability of companies in the consumer and society.
Internationally, the establishment of consumer protection movement ensures that the state provides for the cases of clauses contrary to equity, justice and logic, and to proceed with its cancellation in favor of the sustained without it means losing the validity of the remaining contractual content.
Several states were forced to exercise financial discipline in respect to good faith of consumers in the world market, to consecrate the figure of the consumer with a contractual justice including the right of election, information, and fair treatment and, especially, legal recognition of its economic interests as a right.
6.10 .- The weak part
protected international law instrument and gave the consumer a sort of legal sword capable of cutting all types of term or unfair terms of contract, as for example those conditions have rescission only in favor of powerful predisposing, which preclude the understanding of its meaning or scope, the hidden due to its fine print, which distort the obligations, which limit liability for damage of the applicant, a waiver that matter consumer or a restriction against consumer rights or expand the rights of the other party without legitimate reason, which authorize the supplier to alter unilaterally the terms of the contract, all provisions or rules that impose the burden of investment of proof to the detriment of the consumer.
Consumer Law gives the consumer his right to complain against unfair the courts, in order to be declared ineffective or invalid, the benefit of their consumer relations.
The phenomenon of unfair terms in consumer protection act will constitute a major source of protection.
first is standard in the legal system on a subject of law-the consumer-accepting in good faith and good will an unfair included in his contract, which you can then sue administrative or judicial purposes is have it as not agreed or canceled. Without simultaneously nullifying or impairing the main object of the contract, nor to the adequacy of the price or remuneration, on the one hand, or services or goods to be provided in return, on the other hand, provided that the contents are written in clear and understandable in the clauses.
CHAPTER 7 .- Unfair terms in Consumer Law (Analysis) ADHESION CONTRACTS
Adhesion contracts Article 16 and 17 are those in which the supplier unilaterally imposes default terms.
protecting consumer law states that consumption in these operations do not produce effects clauses that indicated there, such as changing its discretion to contract price increases, to reverse the burden of proof, and which is the most important art. 16 point e: introducing clauses that contain absolute limitations of liability that may deprive consumers of their right to redress against deficiencies that affect the utility or essential purpose of the product or service. Logically, this provision relates to those relating to the rights of claim and choice of Article 19, 20 and 21 and one in which if the arbitrator designated provider, the consumer can appeal without explanation.
7.1 .- There are some institutions that are called anomalous because contracts do not contain all the elements of contractual freedom, they are:
· Contracts of adhesion contract
· Addressed
· Contracts forced
· Contracts
· Contracts Act type
a) contracts of adhesion
usually indicates that we are facing one of these when the element of the free discussion of the terms of the contract, at least for one of the subjects this because one of the parties "imposed" contractual clauses to the contrary, and lack of free discussion of the contract.
Is it proper for a contract to generate a discussion of each of its clauses?, "If this discussion does not exist, we are faced with a contract?.
are also characteristic of this type of contract, the disparity, the disparity the ability or bargaining power, a difference of technical, etc.
Another element which must be satisfied that this subject is endowed with less bargaining power, lack of other alternatives and this is particularly so when we are compared to basic services.
is also characteristic of these contracts some of the characteristics of supply, three characteristics
is permanent, I mean, is not limited by the acceptance that one or more individuals make, on the contrary it is reiterated by the offeror.
is uncertain: It is a fantastic offer available to any subject, not anyone in particular.
is thorough: Details clauses to be fulfilled by the parties (fine print)
Adhesion contracts are specific to the realities of mass recruitment. So What
mass recruitment, the contract can be thought of as a result of discussion with each subject?
Speaking of membership contracts, we are not talking about contracts or forms, this is another kind of contract. It is common for contracts of adhesion are reflected in a contract, but not all contracts are contracts of adhesion.
There is no legal concept of contract of adhesion, through Law 19,496. (08/03/1997) "standards for the protection of consumer rights, "in Art.1 No. 6 defines a contract of adhesion as" one whose provisions have been proposed unilaterally by the supplier without the consumer to celebrate can alter its contents. "
not meant to be a general definition of law, makes hard on the lack of freedom of contract settings, notwithstanding all this, the legislator is calling it a contract.
