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Contratación, administración o uso exclusivo sobre bienes en copropiedad y tutela jurídica de los copropietarios excluidos. Redescubriendo la gestión de negocios ajenos (negotiorum gestio)
(Pontificia Universidad Católica del Perú, 2023-12-29) León Hilario, Leysser
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).
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El control del contenido en contratos estandarizados. Análisis de la prohibición de cláusulas abusivas bajo el artículo 1399 del Código Civil peruano
(Pontificia Universidad Católica del Perú, 2023-12-29) Vásquez Rebaza, Walter Humberto
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.
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La defectuosa construcción del lawfare como mito en Brasil y Argentina: entre la pesadilla y el noble sueño de la neutralidad política en la justicia penal
(Pontificia Universidad Católica del Perú, 2023-12-29) Laise, Luciano D.
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.
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O desenvolvimento da disciplina da transação no direito privado brasileiro e seu papel como instrumento de autoregulação dos conflitos entre particulares
(Pontificia Universidad Católica del Perú, 2023-12-29) Siebeneichler De Andrade, Fábio
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.
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La distinción entre la estafa y el incumplimiento contractual. Sobre la relevancia penal del engaño en los contratos
(Pontificia Universidad Católica del Perú, 2023-12-29) Pariona Arana, Raúl
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.
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Efectos de la resolución del contrato por incumplimiento: restituciones e indemnización por daños en una perspectiva de comparación dentro de la latinidad jurídica
(Pontificia Universidad Católica del Perú, 2023-12-29) Nicolussi, Andrea; Troncoso, María Isabel
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.
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Las formalidades convencionales en la contratación moderna. La cláusula de no modificación oral o “no oral modification clause” y la doctrina de los actos propios como límite a su eficacia
(Pontificia Universidad Católica del Perú, 2023-12-29) Momberg Uribe, Rodrigo; Severin Fuster, Gonzalo
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.
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Libertad contractual, libertad religiosa y principio de no discriminación: reflexiones desde la experiencia del common law
(Pontificia Universidad Católica del Perú, 2023-12-29) Benatti, Francesca
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.
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A noção de “risco normal” nas opções de venda relacionadas a investimentos no setor energético
(Pontificia Universidad Católica del Perú, 2023-12-29) Martins-Costa, Judith
The objective of this article is to examine, through a functional methodology, the risks involved in put options related to investments in the energy sector, which presents several peculiarities. The study consists of delimiting which risks are or are not inserted in the normal scope of the contract. The option is examined from a functional perspective: whether its function is merely speculative or whether its purpose is to remove one of the partners. Considering the risks that exceed the normal range (alea normal), the possibility of contractual revision or termination is examined, analyzing the legal requirements contained in articles 317, 478 and 480 of the Brazilian Civil Code.
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La Protección al Consumidor en las Estructuras Negociales Contemporáneas: a Propósito de la Conexidad Contractual en los Contratos de Consumo
(Pontificia Universidad Católica del Perú, 2023-12-29) Frustagli, Sandra A.
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.
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La regla de la previsibilidad de los daños al tiempo de contratar como elemento distintivo de la responsabilidad por incumplimiento contractual en el Derecho peruano
(Pontificia Universidad Católica del Perú, 2023-12-29) Ugarte Mostajo, Daniel
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.
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Sobre la posibilidad de implementar la Cooperación Judicial en materia penal en la Comunidad Andina: algunas lecciones de la Unión Europea y del MERCOSUR
(Pontificia Universidad Católica del Perú, 2023-12-29) Zuñiga Schroder, Humberto
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.
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La teoría de la coautoría no ejecutiva e imputación penal a líderes de protestas sociales
(Pontificia Universidad Católica del Perú, 2023-12-29) Chanjan Documet, Rafael
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.