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1
artículo
Comparative legislation reveals that the institution of tort has been approached differently in different legal systems. As a result, some legal systems adopt an objective approach, whereby tort is recognized when there is an obvious or notable disproportion between the parties' performance or obligations in a contract. On the other hand, other systems adopt a subjective approach, which mainly takes into account the exploitation by one of the contracting parties of the need or inexperience of the other. As far as the Peruvian legal system is concerned, it is proposed that the injury should be admitted in onerous contracts following an objective-subjective criterion. To that extent, the action for tort will be valid when the situation of disproportionality between the benefits is corroborated, but in addition, it will be necessary not only the existence of a situation of need in the injur...
2
artículo
Comparative legislation reveals that the institution of tort has been approached differently in different legal systems. As a result, some legal systems adopt an objective approach, whereby tort is recognized when there is an obvious or notable disproportion between the parties' performance or obligations in a contract. On the other hand, other systems adopt a subjective approach, which mainly takes into account the exploitation by one of the contracting parties of the need or inexperience of the other. As far as the Peruvian legal system is concerned, it is proposed that the injury should be admitted in onerous contracts following an objective-subjective criterion. To that extent, the action for tort will be valid when the situation of disproportionality between the benefits is corroborated, but in addition, it will be necessary not only the existence of a situation of need in the injur...
3
artículo
Publicado 2014
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this article analyzes the causal element of torts from the perspective of comparative law, focusing on the field of tort liability. Thus, it specifies both the particular aspects of the investigation as well as each legal system studied. then, the article discusses the differences and similarities of each system. Later, it stops on the dominant approaches examining its success on facing the tort phenomenon in order to highlight the essential characteristics that determine the various approaches tort liability can assume.
4
artículo
Publicado 2014
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this article analyzes the causal element of torts from the perspective of comparative law, focusing on the field of tort liability. Thus, it specifies both the particular aspects of the investigation as well as each legal system studied. then, the article discusses the differences and similarities of each system. Later, it stops on the dominant approaches examining its success on facing the tort phenomenon in order to highlight the essential characteristics that determine the various approaches tort liability can assume.
5
artículo
Compensation for damages due to erroneous administration of justice in Chile has two regimes available to the victim. The first is of a special and restricted nature, as it is only applicable in criminal proceedings for manifestly erroneous or arbitrary actions, and has a constitutional and legal basis. The other, created by case law, considering rules of civiland administrative law, constitutes the general regime. This article analyzes both avenues for obtaining compensation, with special emphasis on theinstitution involved in the origin of the damage. The main rulings of Chilean courts are used as guides, which reflect the shift from a personalist conception, based on the idea of “judicial error”, to a functionalist approach, based on the notion of error in the administration of justice.
6
artículo
Publicado 2021
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This study brings us closer to the knowledge of legal strategies to stop violence against children and adolescents by members of the family group. For this purpose, a special protection with reinforced diligence is proposed for interventions in three cases: 1. Abuse in family dynamics under the power of parenting and discipline, which does not constitute a punishable act and is exercised by parents or legal representatives 2. Violence against girls, boys and adolescents by a member of their family environment that constitutes a crime and has a protective legal representative 3. Violence against children and adolescents by a member of their family environment that constitutes a crime and does not have a responsible protector. These intervention proposals are based on the recognition of two conditions that frame acts of violence in girls, boys a...
7
artículo
Publicado 2021
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This study brings us closer to the knowledge of legal strategies to stop violence against children and adolescents by members of the family group. For this purpose, a special protection with reinforced diligence is proposed for interventions in three cases: 1. Abuse in family dynamics under the power of parenting and discipline, which does not constitute a punishable act and is exercised by parents or legal representatives 2. Violence against girls, boys and adolescents by a member of their family environment that constitutes a crime and has a protective legal representative 3. Violence against children and adolescents by a member of their family environment that constitutes a crime and does not have a responsible protector. These intervention proposals are based on the recognition of two conditions that frame acts of violence in girls, boys a...
8
artículo
Publicado 2024
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This paper aims to identify the appropriate conceptual framework for illicit profitable acts, understood as those from which the wrongdoer derives advantages that exceed the mere dimension of the obligation to compensate. To do so, the fields of Tort Law and Unjust Enrichment are studied, both of which are considered candidates for legal application. It becomes evident that Tort Law’s structure is inadequate for the pursued task, as the purpose of compensation is different: it serves to repair damage. On the other hand, recognizing partial forms of unjust enrichment (especially enrichment through intervention) may serve to require the wrongdoer to restitute the economic benefits obtained due to reprehensible conduct.
9
artículo
Publicado 2024
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This paper aims to identify the appropriate conceptual framework for illicit profitable acts, understood as those from which the wrongdoer derives advantages that exceed the mere dimension of the obligation to compensate. To do so, the fields of Tort Law and Unjust Enrichment are studied, both of which are considered candidates for legal application. It becomes evident that Tort Law’s structure is inadequate for the pursued task, as the purpose of compensation is different: it serves to repair damage. On the other hand, recognizing partial forms of unjust enrichment (especially enrichment through intervention) may serve to require the wrongdoer to restitute the economic benefits obtained due to reprehensible conduct.
