Las declaraciones publicitarias y la integración de las obligaciones que de ellas emanan al contenido del contrato con el consumidor: una aplicación del principio de buena fe que resulta exigible a la totalidad de las relaciones contractuales
The consumer contract has emerged with high relevance as an independent category of the contractual law. Its appearance changed the negocial equilibrium and the empire of the will of the contract parties´ paradigms. These paradigms were the foundation of the contract general theory; theory that was...
Universidad Externado de Colombia
|Revista e-mercatoria, ISSN 1692-3960, Nº. 1, 2013, pags. 1-48
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The consumer contract has emerged with high relevance as an independent category of the contractual law. Its appearance changed the negocial equilibrium and the empire of the will of the contract parties´ paradigms. These paradigms were the foundation of the contract general theory; theory that was compiled by the Colombians Civil Code in the 1800s. Later, this theory was ratified by our Commercial Code in the 1970s.
Indeed, the individualistic ideas weren´t enough to react at the new and fast changes of the market dynamics. The market was far away from the equilibrium between the parties. In fact, it showed asymmetries that could put at risk the concept of the will of the contract parties and the economic and legal interests that were supposed to be protected by the privates´ law contract instrument. Therefore, a new agent appeared (the consumer) and he required a special regulatory regime.
Due to this reality, the legislator took care of several issues that were very important to preserve the contract justice and the market equity. Therefore the legislator developed several measures. For instance, one of the most important is the adoption of a catalogue of remedies. These remedies tend to balance the asymmetry of powers in the contracts celebrated with the consumers.
The good faith as one of the most important principle of the private law has a transcendental roll in order to protect the consumer interests. This protection is achieved with the development and application of this principle rules. These rules provide contractual remedies trough the integrative function of the content of the contract, in order to accomplish a material contractual justice.
From this point of view, the new consumers´ law develops the integrative function of the content of the contract from a new perspective. This law has a new regulation of the publicity, not because it wasn´t possible to apply before as a rule of the good faith principle, but cause it has a positive mandate. The legislator establishes a different treatment for the use of the publicity because it has significant effects in the formation of the consent and the integrative function of the content of the contract.
In this article we pretend to approach the analysis of the publicity in the consumer contract. We would try to contribute to the comprehension of this issue from a systemic point of view. This point of view will allow seeing the real benefits of the use of the publicity as an instrument to protect consumers.