/ Chile: new developments in the field of consumer protection7 March, 2017
There are two new developments in consumer protection law that will undoubtedly give rise to heated debates both in the academic field and in the venue of public opinion. We believe they could also increase the amount of litigation before Local Police Courts. The first development is related to the entry into effect of Law No. 20,967 and the second is an interesting decision issued by the Court of Appeals of Santiago.
- Law No. 20,967 came into effect on Wednesday February 15. This item regulates the prices charged by parking services and incorporates articles 15-A, 15-B and 15-C onto Law 19,496. In addition to regulating the fees charged by parking services, numeral 5 of article 5-A is particularly salient, in the sense that it specifically establishes that the parking service supplier will be civilly liable for any damages, thefts or robberies occurred in the parking lot, further stating that any disclaimers posted by the supplier will be regarded as non-existent: “If, in connection with the service and as a result of a lack of adequate protective measures, any thefts, robberies, or damages occur on parked vehicles, the service supplier will be civilly liable for any damages brought upon the consumer, notwithstanding the supplier’s punitive liability pursuant to the general rules of this law. Any disclaimer made by the supplier attempting to exempt itself from liability, or otherwise limit its liability, will be regarded as non-existent”. The legislator has expressly enshrined the civil liability of parking service suppliers. Prior to this enactment, both the relevant literature and, progressively, case law recognized this form of liability through an interpretation of article 3 literal d) of said law, jointly with what the literature refers to as “organizational negligence”, in other words, the supplier’s failure to provide security to consumers, with a duty to prevent the risks that could affect the consumer.It is interesting that a sanction has been established for the inexistence of signs or disclaimers posted to exempt or otherwise limit the supplier’s liability, a circumstance which had been previously pointed out by legal literature and, with increasing strength, by case law, due to the gross imbalance in the consideration for the consumer and which went against the good faith that these types of statements must entail, particularly in standard-form contracts, such as those of the case at hand. Thus, article 16, literal g) of the law provides that in standard-form contracts, any clauses that go against good faith and which represent an imbalance in the considerations between supplier and consumer are rendered ineffective.
- On October 27, 2016, the Illustrious Court of Appeals of Santiago – after overcoming a complaint appeal lodged against this Court – declared that promotional clauses or “until stock runs out” clauses were in breach of Law 19,496 (On Consumer Protection). The National Consumer Protection Service (Sernac) lodged a complaint against a renowned optics company, indicating, inter alia, that the “until the stock of 30,000 optical lenses runs out” clause was in breach of articles 3, subsection 1, literal b) and 35 of Law No. 19,496. The Court upheld this claim because, in its opinion, the consumer would not have the necessary degree of certainty as to the quantity of products that would still covered by the promotional activity, making it impossible to project the actual and effective term of the offer. The defendant was sentenced to pay 100 Monthly Tax Units, plus the case’s litigation costs.
Go to the complete article in El Mercurio Legal