Consumer Rights and the user. Introduction
Consumer rights are a new born discipline in the legal horizon, looking for a space within the context of polarization of a society that current economic gurus have dubbed "globalized."
The phenomenon of globalization is commonly interpreted as a phenomenon that cultural expansion, social and economic ties the different nations, so that what happens in one of them inevitably have repercussions in other areas. So-called crisis in Asia, or Mexico (Tequila), had an impact on the stock exchanges and currencies of other nations.
Along with the globalization phenomenon, there was a deepening of the asymmetry of relations between businesses and consumers, and regulation their rights and duties (ie. A gap in health, education and effective control bodies).
However, social policies and the gunwales of the market are mobile, and highly fluctuating, eg. Argentina's constitution of 1949 prohibited the provision of public services are now privatized. This means that the objectives of the states fluctuate. Are subjected to different scenarios. It could even decirese undergoing paradoxical influences, consisting of the possibility of adopting structural changes deep and asymmetric, in the search for a socio enconómico better. But it is possible that this will change very soon, and then the state back to being the operator of public services. However, the right of consumers must remain immutable, even if the service or purpose of the relationship from becoming or belonging to public service.
The origin of consumer rights, go back to the decade of the sixties, "in the so-called first world, but we find its undeniable appearance in our country only in the nineties. When we move forward in defense of a new type of rights (with a brief Consumer Protection Act, Law 24240) in advanced and developed countries have built numerous legal and factual situations, new arrivals to our knowledge, in the twenty-first century (GM food regulations regarding information to pour into the containers) through the expansion of communications.
commonly known concepts of sustainability in our environment, stability, quality of production, "among many, as absolute terms, relative, being a new meaning which must be sought in terms of articles percederos, increased productivity and quality sacrifice . Socially, the company has been subjected to speed changes and occurrence of loud, questioning and relativizing even the knowledge we have of things.
So that should give priority to the basic concept of relativity concepts, since today we believe that such a thing is beneficial, and may not be tomorrow. For example, now qualify for the cloning of human beings as an aberration, when they are already laying the foundations for human cloning experiments in England. In less than two years, they changed the concepts, and surely it is concluded that in some cases cloning is acceptable. CONR same spectrum to the manipulation of human genes.
This surely will respect the right of the consumer, as it further extends its scope of application, it enlarges the spectrum, incorporating situations under our Civil Code regime, and even in other disciplines.
In a very brief summary of the civil-rights-Romanesque, it was gentrified with the influences of the Napoleonic Code, and went through deeper up to the current regime of consumption. In the various regimes in the world comes to consumer rights and consumer rights. They are two different things.
I think it's inappropriate to speak of the right of the consumer and / or user, since it appears that there were those who did not, when we are all consumers or users of services, including legal persons and the state itself. Even, we can say that is a category of human rights, based this opinion that no one is exempt from consuming goods and services, the vast majority are of prime necessity, and that would be discriminatory not to admit someone or not providing something (ie. a diminished mental Prohibiting be a member of a club, prohibiting the access to health insurance companies or health plans, etc.).
is more appropriate to speak of a consumer law, based not on the quality of the person performing the act, but in the very act of consumption. The difference is not semantics, but provides legal connectedness and applicability of the rule in terms of the act and not people.
In this moment, I am writing this idea in my computer in my home address, the electric power that feeds my computer is obviously a trade relationship, but would change something if this same idea in my office drafted, obviously not since I also find using the same energy. However, given the nature of professional use, taking as criterion that the act of consumption is improved because the person is not consuming, but because the act is punishable under the rule, the relationship would be whether or not consumption.
In terms of public services, the concept is even more ambiguous, because the regulations distinguish between service users (residential, industrial, professional or commercial), distinguishing between different types of consumption. There are different systems adopted in accordance with the user category you have.
In comparative law, the Consumer Protection Act of Venezuela (Art. 2 and 3) [1] , Federal Consumer Law Mexico [2] , the Brazilian Consumer Code [3] consumers and users consider the natural or legal persons as final target, acquire, use or enjoy, for consideration, goods or services in whatever public or private, individual or collective who produce, issue, facilitate , provide, render, or order.
Acts of consumption. The
act of consumption in our legislation goes through, either through an acquisition or supply of consumer goods or service location, or the consumer nature of the parties.
So the second part of Article 1, states that are acts of consumption) The acquisition or lease of personal property;
b) The provision of services;
c) The acquisition of new buildings for housing, including lots land acquired for the same purpose, when the public offer is addressed to unspecified persons.
Publicity and Information.
This right does not constitute a separate category of consumer rights, but is part of the contents of the offer, and the whole field of civil and commercial law.
Notwithstanding this statement, experience shows that this axiom is not respected, the rule being disinformation. This prevents access to the consumer with dignity, because it makes such access irregularities and deficiencies in the information.
is a burden that the LDC states against the supplier (understood as the producer, distributor and marketer of the thing or service).. who is the legitimate duty to inform active. It is a duty of contractual and spends generously on all contracting as a duty attachment behavior [4] designed to provide consumers with the objective truth of the recruitment meeting.
information, is support and reason for being in good faith, and there must be legal content.
In some contracts, such as those of professional services, eg health insurance companies, information is the subject and because of the contract. The legal obligation to transmit information from supplier to user, it would be an action or interaction capable of producing legal effects in the formation of the contract (pre-contractual stage) and during its implementation (contractual stage). [5] not confined only to the stage but also pre-contractual stage. It is a right subjective head of the consumer, which in the pre-stage plays a crucial role in the formation of consent, and in particular during the execution of the contract (especially in long-term) is wearing and tiñiendo the contract under full load performance based which is subject to it.
Information is a valuable asset has economic value and therefore legal protection [6] . The Consumer Protection Act 24,240 provides for the protection of economic interests of consumers and users, giving them the right to adequate information and conditions of fair and equal treatment, with explicit constitutional basis (art. 42, Constitution) with operating range and immediate compliance principle.
The autonomy at all costs sustained by the traditional doctrine, finds its limit in the consumer's right as a new framework for Imperato, known as public order protection [7] , reinsurance and market economy safeguards to prevent inequities.
The right to be informed must be understanding of the object, cause, and other circumstances of the consumer contract. The LDC devotes a whole chapter to the information, which provides that the data point to both its cognitive aspect as well as protecting consumer health.
The right to information holds a preventive of injury to the person, since adequate information (considering the circumstances of time, manner and place) is a powerful tool for damage prevention. Adequate information given to the consumer may be a defense to liability to the producer, while if the information was inadequate or insufficient, constitutes an objective reason for liability against the producer and the consumer's favor.
The consumer must be informed before and after purchase of the product or service procurement.
The circumstances of manner, time and place indicated above, it should be proportionate advertising for the product or service offering, the time should be given the information should not exceed the time of conclusion of contract, delivery of the thing or the sale of the product or service first delivery, on the principle based on the fact that whichever occurs first.
The information will consist of all essential technical specification that will be useful to a single user or consumer, such as your utility provided by the manufacturer, the period of life under conditions of reasonable use, the maintenance manual and instructions for the use of product or service. Must be truthful and objective, detailed and effective and delivered through, having written instrument through national language manuals on the use, installation and maintenance of the thing or service in question and provide appropriate advice. The same obligation will apply in all cases in which the case of imported items, accounting for producers, distributors or sellers of things or services, the contents of the translation.
In cases where the information comes in the same products, fruits or services, must be completed to describe the collection of components, refraining from phrases, descriptions, trademarks or other signs that may lead to error, deception or confusion in respect the nature, origin, quality, purity, mixture or quantity of fruits or products of its own properties, uses, conditions for the marketing or production techniques [8] .
operations in consumer credit sales, is the subject of the duty to disclose, under penalty of nullity, the information about the spot price, the stock of debt, the total interest payable, the effective annual interest rate the form of repayment of interest, other expenses if any, amount of payments to be made and their frequency, extra or hidden fees if any, and total amount financed to pay. [9]
With regard to public utilities, information must be comprehensive, not only of these aspects, but also specific legislation regulating the matter, as well as consumer protection law, especially in cases where the law acts as a supplementary text, and secondly in relation to safe facilities and equipment, instruments and measurement units of those services that are measured or weighed, with information on their prior consumption of not less than 10 days of the expiration date of the invoice. The advance in information consumption, allowing an adequate analysis of sustainable consumption in the period and in the composition of the service charges (eg on invoices details of telephone calls, short, medium and long distance domestic and international, as well as consumption of additional service that is done, eg voicemail, call screening, billing details, restrictions on outgoing calls certain characteristics, etc. .)
The guidelines for determining when an excessive consumption can be assumed, is given by the art. 31 of the LDC, which rule that when a home utility bill over a period an amount exceeding 50% the average user's actual consumption in the previous 12 months, presumably in the billing error. In this case, the user must pay only the value of the average consumption, and within 30 days from the claim of the user must establish a doubt that the billed consumption was actually carried out, reversing the burden of proof on consumers and against suministrante.
This last part was an innovation introduced to the art. 31 by the Law 24,568, 24,240 and amending the Act. Introducing a rebuttable presumption of liability in cases of overcharging, it is assumed the error of the company, until it proves otherwise. The legislature has imposed the burden of proof and that is better able to prove.
Policy Framework:
Let us now what is the legal framework comprising legal obligation to inform.
a) Article 42. of the Constitution: - Consumers and users of goods and services they are entitled, in terms of consumption, health protection, safety and economic interests to adequate and truthful information, to freedom of choice and conditions fair and dignified treatment.
The authorities shall provide for the protection of these rights, to consumer education, the competition from all forms of market distortion, the control of natural and legal monopolies, the quality and efficiency of utilities, and the establishment of associations of consumers and users.
The law shall establish effective procedures for the prevention and conflict resolution, and regulatory frameworks for public services of national competence, providing the necessary participation of consumer and user associations and interested provinces in the agencies.
b) Article 38 of the Constitution of the Province of Buenos Aires .- The consumers and users are entitled in the ratio of consumption to protection against risks to health and safety, to promote and defend their economic interests and an adequate and truthful information.
The Province will provide the consumer education, the establishment effective procedures for the prevention and resolution of conflicts and promotes the formation of associations of users and consumers.
c) Article 3: Law 13,133 of the Province of Buenos Aires. Government action to protect consumers and users will, within the constitutional framework of competencies among others, the following objectives:
a) policies regulating the market in terms of protecting the health, safety and compliance with minimum quality standards .
b) consumer access policies.
c) Educational programs and consumer information and advocacy organization of consumers.
d) Policies dispute resolution and punishment of abuse.
e) Political control of public services.
f) Policies on sustainable consumption.
d) Article 46 of the Constitution of the Autonomous City of Buenos Aires. The City guarantees the protection of consumers and users of goods and services as they relate consumer against the distortion of markets and the control of monopolies that affect them. Protects the health, safety and property of consumers and users, ensuring fair treatment, freedom of choice and access to transparent, adequate, accurate and timely, and punishes the advertising messages that distort their willingness to purchase technical means established by law as inadequate. Should pass a law to regulate advertising that may lead to addictive and harmful behavior or encourage self-medication. Police power exercised in consumption of all goods and services sold in the city, especially in food and drug safety. The Single Entity public services regulator promotes mechanisms for involving users and consumers of public services according to the law regulating.
e) Article 17 of the counter-LAW No. 757.del Government of the City of Buenos Aires, entitled as the law of administrative procedure for the protection of consumer rights and User: Notwithstanding the provisions of the preceding article and the injunction of auncia or messages may impose administrative sanctions Counter, the offender, through information and publicity, had engaged in practices deceptive or unfair. The regulations establish guidelines for advertising correction is able to eliminate the effects of the infringement, and will be announced by the responsible, at its expense, in the same way, frequency and size, and preferably by the same means, place, space and time.
advertising and information. Inductive advertising.