Is not a contract or a contract of adhesion?, Doctrine is divided.
Some argue that we are facing a contract
THESIS CONTRACT. They note that the key or crucial to know whether we or face a contract, it will not matter even the magnitude of the subject to celebrate, just the YES of the subject so that there will. (Ripert) calls for conscious and free will exists (conscious informed equals, free, without defects of the will).
ANTICONTRACTUALISTA DOCTRINE: It is essential to the emergence of a contract the existence of free and informed discussion, (Saleilles). This would be a unilateral act of the offeror. This is important because if there are problems in implementation, could empower a third party to the contractual relationship (judge) to intervene. Both doctrinal thesis
speak of free wills and aware, which is consistent with our system (apply the vices of choice)
Does this all membership contract itself undesirable? No, the problem is generated when the bidder with the terms abusing the contrary (see article No. 16, Law 19 496)
Possible solutions to abuses in adhesion contracts
is possible to find solutions for two-way a priori and First post
via: a priori
directed procurement contract or directed. It is the legislator who established what are the minimum clauses or to avoid unfair interference. This limits the freedom of both, is imposed on the individual rather weak impossibility of giving certain guarantees, such as in labor law
Endorsement or approval of contracts: We talk about the existence of an authority that oversaw the subject that may be incurred in the abuse, its purpose is to prevent abuses . The subject bidder must submit your completed contract to the superintendent who authorized putting on offer. This does not alter the access to consumer law. Contracts
bilateral rates: Two groups of business entities with conflicting interests, seeking to forestall problems in recruiting their members (one of them weaker). Eg consumer associations v / s group of companies (airlines, Banks, etc.).
Then both groups pre-write a contract. It creates a balance of power negotiators. We can also see a similar thing in the international business company or in collective bargaining via
II: a posteriori.
huge injury: Ability to cancel a contract that creates an imbalance on the performance advantage of the lightness, inexperience or the need for the parties. This institution is limited only to real estate.
Through the interpretation of the contract: to respect the doctrine is that consistent with our DC, we apply two rules of interpretation. Rule
construction against the editor: It starts from the premise that there is a subject which pre-drafted and is equipped with the technical and economic capacities, then the whole clause is interpreted against those who drafted the contract loopholes, gaps and contradictions. Art. 1566 CC, Inc. 2 °, reflects this principle.
1566 .- Not being able to apply any of the foregoing rules of interpretation, ambiguous clauses are interpreted in favor of the debtor.
But the ambiguous terms have been extended or given by either party, whether credit or debit, shall be construed against it, provided that the ambiguity comes from the lack of an explanation that has give her due. Rule
preeminence of handwritten clause on clause states: If a contract we are faced with contradictory clauses take priority after those in the pre-written form.
b) Directed
contractual amount is the role that the state can take its role as guarantor of the system.
When we talk about a contract directed, we mean a contract in which one of its clauses is imposed by the authorities on both sides, considering that one of them is weaker, thus restoring the balance of benefits.
can also move to this state considerations relating to the economy and the seriousness and economic security of legal transactions. Eg work contract, lease of urban real estate, law 18,010 (interest and adjustments on the maximum conventional interest), DL 600 Foreign Investment Statute, Decree 17,366, intellectual property.
This is not a proper mechanism of concentrated markets.
c) Contracts forced
When we talk about these, talk about a contract that requires the legislature to celebrate or celebrated assumes certain circumstances. This contract has a greater intervention, radicalized the possibility of concluding the contract or not.
We must distinguish here between orthodox and heterodox contracts:
Orthodox are those that, while I imposes the obligation to conclude a contract, I can decide who held the contract and I can at least partially determine the terms of the contract but also the legislature imposes minimum clauses that can not be changed.
eg compulsory automobile insurance contract and the contract of affiliation to the AFP.
