Curtains Black Silver

Cars and Incompetence and security of attachment theory

APPEAL: 1853/2005 - RESOLUTION: 44972 - SECRETARY: CRIMINAL SECTION

Concepcion, 29 November, two thousand five. Views: Eliminate the reasons 5 and 6 of the decision on appeal, it is reproduced in the rest and there is also this: 1 .- Article 2, letter a) of Law º 19.496, provides that are subject to the provisions of the law: The legal acts pursuant to the provisions in the Commercial Code or other laws, having the character of business for the supplier and consumer civilians. Accordingly, it is clear that the consumer may invoke this law provides protection when act or contract is executed or held for him the nature of civil action, this being both a commercial transaction for the provider; 2 .- The civil complaints and petitions, International Maco SA, opposed the absolute plea Court to hear the case. Is one which the complainant and complainant stated to be a merchant, having the character of the carrier, by what is included in Article 3, number 6, of the Commercial Code and, as she is a merchant, the act based on the complaint and commercial demand should be considered for both parties. Said that acts that traders run each character must be estimated annotated even those in isolation are civilians, if they complement, assist or are accessories to a trade, industry, business, commercial enterprise or main activity, and because the ease or contribute to increase them or make them, or simply the guarantee; 3 .- The acts trading ar described in Article 3 of the Commercial Code can be for both sides or just one. That is what the same article 3 saying: They are acts of trade as part of both contracting and part of one of them, recognizing the existence of acts mixed or dual character; 4 .- What is not disputed that the act underlying the complaint and civil action has the character of commercial for complaints and petitions, that is, Maco International SA. The dispute is about the nature he has for the consumer, ie the complainant and complainant, Walter Ernesto Pereira Valdebenito, 5 .- That it is true that he claims to have merchant status, carrier, and appears individualized in documentation accompanying the same background. But it is well known, things are what they are by their very nature and not name anyone, whatever, can give them. It is apparent from the file, Walter Ernesto Pereira, owns a single truck, XK Pat 7673-6, international brand, model year 1993, which dedicates the transport of species, most of the time is managed by himself and in others, the driver Jorge Plaza, 6 .- Article 3, number 6, of the Code of the Branch, statues which are acts of trade from executed by: The land transport companies, rivers or waterways. In turn, the final paragraph of Article 166 of the said Code, warns: The industry exerted to carry passengers or goods by employees and their dependents in their own vehicles or who are at your service, called transport entrepreneur, although sometimes run the transport itself. The last mentioned article defines the contract of carriage as that under which one is obliged for a price to drive from one place to another by land, canals, lakes or navigable rivers, passengers or goods of others and deliver them to the person to whom they are addressed. In this connection, the author Juan Esteban Puga Vial, he adds: Companies that do engage in commercial activity and all acts and contracts concluded in the exercise of their activity are commercial acts. Then he adds: While transport activity is organized as commercial companies, the contract itself will be civil transport if the carrier is not firm (The Trade Act, Criticism Traditional Theory, page 184). Professor Don Ricardo Sandoval López, exhibits that: The rule in Article 3, No. 6, of the Code in question, in relation to Article 166 that establishes, in respect of transport made by companies. The transport itself is a civil, transport itself is, first, leasing services and, secondly, the deposit agreement. Consequently, the individual transport (for example, performing a taxi driver) is a civil act. But when business is done by making the character of an act of commerce, ie, the final paragraph of Article 166 gives the character of the transport industry. Then adds that: Under Article 171 could be deduced that the act performed by the carrier employer would not commercial, but the contradiction with what has been telling is only apparent, because although the law states that the act is subject to Title V, this does not make you legally lose the qualification applies, that is, it is a civil action governed by the Code of Commerce (Business Law, Volume I, Fifth Edition Updated, pages 115 et seq.) About the latter, the formerly named Puga Vial, Article 171 states that only extracts: although the contract of carriage is a civilian, because the carrier is not irregular or is it carrier, the carrier's obligations are governed by the rules Commercial Code, though no transport if no employer carrier ceases to be civil (work cited above, p. 185), 7 .- That, then, must conclude that Walter is Ernesto Pereira Valdebenito, against what it says, not a merchant carrier, since that does not have a transport company or a businessman in the industry, and that has only one truck, which is dedicated to transport species, which, in accordance with laid down in Articles 3, No. 6, 166, final paragraph , of the Commercial Code does not give the aforementioned quality (useful to state that even the statute last recorded speech of vehicles), 8 .- The theory of attachment is a fundamental principle that informs the law Commercial. Consists of commercial assume certain acts as they relate to a profession, business or principal legal act of trade, either because they facilitate, contribute to increase it or do, or just guarantee it. Therefore, yes, as we have seen, the complainant and a civil, no merchant carrier status, can hardly be said that the act for which he sent his only truck to service or repair to civil complaints and petitions, is a act accessory to a quality that is lacking, or transportation entrepreneur. Ovalle Gonzalo Baeza The author wonders when transport, in accordance to the number 6 of Article 3 of the Code Trade acquires the characteristics that result in the gestation of a commercial transaction, and responds: This question can only reach a solution following the path of establishing, beforehand, whether or not transportation is provided by an enterprise. Only in the former case we estimate from there to be a commercial act, and in that event, the commodification of transport ascribe to the principle of the incidental nature (Business Law, Volume I, Lexis Nexis, page 326), 9 .- That, therefore, being the act in comment for commercial and civilian provider to consumers, or for Pereira Valdebenito, Law N º 19,416, according as provided in subparagraph a) of Article 2, is applicable to the subject matter of this cause, for these reflections, it reverses the decision of 02 August this year, written to fs. 160, and instead decides to reject a plea filed on fs. 137, no cost, estimated that there were plausible grounds for a guess. The court of first day and time fixed for the hearing pros eguir relevant, which was suspended at fs. 141. Refunded. Drafted Minister Guillermo Silva Gundelach. Role 1853-2005.