LOPEZ DE ZAVALIA TEORIA DE LOS CONTRATOS TOMO 1 PDF
LOPEZ DE ZAVALIA, FERNANDO J. TEORIA DE LOS CONTRATOS TRATADO DE LOS CONTRATOS (TOMO I – III) http: //rapidshare. Teoría de los Contratos Tomo I – Fernando López de Zavalia. PDF – Mb. Lopez de Zavalia, Fernando Teoria De Los Contratos Lorenzetti, Ricardo Tratado De Los Contratos Tomo I buenos aires, argentina Diego.
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Log In Sign Up. Based on a draft written by Professor Lima Marques2, Brazil has proposed an Inter-American Convention on the law applicable to some consumer contracts and transactions.
To this effect, we will present first the actual Brazilian private international law rules on consumer protection and then how the Convention could change this reality. O novo direito internacional: A Brazilian Private Contrxtos Law applicable to consumer contracts and transactions a. The absence of specific conflict rules on consumer contracts and transactions As all other countries in South America, Brazil does not have any special conflict rule for consumers3.
This is not the only issue with such a blank. The rules of Brazilian Private International Law are generally, and in many aspects, outdated5.
Following the German example, the law applicable to conflict issues in Brazil is the Introductory Law to the Civil Code, enacted in Since then nothing has changed in this matter. Revista dos Tribunais, On the other hand, Contrxtos substantive private law has undergone what almost amounts to a revolution during the last twenty years The Federal Constitution changed the entire foundation of private law and established a new perspective, where human beings and their existential needs figure at the center of the legal system With regard to consumers, the Federal Constitution recognized their rights as fundamental rights12 and as a economic order principle The Code was enacted inonly two years after the Constitution and shifted the entire Brazilian Private Law in a new direction.
Principles as objective good faith and also duties of cooperation and loyalty15, for example, were adopted by private law in general, affecting not only consumer relations, but also all kinds of private relationships.
Many of those changes were covered in the new Brazilian Civil Code, enacted in and in tdoria since January Livraria do Advogado,p. Zavaalia Humanos e Direito Constitucional Internacional. Tratado de Direito Internacional dos Direitos Humanos.
V — Consumer Protection. While Brazilian Private Law dealt with all these modifications, except several treaties or conventions on special issues17, the general rules of Brazilian Private International Law have remained practically untouched since The Introductory Law to the Civil Code telria not in accordance with the teoeia trends in Private International Law; in particular it does not provide any rule to protect consumers as the weaker party in a relationship The single rule that should be applicable to consumer contracts or transactions is article 9 that establishes the law applicable cotratos all kinds of obligations, which in Brazil includes both contracts and torts.
It is a strict connecting factor that does not allow the judge to look for the law most favorable to the consumer Subsidiary and alternative connecting factors20 or any other kind of open and therefore more flexible rules 21 would certainly be much more appropriate to protect the weaker party, which are used by the European Community through the Rome Convention.
Private International Law System and Philosophy. Mohr Siebeck,p. This Article applies to a contract the object of which is the supply of goods or services to a person “the consumer” for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object. In case of contracts made between absent parties23, the law of the residence of the offeror should be applied. According to Brazilian Consumer Protection Code, in consumer contracts or relations, the offer is always considered made by the supplier Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it is entered into in the circumstances described in paragraph 2 of this Article.
This Article shall not apply to: Notwithstanding the provisions of paragraph 4, this Article shall apply to a contract which, for an inclusive price, provides for a combination of travel and accommodation. Sugerencias para un derecho de consumo unitario.
Revista Chilena de Derecho, v. Revista dos Tribunais,p. Revista de Direito do Mercosul, Buenos Aires, v.
Considering party autonomy in Brazilian Private International Law, although there is some controversy among Brazilian legal scholars 27, the full majority sustains that the present article 9 does not allow party autonomy freedom of choice as a valid connecting factor, even for relations between professionals Brazilian law is not clear on this issue, which places the country in an uncomfortable situation, as the free choice of law is recognized worldwide as a valid connecting factor In Europe, party autonomy has been also defended as being a connecting factor even in consumer relations Article 9 is also the rule applicable to torts in general, which includes accidents involving defective goods and services In these cases it should be interpreted as the lex loci delicti, which indicates the law of the place where the illegal act was committed or the law of the place where the damage and its consequences occurred.
Direito Internacional Privado Parte Especial: Direito Civil Internacional, Vol. This xontratos of choice can be lopwz including in consumer contracts, except if it deprives the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence, according to article 5. The olpez of the Hague conference to the development of private international law in Latin America: La protection de la partie faible dans les rapports contractuels: She also argues that it is teorka to overcome these rules and to choose for vontratos contracts, in contrast to commercial international contracts, a connecting factor that is more favorable to the consumer.