Advertising is an excellent way transmission of information that lets us know that something exists, and elementally its usefulness. A proper use of advertising is appreciated as a potential element of sales, being the preferred medium of television, while the other media will play a less important role when it comes to sales.
communication is a vehicle that carries the item or service offered to the consumer, and legal legitimacy of his employment is on the constitutional principle of freedom of expression. Is a valid and necessary for the promotion of goods and services, as its correct use. Enclose
danger of being an element of distortion of the mental process of recognition of the thing or service and advertising are erring on the subject of his speech, creating slogans, which are more powerful than to promote a product, being fixed in the conscious and subconscious advertising receptor that message and not the advertising .
is used even as an attractive method of sales, which have been called telesales (combination of supply and acceptance TV phone) or sell electronic (internet sales), where they are used radio transmission systems or television, or Internet sales where the sale via the information highway, or catalog sales where the sales graphically. Even as a means of sale that requires the express consent orally directly, and can be debited from the credit system purchases or credit card. [10]
inductive advertising, is that in addition to offering a particular good or service, comes with a forward, generally well-being, safety and reliability, given for the product advertised, which seeks to ensure that the receiver and future user to identify the feeling transmitted to the advertised object, and thus induce the purchase of such goods and services ..
Sometimes, you can match the product, such as would occur with a sedative drug remedy that actually cause these feelings of comfort, safety and reliability, as opposed to a soft drink, which may allay the thirst circumstantially, and will never provide the same sensations of pleasure, safety and reliability. In this case leads to the belief of such features to a product that never would have them, most certainly not expressly stated but implied answer to a protest (by gesture or set of sets and publicity stunt) that create the illusion or sense of wellbeing. Inductive
advertising is an impact on consumer behavior aimed at generating a global acquisition of goods and services, which is not an offer under the contract, but simply a means of social control. This means that as impact, is a strategy for determining social behavior.
Moreover, advertising contains all the requirements of a contractual offer. as a subliminal message contains a system of symbols (empathy) which was axiomatic that produces a sensation., which constitute a sort of real ambiguity in such a way to circumvent the final motivation and allow different interpretations, each objective, so diluted the possibility of default, not be clear for the purpose of payment. This should result in publicity that inductive not point to a single property or a benefit but the feeling of well being will settle in a host of other features that are not clear enough to understand if such an offer because it is an integral part of my contract or not. That distorted reality, characterizing the product on more than it really can be characterized by exaggerating its qualities, properties, effects and results.
asserting that the proposal given by electronic means of communication - ie television - contains images of advertising on a prepaid medical company that displays next to all staff on a plane with their personal details, which meets the purpose Transfer to a health center is automatically generated in the receiver the subliminal feeling that this aircraft is to take you in an emergency right center complexity. Now it is possible that this feeling that I believe in the subconscious has no instrumental backing, but in demonstration of inductive prepaid medical provider as far as their health can get deals. It is then a corporate image and not performance based supplier.
more then where is the limit of what it can be incorporated into the contract and what is not, as it may enclose a performance based institutional offer free content. Two aspects
to excel in inductive advertising (generating behaviors of consumers and users). The first is that advertising creates a lack of reliability in service in the abstract, mostly showing the highest efficiency and quality possible, pointing out that the receiver of this message into your subconscious believes a welfare, ranging to be closely related to the particular brand, system, goods or services produced in the receiving scheme credibility and reliability. Second, is that following the internal process outlined in the preceding paragraph gives the transformation of the user receiver.
This is perfectly inductive states that advertising, with all procedural aspects of the human unconscious, should be part of the contract, the wording of the provisions of art. 8 LDC. Advertising inductive
supplier relationships with an economic system that consumers receptive as possible in terms of access to work-make a sacrifice in order to access the goods or services offered under the terms of coverage - if prepaid medical insurance - quality and quantity.
The breach caused by the mismatch between the publicity and the offer implies the collapse of the value reliability. This contradiction could be at stake or doctrine of estoppel, since eventually absorbed as a process of mendacity. So psychologically, as is legally objectionable for being libelous.
This ad, enter the address of the recipient, either by direct means, such as television, which is a great window of the house able to display not only images but also to transport the user to model the well-being before, or you can be by radio or by post.
The home sale is defined by the Consumer Protection Act, as "something that proposal and providing a consumer service performed in the place of residence, permanently or temporarily or place of work, providing that in such cases the contract should be concluded in writing, with details of the art. 10 " [11] [12] While the Act defines a mail order and others in the art. 33 of LDC, as well, "is one in which the proposal is made by postal, telecommunications, electronics or similar and the response to it is by the same means. Do not allow the publication of the postcode and address."
In this case, the sale document will be delivered to the buyer, with all the details of art. 10 LDC. at the time of delivery, together with instruction manuals, and other essential information and appropriate.
Responsibility for the information.
consumer contracts.
PARTIES. They
parts of the consumer contract, the Provider and Consumer.
Provider is the natural or legal person in a professional manner even occasionally, supply, manufacture, pay, sells or imports, or brings to market their goods and services available to consumers.
Providers is included in the State, for services rendered, without prejudice to the undeniable responsibility which it is responsible for his omission from the comptroller or monitoring compliance with its police power.
For their part, consumers are all human persons [13] or legal contract for consideration for final consumption, that of their family or social group: the acquisition or lease of personal property, services, and acquisition of new buildings for housing. Even the plots of land acquired for the same purpose, when the public offer is addressed to an indefinite person.
for consumer requirements are given by:
The character of final consumption, which would exclude the merchantability of the act. This character of final consumption, is given by the power use of the property for consumption, use, or use of goods or services to meet their personal or family gain.
not this character are of those who acquire, store, use or consume goods and services, to integrate them into processes of production, processing, marketing, or interpretation to others. [14] remain covered under the definition of legal persons when purchasing goods or services to consumisión final destination.
This circumstance is a fact proves that it is up to the corporation, to rebut the presumption that the acquisition does not lead to profit.
Recruitment for consideration, which excludes the case of gifts. Even when test samples or receive goods or services for free, according to a possible contract for consideration, these conventions are held for acts of consumption, and included under the umbrella of the LDC Protectoria.
Excludes consumer contracts for used things, but yes it is inferred that if things were new, even in such an act has a profit motive, though not his profession, but an occasional act. Protective standards Stadtholder consumer then do not apply to consumer business together, but in the event that a legal person BOUT negotiate a relationship of consumption for consumption if import an act of consumption.
Against this, the Directive 93/13 of 04.05.1993 of the European Economic Community, the consumer considers only the individual, and no consideration to legal persons (regardless of whether small, medium or large companies). But some members of the EEC nations to legal persons incorporated within the notion of consumers. (Portuguese Law of consumer protection, of 08/22/1981, General Law for the protection of consumers or users of Spain, No. 26, 07.19.1994 l). This view was also shared by the bill prepared by A. a. Alteriini, RM López Cabana, g. A. Stiglitiz, who would provide input for setting to individuals alone.
character will not have consumers who acquire, store, use or consume goods and services in processes of production, processing, marketing, or services to third parties. Neither acts of professionals who require title and registration of professional associations.
a microsystem.
There is debate as to the location consumer systemic status, although it is obviously functional interdependence with the Civil and Commercial Code.
Those who consider him a microsystem, refer to their own supply, not dependent on major schemes.
While there are others who subsumed into substantive codes.
The fact is that any categorization or legal systematization requires self-sufficiency, which was not verified in the text of the LDC, which is based on the system of obligations and civil and commercial contracts. Ergo this statute should be studied in harmony with the basic legislation, since the rule is not self-sufficient and contains tacit references to the substantial right.
This sustained without prejudice to any significant additions brought in order to right to information for the formation of consent, the defense of autonomy by way of defending the public offering indefinitely and integration by acquisition of advertising to general agreement, among other improvements.
is to say that those improvements were not receipted in full by the Draft Unified Civil and Commercial Code of Argentina, who preferred to hold the current regime of the Competition Act. This maybe because the principle of specialty.
PRINCIPLES OF CONSUMPTION.
Rules of interpretation of contracts .-
Art. 3 º LDC states that this law is integrated with general and special rules applicable to legal relations as defined above, in particular those of competition and fairness.
auction in the last line of this article, that in case of doubt, the interpretation will always be more favorable to the consumer.
business loyalty is legislated by the Law No. 22,802, legislating on the appointments, publicity and information, labeled containers, the same. Seeks, first, to ensure that consumers have information about the conditions under which goods and services are offered before making your purchase option and that it corresponds to what actually provided. On the other hand, find that all suppliers of goods and services meet the marketing standards force, so as to ensure clear rules on transactions that are effective on the market.
While the Law on Protection of Competition No. 25,156, relates to the prohibition for companies to perform certain agreements or covenants, or to take dominant positions in the market for any direct or indirect means, including making mergers and concentrations to entrepreneurs.
must be complemented harmoniously with the LDC.
1) The first principle of interpretation is "in dubio pro consumer, this means that in case of doubt should be in favor of the consumer, not the debtor of the benefit principle enshrined in the Civil Code and the trade when establish the principle "favor debitoris." In this case the customer is upgraded to a creditor of the benefit and beneficiary of your reason for being the weak part of the contract.
2) Hold a hermeneutic interpretation of contracts in cases predisposed clauses whose meaning is ambiguous and presents difficulties to define the scope of the obligations of the predisposing, in case of doubt should prevail interpretation that favors those who contracted that or against the author of the standard clauses (doctrine of faults: 317:1684).
"The requirement to comply with this standard is emphasized in the course of the contract medical provision, in view of the hierarchy of values \u200b\u200bthat are at stake: the life and the right to obtain appropriate and timely health care. "RV. C / QUALITAS SA s / Regular SCJ, 1998. Hermeneutics
This rule is imposed by reason of express statutory provisions (art. 1198 of the Civil Code, art. 218, inc. 3 °, of the Commercial Code, art. 3 of Law 24240), and is accentuated in the course medical service contract, taking into account the hierarchy of values \u200b\u200bthat are at stake: the life and the right to obtain appropriate and timely health care (Bugs: 321:3493).
Peña Marques de Iraola, Maria Jacoba c / Civil Hospital Association German "- SCJ - 16/04/2002
3) Consider the principle of pro hominis, since the right to health, has constitutional status as a derivation of the right to life., and now recognized that hierarchy in art. 42 and the provisions contained in international instruments built it with the hierarchy that emanates from the art. 75, inc. 22 of the Constitution, it appears to be contemplating a contractual interpretation of the information that is more beneficial to the health of consumers.
prepaid medical contracts, contains aside from the expectation of profiting from providing the service, the load that exceeds that of organizing their resources for the benefit of comprehensive health and harmony of body and psyche of the participant. So having transferred the state hospital medical responsibilities to social and referral to prepaid medicine companies, should in principle provide the same coverage that gives the federal government. It even would be broader than the program itself compulsory health and the law follows 25754, which requires paying at least as ready for mandatory medical benefits insurance plans, not to mention what the maximum or ceiling medical care, and that Article 42 of the Constitution imposes no limits on the guarantee required of providers the health of consumers, and that being a constitutional can not be left to the field of autonomy, for it seems excessive to say.
4) incorporate the principle of precaution. (From the Communication of the Commission on Consumer Law of the EEC, February 2, 2000, on appeal to the precautionary principle). This principle was added to the EC Treaty by explicit reference to the precautionary principle, namely, in the section devoted to environmental protection. However, in practice, the scope of the principle is much broader and extends to the consumer policy and human health, animal or plant.
In the absence of a definition of the precautionary principle in the treaty or other Community legislation, the Council requested the Commission, in its resolution of April 13, 1999, to develop clear and effective guidelines with a view to implementing that principle. The Commission communication is a response to this request. The Commission
can invoke the precautionary principle when they have detected the potentially dangerous effects of a phenomenon, product or process through a scientific and objective assessment, but this assessment does not allow the risk with sufficient certainty . Thus, the use of the principle falls within the general framework of risk analysis (which includes, apart from the risk assessment, its management and communication), and more particularly in the context of risk management corresponds to the decision-making. (Communication from the Commission of February 2, 2000, on appeal to the precautionary principle).
This principle would force prepaid medicine companies to participate in the process of health care information on the risks, treatments, new technologies are incorporated into the plan member's attending physician, and now is charged with treating physicians to be informants of the new studies, therapies, and technological resources available to medicine, to prescribe its use by the insured patient. Should include the risks, scope, and possibilities offered by a particular medical practice to improve decision making when patients require care.
CONTRACTS FOR ACQUISITION OF REAL ESTATE IN THE FURNITURE AND CONSUMER PROTECTION ACT
1. Introduction.
The Consumer Protection Act is the product of legal standardization of a factual situation of inequality.
This inequality is supported by economism that build a system of consumerism, goods and services resulting from a postmodern whose standard of living was improving comfort.
