(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.
(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.
(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.