Reinterpretation of the article 1547 of Civil Code chilien: the end of an ancient presumption

Abstract

In this paper I shall organize and explain some of the answers that Chilean legal doctrine has provided when introducing the distinction between the duty of reasonable care and the duty to achieve a certain result in order to decide cases of medical liability. For that purpose I employ an analytical method, focusing on the law of evidence and developing its substantive and procedural aspects. Basically I shall argue that article 1547 of the Chilean Civil Code (equivalent to article 1608.3 of the Colombian Civil Code) does not include a general principle that presumes guilt in all cases of contractual obligations. Furthermore, because it is not applicable to the type of obligations where some degree of care is required it is not an obstacle to the introduction of the distinction between the duty of reasonable care and the duty to achieve a certain result and its most controversial effect, the changes in the burden of proof of the degree of guilt. [PUBLICATION ABSTRACT]