Abuse of freedom of enterprise in pre-formulated standard contract: a new approach to the analysis of unfair terms

Abstract

In Chile, the abuse of the freedom of enterprise has been felt with gravity in standard contracts. In the framework of the doctrine of the abuse of fundamental rights, this work studies the scope of the illegitimate exercise of this freedom. In such a perspective, the unfair terms are configured because of the abusive exercise of the contracting / negotiating power of the business owner. These are premeditated unfair actions that materialize through various business strategies and that, when inserted into the general contracting conditions, affect a significant number of consumers in a systemic manner. Six leading cases are offered to illustrate this thesis, which are especially useful for the analysis of the problems that freedom of enterprise presents to the country, in view of the current constitutional process.