Natural equity in chilean doctrine: notes for an exchange with salvadoran doctrine

Abstract

This paper aims to expose the different theoretical positions that have been built in Chilean doctrine around the concept of natural equity is contained in Article 24 of the Civil Code – both Chilean and Salvadoran-. As is known, natural equity is an interpretive concept. And this, in Chilean doctrine, has manifested itself in the existence of three major doctrines of equity: the iusnaturalist current, the principlist current and the thesis of judicial discretion. However, these three aspects are not mere watertight spaces where the authors decide to adhere simply to one or the other, but even within these same currents there are still not minor differences when it comes to explaining the meaning and scope of the expression natural equity. That said, to carry out this work, the analytical methodology is used with the aim of distinguishing the different versions that exist within a certain conception of natural equity, as well as their deficiencies and theoretical and practical contributions. In turn, this will make it possible to define the main points of agreement between the currents, as well as to identify and discard the versions outside the very meaning of the normative provision. Finally, after this conceptual purification, the constitutive elements, indicated by Chilean doctrine, of natural equity will be established in a much more refined way.