It is usual in commercial contractual practice for the parties to agree on extrajudicial procedures to raise claims and resolve differences, including clauses that establish time periods for exercising rights that are shorter than those legally recognized.

Recently, the Supreme Court ruled on a case originating in a claim for breach of contract and damages, in which the defendant alleged the expiration of the plaintiff’s right, since it had not complied with the contractually stipulated deadlines and procedures. The court of first instance, recognizing the autonomy of the will of the parties, accepted the exception of forfeiture, which was confirmed by the Court of Appeals of Valparaíso.

The Supreme Court decided to annul the judgment ex officio, reasoning that the right of action is constitutionally protected, so that there are cases in which the autonomy of the will may conflict with that right. Consequently, the sentencer must analyze the validity of the clause limiting the right of action.

This judgment confirms the importance of reviewing the design of the procedures established in the contracts.

For more information contact us:

Gustavo Cuevas

Founding Partner

gcuevas@cuevasabogados.cl

Domingo Cruz

Associate

dcruz@cuevasabogados.cl