IUS ET VERITAS

Effects of contract termination for breach of contract: restitution and damages in a comparative perspective within the legal latinity

Andrea Nicolussi, María Isabel Troncoso — Fri, 29 Dec 2023 00:00:00 -0500

The essay addresses the restitutions derived from the resolution for non-compliance in a comparative way within the “legal Latinity”. It compares the solutions accepted in Italian law (European legal latinity), and those of two Latin American legal systems, Colombia, and Peru. From the point of view of the discipline dedicated to resolution (termination) and its consequences, the Italian and Peruvian codes are the most advanced, while the Colombian one, which dates from the nineteenth century, leaves ample room for the jurisprudential development of this remedy. In any event, the three legal systems seem to converge on the role of restitution as a tool to return the parties to the economic situation prior to the contract. However, with regard to the basis of the restitution function, uncertainties persist between the condictio indebiti and restitutions specifically regulated in the framework of rhe resolution (termination). Even the reciprocal link between the restitutions owed by the two parties remains undeepened.
Finally, the coordination between restitution and compensation for damages in the context of the resolution seems to be more clearly captured in the Italian doctrine, to which the Peruvian doctrine seems closer. Damages must be compatible with the fact that the fullfilling party of the contract no longer owes its observance to the contract, and waives the consideration. Damages cannot therefore include the value of the performance unfulfilled, but must protect the party who is faithful to the contract in terms of its positive interest in the contract, that is to say, the benefit that he would have obtained by using the performance due if it had been fulfilled.

Contracting, management, or exclusive use of co-owned property and legal protection of the pretermitted co-owners. Rediscovering the management of other people’s affairs (negotiorum gestio)

Leysser León Hilario — Fri, 29 Dec 2023 00:00:00 -0500

Under the Peruvian Civil Code, the exclusive use of a co-owned property that excludes the others co-owners, is sanctioned with the obligation to pay a proportional indemnity to the excluded party. To solve application problems of this rule such as the quantification of the indemnity, with criteria of corrective justice, and not only punitive, it is essential to determine the nature of that remedy, and, by means of the historical-comparative method, revealing its basis, and its interaction with the rights and obligations arising from the management of other people’s affairs (negotiorum gestio).

Contractual formalities in modern contracting. No oral modification clauses and the doctrine of venire contra factum proprium as a limit to its enforceability

Rodrigo Momberg Uribe, Gonzalo Severin Fuster — Fri, 29 Dec 2023 00:00:00 -0500

Although the principle of consensualism is still the general rule in modern contracting, it is common, especially in complex and long-term commercial contracts, to include clauses limiting the parties’ freedom to modify or terminate them, unless certain formalities are observed. In this context, this paper analyses the so-called “no oral modification” clauses, putting forward the arguments for accepting their enforceability, as well as their limits, by means of the application of the doctrine of venire contra factum proprium.

The idea of “normal risk” on put options related to investments in the energy sector

Judith Martins-Costa — Fri, 29 Dec 2023 00:00:00 -0500

O artigo tem como objetivo, por meio de uma metodologia funcional, examinar os riscos envolvidos nas opções de venda relacionadas a investimentos no setor de energia, que possui diversas peculiaridades. O estudo consiste em delimitar quais riscos estão ou não dentro do escopo normal do contrato. A opção é examinada sob uma perspectiva funcional: se sua função é puramente especulativa ou se seu objetivo é retirar um dos sócios. Considerando os riscos que excedem a faixa normal (alea normal), examina-se a possibilidade de revisão ou rescisão contratual, analisando os requisitos legais contidos nos artigos 317, 478 e 480 do Código Civil Brasileiro.

The control of content in standardized contracts. Analysis of the prohibition of abusive clauses under article 1399 of the Peruvian Civil Code

Walter Humberto Vásquez Rebaza — Fri, 29 Dec 2023 00:00:00 -0500

One of the most important –and controversial– ways in which the legislator intervenes in standardized contracts (i.e., contracts with general contracting clauses and adhesion contracts) lies in the possibility for jurisdictional authorities to control their contractual content. The purpose of this intervention is to eliminate or substitute clauses effectively incorporated in them for being abusive or vexatious. This paper examines the discipline of content control provided by Article 1399 of the Civil Code, a rule that, despite having been unjustly relegated by national scholars, has enormous potential to achieve the protective purposes set by our Substantive Code, when correctly understood.
On this occasion, we will first analyze the various legal rules contained in Article 1399, as well as their respective hypotheses and consequences. This analysis will be complemented by a practical application to concrete cases, allowing an understanding of the functioning of the normative provision. Secondly, the basis and importance of the article in question will be discussed, as well as its potential to become a notion capable of eradicating dysfunctional stipulations beyond the brief definition established by the Peruvian legislator in 1984 in Article 1398. Thirdly and lastly, we will develop which are the justifying circumstances capable of neutralizing, in each specific case, the abstractly vexatious nature of an allegedly abusive clause under Article 1399. This analysis takes on special relevance since its treatment by national scholars has been almost nonexistent.

Freedom of contract, religious freedom and the principle of non-discrimination: reflections from the common law experience

Francesca Benatti — Fri, 29 Dec 2023 00:00:00 -0500

The essay examines the evolution of the principle of nondiscrimination in light of the U.S. experience. The decisions in Masterpiece and Creative 303 are examined in particular. It is noted how a careful resolution of the conflict between fundamental freedoms can only move from an ontological-relational appreciation of the person, taking into account the nuances of the concrete case.

