CHAPTER 4 .- Autonomy of the Will
Great Civil principles of our legal and contractual arrangements: a.
- The idea of \u200b\u200bautonomy, with the limits of public order and good customs.
b. - The idea of \u200b\u200bconsensualism: in principle does not impose a way to express the will unless the law expressly stable title.
c. - The idea of \u200b\u200bassimilation of contract law
d. - The idea of \u200b\u200bthe principle of good faith
4.1 .- The liberal or voluntary
German jurist n. on June 26. M. 1817 in Düsseldorf in Leipzig on October 26. 1892. He studied in Berlin and Bonn Univ PhD in it on December 22. 1838. Made the "free teaching" in 1840, and in 1847 was appointed professor of Roman law and French civil law, Univ of Bonn, in the same year was named as a professor at the Univ of Basel, from where he then those of Greifswald (1852), Munich (1857), Heidelberg (1871) and Leipzig (1874), where he died. In 1874 he was appointed to the committee responsible for drafting the German DC, where she worked from 1879 to 1833. The work that gave him more fame was the Lehrbuch des Pandektenrechts (pandects Law Treaty, Düsseldorf 1862-70, 9 ed., With interesting additions T. Kipp, Frankfurt am Main 1906), which greatly influenced the CC German is undoubtedly the best summary of the doctrine Pandects. For this reason an extraordinary impact on many countries, such as p. eg., in Italy, where he became an annotated translation by Fadda and Bensa, which then continued P. Bonfante. In addition to the Lehrbuch, W. wrote other papers that can be considered preparatory or development. They are: Die Lehre des Rechts van der Varaussetzung Römischer (The theory of the budget (legal business) in Roman Law), Düsseldorf 1850; Die Singularsuccessian in Obligatianen (singular succession duties), in Krit. Ueberschau, Munich 1853, Recht und Rechts-wissenschalt (Law and Science of Law), Greifswald 1854; Die Akti des Römischer Civilrechts van heutig Standpunke des Rechts (The action of the Roman civil law from the point of view of current law), Düsseldorf 1856 ; Die Actia. Abwehr gegen T. Muther (action. Reply to Muther), Düsseldorf 1857; Grundriss zu Pandektenvarlesungen (Compendium between Pandects lessons), Munich 1858, Wille und Willenserkliirung (Will and declaration of intent), Leipzig 1878 (also published in Archiv I. de. Civil. Praxis 1880), etc. Some speeches and monographs w. were collected by P. Oertmann in the work Gesammelte Reden und Abhandlungen (Speeches and work together), 1904.
The autonomy: the author's opinion, an ongoing debate
Most authors place the origin of the current theory of contracts on individualism and political liberalism.
According to the liberal conception of contract, the company would not exist to serve the interests of the individual. For philosophers eighteenth century, the will is the source of all rights.
there are many people who lack the will in a psychological sense, the disabled, infants
Windscheid Bernardo Thesis: "The legal right is a power or dominion of the will, recognized by the legal order" (Theory of will )
Windscheid says that the term is commonly used subjective law in two different ways: as power to require certain positive or negative behavior in another sense: that the owner is entitled to dispose of their property, own a credit to transfer thereof, etc. As you can see the will of the owner is decisive.
4.2 .- The agreement led
(Frankfurt am Main, 1779-Berlin, 1861) German jurist. Founder of the German Historical School, he taught at the universities of Magburgo and Landshut and the first professor of Roman law at the University of Berlin. From 1848 he devoted himself exclusively to do scientific work. Among his works are History of Roman law in the Middle Ages (1815-1831) and the Treaty of Roman law (1840-1849).
A new concept arose with the historical school, whose leading representative was the German Von Savigny. For the historical school, the source of law is the "spirit of the people." The legislature would be no more than a mere translator of this "spirit."
According to an interventionist conception, the contract would be linked to changes and developments in society. Social and socialist schools of the nineteenth century have reacted strongly against liberal ideas give a new perspective.
society as the source. To Dugit, for example, the will is powerless alone to create obligations, since society only has this power, "the will is not just a switch, giving passage to a stream whose source is beyond."
The binding contract comes not only of autonomy but of a higher order.
4.3 .- Freedom of choice and enforceability of contracts
"The principle of autonomy is the application of contract of liberal and individualistic doctrines of the French Revolution, and reached its peak during the last century. If the rights are mere powers that the law recognizes the individual existence and freedom is the foundation of all human activity, it is logical that she can do as they please, not being naturally against public morals and decency. "
ALESSANDRI defines autonomy as "freedom of individuals have to agree contracts they please, and to determine its content, purpose and duration, "and notes that this will is sovereign, that the contract arises from voluntary agreement.
