Control by Negotiating': A Comparative Law Study
| Autor | María Elisa Morales |
| Cargo | Universidad de la Frontera, Temuco, Chile |
| Páginas | 225-249 |
“CONTROL BY NEGOTIATING”:
A COMPARATIVE LAW STUDY
María El isa MoralEs
*
Abstract
This article endeavours to carry out a brief comparison between
negotiation in the Chilean and English legal systems, as a means
of preventive control of unfair contractual terms, carried out by
the main consumer rights protection agencies from both coun-
tries. In order to accomplish the aforementioned goal, the sub-
ject has been analysed according to the method of comparative
law. Meaning, by means of specic comparative considerations
concerning the regulation and application of preventive control
via negotiation of unfair terms in each of the selected systems, it
is determined which one of them has solved the problem better.
From that analysis, it is concluded that the English model of con-
trol via negotiation has worked well and the Chilean legal system
can learn lessons from it.
Keywords: comparative law, unfair terms, preventive control, negotiation, consumer law,
English law.
1. INTRODUCTION
Mechanisms for controll ing un fair ter ms can be classied,1 according to the
moment in which they take place,2 in preventive and repressive. The deciding time
limit between preventive and repressive control is the conclusion of the contract3.
This study focuses on prevention of unfair terms. The importance of the afore-
mentioned issue is related to the preventive role assigned to consumer law, since
an appropriate consumer protection policy should mainly resort to mechanisms of
* Universidad de la Frontera, Temuco, Chile (maria.morales@ufrontera.cl). This article has been
partially founded by DIUFRO project DI17-0065 and by CONICYT scholarship of national doc-
torate number 21120410 and is part of my doctoral dissertation entitled “Control preventivo de cláusulas
abusivas en el ordenamiento jurídico chileno. Una propuesta de control fuerte” (Preventive Control of Unfair
Terms in the Chilean Legal System. A Proposal of Strong Control). Article received on October 15,
2017 and accepted for publication on December 4, 2017. Translated by Mauricio Reyes.
1 For a synthesis of the typology of Mechanisms for controlling unfair terms, see:
MoralEs (2016).
2
García
(1969). In the same line:
DE la Maza (2012).
3 This paper does not address the subject of repressive control of unfair terms in Chile. That subject
has already been addressed by the local legal scholarship. Among other works by the same author,
see:
Pizarro
(2005);
Pizarro
(2007).
María Elisa Morales
226
LATIN AMERICAN LEGAL STUDIES Volume 2 (2018)
preventive control,4 which are to operate as lters of unfair terms, thus leaving re-
pressive mechanisms as a default means for correcting what preventive mechanisms
could not prevent.
Preventive mechanisms are usually combined with abstract control,5 which is
directed to general terms for contracting, in contrast to concrete control, which is
made to contractual terms currently in force.
Mechanisms for controlling unfair terms can also be classi ed according to
the subject implementing them. Thus, it can be disting uished among mechanisms of
voluntary, administrative or judicial control.6
For their part, administrative control mechanisms normally consist of secto-
rial monitoring by a state administration entity.7 There are mandatory and mixed
administrative control mechanisms. The former are mandatorily required, whereas
the latter are character ized by the voluntary submission on the part of the supplier to
the control exercised by the corresponding administr ative organ.8 The peculiarity of
the mixed control is the combination between the intervention of an administrative
organ and the volition of the supplier, without being mandatory for the latter submit-
ting to the control procedure.
From the perspective of Marion Träger, mechanisms for controlling unfair
terms are different systems for managing the conict between private autonomy and
social justice,9 among which she includes judicial and administrative control, in ad-
dition of which she adds control by negotiat ing, understood as a way of in uencing
the design of general clauses or the contract of adherence, where the administrative
entity deals with businesses in order to avoid the inclusion of unfair terms. The con-
trol by negotiating exercised by the British Director General of Fair Trading10 has
been given as an example of this sort of control mechanism.
Following the previously explained summary of the different types of mecha-
nisms for controlling unfair terms that are recognised by the legal doctrine, it is
possible to identify several of them in the Chilean legal system.11 Although, as some
Chilean authors have pointed out,12 the problem with our system is that there is no
effective preventive control mechanism.
4
Pizarro (2005)
, p. 403.
5
carballo (2013).
6
Polo
(1990), pp. 42-43.
7
DE la Maza
(2012), p. 118.
8
Polo
(1990), p. 46.
9
TräGEr
(2008), pp. 62-65.
10
TräGEr
(2008), p. 65.
11 It has been argued, for instance, that the control exercised by the Superintendencia de Valores y Seguros
(Superintendence of Securities and Insurances) on deposited policies could operate as preventive
control mechanisms:
islEr
and
MoralEs (2018).
12
Pizarro
(2008), pp. 419-432;
barriEnTos
(2013), pp. 297-312;
GasPar
(2013), pp. 455-464.
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