10
artículo
Publicado 2018
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El presente trabajo de investigación ha sido motivado por la actividad ladrillera artesanal que produce impactos en el ecosistema rural del distrito de Huertas, provincia de Jauja, departamento de Junín. El daño ambiental de dicha actividad constituye la vulneración de un conjunto de derechos fundamentales (salud, vida, libertad, etc.), generándose así un daño patrimonial y no patrimonial, colectivo, ya que consideramos de suma importancia hacer un análisis sobre la regulación de la responsabilidad civil extracontractual por daño ambiental que deriva de dicha actividad. Es así que se pudo obtener información documental que permitió ver la gravedad en la cual se encontraba la localidad de Huertas, ya que la contaminación generada por la cocción de ladrillos causaba perjuicio no solo en la salud de los pobladores, sino que éstos estaban expuestos a asumir una posible respon...
11
artículo
Publicado 2025
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Moral damage has long been regarded as a type of harm that is difficult to prove, due to its mental, subjective, and transient nature. To avoid the demand for direct evidence, legal doctrine and case law have promoted its treatment as damage in reipsa, inferring its existence through the use of maxims of experience. In these inferential operations, maxims of experience function as tools to connect the occurrence of certain known facts with the unknown and unproven existence of emotional suffering constituting the moral damage. However, this paper argues that such maxims often fail to meet the epistemic requirements that would justify their application, instead operating as probative placebos: they “legitimize” decisions by simulating correctness, without satisfying the minimum conditions for rational use.
12
artículo
Publicado 2019
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The Civil Code of Andrés Bello, influenced by the French Civil Code, and unlike other European and Latin American codes, included the category of quasi-delict as a source of obligations. However, this notion hasbeen difficult to understand, and has been often branded as merely formal, difficult to define and devoid of any practical utility. For this reason, this paper proposes an analysis of the category of «quasi-delicts» on the basis of the socalled obligations quasi ex delicto in classical Roman law. Such obligations were very useful for the formulation of a perfect and comprehensive division of the sources of obligations. After studying the reception of the quasi-delict in Andres Bello’s Code, both in Chile and in Colombia, this paper proposes some ideas that could contribute to a new understanding of the category and, with it, to the renewal of its systematic and practical...
13
artículo
Publicado 2019
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The Civil Code of Andrés Bello, influenced by the French Civil Code, and unlike other European and Latin American codes, included the category of quasi-delict as a source of obligations. However, this notion hasbeen difficult to understand, and has been often branded as merely formal, difficult to define and devoid of any practical utility. For this reason, this paper proposes an analysis of the category of «quasi-delicts» on the basis of the socalled obligations quasi ex delicto in classical Roman law. Such obligations were very useful for the formulation of a perfect and comprehensive division of the sources of obligations. After studying the reception of the quasi-delict in Andres Bello’s Code, both in Chile and in Colombia, this paper proposes some ideas that could contribute to a new understanding of the category and, with it, to the renewal of its systematic and practical...
14
ponencia
Publicado 2016
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Ponencia presentada en: 1er. Seminario Internacional Jornada Escolar Completa Secundaria, Lima, 7-8 de julio de 2016.
15
artículo
Publicado 2016
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In this article, the author analyses the tort not only from a private view, but also from a public function as part of the legalpolitical- economic structure of a State. Likewise, he analyses the significance of the liability rule and how this social-democratic way of organizing law and entitlements fixes the size of the liability;however, it is an inaccurate description of what occurs in the world, as in the case of eminent domain. Therefore, he claims a more significant economic role for the liability rule.
16
artículo
Publicado 2016
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In this article, the author analyses the tort not only from a private view, but also from a public function as part of the legalpolitical- economic structure of a State. Likewise, he analyses the significance of the liability rule and how this social-democratic way of organizing law and entitlements fixes the size of the liability;however, it is an inaccurate description of what occurs in the world, as in the case of eminent domain. Therefore, he claims a more significant economic role for the liability rule.
17
artículo
Publicado 2020
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ADVOCATUS had the opportunity to interview Francesca Benatti, Italian lawyer and associate professor of Comparative Private Law at the University of Padua. In the following lines, the interviewee offers a brief analysis on the Peruvian Civil Code and the Italian Civil Code, addressing elements of Civil Law, including torts and Private Law, as well as comparative law.
18
artículo
Publicado 2020
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ADVOCATUS had the opportunity to interview Francesca Benatti, Italian lawyer and associate professor of Comparative Private Law at the University of Padua. In the following lines, the interviewee offers a brief analysis on the Peruvian Civil Code and the Italian Civil Code, addressing elements of Civil Law, including torts and Private Law, as well as comparative law.
19
artículo
Publicado 2020
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ADVOCATUS had the opportunity to interview Francesca Benatti, Italian lawyer and associate professor of Comparative Private Law at the University of Padua. In the following lines, the interviewee offers a brief analysis on the Peruvian Civil Code and the Italian Civil Code, addressing elements of Civil Law, including torts and Private Law, as well as comparative law.
20
artículo
Publicado 2015
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This article addresses the topic of civil wrongful acts that can cause tort liability. The author criticize the position that holds that wrongfulness is not an element of tort liability. In accordance with that position, not considering wrongfulness as an element of tort liability, it permits to consider that some “lawful acts” could cause tort liability. On the contrary, Espinoza consider those supposed “lawful acts” as examples of abuse of law so they are actually wrongful acts.