Gradually, companies producing goods and providing services, began deploying marketing strategies for their property.
competition between them to expand their sales and acquire new customers to their businesses, led some to adopt unfair practices, both for its competitors as consumers.
the expense of quality, in terms of lower prices to compete with other firms, aggressive advertising, led to a detriment of the relationship consumers - producers.
For this reason began to take shape a movement to defend their rights, which was extended to a further polarization between the two segments.
is our duty to reverse this bias by bringing consumers and producers in an equal footing can co-exist interdependently in a market such as ours.
so that the work should have the ideal business customer satisfaction - that is the one who feeds the circuit of production and finance - stressing that this will be achieved through the return to the standard of good faith.
Good faith in business, implies an attitude of respect for consumers. It is they who must be kept in sight.
This is not incompatible with the profit motive of business. Nobody works for free. Nothing on the market is free.
The point is that anyone who purchases your product or service, you must have the satisfaction that they will be useful. That means satisfazgan expectations.
The purpose of the LDC [15] is the protection of consumers or users of goods and services, public or not, who are recruited for consideration for final consumption, to benefit themselves or their families or social. This includes
within this scheme those acts / offers in terms of a possible contract for value, receive free of charge things or services (eg free samples). [16]
2. The procurement of goods in the LDC. The
LlLlincisos a) first part, and c) of Art. 1, of the Competition Act, provides that the Acquisitions of personal property and new buildings and plots of land for housing are included within its statutory scheme. Meanwhile
Decree 1794/94, provision should be interpreted as new buildings that are built or under construction, which have never been occupied.
Thus
incorporates a major legal division and inequality, as incorporated into this scheme to purchasers of residential properties, brand, and leaves the fate of the Civil Code provisions, to purchasers of property used, without giving any basis in this regard.
While silent on the property (whether registered or not) used. It follows that the scheme would be built.
This distinction, put in a foot of inequality, to purchasers of property in general.
At first glance, would be covered by contracts of sale of properties Brand new, those destined for housing lots, the sale of goods and goods for personal consumption. After a brief discussion, nothing would prevent the incorporation of these contracts on real estate purchase contract between the Trustee and Beneficiary (trust agreement), and the Taker and the Giver of exercising the option (leasing contract). On the latter I explain below me.
For its part, applies to the locations of houses, that as the wording of that article do not fall within this regime, governed by Law 23,901 urban locations.
While the location of personal property - regardless - whether used or new, falls within this regime.
By the same token, we can say that the real estate leasing would not apply this statute, while yes it would be at lease obligation (when the giver is a financial institution) and operating (when the giver is the producer or importer the good locado). [17]
More however, when the lease is exercised the purchase option, nothing would prevent the statute are considered within the consumer, because in cuadraría inc. a) Art. 1 LDC.
3. The trading of movable and immovable property.
Even before the drafting of the Competition Act the sale was governed exclusively by the provisions of the Civil Code and Commercial Code.
accordance with the principle of specialty, and the attraction statutory intervention that produced the dealer, even if the co-contractor is not trader, the absorption of the business involved the commercial orbit.
The LDC, has never had such a potentiality to change this stance, but overriding policy background in partially modifying their systems, adding a new competition.
So that when it comes consumer relations, always verify the presence of a merchant and a consumer. Thus the acquisition between two consumers, not attract the LDC, or the commercial jurisdiction. As when checking a consumer act, the ordinary courts would have jurisdiction in trade, and application-specific legislation with ancillary civil and commercial. 3.a.
The sale
First, we should discuss the sale. No one tries to analyze extensively the sale, which is the subject of contracts, but the impact has the LDC in the trading scheme
The current wording of the Civil Code, as artiulo 1323, defined to be buying when a party is obliged to transfer to another property of a thing, and this is obliged to receive and pay for it for a certain sum of money.
For its part, the art. 450 of the Code of Commerce, said that the commercial sale is a contract whereby a person, whether or not the owner or possessor of the thing subject to the convention, is obliged to deliver or make available in property to another person who undertakes For its part to pay an agreed price and the purchase for resale or rental use.
These definitions have some differences that have their basis in:
a) the competence and jurisdiction courts,
b) applicable law to determine rights and reciprocal obligations arising from the business. [18]
c) the use or purpose of the acquisition (the calendar for personal consumption, while the business for resale or rental use).
d) the statute of limitations,
e) the possibility of buying and selling things outside,
f) ensuring the required eviction and sanitation.
The Draft Unified Code Civil and Commercial Procedure [19] (CU) in art. 1064, simplifies both definition one, the regular sale whether there is a party is obligated to transfer the domain to one thing and the other to pay a price in money. Add in the following article that the rules of the respective chapter additionally apply to contracts requiring a party to transfer the property rights of condominium, condominiums, area, enjoyment or use, or form, on real estate, or transfer ownership of securities, or deliver or prudicidas manufactured things, in exchange for money price.
This new position (which comes from game art. 1064 and 1065 of CU [20] ) absorvería contracts will mention in second (trust and leasing), as long as the intended transfer of movable or immovable, because it would additionally apply the rules of the sale.
In this way, would come full circle, to understand within the LDC status of the contracts of sale, trust and leasing.
The parties to the contract would be a Merchant (seller) and a consumer (buyer) can not be verified in inverse relationship to consumption.
According to the absurd prohibition of the Competition Act, in the case of sale of property used, would not apply this statute, even if verify the contracting parties.
This sets a reasonable doubt in the case of the lease. What if the location of housing is excluded from the LDC regime, that would apply to leasing?
First, a distinction that during the execution of the lease identifies two stages, the administrative and operative. During the administrative rules apply to the location of houses, and verified that the device is applied to the sale. But to reach this moment the property and would be used. At first reading it seems that this would be an impediment to the implementation of the LDC putting more attention on the character of uniqueness of the lease business, which has as its conclusion in view the transfer of ownership of the property [21] , we can say that has not been expressly excluded, having being then applicable the regime of the LDC.
Interpretation, competence and jurisdiction of commercial courts.
Because of the parties, the jurisdiction would be commercial, by the attraction of the presence of the merchant business.
doctrinally is considered as a esición commercial law, having been until then in the theory of unilateral trade actions. Some failures
Trade Justice echoed this, and have held that jurisdiction lies with the merchant involved in claims for damages brought by consumers in the Act covered 24,240 [22] .
Finally, we mention that the art. 3 LDC, sostiende that this law is integrated with the general rules and special legal relationship defined above in the arts. 1 and 2, including the Defense of Competition and Fair Trading stating the principle "in dubio pro consumption" (in case of doubt in favor of consumers)
Applicable law to determine the mutual rights and obligations arising from the business. [23]
The sale of property, would apply the rules of civil Sales, while that of goods and merchandise to the Code of Commerce.
The destination or purpose of the acquisition expensive, (the calendar for personal consumption, while the business for resale or rental use).
The fate of the purchaser, must always be the plot of land destined for housing, or housing for their own brand or personal property for consumption or your family or social group.
The acquisition must be expensive.
The thing under contract.
The contract of sale in the Civil Code regime, are personal property, registration or otherwise, or properties, while there is a limitation in the LDC.
The LDC proposes that personal property are for personal use or consumer social, while the property must be brand new and for housing of consumers themselves and their families.
not allowed under the statute the purchase of real estate used.
For lots of land, indicated in particular that must be acquired for housing and supply of the data is public and led to an indefinite person. The latter
contains dark aspects, since the supply is confused with the object of the thing sold. The thing sold is an item that is offered in form and addressed to individual aública undetermined. Eg in the case of a property whose sale is offered by an enterprise of subdivisions, or by a trustee. While that seems not to understand direct selling between two individuals.
This saves an internal logic, then the sale of lots between individuals apply the rules of the Civil Code, while intervening when a marketer (supplier) or company lot, contractual relationships verify consumer having being applicable LDC standards.
The CU is silent in this respect, devoting three articles to "The thing sold" (art. 1068 to 1070) standard on certain thing that has ceased to exist, the future thing, and something stolen.
Anyway, even when checking a consumer relationship, in everything that is not applicable LDC additionally apply the rules of C. CC Commerce clearly states under art. 451 and the 452 inc. 1, that the sale of property and furniture and accessories, will not be considered commercial. Ergo will not apply the rules of commercial sales. Add
inc. 2 of art. 452 C. Com. not be considered commercial sales of articles for consumption of the buyer, or the person on whose behalf the purchase is made. The CU does not legislate in this regard.
This is so despite the microsystem designed by the LDC for "consumer contract" has its foundation in the field of so-called "firm contracts", mostly of accession or predisposed clauses, and subject to regulation born in the area of \u200b\u200bautonomy. Providers for their part, claim the application of the lex mercatoria [24] resulting from the application of proven marketing techniques in various regional economies or even by application of transnational experiences - Or marketing schemes - who are ignorant of local regulations (or simply pretend to ignore them.) Meanwhile
the collision occurred between these providers and local jurisdictions that put emphasis on the general rules of the formation and conclusion of contracts (general theory of contracts for which premium the principle of equality of the parties, as a fiction but a reality), and in good faith loyalty or honesty, fairness and balance of benefits in onerous contracts. [25]
While in consumer relations, there is a decrease in the autonomy of the consumer, against the bargaining power of suppliers, which may even suppress it when it comes to public services provided by private equity firms or by the State as suministrante agent to form self-governing body or joint ventures in competition of the former).
The supply of things for sale (training agreement)
The LDC emphasizes the rules in the formative stage of a consumer contract, allocating Chapter III, to regulate the "Terms of the offer and sale."
in the art. 7, provides that "the offer addressed to potential consumers indeterminate forces who is issued during the time that takes place, and shall contain the date precidsa start and end, as well as its terms, conditions or limitations. The revocation of the offer public is effective once it has been disseminated by means similar to those used to make it known. "This adds the DR provider 1798/94 when quantitatively limited offer of goods or services, you must report the amount that has to cover.
This forecast complementea with the provisions contained in Art. 8, LDC, which incorporates advertising as content of the contract, doing the thing required as depicted in display advertising, ads, brochures, newsletters, catalogs, mails, telephone solicitations, etc. for any commercial media whatsoever.
(You should also identify the supplier, including address and tax identification code (CUIT), thus making their location and commercial identification, conf. Paragraph added by Art. 1 of Law No. 24,787). Thus
adjust the criterion established by art. 454 C. Com. which provided for the indeterminate rates in a prospectus or circular does not oblige that has been done.
For his part, CU anticipates that the offer addressed to unspecified persons as an "invitation to bid" unless its terms or the circumstances of issue it aims to contract the bidder. In any case it is understood issued for the time and conditions of use. (Art. 923 CU). Under this scheme, the offer becomes void if the offeror subject to a term of validity and is the deadline, or when it receives the initial acceptance (which itself would not be the case in the event of sale of consumer products, but if in the case of movable property or recordable) unless the tender is otherwise (eg, while supplies last clause, or clause valid for "n" number of units).
In this case, two schemes complement harmony.
The price of thing sold.
current regime in DC The price may be true or certain [26] , even by third parties, by the following scheme:
a) determination by a third party (art. 1349 CC Part Two). This third piece of the value of referee thing. Art. 1350 provides that where the person or persons determined to bring the price is unwilling or unable to reach determine, the sale will be void (Id. art. 459 C. Com. That adds an innovation to the harshness of this rule, which can agree to a stipulation to the contrary to the solution offered by the CC regarding the contract have the non-existent). This solution
departs the CU that foresees the possibility that the refusal or inability to determine the price by third parties that may be fixed by the local court by way of summary procedure.
b) pricing based on cost of some otherwise (art. 1349 third paragraph.)
c) determination based on the current value of the movable seat (art. 1353 CC and Art. 458 C. Com.)
d) Joint pricing alternatives, resulting from the giving of money and one thing canceling part the same price.
CU anticipates that if you omit any mention of it, is a third party designated in the contract or after its conclusion, or failing is for the court to intervene on that set, via the shortest process that has the ritual of application code. The price can also be set as well as per unit or fraction of land, or together, including solutions for when there are differences in the measures.
The LDC, the matter does not provide pricing procedures, and must be applied then existing legal provisions of the CC and what was the relevance of C. Com. Thus the art. 10 LDC is anticipated that only a requirement of the bill of sale pricing and payment terms.
It also appears from this that must be part of the bid made by suppliers to potential customers and indeterminate obligations during the time that takes place, subject to the term during which the offer is in force and the amount of goods offered. (Conf art. 7 LDC. And from 1798 to 1794 DR).