The development of the discipline of settlement in brazilian private law and its role as an instrument for self-regulation of conflicts between private parties

Fábio Siebeneichler De Andrade — Fri, 29 Dec 2023 00:00:00 -0500

The work intends to examine the particularities of the settlement as a contract, based on the recognition of this legal nature, by the Civil Code of 2002. Since settlement is a legal instrument of great practical and theoretical importance, whose main purpose lies in serving to regulate conflicts between individuals, through reciprocal concessions, it is considered necessary to highlight and examine its particularities, within the framework of contracts and verify the development given to it by jurisprudence in the twenty years of validity of the 2002 Civil Code. Furthermore, it is worth highlighting the new position attributed to settlement by the new Brazilian Civil Procedure Code of 2015.

The distinction between swindle crime and the breach of contract. About the criminal relevance of deceit in contracts

Raúl Pariona Arana — Fri, 29 Dec 2023 00:00:00 -0500

Contracts are a fundamental element in our current economic system. However, parties sometimes act in bad faith, thereby affecting the contractual relationship. One of the most frequent bad faith conducts is the deceit between the parties to conclude the contract, which then materializes in a breach of contract. This situation has led to the regulation of civil and criminal protection mechanisms. The mechanisms applied in practice include contractual fraud, deceit as a defect of consent and contractual breach. Despite the similarities between these legal institutions, their distinction is extremely important, particularly because the consequence of fraud entails criminal punishment. In that context, this paper features the legal institutions that protect contractual relationships against behaviors where the deceit takes place and analyzes the criteria of delimitation between the swindle crime and the civil institutions.

The remoteness rule as a distinctive element of liability for breach of contract in Peruvian Law

Daniel Ugarte Mostajo — Fri, 29 Dec 2023 00:00:00 -0500

The remoteness rule constitutes a limit on quantum respondeatur that has not been well understood by national doctrine, which –from a unifying approach to different systems of civil liability– has come to question its usefulness and coherence with the full compensation principle. In this paper, this approach is debated and, based on a review of Comparative Law, a renewing conception of the rule is proposed that allows it to be understood as the distinctive element of liability for breach of contract and the fundamental criteria of objective attribution of damage in the Peruvian contract Law.

Consumer Protection in Contemporary Business Structures: About Contractual Connectedness in Consumer Contracts

Sandra A. Frustagli — Fri, 29 Dec 2023 00:00:00 -0500

This paper analyzes the legal consequences of the contractual connection in consumer contracts from the perspective of the Argentine legal system. It takes into consideration that the Civil and Commercial Code provides its own normative regime for the consumer contract as a business category different from the parity contract. However, since the rules governing the contractual connection are methodologically located within the general theory of contract, the application of that regime to related consumer contracts must be made in the light of the pro-consumer principle, of constitutional hierarchy (article 42 of the National Constitution CN), in order to guarantee the fundamental right to the protection of its economic interests. This leads to the recognition of a regime of actions in favor of the consumer that is broader than that which emerges from articles 1073 to 1075 of the Civil Code for related contracts in general.

Constructing a Defective Myth: The Case of Lawfare Between Nightmare and a Noble Dream of Neutral Politics in Criminal Courts

Luciano D. Laise — Fri, 29 Dec 2023 00:00:00 -0500

The notoriety that criminal proceedings against Latin-American political figures have acquired led some to argue that such proceedings constitute a perverse attack against popular leaders who oppose the neoliberal agendas of the global north. Before this issue, in this article I intend to systematically reconstruct the specialized literature on the concept of lawfare. Then I will outline both mythical and fallacious nature of many of the explanations and implications for so-called lawfare. Since those criticisms, I will highlight two relevant topics: (i) the necessary respect for the basic procedural guarantees for any person who is accused of serious crimes against public administration, and (ii) the inevitable political dimension of legal interpretation.

The theory of non-executive co-authorship and criminal charges against leaders of social protests

Rafael Chanjan Documet — Fri, 29 Dec 2023 00:00:00 -0500

The aim of this article is to analyses the theory of non-executive co-authorship and its viability as a criminal charge for leaders of social protests for crimes originating in this context. For this, a review of national and international jurisprudence and doctrine on the theory of non-executive co-authorship is carried out in order to show what concept of this figure is compatible with the traditional foundations of co-authorship. This, to then show when its application is possible, considering its dogmatic approaches and a human rights approach, in protest. In this regard, it is argued that it can only be charged under this title if there is sufficient evidence that shows that the social leader, under a common plan, participated in an essential and remote way in the executive phase of the attributed crime.

On the possibility of implementing Judicial Cooperation in criminal matters in the Andean Community: some lessons from the European Union and MERCOSUR

Humberto Zuñiga Schroder — Fri, 29 Dec 2023 00:00:00 -0500

The Andean Community has as its ultimate goal the achievement of a common Latin American market, as stated in the Cartagena Agreement. To achieve this goal, in its more than fifty years of existence, various Decisions and Resolutions of supranational nature and mandatory compliance for its member countries have been issued on different matters; however, there are sectors in which there is still the need to regulate and strengthen cooperation ties. The purpose of this paper is to analyse the possibility of implementing judicial cooperation in criminal matters at the Andean level, taking various lessons learned from the European model and Mercosur; this in order to achieve deeper integration at the regional level.