Chilean Civil Law: Contracts, Torts, and Obligations
Sources of Obligations in Chilean Law
In Chile, obligations arise from various sources as identified in Article 1437 of the Chilean Civil Code:
- Contracts or conventions (agreements between two or more parties)
- Unilateral declarations of will (e.g., accepting an inheritance)
- Quasi-contracts (obligations arising from lawful acts without prior agreement)
- Civil offenses (unlawful acts committed with intent to injure)
- Torts (unlawful acts committed without intent to injure)
- Legal provisions (e.g., obligations between parents and children)
Contract vs. Convention
While Article 1437 uses the terms ‘contract’ and ‘convention’ somewhat interchangeably, Chilean law generally distinguishes them. A convention is any expression of intent, regardless of its purpose. A contract, however, is a specific type of convention where the agreement aims to create obligations.
Definition of Contract
A contract is an agreement between two or more parties intended to create obligations. Article 1438 defines it as an act where one party agrees with another to give, do, or not do something. However, this definition has some limitations:
- It uses the term ‘event,’ which doesn’t accurately reflect the necessary agreement of wills.
- It suggests only one party undertakes an obligation, while contracts often involve reciprocal obligations or obligations towards third parties.
- It implies the obligation is singular (to give, do, or not do), while it can be a combination of these.
Classification of Contracts
Unilateral and Bilateral Contracts
Article 1439 classifies contracts as unilateral or bilateral. A unilateral contract is one where only one party undertakes an obligation (e.g., loan, deposit). A bilateral contract involves mutual obligations for both parties. This distinction is important for certain legal institutions, such as the resolutory action and the theory of risk (Article 1550).
Gratuitous and Onerous Contracts
Article 1440 categorizes contracts as gratuitous or onerous. A gratuitous contract benefits only one party, while the other party bears the burden (e.g., a donation). An onerous contract benefits both parties, each incurring a cost for the other’s benefit (e.g., sale). The distinction is crucial for determining degrees of fault (Article 1547) and addressing issues like lesion (excessive imbalance in prestations).
Commutative and Aleatory Contracts
Article 1441 further classifies onerous contracts as commutative or aleatory. A commutative contract involves an exchange of equivalent prestations. An aleatory contract involves an uncertain contingency of gain or loss (e.g., gambling, insurance).
Principal and Accessory Contracts
Article 1442 distinguishes between principal and accessory contracts. A principal contract exists independently. An accessory contract secures the fulfillment of a principal obligation and cannot exist without it (e.g., suretyship).
Real, Solemn, and Consensual Contracts
Article 1443 categorizes contracts based on their formation: real contracts require the delivery of the thing; solemn contracts require specific formalities; and consensual contracts are perfected by mere consent.
Other Contract Classifications
- Instantaneous and successive performance contracts: Instantaneous contracts are completed at once, while successive performance contracts extend over time (e.g., lease, employment contract).
- Adhesion and free discussion contracts: Adhesion contracts have pre-set conditions one party must accept or reject, while free discussion contracts are negotiated by both parties.
- Nominate and innominate contracts: Nominate contracts are legally defined, while innominate contracts are not specifically regulated.
Contract Interpretation
Articles 1560 and following address contract interpretation. The interpreter (usually the judge) must ascertain the parties’ true intention, considering the contract’s purpose, nature, and clauses as a whole. Extrinsic factors can also be considered in consensual contracts.
General Principles of Contracts
- Autonomy of will: Parties can freely enter and regulate contracts, as long as they comply with the law (Article 1545).
- Consensualism: Contracts are generally perfected by mere consent, with exceptions for real and solemn contracts.
- Privity of contract: Contracts generally affect only the contracting parties, with exceptions for third-party beneficiaries (stipulation for another, Article 1449) and successors.
- Binding force of contracts: Legally formed contracts have the force of law between the parties and can only be modified by mutual agreement or by law (Article 1545).
Extracontractual Liability (Tort)
Extracontractual liability arises from torts and civil offenses, where there is no pre-existing obligation. It requires a culpable act or omission, capacity, fault or intent, and damages. Key differences from contractual liability include:
- Capacity: Minors under 7 and the insane are not liable (Article 2319).
- Fault: Negligence is the standard for torts, while contractual liability considers different degrees of fault (Article 1547).
- Damages: Foreseeability is irrelevant in torts, while contractual liability distinguishes between foreseeable and unforeseeable damages (Article 1558).
- Joint and several liability: Multiple tortfeasors are jointly and severally liable (Article 2317), unlike the general rule of joint liability in contracts (Article 1533).
- Prescription: Tort actions prescribe in 4 years (Article 2332), while contractual actions have different prescription periods.
- Burden of proof: Fault is presumed in contractual liability (Article 1547), while the plaintiff must prove fault in torts, except in cases of strict liability or legal presumptions of fault.
Presumptions of Fault in Torts
The Chilean Civil Code establishes several presumptions of fault in torts:
- Fault for one’s own acts (Article 2329): Certain damages are presumed to result from fault or negligence, reversing the burden of proof.
- Vicarious liability (Articles 2320-2322): Parents are presumed liable for their minor children’s acts (Article 2320), and employers are presumed liable for their employees’ acts committed in the course of their duties (Article 2322).
- Damage caused by things or animals (Articles 2323-2328): Owners are presumed liable for damages caused by lack of building maintenance (Article 2323), construction defects (Article 2324), animals (Article 2326), wild animals (Article 2327), and things falling from buildings (Article 2328).
Tort Action and Compensation
The tort action is a personal action aimed at compensating the victim for damages. Compensation should restore the situation to how it was before the tort. It includes both foreseeable and unforeseeable damages, as well as lost profits. The court can reduce the compensation if the victim contributed to the damage through their own fault (Article 2330).