Delivery of goods - except for non-compliance. Acceptance of the goods.
The sale of goods governed by the C. Com. stipulates that non-payment of delivery, the goods must be made available to the buyer within 24 hours. following the conclusion of the contract.
The buyer shall have the period of ten days pay the price effects, but may require delivery without giving the seller the price in the act of verifying that. (Art. 464).
the buyer when the goods are delivered in boxes, bags or bundles that prevented them from control of the goods delivered, has a period of three days immediately following delivery, to claim any fault, deficiency in the quantity or quality defects in the . (Art. 472 C. Com.).
The seller can always demand in the act of delivery of the thing sold, the control of the quantity and quality of it. (Art. 473 C. Com.).
When the seller does not deliver the goods sold on time or in the provisions of art. 464, apply the provisions of art. 216, without prejudice to the buyer's ability to seek permission to buy in the square, by the seller, an amount equal to the same objects.
However, when the lack of delivery of the goods sold comes from who had perished, or had been damaged by unforeseen accidents, no fault of the seller ceases all responsibility for part of this agreement is terminated and the return of the price law the buyer (art. 467).
If the sale of goods to be together or sealed package, and partial deliveries are agreed, although the prices were different, but without designation of parts or batches to be delivered in parts or lots, the buyer can not be compelled to share recibiruna deliver on the promise of the remainder thereafter.
But if you accept a partial delivery spontaneously, is irrevocable and consummate the sale, as to the effect that he received. (Art. 468).
If the buyer returns the item purchased and the seller accepts it, or having being delivered against their will, not deposit it in court on behalf of whom belonged to notification of the deposit to the buyer, is presumed to have consented to the contract resición. (Art. 469).
The corresponding contracts. The contents of the document of sale.
As the art. 10 LDC document sales of personal property shall contain the description and specification of the thing, the name and address of seller, name and domicile of the manufacturer, distributor or importer, when appropriate, an indication of the security features (DR. 1784 / 94, states that the sales document must make express reference therein, shall be evidenced in their scope and characteristics in the respective certificate to be delivered to the consumer, when issuing a ticket is to be delivered a certificate of warranty, if the document sale contains no mention of warranty is presumed lack thereof) as provided in this Act, the terms and conditions delivery, price and payment terms.
The wording should be made a national language, complete, clear and easy to read, without needing to texts or documents not previously or simultaneously delivered. A copy must be delivered to the consumer. When including additional clauses to those listed herein or enforceable under the provisions of this law, those should be written in bold letters and signed by both parties.
The regulations shall establish procedures simpler when the nature of the thing to be procured so determines, provided that it assures the aim of that law. Sale
home.
Art. 32 LDC defines the sale of a thing or provide a service performed to the consumer at the place of residence, permanently or temporarily or in your workplace. In it, the contract must be concluded in written form and details of art. 10. The provisions above shall not apply to the sale of perishable goods receipts for the consumer and paid in cash.
For its part, the RD 1798/94, lays down that means that fall within the home or direct sale, without prejudice to others, the systems in which consumer choice is made at the home address of the offeror or consumer, in your workplace or home of a third party.
Sale by correspondence.
limitation periods,
actions arising from the sale instruments are governed by general rules of civil law, every time you apply the rules of substantive law.
Thus the prescription of these actions begins to run from the day you sign the instrument of sale. [27]
This differs from the principle laid down for the obligations of giving money to credit, especially when doing the purchase of movable or immovable property in installments. [28]
As if it relates to the sale merchandise (understood as consumer goods consisting of expendable or non-expendable things such as food) would be applicable, to consumers for debts that have such a concept with poveedores, the annual limitation period [ 29] .
the sale of foreign things,
The seller can sell the buyer a strange thing, because it would be a merchant who sold things outside
Guarantees Article 11 LDC non-consumable personal property.
Art. 10 provides that the sales document must contain a reference to the characteristics of the collateral (DR. 1784/94 provides that the sales document must make express reference therein, shall be evidenced in their scope and characteristics in the respective certificate to be delivered to the consumer, when issuing a ticket is to be delivered a certificate of guarantee, if the document Listing contains no mention of warranty is presumed lack of it).
eviction guarantee
The limitation for warranty term when they are not true, does not begin until the first day of eviction, or the fulfillment of the obligation or the expiration of the term. [30]
Eviction and crippling defects. The obligation of sanitation.
in this area should be to the general rules of substantive law.
4040. Is also prescribed for six months, bought action to rescind the contract or demand compensation for the burden or servitude is not apparent to suffer the item purchased, and that there was no mention in the contract.
4041. It is prescribed for three months, the action for rescission to rescind the purchase and sale agreement, and action to get off the lowest price for the crippling defect.
breach of contract of sale.
Art. 10 bis provides that failure of the offer or the contract by the supplier, unless a fortuitous event or force majeure, empowers the consumer at its option, a) are enforceable as long as possible, of
b) accept another product or service equivalent service, c) terminate the contract is entitled to the refund of the amount paid, subject to the effects, considering the integrity of the contract.
This is without prejudice to any action for damages as appropriate.
[1] Consumer Protection Act of Venezuela.Artículo 2 .- For the purposes of this Act, consumers and users are considered the natural or legal persons, as recipients end, acquire, use or enjoy, for consideration, goods or services in whatever public or private, individual or collective who produce, issue, facilitate, provide, render, or order. Not have the status of consumers or users who, while not final destination, acquire, store, use or consume goods and services to integrate in production, processing and marketing.
Article 3 .- For the purposes of this Act shall be regarded as suppliers of natural or legal persons of public or private deproducción activities develop, manufacture, importation, distribution, marketing of goods, provision of services to consumers or users for which prices or fees charged.
[2] Federal Mexico. Article 2 .- For the purposes of this Act, the term:
I. Consumer means a natural person or entity that acquires, perform or enjoy as an end goods, products or services. Not to-consumer who acquires, stores, uses or consumes goods or services in order to integrate them into processes of production, processing, marketing or provision of services to third parties;
II. Provider: The person or entity which habitually or periodically offers, distributes, sells, lease granting the use or enjoyment of goods, products and services;
[3] Brazilian Consumer Code .- Translation by this author. 2 º A consumer is any natural or legal person who acquires a product using the service as an end. Sole Paragraph. Consumer equated group of persons, which together indefinitely intervened in consumer relations.
3 º manufacturer is any natural or legal person, the private public, the foreign national as despersonalizaos authorities, who develop the production, assembly, breeding, construction, processing, importation, export, distribution and the marketing of the service. Product
§ 1 is any good, still mobile, the immaterial material. § 2
Service is any activity done in the consumer market for remuneration, including those of banking, financial, credit and insurance, except those resulting from labor relationships.
2 º A consumer is any natural or legal person who acquires a product using the service as an end. Sole Paragraph. Consumer equated group of persons, which together indefinitely intervened in consumer relations.
3 º manufacturer is any natural or legal person, the private public, the foreign national as despersonalizaos authorities, who develop the production, assembly, breeding, construction, processing, importation, exportation, distribution, the marketing of the services. Product
§ 1 is any good, still mobile, the immaterial material. § 2
Service is any activity done in the consumer market for remuneration, including those of banking, financial, credit and insurance, except those resulting from labor relationships.
[4] Rights and Responsibilities of enterprises and consumers. Chapter V. Ana M. Carriquiri and Eugenia Diaz Palacios, Page 69, Book Publishing Mora
Organization [5] Rights and Responsibilities of enterprises and consumers. Chapter V. Ana M. Carriquiri and Eugenia Diaz Palacios, Page 69, Mora Books Publishing Organization.
[6] Banco de Galicia y Buenos Aires with LH, PM et al. Judicial Doctrine, 17 November 1999, pg. 839/845. Com CN, Room B, February, 23-999. It highlights a phrase "The bank is obligated to provide their clients with accurate and appropriate information to enable proper control, must indicate precisely the origin of the amounts, fees and amounts deducted. "
[8] Arts 5 and 9 of the Law of Fair Trading No. 22,802, enacted and promulgated on May 5, 1983 published in the BO. 11 May 1983.
[9] Consumer Protection Act, Chapter VIII, "Of the credit sales transactions"
[10] The Consumer Protection Act, has spent two whole chapters, in succession, the first VI " of the home sale. For correspondence and other "and the VIII" Of the credit sales transactions, in which sits a set of principles and prohibitions. Arts. 32 to 36 inclusive.
[11] Section 32 of the LDC.
[12] Article 10 LDC . CONTENTS SALE DOCUMENT: The document that extends from the sale of personal property, subject to the information required by other laws or regulations shall contain: a) the description and specification of the thing, b) the name and address Seller, c) the name and address of manufacturer, distributor or importer as appropriate (vetoed by the Executive Branch, through Decree 2089/93), d) an indication of the security features as provided in this Act; e) the terms and conditions of delivery; f) the exercise and payment terms. The wording should
be made a national language, complete, clear and easily readable, without needing to texts or documents not previously or simultaneously delivered. A copy must be delivered to the consumer. When including additional clauses to those listed herein or enforceable under the provisions of this law, those should be written in bold letters and signed by both parties. The regulations establish procedures simpler when the nature of the thing to be procured so determines, provided that it assures the aim of that law.
As the new designation of the person making the Draft Unified Code Civil and Commercial Nation in the Second Book, Title I, which is applicable throughout the draft. This criterion is based maintains that because he comes from nature, every human being is a person, by the mere fact of being, and the definition of the person from their legal capacity condunde the subject with one of its attributes, aside from the false idea that the personality of the subject is given by the legal system. The person is above the law.
[14] 'Rights and Consumer Protection, "by Gabriel Stiglitz, pg. 114, quoted in 6 of Malinvaud, Ph. La protection des consommataures, Recueil Dalloz Sirey, Paris, 1981, No. 2, p 49.
[15] Acronym with which I shall refer to Law 24,240 on Consumer.
[16] Conf Regulatory Decree 1784/94 of the LDC.
[17] In dissent from the doctrine, I think the Leasing can be held with people who are not traders, and would not be an exclusive contract employer. This on the grounds that the Law Housing Finance, says nothing about that you can not allocate the goods to be purchased by this contract for personal consumption. It would also be an inconsistency the distinction of acquiring these goods for commercial or professional equipment, the personal consumption. The clearest example of this inconsistency would to acquire by lease a personal computer for my business or company, would be a businessman equipment contract, whereas if you bought it for my home could not acquire under this type of contract. The foundation of my position would be that would be put in a foot of inequality to the consumer for the same acquisition that a trader. The law of housing finance, for his spirit, not just thought to encourage trade, but rather the financing of housing.
[18] "To allow differentiation say that the civil buying things can be property or furniture, while the commercial may relate only to things furniture (art. 452, inc. 1, Coll. of Commerce). "Garrido - Zago, Civil and Commercial Contracts, Volume II, pg. 43, Ed University, 1995.
[19] PEN Project 1999.
[20] acronym with which we will call the Draft Unified Code.
[21] In leasing, has delayed the time to exercise the purchase option. If you opt for it, would apply the LDC, while if you do not exercise the option would apply the system of urban locations. As long as they exercise their option to purchase, and that the policyholder has not lost its right to exercise it, would apply the Competition Act because it would not be obliged to exercise that right in advance to enforce the special guardianship.
[22] CNCom, Room D, 11.09.1997, ED 177-218, and Hall G, 4/9/1996, ED 172-366.
[23] see quote 4.
[24] The lex mercatoria is explained by Mosset Iturraspe as the set of usage of trade, compiled in large global centers, as a response to the process of "globalization." (Sic) Jorge Mosset Iturraspe, Consumer, ed. 1998, ed. University.
[25] recommendation XV National Conference of Civil Law. Mar del Plata. 1995.
[26] CC 1349/1356
Art [27] Article 3956 of the CC Prescription personal actions, whether or not interest begins to run from the date of the title of the obligation.
[28] Section 3958 of the CC. In the interest or obligations to income, capital limitation starts from the last payment of interest or income.
[29] Section 4035 of the CC. Prescribed by one year the obligation to pay:
4. For the merchants, shopkeepers, or grocers, the price of selling to other effects that are not, or that still remain, do not make the same traffic.
[30] Article 3957 of the CC . The limitation for warranty or consolidation of conditional loans and term that are true, does not begin until the first day of eviction, the fulfillment of the condition, or expiration of the term.
