Systematic Interpretation benefits
reciprocal contracts prepaid medical
The plaintiff had entered into a contract of prepaid medical services. Normally elapse initial lack of services it is customary in the activity during which pay but get nothing. