Remedies for lack of conformity in consumer sales: a warranty regime or a breach of contract one?

Abstract

This paper attempts to show that the system of remedies for lack of conformity provided by Act No. 19,496 does not really constitute a guarantee regime, but rather a system of remedies for breach of contract. This is because lack of conformity can be consistently conceived as a broad hypothesis of imperfect performance, and the remedies recognized by the law are not guaranteed success, being subject to the same requirements that civil law contemplates for general remedies for breach of contract. Furthermore, it will also be shown that the aforementioned regime is primarily designed for sales of generic goods - within which the qualification of lack of conformity as a hypothesis of breach of contract is relatively simple -, without prejudice to the fact that the lack of nuances in the Act allows its extension to sales of specific goods. Finally, it will be specified that the extension of the regime to sales of specific goods entails an important paradigm shift: abandoning the premise that performance or conformity always refers to the behavior due, embracing instead the idea that performance refers directly to the satisfaction of the interest protected by the contract.