Consumer rights are a new born discipline in the legal horizon, looking for a space within the context of polarization of a society that current economic gurus have dubbed "globalized."
The phenomenon of globalization is commonly interpreted as a phenomenon that cultural expansion, social and economic ties the different nations, so that what happens in one of them inevitably have repercussions in other areas. So-called crisis in Asia, or Mexico (Tequila), had an impact on the stock exchanges and currencies of other nations.
Along with the globalization phenomenon, there was a deepening of the asymmetry of relations between businesses and consumers, and regulation their rights and duties (ie. A gap in health, education and effective control bodies).
However, social policies and the gunwales of the market are mobile, and highly fluctuating, eg. Argentina's constitution of 1949 prohibited the provision of public services are now privatized. This means that the objectives of the states fluctuate. Are subjected to different scenarios. It could even decirese undergoing paradoxical influences, consisting of the possibility of adopting structural changes deep and asymmetric, in the search for a socio enconómico better. But it is possible that this will change very soon, and then the state back to being the operator of public services. However, the right of consumers must remain immutable, even if the service or purpose of the relationship from becoming or belonging to public service.
The origin of consumer rights, go back to the decade of the sixties, "in the so-called first world, but we find its undeniable appearance in our country only in the nineties. When we move forward in defense of a new type of rights (with a brief Consumer Protection Act, Law 24240) in advanced and developed countries have built numerous legal and factual situations, new arrivals to our knowledge, in the twenty-first century (GM food regulations regarding information to pour into the containers) through the expansion of communications.
commonly known concepts of sustainability in our environment, stability, quality of production, "among many, as absolute terms, relative, being a new meaning which must be sought in terms of articles percederos, increased productivity and quality sacrifice . Socially, the company has been subjected to speed changes and occurrence of loud, questioning and relativizing even the knowledge we have of things.
So that should give priority to the basic concept of relativity concepts, since today we believe that such a thing is beneficial, and may not be tomorrow. For example, now qualify for the cloning of human beings as an aberration, when they are already laying the foundations for human cloning experiments in England. In less than two years, they changed the concepts, and surely it is concluded that in some cases cloning is acceptable. CONR same spectrum to the manipulation of human genes.
This surely will respect the right of the consumer, as it further extends its scope of application, it enlarges the spectrum, incorporating situations under our Civil Code regime, and even in other disciplines.
In a very brief summary of the civil-rights-Romanesque, it was gentrified with the influences of the Napoleonic Code, and went through deeper up to the current regime of consumption. In the various regimes in the world comes to consumer rights and consumer rights. They are two different things.
I think it's inappropriate to speak of the right of the consumer and / or user, since it appears that there were those who did not, when we are all consumers or users of services, including legal persons and the state itself. Even, we can say that is a category of human rights, based this opinion that no one is exempt from consuming goods and services, the vast majority are of prime necessity, and that would be discriminatory not to admit someone or not providing something (ie. a diminished mental Prohibiting be a member of a club, prohibiting the access to health insurance companies or health plans, etc.).
is more appropriate to speak of a consumer law, based not on the quality of the person performing the act, but in the very act of consumption. The difference is not semantics, but provides legal connectedness and applicability of the rule in terms of the act and not people.
In this moment, I am writing this idea in my computer in my home address, the electric power that feeds my computer is obviously a trade relationship, but would change something if this same idea in my office drafted, obviously not since I also find using the same energy. However, given the nature of professional use, taking as criterion that the act of consumption is improved because the person is not consuming, but because the act is punishable under the rule, the relationship would be whether or not consumption.
In terms of public services, the concept is even more ambiguous, because the regulations distinguish between service users (residential, industrial, professional or commercial), distinguishing between different types of consumption. There are different systems adopted in accordance with the user category you have.
In comparative law, the Consumer Protection Act of Venezuela (Art. 2 and 3) [1] , Federal Consumer Law Mexico [2] , the Brazilian Consumer Code [3] consumers and users consider the natural or legal persons as final target, acquire, use or enjoy, for consideration, goods or services in whatever public or private, individual or collective who produce, issue, facilitate , provide, render, or order.
Acts of consumption. The
act of consumption in our legislation goes through, either through an acquisition or supply of consumer goods or service location, or the consumer nature of the parties.
So the second part of Article 1, states that are acts of consumption) The acquisition or lease of personal property;
b) The provision of services;
c) The acquisition of new buildings for housing, including lots land acquired for the same purpose, when the public offer is addressed to unspecified persons.
Publicity and Information.
This right does not constitute a separate category of consumer rights, but is part of the contents of the offer, and the whole field of civil and commercial law.
Notwithstanding this statement, experience shows that this axiom is not respected, the rule being disinformation. This prevents access to the consumer with dignity, because it makes such access irregularities and deficiencies in the information.
is a burden that the LDC states against the supplier (understood as the producer, distributor and marketer of the thing or service).. who is the legitimate duty to inform active. It is a duty of contractual and spends generously on all contracting as a duty attachment behavior [4] designed to provide consumers with the objective truth of the recruitment meeting.
information, is support and reason for being in good faith, and there must be legal content.
In some contracts, such as those of professional services, eg health insurance companies, information is the subject and because of the contract. The legal obligation to transmit information from supplier to user, it would be an action or interaction capable of producing legal effects in the formation of the contract (pre-contractual stage) and during its implementation (contractual stage). [5] not confined only to the stage but also pre-contractual stage. It is a right subjective head of the consumer, which in the pre-stage plays a crucial role in the formation of consent, and in particular during the execution of the contract (especially in long-term) is wearing and tiñiendo the contract under full load performance based which is subject to it.
Information is a valuable asset has economic value and therefore legal protection [6] . The Consumer Protection Act 24,240 provides for the protection of economic interests of consumers and users, giving them the right to adequate information and conditions of fair and equal treatment, with explicit constitutional basis (art. 42, Constitution) with operating range and immediate compliance principle.
The autonomy at all costs sustained by the traditional doctrine, finds its limit in the consumer's right as a new framework for Imperato, known as public order protection [7] , reinsurance and market economy safeguards to prevent inequities.
The right to be informed must be understanding of the object, cause, and other circumstances of the consumer contract. The LDC devotes a whole chapter to the information, which provides that the data point to both its cognitive aspect as well as protecting consumer health.
The right to information holds a preventive of injury to the person, since adequate information (considering the circumstances of time, manner and place) is a powerful tool for damage prevention. Adequate information given to the consumer may be a defense to liability to the producer, while if the information was inadequate or insufficient, constitutes an objective reason for liability against the producer and the consumer's favor.
The consumer must be informed before and after purchase of the product or service procurement.
The circumstances of manner, time and place indicated above, it should be proportionate advertising for the product or service offering, the time should be given the information should not exceed the time of conclusion of contract, delivery of the thing or the sale of the product or service first delivery, on the principle based on the fact that whichever occurs first.
The information will consist of all essential technical specification that will be useful to a single user or consumer, such as your utility provided by the manufacturer, the period of life under conditions of reasonable use, the maintenance manual and instructions for the use of product or service. Must be truthful and objective, detailed and effective and delivered through, having written instrument through national language manuals on the use, installation and maintenance of the thing or service in question and provide appropriate advice. The same obligation will apply in all cases in which the case of imported items, accounting for producers, distributors or sellers of things or services, the contents of the translation.
In cases where the information comes in the same products, fruits or services, must be completed to describe the collection of components, refraining from phrases, descriptions, trademarks or other signs that may lead to error, deception or confusion in respect the nature, origin, quality, purity, mixture or quantity of fruits or products of its own properties, uses, conditions for the marketing or production techniques [8] .
operations in consumer credit sales, is the subject of the duty to disclose, under penalty of nullity, the information about the spot price, the stock of debt, the total interest payable, the effective annual interest rate the form of repayment of interest, other expenses if any, amount of payments to be made and their frequency, extra or hidden fees if any, and total amount financed to pay. [9]
With regard to public utilities, information must be comprehensive, not only of these aspects, but also specific legislation regulating the matter, as well as consumer protection law, especially in cases where the law acts as a supplementary text, and secondly in relation to safe facilities and equipment, instruments and measurement units of those services that are measured or weighed, with information on their prior consumption of not less than 10 days of the expiration date of the invoice. The advance in information consumption, allowing an adequate analysis of sustainable consumption in the period and in the composition of the service charges (eg on invoices details of telephone calls, short, medium and long distance domestic and international, as well as consumption of additional service that is done, eg voicemail, call screening, billing details, restrictions on outgoing calls certain characteristics, etc. .)
The guidelines for determining when an excessive consumption can be assumed, is given by the art. 31 of the LDC, which rule that when a home utility bill over a period an amount exceeding 50% the average user's actual consumption in the previous 12 months, presumably in the billing error. In this case, the user must pay only the value of the average consumption, and within 30 days from the claim of the user must establish a doubt that the billed consumption was actually carried out, reversing the burden of proof on consumers and against suministrante.
This last part was an innovation introduced to the art. 31 by the Law 24,568, 24,240 and amending the Act. Introducing a rebuttable presumption of liability in cases of overcharging, it is assumed the error of the company, until it proves otherwise. The legislature has imposed the burden of proof and that is better able to prove.
Policy Framework:
Let us now what is the legal framework comprising legal obligation to inform.
a) Article 42. of the Constitution: - Consumers and users of goods and services they are entitled, in terms of consumption, health protection, safety and economic interests to adequate and truthful information, to freedom of choice and conditions fair and dignified treatment.
The authorities shall provide for the protection of these rights, to consumer education, the competition from all forms of market distortion, the control of natural and legal monopolies, the quality and efficiency of utilities, and the establishment of associations of consumers and users.
The law shall establish effective procedures for the prevention and conflict resolution, and regulatory frameworks for public services of national competence, providing the necessary participation of consumer and user associations and interested provinces in the agencies.
b) Article 38 of the Constitution of the Province of Buenos Aires .- The consumers and users are entitled in the ratio of consumption to protection against risks to health and safety, to promote and defend their economic interests and an adequate and truthful information.
The Province will provide the consumer education, the establishment effective procedures for the prevention and resolution of conflicts and promotes the formation of associations of users and consumers.
c) Article 3: Law 13,133 of the Province of Buenos Aires. Government action to protect consumers and users will, within the constitutional framework of competencies among others, the following objectives:
a) policies regulating the market in terms of protecting the health, safety and compliance with minimum quality standards .
b) consumer access policies.
c) Educational programs and consumer information and advocacy organization of consumers.
d) Policies dispute resolution and punishment of abuse.
e) Political control of public services.
f) Policies on sustainable consumption.
d) Article 46 of the Constitution of the Autonomous City of Buenos Aires. The City guarantees the protection of consumers and users of goods and services as they relate consumer against the distortion of markets and the control of monopolies that affect them. Protects the health, safety and property of consumers and users, ensuring fair treatment, freedom of choice and access to transparent, adequate, accurate and timely, and punishes the advertising messages that distort their willingness to purchase technical means established by law as inadequate. Should pass a law to regulate advertising that may lead to addictive and harmful behavior or encourage self-medication. Police power exercised in consumption of all goods and services sold in the city, especially in food and drug safety. The Single Entity public services regulator promotes mechanisms for involving users and consumers of public services according to the law regulating.
e) Article 17 of the counter-LAW No. 757.del Government of the City of Buenos Aires, entitled as the law of administrative procedure for the protection of consumer rights and User: Notwithstanding the provisions of the preceding article and the injunction of auncia or messages may impose administrative sanctions Counter, the offender, through information and publicity, had engaged in practices deceptive or unfair. The regulations establish guidelines for advertising correction is able to eliminate the effects of the infringement, and will be announced by the responsible, at its expense, in the same way, frequency and size, and preferably by the same means, place, space and time.
advertising and information. Inductive advertising.