Until we achieve this goal, the Brazilian consumer will not be protected gomo doing business abroad. Jurists draw attention to the most recent solution provided by these mandatory rules, present in article 5 of the Rome Convention, which states: It is used to protect the weaker party in international relations, workers, consumers or tenants.
These cases from the last years of the 20th centurypresented suggestions to bring conflict of laws justice and substantive law justice closer together. Thus, materialism or substantialism is understood as the judicial analysis of the social impact of strictly connecting factors of law rules.
A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract. The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice under this Article or of other provisions of this Convention.
Any variation by the parties of the law to be applied made after the conclusion of the contract shall not prejudice its formal validity under Article 9 or adversely affect feoria rights of third parties. The fact that the parties have chosen a foreign law, whether or not accompanied by the choice of a foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law of that country which olpez be derogated from by contratoz, hereinafter called “mandatory rules”.
The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in accordance with the provisions of Articles 8, 9 and Brazilian judges have a lex fori tendency37, tending to apply their own law as far as possible.
That is what happened in the leading case Teoris v. Right after he returned to his domicile, in Brazil, he realized that there was a defect in the camera. He tried to get it repaired in Brazil, but that model was manufactured in the USA, and the necessary spare parts were not available here.
Garcia filed a suit against the Panasonic Brazilian subsidiary before Brazilian courts, demanding redress, because the camera was still covered by the guarantee. According to article 9, the law of the State of Florida should govern that relationship. Instead of doing that, the Court immediately applied the Brazilian Protection Code as an imperative rule and decided in favor of the consumer.
This example shows that by not having clear and specific conflict rules about consumer relations, Brazilian Law does not offer the necessary protection for both suppliers and consumers.
It should be recalled that in the late s alone, Brazilian law changed the way in which it received juridical decisions from abroad. B The Brazilian proposal to an Inter-American Convention on the zavzlia applicable to some consumer contracts and transactions and its main points The Brazilian proposal has two main points: The second and most important point is the question of choice of law.
The proposal provides for limited party autonomy that makes possible and valid a choice of law in consumer contracts under the guarantee of the protection of the most favorable law of the consumer Consumer definition The Convention defines consumer 41 as any natural person who, in a transaction or contract with a professional trader or supplier of goods or services acts for a personal, domestic or familiar purpose or for a purpose that can be regarded as outside the scope of his professional activity or to resell.
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The Convention adopts a subjective scope of application, describing who the person to be protected is. The European legislator chose the same approach 39 Professor Claudia Lima Marques states the difference between passive and active consumers: Fundamentos do Direito Privado.
Consideraciones sobre el Consumo e el Derecho del Consumidor. The adopted definition is broad enough to include different kinds of situations where special protection to the weaker party consumer is necessary It is based on two important points: The no professional activity is crucial not only to describe consumer as the person who deals for personal purpose, but, most of all, to distinguish the one part of the relationship — the consumer — from the other one — the professional trader or supplier of goods or services.
The protection rules are specially formulated to restate balance between parties that are not equal.
It is presumed, by the Convention and by most of national substantive protective laws as well, that this kind dontratos relationship is formed by a weaker and by a strong party; between a lay person and a professional. Thus, it is important to describe consumer as the lay party. This brings to a third element in the consumer definition that should also be taken into account: Consumer should be specially protected only by dealing with a professional.
Relations established between professionals or between lay persons do not fall under the scope savalia the Convention. These definitions however, adopt also a subjective approach, defining those contracts as made between a consumer and a professional or supplier. With regard to the exclusion of legal persons46, this is justified by the fact that moral persons usually act as professionals.
However, there are some situations, where moral persons can also figures as the weaker party in the transaction. Not only when there are different levels of economic power between the parties, contrato also when a moral person deals outside its professional environment.
This is the case, for example, when a small bakery has to deal with a big software supplier to improve its business. Besides this general definition, consumers for the purposes of this Convention may azvalia be third parties, such as family members of the main consumer or other bystanders, who directly enjoy, as final consignee consumer, the contracted services and products. The scope is protecting the so called Endverbraucher final consignee. Other countries in the Americas adopt broad definitions of ve in their substantive national laws that could include the idea of a bystander consumer, although they did not use exactly this expression.
It is also not an unusual definition in the Americas, quite the conrtatos. Nevertheless, the definition was subject to some controversy and remains under discussion.
Applicable law to consumer contracts: