The Role of Courts in the Re-establishment of Contractual Balance. The Adaptation of the Contract in the Chilean Civil Code
| Autor | Nathalie Walker Silva |
| Cargo | Pontificia Universidad Católica de Chile, Santiago, Chile; Universidad Bernardo O'Higgins, Santiago Chile |
| Páginas | 263-283 |
THE ROLE OF COURTS IN THE RE-ESTABLISHMENT
OF CONTRACTUAL BALANCE
THE ADAPTATION OF THE CONTRACT IN THE
CHILEAN CIVIL CODE
natHaLie WaLker siLva
1
Abstract
This article reects upon the amplitude of jurisdictional attri-
butes surrounding the adaptation of contracts. By way of inter-
pretation, there is an underscoring of the role that fairness, good
faith, and morals play as elements of contract adaptation, which
facilitate, expand and enrich the work of the courts in the re-es-
tablishment of contractual balance.
Key Words: Contractual balance, role of the courts, contract adaptation.
1. INTRODUCTION
During the time in which the codication phenomenon occurred, the will be-
gan to be seen as synonymous with liberty, and mutated until it became the now
known “dogma of the autonomy of the will”.2
1 Ponticia Universidad Católica de Chile, Santiago, Chile; Universidad Bernardo O’Higgins, Santi-
ago Chile (nathalie.walker@uc.cl). Translated by Rodrigo Durán.
2 As per the theory of the will – or dogma of the will – as a base for the law of contracts in codes, it
becomes expedient to review Daniela Accatino’s interesting work. She explains that there are var-
ious recent historiographic studies showing that the dogma of the will constitutes more of a legal
myth of sorts, given that in the nineteenth-century codes, neither the sources that inspired them, nor
the preparatory works written by their draftsmen, show any evidence of a will-based conception.
According to the author, what does exist is a “clear continuity with a theory of contracts that sinks
its roots in the late scholastic period, and in which the notions of virtue and commutative justice
continue to have a meaningful presence.” [
aCCatino sCaGLiotti (2015) p. 42. in a siMiLar sense,
pizarro WiLson (2004), pp. 228 y 229].
Thus, with regards to the French Civil Code, the concept of
autonomy of the will would have been completely absent from the thinking of Domat and Pothier,
and from the formulations of the drafters of this code. As per the Chilean Civil Code, an elaboration
of the concept of autonomy of the will was also absent, as well as in Claro Solar, Alessandri, and
Somarriva. In summary, the autonomy of the will was not a concept introduced by the “classical”
authors, but rather, and in a paradoxical fashion, they seem to have been introduced by the scholars
that presented the rst critical analyses of these approaches, during the end of the XIX century, and
in the beginning of the XX century. [Cfr.
aCCatino sCaGLiotti
(2015), pp. 39-42;
pizarro WiLson
(2004), pp. 225-237].
Nathalie Walker Silva
264
LATIN AMERICAN LEGAL STUDIES Volume 1 (2017)
Given the liberalism’s inuence, freedom of contract –which is to be under-
stood, essentially, as the power to enter into obligations and to determine the content
of contracts3– gives way to a legal asset that deserves the maximum level of protec-
tion.4 A concrete manifestation of this is that the Civil Codes abandoned formalisms
as well as formalities, that had previously been a fundamental part of the concur-
rence of wills, in order to give way to a spiritualist principle in the conclusion of
contracts: what truly matters is that two or more people agree on the carrying out of
a business, and not the form in which this agreement comes to fruition.5
On the other hand, the legal voluntarism contained in the law –as an expres-
sion of the sovereign parlia ment’s will and as a ba se of the codication movement
–also introduced a distrust in judicial discretion. They were times in which legal
positivism and the pri nciple of legality prevai led, giving priority to the Constitutions
and to the Codes as a main source for the Law, which turned the latter in rather
rigid regulatory bodies. This legal positivism and the search of norms’ guarantee of
legal certainty, yielded the effect of limiting the freedom that the judge has before
the written law.6
However, this voluntarist vision that can be found in the nineteenth century
civil codes have been mitigated, by v irtue of the opinions that have sought to recom-
pose the conictive and tense relationship between judicial discretion and what has
been set forth in the law. This is nothing other than an important discussion with
the avid opponents against any possibility for judicial intervention in the content of
contracts that do not direct ly emanate from the law.7 Just a s Bemmelen said, “we are
too accustomed to represent law as a set of rules that completely exhaust the subject
3 In Chile, L ópez has expressed that the pr inciple of contractual freed om: “comprehends the free-
dom to conclude and the freedom of int ernal cong uration of contr acts. With the base of free-
dom of conclusion, it is afrmed t hat the parties ar e free to execute or to not exec ute, and in the
afr mative case, to choose t he co-contractor on the b ase of liberty or inter nal congurat ion, the
parties may est ablish the clauses or the content of the contra ct that they deem necessary [
Lopez
santa Ma ría
(2010), p. 213]. A s a complement to the foregoing, the same author has a lso added
that “at the heart of cont ractual liberty, three s ections are di stingui shed: freedom of contrac t or
freedom from contra ct; freedom to choose t he co-contrac tor and the freedom to est ablish the
clauses of the act, determin ing its legal effects (freedom of internal conguration)” [
Lopez santa
María
(2003), p. 109].
4 See
Martín pérez
(1995), p. 25. In the scope of Chilean scholarship, it has been acknowledged that
the respect that our Civil Code professes for freedom of contract is in perfect agreement with legal,
economic, and social thought of the time [see
Lira urquieta
(1956) p. 72].
5 See
Lasarte
(1991), pp. 269 and 270.
6 See
roBLes veLasCo
(2013), pp. 304 and 305;
Caro Gandara
(2014), p. 95.
7 In Chile, a faithful representative of this position is Abeliuk, who stated that “if the contract is found
in some way protected before the very legislator, that is all the more reason why we reject that the
judge may begin to review it for causes other than those foreseen in the legislation at the time of its
conclusion. Against judicial intervention, all of the reasons that (…) defend contractual security as
essential for the proper execution of legal transactions are mobilized. Thus, it is not strange that our
courts have acknowledged that they do not have the power to modify contracts” [
aBeLiuk Manase
-
viCH
(2014), Volume I, p. 153].
Para continuar leyendo
Solicita tu prueba