CHAPTER 5 .- Where defects
will analyze the possible defects of the will that can be enforced against contracts of adhesion.
Error, Force, Dolo, and in some jurisdictions the injury, unfair, the lack of will, and generally in the criminal fraud.
5.1 .- ERROR:
In most countries hosting this vice of the will, and the case in Chile, there is any error, but one that relies on the essential quality. It's something that was taken into account when deciding to hire and that is not present then, therefore, have known that had not been missing ever hired.
5.2 .- FORCE:
not here refer to physics, it will be impractical, if not morality, understood as the threat of a bad way or imminent. 5.3 .-
DOLO:
is a plot in order to damage or harm. It links it to the bad faith in business, and is often associated with lack of information or misinformation or lying without which the addressee of the offer not hire. Led to criminal matters, often framed in the scam, which is the crime committed through deceptive machinations meant to catch the acceptance of the victim.
We should clarify that is not within the concept of defect of will DOLO called OK, which is tolerated by law, and that is typical of commercial practice, as may be some exaggeration of qualities (but not from the standpoint of consumer protection, lying about qualifications), and in general, different modes of sensationalism, known by the common people. 5.4 .-
INJURY:
This vice of the will was not taken into account in Chile, nor in many other countries. Yes, it took account of the English legislature.
Injury is the vice that operates when there is a necessity for someone and burdensome proposal and opportunistic oversized value solution on the occasion of this special situation of need.
Our legislation is only used in the study of the sale and the huge damage
The termination of the sale by huge injury is dealt with in paragraph XIII of Title XXIII, among the Arts. 1888 and 1896.
concept of termination
The sales contract may be terminated by huge injury (ART.1888), this ART. follows:
The word termination is in C. Civil at least two ways:
is used to refer to the relative nullity.
is used to refer to the effect of the enormous damage in the sale
In conclusion, the injury is not a huge error which invalidates our right, but the special effects, given in paragraph XIII of Title XXIII.
purchase contracts terminated susceptible to injury
huge huge injury comes just about buying and selling real estate, but not be invoked if the sale is made by the ministry of justice, that is, if it is of a forced sale, or if the contract are movable (RULE 1891).
huge injury Concept:
wondered now when there is injury huge in the sales contract. Here we must distinguish between:
a) SELLER suffer enormous damage when the price received is less than half the full price of the thing sold (ART.1889 first part)
b) BUYER. Suffer enormous damage when the fair value of the thing you buy is less than half the price you pay for it.
What is fair price
a. Refers to the time of conclusion of contract. B.
It is generally understood by just price or the market value of the property market root. C.
What if it holds a promise of sale agreement on the price promise is establishing huge injury? Must we look at the price at the time of conclusion of the promise or the time of the final contract? Unless special rules expressed, should be viewed at the time of the conclusion of the final contract.
As an exception to Art 1889 has established a side note which provides that the fair price should be considered in the timing of the promise, (Art.85 Law 16,742 of 8 February 1968).
Effect of Termination huge injury between the parties:
If the seller can exert enormous suffers injury action to terminate the contract in this case, the buyer can assume one of two attitudes:
Consents termination, ie, demand flattens or Complete a fair price
least one tenth (RULE 1890).
The law provides that upon completion of the fair price the buyer is subtracted a tenth because in reality and in the free market is no guarantee that this money to supplement the buyer has been paid after negotiations. The right price is only an objective parameter legally established average and equivalent to market value.
If the buyer suffers huge damage, may have the action for rescission of the contract, the seller can take one of two attitudes: Conscious
termination (acquiesces to the demand). Restores
excess money paid for the right price, increased by a tenth.
however, operate in the event of termination, the buyer is obliged to return the matter to the seller. In the event that the buyer has been charged with a mortgage or pledge or other real right, the law, protecting the third party, requiring the buyer to purify the matter prior to their return and in this sense, is a guarantee to creditors the buyer that they meet the obligation bonds, or constitutes or is replaced by another bond.
