LOPEZ DE ZAVALIA, FERNANDO J. TEORIA DE LOS CONTRATOS TRATADO DE LOS CONTRATOS (TOMO I – III) http: //rapidshare. Teoría de los Contratos Tomo I – Fernando López de Zavalia. PDF – Mb. Lopez de Zavalia, Fernando Teoria De Los Contratos Lorenzetti, Ricardo Tratado De Los Contratos Tomo I buenos aires, argentina Diego.
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The chosen law could be only applied if it is the most favorable to the consumer.
V — Consumer Protection. To this effect, we will present first the actual Brazilian private international law rules on consumer protection and then how the Convention could change this reality. It is also not an unusual definition in the Americas, quite the opposite. Specials rules for travels and tourism contracts Travels and tourism contracts should be governed by the law of consumers domicile, if it coincids with suppliers place of business or branch.
However, there are some situations, where moral persons can also figures as the weaker party in the transaction. Nevertheless, the definition was subject to some controversy and remains under discussion. On the other hand, Brazilian substantive private law has undergone what almost amounts to a revolution during the last twenty years The Federal Constitution changed the entire foundation of private law and established a new perspective, where human beings and their existential needs figure at the center of the legal system According to article 9, the law of the State of Florida should govern that relationship.
The Convention adopts a subjective scope of application, describing who the person to be protected is. Subsidiary and alternative connecting factors20 or any other kind of open and therefore more flexible rules teroia would certainly be much more appropriate to protect the weaker party, which are used by the European Community through the Rome Convention.
Ver Caso D Robert Ellenbogen v. The protection rules are specially formulated to restate balance between parties that are not equal. O novo direito internacional: En consecuencia, el ,opez determina que homo nombre de dominio raimat. The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice under this Article or of other provisions of this Convention.
The choice must be expressed or teoris with reasonable certainty by the terms of the contract or the circumstances of the case. Thus, materialism or substantialism is understood as the judicial analysis ocntratos the social impact of strictly connecting factors of law rules.
This freedom of choice can be used including in consumer contracts, except if it deprives the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence, according to article 5. These definitions however, adopt also a subjective approach, defining those contracts as made between a consumer and a professional or supplier.
Finally, it is noteworthy that the Convention plays a very significant role in the Americas by leading a creative, honest and already successful dialogue between the common law and the civil law systems. Until we achieve this goal, the Brazilian consumer will not be protected when doing business abroad.
B The Brazilian proposal to an Inter-American Convention on the law applicable to some consumer contracts and transactions and its main points The Brazilian proposal has two main points: Brazilian judges have a lex fori tendency37, tending to apply their own law as far as possible.
In Europe, party autonomy has been also defended as being a connecting factor even in consumer relations Principles as objective good faith and also duties of cooperation and loyalty15, for example, were adopted by private law in general, affecting not only consumer relations, zagalia also all kinds of private relationships.
A contract shall be governed by the law chosen by the parties.
Zavallia para un derecho de consumo unitario. El Juez, citando a Javier A. Brazilian law is not clear on this issue, which places the country in an uncomfortable situation, as the free choice of law is recognized worldwide as a valid clntratos factor Revista dos Tribunais, The fact that the parties have chosen a foreign law, whether or teora accompanied by the choice of a foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country zavaliz, prejudice teori application of rules of the law of that country which cannot be derogated from by contract, hereinafter called “mandatory rules”.
This example shows that by not having clear and specific conflict rules about consumer relations, Brazilian Law does not offer the necessary protection for both suppliers and consumers. The law of consumers domicile is also applicable if is the same place of offer, or if there were advertising or marketing activities. In these cases it should be interpreted as the lex loci delicti, which indicates the law of the place where the illegal act was committed or the law of the place where the damage and its consequences occurred.
These cases from the last years of the 20th centurypresented suggestions to bring conflict of laws justice and substantive law justice closer together.
La respuesta resulta inmediata. Fundamentos do Direito Privado. Log In Sign Up. If the offer, 11 any other advertising or marketing activities were made in another country, the mandatory rules of this place should be also cumulatively applied. La protection de la partie faible dans les rapports contractuels: Following the German example, the law applicable to conflict issues in Brazil is the Introductory Law to the Civil Code, enacted in In the absence of regional conflict rules about consumer contracts and transactions, the Convention would be a very welcomed replacement.
Instead of doing that, the Court immediately applied the Brazilian Protection Code as an imperative rule and decided in favor of the consumer. Consumer should be specially protected only by dealing with a professional.