Advertising is an excellent way transmission of information that lets us know that something exists, and elementally its usefulness. A proper use of advertising is appreciated as a potential element of sales, being the preferred medium of television, while the other media will play a less important role when it comes to sales.
communication is a vehicle that carries the item or service offered to the consumer, and legal legitimacy of his employment is on the constitutional principle of freedom of expression. Is a valid and necessary for the promotion of goods and services, as its correct use. Enclose
danger of being an element of distortion of the mental process of recognition of the thing or service and advertising are erring on the subject of his speech, creating slogans, which are more powerful than to promote a product, being fixed in the conscious and subconscious advertising receptor that message and not the advertising .
is used even as an attractive method of sales, which have been called telesales (combination of supply and acceptance TV phone) or sell electronic (internet sales), where they are used radio transmission systems or television, or Internet sales where the sale via the information highway, or catalog sales where the sales graphically. Even as a means of sale that requires the express consent orally directly, and can be debited from the credit system purchases or credit card. [10]
inductive advertising, is that in addition to offering a particular good or service, comes with a forward, generally well-being, safety and reliability, given for the product advertised, which seeks to ensure that the receiver and future user to identify the feeling transmitted to the advertised object, and thus induce the purchase of such goods and services ..
Sometimes, you can match the product, such as would occur with a sedative drug remedy that actually cause these feelings of comfort, safety and reliability, as opposed to a soft drink, which may allay the thirst circumstantially, and will never provide the same sensations of pleasure, safety and reliability. In this case leads to the belief of such features to a product that never would have them, most certainly not expressly stated but implied answer to a protest (by gesture or set of sets and publicity stunt) that create the illusion or sense of wellbeing. Inductive
advertising is an impact on consumer behavior aimed at generating a global acquisition of goods and services, which is not an offer under the contract, but simply a means of social control. This means that as impact, is a strategy for determining social behavior.
Moreover, advertising contains all the requirements of a contractual offer. as a subliminal message contains a system of symbols (empathy) which was axiomatic that produces a sensation., which constitute a sort of real ambiguity in such a way to circumvent the final motivation and allow different interpretations, each objective, so diluted the possibility of default, not be clear for the purpose of payment. This should result in publicity that inductive not point to a single property or a benefit but the feeling of well being will settle in a host of other features that are not clear enough to understand if such an offer because it is an integral part of my contract or not. That distorted reality, characterizing the product on more than it really can be characterized by exaggerating its qualities, properties, effects and results.
asserting that the proposal given by electronic means of communication - ie television - contains images of advertising on a prepaid medical company that displays next to all staff on a plane with their personal details, which meets the purpose Transfer to a health center is automatically generated in the receiver the subliminal feeling that this aircraft is to take you in an emergency right center complexity. Now it is possible that this feeling that I believe in the subconscious has no instrumental backing, but in demonstration of inductive prepaid medical provider as far as their health can get deals. It is then a corporate image and not performance based supplier.
more then where is the limit of what it can be incorporated into the contract and what is not, as it may enclose a performance based institutional offer free content. Two aspects
to excel in inductive advertising (generating behaviors of consumers and users). The first is that advertising creates a lack of reliability in service in the abstract, mostly showing the highest efficiency and quality possible, pointing out that the receiver of this message into your subconscious believes a welfare, ranging to be closely related to the particular brand, system, goods or services produced in the receiving scheme credibility and reliability. Second, is that following the internal process outlined in the preceding paragraph gives the transformation of the user receiver.
This is perfectly inductive states that advertising, with all procedural aspects of the human unconscious, should be part of the contract, the wording of the provisions of art. 8 LDC. Advertising inductive
supplier relationships with an economic system that consumers receptive as possible in terms of access to work-make a sacrifice in order to access the goods or services offered under the terms of coverage - if prepaid medical insurance - quality and quantity.
The breach caused by the mismatch between the publicity and the offer implies the collapse of the value reliability. This contradiction could be at stake or doctrine of estoppel, since eventually absorbed as a process of mendacity. So psychologically, as is legally objectionable for being libelous.
This ad, enter the address of the recipient, either by direct means, such as television, which is a great window of the house able to display not only images but also to transport the user to model the well-being before, or you can be by radio or by post.
The home sale is defined by the Consumer Protection Act, as "something that proposal and providing a consumer service performed in the place of residence, permanently or temporarily or place of work, providing that in such cases the contract should be concluded in writing, with details of the art. 10 " [11] [12] While the Act defines a mail order and others in the art. 33 of LDC, as well, "is one in which the proposal is made by postal, telecommunications, electronics or similar and the response to it is by the same means. Do not allow the publication of the postcode and address."
In this case, the sale document will be delivered to the buyer, with all the details of art. 10 LDC. at the time of delivery, together with instruction manuals, and other essential information and appropriate.
Responsibility for the information.
consumer contracts.
PARTIES. They
parts of the consumer contract, the Provider and Consumer.
Provider is the natural or legal person in a professional manner even occasionally, supply, manufacture, pay, sells or imports, or brings to market their goods and services available to consumers.
Providers is included in the State, for services rendered, without prejudice to the undeniable responsibility which it is responsible for his omission from the comptroller or monitoring compliance with its police power.
For their part, consumers are all human persons [13] or legal contract for consideration for final consumption, that of their family or social group: the acquisition or lease of personal property, services, and acquisition of new buildings for housing. Even the plots of land acquired for the same purpose, when the public offer is addressed to an indefinite person.
for consumer requirements are given by:
The character of final consumption, which would exclude the merchantability of the act. This character of final consumption, is given by the power use of the property for consumption, use, or use of goods or services to meet their personal or family gain.
not this character are of those who acquire, store, use or consume goods and services, to integrate them into processes of production, processing, marketing, or interpretation to others. [14] remain covered under the definition of legal persons when purchasing goods or services to consumisión final destination.
This circumstance is a fact proves that it is up to the corporation, to rebut the presumption that the acquisition does not lead to profit.
Recruitment for consideration, which excludes the case of gifts. Even when test samples or receive goods or services for free, according to a possible contract for consideration, these conventions are held for acts of consumption, and included under the umbrella of the LDC Protectoria.
Excludes consumer contracts for used things, but yes it is inferred that if things were new, even in such an act has a profit motive, though not his profession, but an occasional act. Protective standards Stadtholder consumer then do not apply to consumer business together, but in the event that a legal person BOUT negotiate a relationship of consumption for consumption if import an act of consumption.
Against this, the Directive 93/13 of 04.05.1993 of the European Economic Community, the consumer considers only the individual, and no consideration to legal persons (regardless of whether small, medium or large companies). But some members of the EEC nations to legal persons incorporated within the notion of consumers. (Portuguese Law of consumer protection, of 08/22/1981, General Law for the protection of consumers or users of Spain, No. 26, 07.19.1994 l). This view was also shared by the bill prepared by A. a. Alteriini, RM López Cabana, g. A. Stiglitiz, who would provide input for setting to individuals alone.
character will not have consumers who acquire, store, use or consume goods and services in processes of production, processing, marketing, or services to third parties. Neither acts of professionals who require title and registration of professional associations.
a microsystem.
There is debate as to the location consumer systemic status, although it is obviously functional interdependence with the Civil and Commercial Code.
Those who consider him a microsystem, refer to their own supply, not dependent on major schemes.
While there are others who subsumed into substantive codes.
The fact is that any categorization or legal systematization requires self-sufficiency, which was not verified in the text of the LDC, which is based on the system of obligations and civil and commercial contracts. Ergo this statute should be studied in harmony with the basic legislation, since the rule is not self-sufficient and contains tacit references to the substantial right.
This sustained without prejudice to any significant additions brought in order to right to information for the formation of consent, the defense of autonomy by way of defending the public offering indefinitely and integration by acquisition of advertising to general agreement, among other improvements.
is to say that those improvements were not receipted in full by the Draft Unified Civil and Commercial Code of Argentina, who preferred to hold the current regime of the Competition Act. This maybe because the principle of specialty.
PRINCIPLES OF CONSUMPTION.
Rules of interpretation of contracts .-
Art. 3 º LDC states that this law is integrated with general and special rules applicable to legal relations as defined above, in particular those of competition and fairness.
auction in the last line of this article, that in case of doubt, the interpretation will always be more favorable to the consumer.
business loyalty is legislated by the Law No. 22,802, legislating on the appointments, publicity and information, labeled containers, the same. Seeks, first, to ensure that consumers have information about the conditions under which goods and services are offered before making your purchase option and that it corresponds to what actually provided. On the other hand, find that all suppliers of goods and services meet the marketing standards force, so as to ensure clear rules on transactions that are effective on the market.
While the Law on Protection of Competition No. 25,156, relates to the prohibition for companies to perform certain agreements or covenants, or to take dominant positions in the market for any direct or indirect means, including making mergers and concentrations to entrepreneurs.
must be complemented harmoniously with the LDC.
1) The first principle of interpretation is "in dubio pro consumer, this means that in case of doubt should be in favor of the consumer, not the debtor of the benefit principle enshrined in the Civil Code and the trade when establish the principle "favor debitoris." In this case the customer is upgraded to a creditor of the benefit and beneficiary of your reason for being the weak part of the contract.
2) Hold a hermeneutic interpretation of contracts in cases predisposed clauses whose meaning is ambiguous and presents difficulties to define the scope of the obligations of the predisposing, in case of doubt should prevail interpretation that favors those who contracted that or against the author of the standard clauses (doctrine of faults: 317:1684).
"The requirement to comply with this standard is emphasized in the course of the contract medical provision, in view of the hierarchy of values \u200b\u200bthat are at stake: the life and the right to obtain appropriate and timely health care. "RV. C / QUALITAS SA s / Regular SCJ, 1998. Hermeneutics
This rule is imposed by reason of express statutory provisions (art. 1198 of the Civil Code, art. 218, inc. 3 °, of the Commercial Code, art. 3 of Law 24240), and is accentuated in the course medical service contract, taking into account the hierarchy of values \u200b\u200bthat are at stake: the life and the right to obtain appropriate and timely health care (Bugs: 321:3493).
Peña Marques de Iraola, Maria Jacoba c / Civil Hospital Association German "- SCJ - 16/04/2002
3) Consider the principle of pro hominis, since the right to health, has constitutional status as a derivation of the right to life., and now recognized that hierarchy in art. 42 and the provisions contained in international instruments built it with the hierarchy that emanates from the art. 75, inc. 22 of the Constitution, it appears to be contemplating a contractual interpretation of the information that is more beneficial to the health of consumers.
prepaid medical contracts, contains aside from the expectation of profiting from providing the service, the load that exceeds that of organizing their resources for the benefit of comprehensive health and harmony of body and psyche of the participant. So having transferred the state hospital medical responsibilities to social and referral to prepaid medicine companies, should in principle provide the same coverage that gives the federal government. It even would be broader than the program itself compulsory health and the law follows 25754, which requires paying at least as ready for mandatory medical benefits insurance plans, not to mention what the maximum or ceiling medical care, and that Article 42 of the Constitution imposes no limits on the guarantee required of providers the health of consumers, and that being a constitutional can not be left to the field of autonomy, for it seems excessive to say.
4) incorporate the principle of precaution. (From the Communication of the Commission on Consumer Law of the EEC, February 2, 2000, on appeal to the precautionary principle). This principle was added to the EC Treaty by explicit reference to the precautionary principle, namely, in the section devoted to environmental protection. However, in practice, the scope of the principle is much broader and extends to the consumer policy and human health, animal or plant.
In the absence of a definition of the precautionary principle in the treaty or other Community legislation, the Council requested the Commission, in its resolution of April 13, 1999, to develop clear and effective guidelines with a view to implementing that principle. The Commission communication is a response to this request. The Commission
can invoke the precautionary principle when they have detected the potentially dangerous effects of a phenomenon, product or process through a scientific and objective assessment, but this assessment does not allow the risk with sufficient certainty . Thus, the use of the principle falls within the general framework of risk analysis (which includes, apart from the risk assessment, its management and communication), and more particularly in the context of risk management corresponds to the decision-making. (Communication from the Commission of February 2, 2000, on appeal to the precautionary principle).
This principle would force prepaid medicine companies to participate in the process of health care information on the risks, treatments, new technologies are incorporated into the plan member's attending physician, and now is charged with treating physicians to be informants of the new studies, therapies, and technological resources available to medicine, to prescribe its use by the insured patient. Should include the risks, scope, and possibilities offered by a particular medical practice to improve decision making when patients require care.
CONTRACTS FOR ACQUISITION OF REAL ESTATE IN THE FURNITURE AND CONSUMER PROTECTION ACT
1. Introduction.
The Consumer Protection Act is the product of legal standardization of a factual situation of inequality.
This inequality is supported by economism that build a system of consumerism, goods and services resulting from a postmodern whose standard of living was improving comfort.
