Gaardus Bionicle Instructions

Wills Agreement

CHAPTER 2 .- Wills Agreement

If one party prepares the contents of the contract establishing their terms and the other party only accepts in its entirety this content, we face two positions :

a) One who claims that the unilateral will consolidate the legal act, the other party to only one recipient, therefore there is really a contract position that the author endorses.

b) On the other hand, under other current state that no longer exists the contract although the position of one party dominance in its implementation has without a priori can be established that there will defect.

doctrine and jurisprudence has leaned more to the second argument, and in systematically considered as contracts of adhesion in which the main obstacle is the agreement as a condition for the formation of contracts, and leaving a second flat object, such contracts are characterized by the form of acceptance and constitution. Theses that do not share as demonstrated in the following chapters and we intend to demonstrate our thesis.

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CHAPTER 3 .- Types of Interpretation of Contracts. CHAPTER 4 .-

CHAPTER 3 .- Types Interpretation of Contracts.

3.1 .- Definition of the word interpretation.

The word in our language interpretation has its origin in the linguistic history which interpretatio derived from Latin, meaning in English corresponds to the action and effect to interpret. Following

optics and as we are concerned most doctrinaire, the contract interpretation is generally classified as:

3.2 .- Authentic Interpretation:

those who perform it and emanates from the parties themselves who held an contract, arises from his words and his deeds, in which the contractors conclude agree on a business establishment or determination of terms, meanings, values \u200b\u200band purposes that are intended to establish the interpretation of a previous contract, displacing the need to interpret the previous contract as a direct object.

3.3 .- The Interpretation of Doctrine:

As its name implies, is one that is issued by lawyers with moral force, scientific, and that our duty is generally used by judges to influence their decisions, being equivalent to a prediction of what they can fail if the case goes to his knowledge

In turn, this classification is subdivided by several authors in declarative extensive or restrictive.

declarative interpretation is that which arises directly from the terms of the contract, the average broad interpretation when the contract has said unless the parties set out to do and the restrictive interpretation is when all is said more than parties intended to conduct.

Our legal reality, is most often used by judges to the study of a question concerning the interpretation of contracts, and later base their judgments and thus make judicial interpretation.


3.4 .- The Judicial Interpretation:

is ultimately the judges check or courts, when a controversial issue is brought before them. Is the one that puts an end to an issue that is discussed in judicial, being in fact the last performers taking the political system of our reality, and logically compelling those to take the appropriate tools for a correct interpretation of contract, without prejudice to the claims of contractors and the legal nature of the business object decision.

This classification of interpretations, is the effect of which would establish the scope of the interpretive process taking into account one of those, because it is crucial to the interpretation to be placed first one of these classes, and later from the other elements that have standards or guidelines for interpreting and interpretive principles, and with this, try to do a better job of contractual interpretation


3.5 .- Recipient of

Interpretation Within the task of interpretation of a contract, there is also the problem of establishing who is the recipient of the same, the parties entered into an agreement or the judge. Most authors state that the recipient is the judge, because ultimately always correspond to a person with judicial power to rule on the contractual intent of the contracting parties.
Planiol
notes in this respect: there is no doubt that ultimately the last word to the judge, but this is not sufficient to say that the judge is the sole recipient of this activity. As can be seen with the views of that author should be limited only the task of interpretation to the judge, but others may be involved, which ultimately would be the contracting parties themselves, to be stakeholders in a conflict.

The rules of interpretation, in general, and as noted Planiol, are addressed to those who are obliged to observe and therefore also to the contracting parties, because they can previously be interpretive guidelines to account more accurately then make a legal transaction.

According to others and among them Messineo, provides that the rules are directed primarily to the parties, informing them how they should solve their differences in interpretation of the contract and that only in the event that their conflict reaches the courts, would also addressed the judge.

Given the disparity of views in relation to whom the interpretation of contracts, we must understand that these rules are aimed primarily no doubt the judge.

Nothing prevents the parties from the study of interpretative rules before agreeing a business legal contract and thereby determine which way a judge will eventually decide a dispute, because in our particular case the interpretative rules are embedded in the Civil Code.

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Autonomy of the Will

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

classical position

"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. "

SANTA MARIA LOPEZ

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

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CHAPTER 5 .- Where defects will

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."

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