Meanwhile, MARY LOPEZ, whose book on "Contracts" is the most comprehensive in the Chilean doctrine in the theory, states that "The principle of autonomy is a doctrine of judicial philosophy under which any obligation rests primarily on the willingness of the parties. This is both the source and extent of the rights and obligations that the contract occurs. "
Thus, the autonomy is based on the proper principles of the Enlightenment of freedom and equality led to the legal level, which means freedom and legal equality of the parties. In turn, the legal freedom can distinguish the freedom to hire contractual freedom, the latter arising from the binding force of contract.
Following this classification given by Contarino, who analyzes the civil and commercial contracts in Argentine law, legal equality is based on the constitutional guarantee of equality before the law enshrined in the equivalent of Argentina's constitution in Article 19 number 2 of the Chilean Constitution, subject to economic disparities cultural or naturally exist or you entered the excessive individualism, situations that should be corrected by law.
legal freedom, in turn, is divided into the freedom to contract, which is the freedom to celebrate or not the contract and with whom, and freedom of contract, which is the freedom to set contract terms or content . Thus, the legal freedom "includes the following powers: to celebrate or not celebrate the contract, choose the person of the contractor, determine the subject in all respects to choose the way of instrumentation except the cases of solemn ceremonies, to modify the contract, convey the contract, terminate the contract. " It also includes various clauses agree or opposed to the law, create different types of contracts law, create standard contracts, essentially establishing single contracts.
However, the effect of this conception leads to the binding force of contract and its inviolability by third parties or the judge.
Our legislation is no doubt that contracts its binding lie in the will of the parties to be bound. While Article 1438 of Civil Code defines contract or agreement as "an act by which a party undertakes to another to give, do or not do something," then Title II of Book IV of Civil Code called "The acts and declarations of intent", which is to establish the conditions under which the obligations to be a form of contract obligations - and forgive the redundancy, are valid to force by an act or declaration of intent. In addition, it holds the message of the Code states that its procurement source codes are modern, especially French, which in turn lies in the will that requirement.
2.2. New trends
ALESSANDRI already in his classes at the 1940 argued that the exaggeration of the principle of autonomy and changes in the economy and society were producing severe critical at first, and goes on to explain the limitations it presents, such as labor law, the establishment of minimum wages, limits on interest on loans, etc.
Today, although Chile has returned more liberal paths in the economy, kept many limitations on freedom of contract, essentially based on the imbalance of the contracting parties, imbalances that occur in areas of information materials to contract. Notes that "new economic doctrines and new explanations for contracts wonder about the limits of free market and freedom of contract. The arguments focus on the problems making the traditional voluntary contractual doctrine to the problem of monopolies, where the market fails as a mechanism for resource allocation (externalities) and cases where there is ignorance of the contracting parties. Monopolies that arise in the twentieth century are different from the previous century monopolies innocent, because their size and strength allows them to eliminate their competition and distort the market, which is the basis of freedom of contract. Also, free contract can not be taken where there are externalities. Indeed, the costs associated with externalities are not hiring because they do not necessarily pay the benefits or because they involve are not rewarded. Finally, the progressive ignorance that arises from the increasing complexity of modern life and the difficulty of recruiting appropriately educated become unsustainable the principles of traditional contract doctrine. "
notes that the breakdown or deterioration of freedom of contract interventionism is given by the contract. "For reasons of economic order (manipulate or manage the national economy), social or public policy (protection of weaker social groups such as workers, tenants, consumers), the legislature ever more often, imperatively fixed most relevant clauses of certain contracts, which are no longer delivered to the free decision of the parties. "Or, it affects the freedom to conclude contracts by hiring forced or imposed.
The same analysis can be found in the English doctrine. DÍEZ PICAZO notes that have appeared new contractual forms, such as contracts or contracts mass, given by changes in trade increasingly fast, contracts regulated or provided with a certain imperative content given by the constraints of social and economic policy, and forced contracts as a result of contractual interventionism of the state. There are also benefits traffic calls mass consisting liability arising from the fact that a certain behavior without mediates expression of will, but a typical social behavior. On the other hand, consumer protection has given rise to a new law of contracts, including constitutionally protected in other laws such as the English. We
so the autonomy does not apply fully the formation of contracts at the current time. However, in many cases, although the contents of the default contract, there is still freedom of contract or not in most cases. And in those cases where there is no such freedom, such as provision of basic consumer services (water, electricity, gas) the law is concerned to mitigate their possible harmful effects, restoring the "equality" of conditions between the parties to contract. Thus, not only there to protect consumers, but another set of rules and competition rules, state agencies or superintendent of control, charging systems, binding on the service.
Accordingly, one aspect of autonomy that has been mitigated, and that concerns us then is the freedom of contract regarding the terms and contents of the contract are not freely agreed by the parties.
Even within this conception, which is but a derivation of the classical, the enforceability of such contracts will continue on the basis of the parties
continued on next post ....
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