Examinando por Materia "Desequilibrio contractual"

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    Ítem
    Análisis de los presupuestos de las cláusulas abusivas en el contrato de seguro bajo la ley colombiana y su aplicación en casos prácticos
    (Universidad EAFIT, 2022) Sierra Gómez, Laura; Villegas Ríos, Juanita; Ceballos Klinkert, Laura
    Due to the high demand of insurance contracts, the insurers have implemented the contracting of these through adhesion contracts, which possibly imply an unbalance between the parties. As a result, the insurance company usually imposes unfair terms on the insured, in detriment of his rights. However, the criteria for identifying unfair terms in the insurance agreement are not fully specified in our legal system. Therefore, it is of major importance for the insured to be aware of the requirements that make up such clauses. Consequently, this paper will identify the characteristics of unfair terms in the framework of the insurance contract in Colombia, based on an integrated analysis of the relevant laws, the jurisprudence of the Supreme Court of Justice and the national and foreign doctrine. Afterwards, a casuistic analysis will be carried out, which shall allow to put into practice, and thus reinforce, the previously analyzed theory.
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    Ítem
    ¿Pueden las exclusiones del contrato de seguro llegar a generar desequilibrio contractual? Revisión de la doctrina y algunas sentencias de la Corte Suprema de Justicia
    (Universidad EAFIT, 2024) Castro ossa, Luis eduardo; Gómez M. Diana María
    In this work, the exclusions in insurance contracts are studied, which are clauses that delimit the risks indicating those that are not covered by the policy. They are necessary to protect insurers from excessively burdensome risks and for the insured to know the scope of the coverage contracted. Although their importance is recognized, it has been established that for exclusion clauses to be valid, they must be included in the contract, be clear, reasonable, and must not distort the main purpose of the insurance. Doctrine and jurisprudence have agreed that they must be interpreted restrictively and in favor of the insured, especially when they are in a position of inferiority. This is why insurers have information obligations at the time of contracting the insurance. Despite their importance, the scope and validity of the exclusions are discussed, raising the question of whether exclusions can lead to contractual imbalance? To answer this, we will study both doctrinal analyses and the positions of the Supreme Court of Justice that refer to the consequences that a poorly conceived exclusion clause may have, to determine whether or not they can create a contractual imbalance between the parties, even being classified as abusive clauses punishable by ineffectiveness. In conclusion, the drafting of exclusion clauses is a complex matter that requires a balance between the protection of insurers and the rights of the insured.