Termination of the enormous injury action for rescission. Can
contractors stipulate in the contract, and advance, there will be no huge injury action for rescission?. The answer is no because this action can not be waived (RULE 1892).
a. Action is extinguished by destruction of the thing over to the buyer. B.
It is extinguished when the buyer has also alienated the thing is, legal loss. In this case the law allows the seller to that in the event that the buyer has sold the thing at a higher price than you bought it, can claim the excess, but only to the extent of fair price of the same, net of one-tenth. C.
For statute of limitations. The prescription is for a term of 4 years from the act or contract (Art. 1893). 5.5 .-
ABUSIVE CLAUSES:
The term "unfair," the doctrine meant to those that give too many privileges or advantages to a party to the detriment of the other, and usually come through the existing inequality of the parties, injured by the need or the means to hire, as is the adhesion contract (most suitable instrument for them) and the subject of this analysis.
Such may be the provision limiting the liability, tax guarantee tax claim very short deadlines, etc., etc.
Some laws, such as Argentina (under the topic of the validity of contracts, and logical inferences) and French (these clauses are not placed).
In a study of some banking contracts have detected some unfair that we present to the reader of this thesis, we can see what these clauses to which we have referred.
The review covered contracts of banks:
remember that we are dealing with contracts that are called "adhesion" because one party (the bank) sets the rules and the other (the consumer) merely to accept
These are some of the terms "abusive" found in the contracts analyzed
· Modification unilateral contract. For example, not agreed to add positions as "collection management" when paid in arrears or fund balances, or lower purchase limit credit card.
· Obligation of the consumer to cancel outstanding debts first before giving the floor of a service such as credit card. The plastic holder can always cancel the contract even if you have a debt that may be paid later.
Cancellation and no reason for the contract when, for example, the consumer is up with their bills.
· Taxation consumer when an insurance company takes out a life insurance or a loan.
· Obligation of the user to arrange the dispute only the courts of the domicile of the bank. This violates their right of defense.
• The reversal of the burden of proof to the detriment of the consumer. A typical ATM deposits are not credited and the customer must prove that he made.
show
The objective of this study is only to achieve transparency and consumer relations striking a balance between users and companies that issue such contracts.
5.6 .- NO WILL:
We're not talking of a vice, which implies the existence of will, but the lack thereof. It has been held by the civil law doctrine that contracts of adhesion can even be considered that there is no will, and therefore no contract, for lack of one of its essential elements. Then, calls for the declaration of nullity, covered both as indicated in our Civil Code, as in the Consumer Act.
FRENCH LAW SAYS:
"The contracts concluded between professionals and non professionals or consumers, may be prohibited, limited or regulated by decrees of the State Council, the clauses relating to the particular character or determinable price and payment to hang anything or consistency of delivery, the burden of risk, to the extent of liability and warranties, conditions of execution, termination, resolution or return of conventions , while such clauses appear as imposed on consumers by non-professional or an abuse of economic power of the other party and the latter by giving undue advantage ...." "....
such unfair terms, set at odds with the above provisions are deemed not written ... "
" ... These provisions apply to contracts, whatever their shape or type ... "
LAW ITALIAN SAYS:
in Italy under the code 1942, accepts the teaching CONVERSION OF LEGAL BUSINESS NULL, which means that the will is revoked by a judge, as it means purpose of the contract or parties. For many, this is an infringement of private autonomy. I think that undermines the principle of conservation of the contracts, but the content thereof, many times.
Finally, a brief review of the recent consumer LAW
It seeks to protect consumers from contracts of adhesion by mechanisms of partial or total annulment.
The first solution is the partial nullity, and good integration the contract by the judge, filling the gap left void unfair terms, and gives the possibility to declare the contract void if it is impossible to integrate or arise without such clauses renders the contract.
It has been argued against, first the lack of sound legislative, introducing "patches" and not regulating or amendments as a whole, which may be correct.
by reiterating also criticized as invalid solutions and was enshrined in the Civil Code, which is not entirely accurate, as this regulation is more specific. Entering
what brings us together for this particular study, we defined and focused the study of contracts and the will of the parties in
called "consumer written contracts and unfair" or rather called "contracts of adhesion."
continued on next post ....
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