Heterodox:
The subject is forced to hire and is also required to do so with a certain subject or subjects. Ex Article 129 of the Bankruptcy Act, Article 71 Tax Code, these are cases of 'laboratory'. Otro ejemplo puede ser la obligación de constituir garantía de las AFP., Isapres, Bancos.
d) Contratos tipo o formulario
Son pre-redactados y por ello llamados formulario. Son contratos en que una o varias partes, establecen o acuerdan con miras a contrataciones o negociaciones futuras, igual que en los contratos de adhesión, estos contratos cobran sentido en las contrataciones masivas.
Esta no es una institución de por sí negativa, puede que suceda normalmente en mercados altamente concentrados y/o que ofrezcan sus bienes en forma muy semejante, pero estos no es así necesariamente; es un gran aporte a la celeridad del tráfico jurídico –económico, aunque tienen la certeza for the weakest subject.
The contracts can be classified into:
unilateral contracts: When those who seek to establish the conditions of future contracts are a group of subjects with more or less convergent interests and have similar quality.
serious danger to even be considered a breach of free competition, since through the agreements will create a mega subject and thereby try to avoid the introduction of new subjects to the market.
bilateral contracts: When there are 2 groups of subjects with divergent interests (eg Consumers Association v / s producers).
e) Contracts
laws
is a new source of law in the economic field.
talk of contract law because we are facing a voluntary agreement between two or more individuals who regulate their conduct in the future. So contract law because the agreement lies in the area which is normally law, that Article 60 of the CPR. Not that these contracts-law to create new taxes or fees, but agreed with a particular stabilization, freezing conditions in a time and in this way to find stability on the tax or tariff.
Another feature is that at least one of the respective parties must be the respective state, that is not only private subjects. This is important because of the contract rights arise and obligations for the entire state and its various manifestations, also requires legislative and judicial powers.
Under the constitution of 25 was discussed whether it was possible to hold these contracts state laws, whether he could unilaterally modify those contracts.
The doctrine was divided:
If you can do: For if the contract is concluded as a contract-law and the law is an expression of the sovereign will she can not per se to exercise their sovereignty (that gives no security because the state can change all the time).
can not do: The contract is already a law, and if the parties want to terminate it can not do one at its discretion, but will be of use. Another argument is that since the conclusion of the contract incorporates the heritage of the particular subject and if the state can or not at his discretion terminate the contract would be a condemnation by non-legal.
This is the view of the sanctity of contracts
laws
Examples of contracts law in Chile:
DL. 600 on foreign investment, through him the state seeks to encourage foreign capital investment in the country, the incentive for a certain time maintaining a level of taxes and tariffs in effect at the time of conclusion of the contract. They are usually the State v / s one or more investors foreigners represented by the foreign investment committee. Something very simulate
happens to the DFL. 2 - residential property less than 140m2 - contributions are reduced up to 12, 15 or 20 years. Contributions are frozen in 50% of what they should pay. Chapter 8 .-
CONSUMER LAW IN THE OFFER:
has recognized the right of consumers to receive the information needed to make a decision or make a properly informed choice of purchase of goods and services. To protect this right and proper information the consumer has established two main instruments:
A) The prohibition or misleading advertising of misleading the consumer.
B) The conditions of labeling to determine the quality and content of the products.
CHAPTER 9 .- THE LAW OF CONSUMER CREDIT IN THE SALE:
The most typical case of contracts of adhesion in the consumer protection law is in credit sales, where the law requires the formulation of conditions (equivalent to clauses) clearly establish the payment, the amount of interest and the effective annual rate, the amount and detail of any additional charges if any, the number of shares, the frequency and date of payment and consumer's right to liquidate debt and reduced interest charges
Chapter 10 .- ASSESSMENT OF STANDARDS CONSUMER PROTECTION legal
A) Invalidity of provisions establishing exemptions or limitations of liability.
B) Invalidity of provisions that establish Faculties unilateral termination or cancellation of the contract.
C) Invalidity of provisions that establish defenses bans
D) Invalidity of provisions that establish prohibitions extend or renew the contract tacitly.
continued on next post ....
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