Gradually, companies producing goods and providing services, began deploying marketing strategies for their property.
competition between them to expand their sales and acquire new customers to their businesses, led some to adopt unfair practices, both for its competitors as consumers.
the expense of quality, in terms of lower prices to compete with other firms, aggressive advertising, led to a detriment of the relationship consumers - producers.
For this reason began to take shape a movement to defend their rights, which was extended to a further polarization between the two segments.
is our duty to reverse this bias by bringing consumers and producers in an equal footing can co-exist interdependently in a market such as ours.
so that the work should have the ideal business customer satisfaction - that is the one who feeds the circuit of production and finance - stressing that this will be achieved through the return to the standard of good faith.
Good faith in business, implies an attitude of respect for consumers. It is they who must be kept in sight.
This is not incompatible with the profit motive of business. Nobody works for free. Nothing on the market is free.
The point is that anyone who purchases your product or service, you must have the satisfaction that they will be useful. That means satisfazgan expectations.
The purpose of the LDC [15] is the protection of consumers or users of goods and services, public or not, who are recruited for consideration for final consumption, to benefit themselves or their families or social. This includes
within this scheme those acts / offers in terms of a possible contract for value, receive free of charge things or services (eg free samples). [16]
2. The procurement of goods in the LDC. The
LlLlincisos a) first part, and c) of Art. 1, of the Competition Act, provides that the Acquisitions of personal property and new buildings and plots of land for housing are included within its statutory scheme. Meanwhile
Decree 1794/94, provision should be interpreted as new buildings that are built or under construction, which have never been occupied.
Thus
incorporates a major legal division and inequality, as incorporated into this scheme to purchasers of residential properties, brand, and leaves the fate of the Civil Code provisions, to purchasers of property used, without giving any basis in this regard.
While silent on the property (whether registered or not) used. It follows that the scheme would be built.
This distinction, put in a foot of inequality, to purchasers of property in general.
At first glance, would be covered by contracts of sale of properties Brand new, those destined for housing lots, the sale of goods and goods for personal consumption. After a brief discussion, nothing would prevent the incorporation of these contracts on real estate purchase contract between the Trustee and Beneficiary (trust agreement), and the Taker and the Giver of exercising the option (leasing contract). On the latter I explain below me.
For its part, applies to the locations of houses, that as the wording of that article do not fall within this regime, governed by Law 23,901 urban locations.
While the location of personal property - regardless - whether used or new, falls within this regime.
By the same token, we can say that the real estate leasing would not apply this statute, while yes it would be at lease obligation (when the giver is a financial institution) and operating (when the giver is the producer or importer the good locado). [17]
More however, when the lease is exercised the purchase option, nothing would prevent the statute are considered within the consumer, because in cuadraría inc. a) Art. 1 LDC.
3. The trading of movable and immovable property.
Even before the drafting of the Competition Act the sale was governed exclusively by the provisions of the Civil Code and Commercial Code.
accordance with the principle of specialty, and the attraction statutory intervention that produced the dealer, even if the co-contractor is not trader, the absorption of the business involved the commercial orbit.
The LDC, has never had such a potentiality to change this stance, but overriding policy background in partially modifying their systems, adding a new competition.
So that when it comes consumer relations, always verify the presence of a merchant and a consumer. Thus the acquisition between two consumers, not attract the LDC, or the commercial jurisdiction. As when checking a consumer act, the ordinary courts would have jurisdiction in trade, and application-specific legislation with ancillary civil and commercial. 3.a.
The sale
First, we should discuss the sale. No one tries to analyze extensively the sale, which is the subject of contracts, but the impact has the LDC in the trading scheme
The current wording of the Civil Code, as artiulo 1323, defined to be buying when a party is obliged to transfer to another property of a thing, and this is obliged to receive and pay for it for a certain sum of money.
For its part, the art. 450 of the Code of Commerce, said that the commercial sale is a contract whereby a person, whether or not the owner or possessor of the thing subject to the convention, is obliged to deliver or make available in property to another person who undertakes For its part to pay an agreed price and the purchase for resale or rental use.
These definitions have some differences that have their basis in:
a) the competence and jurisdiction courts,
b) applicable law to determine rights and reciprocal obligations arising from the business. [18]
c) the use or purpose of the acquisition (the calendar for personal consumption, while the business for resale or rental use).
d) the statute of limitations,
e) the possibility of buying and selling things outside,
f) ensuring the required eviction and sanitation.
The Draft Unified Code Civil and Commercial Procedure [19] (CU) in art. 1064, simplifies both definition one, the regular sale whether there is a party is obligated to transfer the domain to one thing and the other to pay a price in money. Add in the following article that the rules of the respective chapter additionally apply to contracts requiring a party to transfer the property rights of condominium, condominiums, area, enjoyment or use, or form, on real estate, or transfer ownership of securities, or deliver or prudicidas manufactured things, in exchange for money price.
This new position (which comes from game art. 1064 and 1065 of CU [20] ) absorvería contracts will mention in second (trust and leasing), as long as the intended transfer of movable or immovable, because it would additionally apply the rules of the sale.
In this way, would come full circle, to understand within the LDC status of the contracts of sale, trust and leasing.
The parties to the contract would be a Merchant (seller) and a consumer (buyer) can not be verified in inverse relationship to consumption.
According to the absurd prohibition of the Competition Act, in the case of sale of property used, would not apply this statute, even if verify the contracting parties.
This sets a reasonable doubt in the case of the lease. What if the location of housing is excluded from the LDC regime, that would apply to leasing?
First, a distinction that during the execution of the lease identifies two stages, the administrative and operative. During the administrative rules apply to the location of houses, and verified that the device is applied to the sale. But to reach this moment the property and would be used. At first reading it seems that this would be an impediment to the implementation of the LDC putting more attention on the character of uniqueness of the lease business, which has as its conclusion in view the transfer of ownership of the property [21] , we can say that has not been expressly excluded, having being then applicable the regime of the LDC.
Interpretation, competence and jurisdiction of commercial courts.
Because of the parties, the jurisdiction would be commercial, by the attraction of the presence of the merchant business.
doctrinally is considered as a esición commercial law, having been until then in the theory of unilateral trade actions. Some failures
Trade Justice echoed this, and have held that jurisdiction lies with the merchant involved in claims for damages brought by consumers in the Act covered 24,240 [22] .
Finally, we mention that the art. 3 LDC, sostiende that this law is integrated with the general rules and special legal relationship defined above in the arts. 1 and 2, including the Defense of Competition and Fair Trading stating the principle "in dubio pro consumption" (in case of doubt in favor of consumers)
Applicable law to determine the mutual rights and obligations arising from the business. [23]
The sale of property, would apply the rules of civil Sales, while that of goods and merchandise to the Code of Commerce.
The destination or purpose of the acquisition expensive, (the calendar for personal consumption, while the business for resale or rental use).
The fate of the purchaser, must always be the plot of land destined for housing, or housing for their own brand or personal property for consumption or your family or social group.
The acquisition must be expensive.
The thing under contract.
The contract of sale in the Civil Code regime, are personal property, registration or otherwise, or properties, while there is a limitation in the LDC.
The LDC proposes that personal property are for personal use or consumer social, while the property must be brand new and for housing of consumers themselves and their families.
not allowed under the statute the purchase of real estate used.
For lots of land, indicated in particular that must be acquired for housing and supply of the data is public and led to an indefinite person. The latter
contains dark aspects, since the supply is confused with the object of the thing sold. The thing sold is an item that is offered in form and addressed to individual aública undetermined. Eg in the case of a property whose sale is offered by an enterprise of subdivisions, or by a trustee. While that seems not to understand direct selling between two individuals.
This saves an internal logic, then the sale of lots between individuals apply the rules of the Civil Code, while intervening when a marketer (supplier) or company lot, contractual relationships verify consumer having being applicable LDC standards.
The CU is silent in this respect, devoting three articles to "The thing sold" (art. 1068 to 1070) standard on certain thing that has ceased to exist, the future thing, and something stolen.
Anyway, even when checking a consumer relationship, in everything that is not applicable LDC additionally apply the rules of C. CC Commerce clearly states under art. 451 and the 452 inc. 1, that the sale of property and furniture and accessories, will not be considered commercial. Ergo will not apply the rules of commercial sales. Add
inc. 2 of art. 452 C. Com. not be considered commercial sales of articles for consumption of the buyer, or the person on whose behalf the purchase is made. The CU does not legislate in this regard.
This is so despite the microsystem designed by the LDC for "consumer contract" has its foundation in the field of so-called "firm contracts", mostly of accession or predisposed clauses, and subject to regulation born in the area of \u200b\u200bautonomy. Providers for their part, claim the application of the lex mercatoria [24] resulting from the application of proven marketing techniques in various regional economies or even by application of transnational experiences - Or marketing schemes - who are ignorant of local regulations (or simply pretend to ignore them.) Meanwhile
the collision occurred between these providers and local jurisdictions that put emphasis on the general rules of the formation and conclusion of contracts (general theory of contracts for which premium the principle of equality of the parties, as a fiction but a reality), and in good faith loyalty or honesty, fairness and balance of benefits in onerous contracts. [25]
While in consumer relations, there is a decrease in the autonomy of the consumer, against the bargaining power of suppliers, which may even suppress it when it comes to public services provided by private equity firms or by the State as suministrante agent to form self-governing body or joint ventures in competition of the former).
The supply of things for sale (training agreement)
The LDC emphasizes the rules in the formative stage of a consumer contract, allocating Chapter III, to regulate the "Terms of the offer and sale."
in the art. 7, provides that "the offer addressed to potential consumers indeterminate forces who is issued during the time that takes place, and shall contain the date precidsa start and end, as well as its terms, conditions or limitations. The revocation of the offer public is effective once it has been disseminated by means similar to those used to make it known. "This adds the DR provider 1798/94 when quantitatively limited offer of goods or services, you must report the amount that has to cover.
This forecast complementea with the provisions contained in Art. 8, LDC, which incorporates advertising as content of the contract, doing the thing required as depicted in display advertising, ads, brochures, newsletters, catalogs, mails, telephone solicitations, etc. for any commercial media whatsoever.
(You should also identify the supplier, including address and tax identification code (CUIT), thus making their location and commercial identification, conf. Paragraph added by Art. 1 of Law No. 24,787). Thus
adjust the criterion established by art. 454 C. Com. which provided for the indeterminate rates in a prospectus or circular does not oblige that has been done.
For his part, CU anticipates that the offer addressed to unspecified persons as an "invitation to bid" unless its terms or the circumstances of issue it aims to contract the bidder. In any case it is understood issued for the time and conditions of use. (Art. 923 CU). Under this scheme, the offer becomes void if the offeror subject to a term of validity and is the deadline, or when it receives the initial acceptance (which itself would not be the case in the event of sale of consumer products, but if in the case of movable property or recordable) unless the tender is otherwise (eg, while supplies last clause, or clause valid for "n" number of units).
In this case, two schemes complement harmony.
The price of thing sold.
current regime in DC The price may be true or certain [26] , even by third parties, by the following scheme:
a) determination by a third party (art. 1349 CC Part Two). This third piece of the value of referee thing. Art. 1350 provides that where the person or persons determined to bring the price is unwilling or unable to reach determine, the sale will be void (Id. art. 459 C. Com. That adds an innovation to the harshness of this rule, which can agree to a stipulation to the contrary to the solution offered by the CC regarding the contract have the non-existent). This solution
departs the CU that foresees the possibility that the refusal or inability to determine the price by third parties that may be fixed by the local court by way of summary procedure.
b) pricing based on cost of some otherwise (art. 1349 third paragraph.)
c) determination based on the current value of the movable seat (art. 1353 CC and Art. 458 C. Com.)
d) Joint pricing alternatives, resulting from the giving of money and one thing canceling part the same price.
CU anticipates that if you omit any mention of it, is a third party designated in the contract or after its conclusion, or failing is for the court to intervene on that set, via the shortest process that has the ritual of application code. The price can also be set as well as per unit or fraction of land, or together, including solutions for when there are differences in the measures.
The LDC, the matter does not provide pricing procedures, and must be applied then existing legal provisions of the CC and what was the relevance of C. Com. Thus the art. 10 LDC is anticipated that only a requirement of the bill of sale pricing and payment terms.
It also appears from this that must be part of the bid made by suppliers to potential customers and indeterminate obligations during the time that takes place, subject to the term during which the offer is in force and the amount of goods offered. (Conf art. 7 LDC. And from 1798 to 1794 DR).
Delivery of goods - except for non-compliance. Acceptance of the goods.
The sale of goods governed by the C. Com. stipulates that non-payment of delivery, the goods must be made available to the buyer within 24 hours. following the conclusion of the contract.
The buyer shall have the period of ten days pay the price effects, but may require delivery without giving the seller the price in the act of verifying that. (Art. 464).
the buyer when the goods are delivered in boxes, bags or bundles that prevented them from control of the goods delivered, has a period of three days immediately following delivery, to claim any fault, deficiency in the quantity or quality defects in the . (Art. 472 C. Com.).
The seller can always demand in the act of delivery of the thing sold, the control of the quantity and quality of it. (Art. 473 C. Com.).
When the seller does not deliver the goods sold on time or in the provisions of art. 464, apply the provisions of art. 216, without prejudice to the buyer's ability to seek permission to buy in the square, by the seller, an amount equal to the same objects.
However, when the lack of delivery of the goods sold comes from who had perished, or had been damaged by unforeseen accidents, no fault of the seller ceases all responsibility for part of this agreement is terminated and the return of the price law the buyer (art. 467).
If the sale of goods to be together or sealed package, and partial deliveries are agreed, although the prices were different, but without designation of parts or batches to be delivered in parts or lots, the buyer can not be compelled to share recibiruna deliver on the promise of the remainder thereafter.
But if you accept a partial delivery spontaneously, is irrevocable and consummate the sale, as to the effect that he received. (Art. 468).
If the buyer returns the item purchased and the seller accepts it, or having being delivered against their will, not deposit it in court on behalf of whom belonged to notification of the deposit to the buyer, is presumed to have consented to the contract resición. (Art. 469).
The corresponding contracts. The contents of the document of sale.
As the art. 10 LDC document sales of personal property shall contain the description and specification of the thing, the name and address of seller, name and domicile of the manufacturer, distributor or importer, when appropriate, an indication of the security features (DR. 1784 / 94, states that the sales document must make express reference therein, shall be evidenced in their scope and characteristics in the respective certificate to be delivered to the consumer, when issuing a ticket is to be delivered a certificate of warranty, if the document sale contains no mention of warranty is presumed lack thereof) as provided in this Act, the terms and conditions delivery, price and payment terms.
The wording should be made a national language, complete, clear and easy to read, without needing to texts or documents not previously or simultaneously delivered. A copy must be delivered to the consumer. When including additional clauses to those listed herein or enforceable under the provisions of this law, those should be written in bold letters and signed by both parties.
The regulations shall establish procedures simpler when the nature of the thing to be procured so determines, provided that it assures the aim of that law. Sale
home.
Art. 32 LDC defines the sale of a thing or provide a service performed to the consumer at the place of residence, permanently or temporarily or in your workplace. In it, the contract must be concluded in written form and details of art. 10. The provisions above shall not apply to the sale of perishable goods receipts for the consumer and paid in cash.
For its part, the RD 1798/94, lays down that means that fall within the home or direct sale, without prejudice to others, the systems in which consumer choice is made at the home address of the offeror or consumer, in your workplace or home of a third party.
Sale by correspondence.
limitation periods,
actions arising from the sale instruments are governed by general rules of civil law, every time you apply the rules of substantive law.
Thus the prescription of these actions begins to run from the day you sign the instrument of sale. [27]
This differs from the principle laid down for the obligations of giving money to credit, especially when doing the purchase of movable or immovable property in installments. [28]
As if it relates to the sale merchandise (understood as consumer goods consisting of expendable or non-expendable things such as food) would be applicable, to consumers for debts that have such a concept with poveedores, the annual limitation period [ 29] .
the sale of foreign things,
The seller can sell the buyer a strange thing, because it would be a merchant who sold things outside
Guarantees Article 11 LDC non-consumable personal property.
Art. 10 provides that the sales document must contain a reference to the characteristics of the collateral (DR. 1784/94 provides that the sales document must make express reference therein, shall be evidenced in their scope and characteristics in the respective certificate to be delivered to the consumer, when issuing a ticket is to be delivered a certificate of guarantee, if the document Listing contains no mention of warranty is presumed lack of it).
eviction guarantee
The limitation for warranty term when they are not true, does not begin until the first day of eviction, or the fulfillment of the obligation or the expiration of the term. [30]
Eviction and crippling defects. The obligation of sanitation.
in this area should be to the general rules of substantive law.
4040. Is also prescribed for six months, bought action to rescind the contract or demand compensation for the burden or servitude is not apparent to suffer the item purchased, and that there was no mention in the contract.
4041. It is prescribed for three months, the action for rescission to rescind the purchase and sale agreement, and action to get off the lowest price for the crippling defect.
breach of contract of sale.
Art. 10 bis provides that failure of the offer or the contract by the supplier, unless a fortuitous event or force majeure, empowers the consumer at its option, a) are enforceable as long as possible, of
b) accept another product or service equivalent service, c) terminate the contract is entitled to the refund of the amount paid, subject to the effects, considering the integrity of the contract.
This is without prejudice to any action for damages as appropriate.
[1] Consumer Protection Act of Venezuela.Artículo 2 .- For the purposes of this Act, consumers and users are considered the natural or legal persons, as recipients end, acquire, use or enjoy, for consideration, goods or services in whatever public or private, individual or collective who produce, issue, facilitate, provide, render, or order. Not have the status of consumers or users who, while not final destination, acquire, store, use or consume goods and services to integrate in production, processing and marketing.
Article 3 .- For the purposes of this Act shall be regarded as suppliers of natural or legal persons of public or private deproducción activities develop, manufacture, importation, distribution, marketing of goods, provision of services to consumers or users for which prices or fees charged.
[2] Federal Mexico. Article 2 .- For the purposes of this Act, the term:
I. Consumer means a natural person or entity that acquires, perform or enjoy as an end goods, products or services. Not to-consumer who acquires, stores, uses or consumes goods or services in order to integrate them into processes of production, processing, marketing or provision of services to third parties;
II. Provider: The person or entity which habitually or periodically offers, distributes, sells, lease granting the use or enjoyment of goods, products and services;
[3] Brazilian Consumer Code .- Translation by this author. 2 º A consumer is any natural or legal person who acquires a product using the service as an end. Sole Paragraph. Consumer equated group of persons, which together indefinitely intervened in consumer relations.
3 º manufacturer is any natural or legal person, the private public, the foreign national as despersonalizaos authorities, who develop the production, assembly, breeding, construction, processing, importation, export, distribution and the marketing of the service. Product
§ 1 is any good, still mobile, the immaterial material. § 2
Service is any activity done in the consumer market for remuneration, including those of banking, financial, credit and insurance, except those resulting from labor relationships.
2 º A consumer is any natural or legal person who acquires a product using the service as an end. Sole Paragraph. Consumer equated group of persons, which together indefinitely intervened in consumer relations.
3 º manufacturer is any natural or legal person, the private public, the foreign national as despersonalizaos authorities, who develop the production, assembly, breeding, construction, processing, importation, exportation, distribution, the marketing of the services. Product
§ 1 is any good, still mobile, the immaterial material. § 2
Service is any activity done in the consumer market for remuneration, including those of banking, financial, credit and insurance, except those resulting from labor relationships.
[4] Rights and Responsibilities of enterprises and consumers. Chapter V. Ana M. Carriquiri and Eugenia Diaz Palacios, Page 69, Book Publishing Mora
Organization [5] Rights and Responsibilities of enterprises and consumers. Chapter V. Ana M. Carriquiri and Eugenia Diaz Palacios, Page 69, Mora Books Publishing Organization.
[6] Banco de Galicia y Buenos Aires with LH, PM et al. Judicial Doctrine, 17 November 1999, pg. 839/845. Com CN, Room B, February, 23-999. It highlights a phrase "The bank is obligated to provide their clients with accurate and appropriate information to enable proper control, must indicate precisely the origin of the amounts, fees and amounts deducted. "
[8] Arts 5 and 9 of the Law of Fair Trading No. 22,802, enacted and promulgated on May 5, 1983 published in the BO. 11 May 1983.
[9] Consumer Protection Act, Chapter VIII, "Of the credit sales transactions"
[10] The Consumer Protection Act, has spent two whole chapters, in succession, the first VI " of the home sale. For correspondence and other "and the VIII" Of the credit sales transactions, in which sits a set of principles and prohibitions. Arts. 32 to 36 inclusive.
[11] Section 32 of the LDC.
[12] Article 10 LDC . CONTENTS SALE DOCUMENT: The document that extends from the sale of personal property, subject to the information required by other laws or regulations shall contain: a) the description and specification of the thing, b) the name and address Seller, c) the name and address of manufacturer, distributor or importer as appropriate (vetoed by the Executive Branch, through Decree 2089/93), d) an indication of the security features as provided in this Act; e) the terms and conditions of delivery; f) the exercise and payment terms. The wording should
be made a national language, complete, clear and easily readable, without needing to texts or documents not previously or simultaneously delivered. A copy must be delivered to the consumer. When including additional clauses to those listed herein or enforceable under the provisions of this law, those should be written in bold letters and signed by both parties. The regulations establish procedures simpler when the nature of the thing to be procured so determines, provided that it assures the aim of that law.
As the new designation of the person making the Draft Unified Code Civil and Commercial Nation in the Second Book, Title I, which is applicable throughout the draft. This criterion is based maintains that because he comes from nature, every human being is a person, by the mere fact of being, and the definition of the person from their legal capacity condunde the subject with one of its attributes, aside from the false idea that the personality of the subject is given by the legal system. The person is above the law.
[14] 'Rights and Consumer Protection, "by Gabriel Stiglitz, pg. 114, quoted in 6 of Malinvaud, Ph. La protection des consommataures, Recueil Dalloz Sirey, Paris, 1981, No. 2, p 49.
[15] Acronym with which I shall refer to Law 24,240 on Consumer.
[16] Conf Regulatory Decree 1784/94 of the LDC.
[17] In dissent from the doctrine, I think the Leasing can be held with people who are not traders, and would not be an exclusive contract employer. This on the grounds that the Law Housing Finance, says nothing about that you can not allocate the goods to be purchased by this contract for personal consumption. It would also be an inconsistency the distinction of acquiring these goods for commercial or professional equipment, the personal consumption. The clearest example of this inconsistency would to acquire by lease a personal computer for my business or company, would be a businessman equipment contract, whereas if you bought it for my home could not acquire under this type of contract. The foundation of my position would be that would be put in a foot of inequality to the consumer for the same acquisition that a trader. The law of housing finance, for his spirit, not just thought to encourage trade, but rather the financing of housing.
[18] "To allow differentiation say that the civil buying things can be property or furniture, while the commercial may relate only to things furniture (art. 452, inc. 1, Coll. of Commerce). "Garrido - Zago, Civil and Commercial Contracts, Volume II, pg. 43, Ed University, 1995.
[19] PEN Project 1999.
[20] acronym with which we will call the Draft Unified Code.
[21] In leasing, has delayed the time to exercise the purchase option. If you opt for it, would apply the LDC, while if you do not exercise the option would apply the system of urban locations. As long as they exercise their option to purchase, and that the policyholder has not lost its right to exercise it, would apply the Competition Act because it would not be obliged to exercise that right in advance to enforce the special guardianship.
[22] CNCom, Room D, 11.09.1997, ED 177-218, and Hall G, 4/9/1996, ED 172-366.
[23] see quote 4.
[24] The lex mercatoria is explained by Mosset Iturraspe as the set of usage of trade, compiled in large global centers, as a response to the process of "globalization." (Sic) Jorge Mosset Iturraspe, Consumer, ed. 1998, ed. University.
[25] recommendation XV National Conference of Civil Law. Mar del Plata. 1995.
[26] CC 1349/1356
Art [27] Article 3956 of the CC Prescription personal actions, whether or not interest begins to run from the date of the title of the obligation.
[28] Section 3958 of the CC. In the interest or obligations to income, capital limitation starts from the last payment of interest or income.
[29] Section 4035 of the CC. Prescribed by one year the obligation to pay:
4. For the merchants, shopkeepers, or grocers, the price of selling to other effects that are not, or that still remain, do not make the same traffic.
[30] Article 3957 of the CC . The limitation for warranty or consolidation of conditional loans and term that are true, does not begin until the first day of eviction, the fulfillment of the condition, or expiration of the term.
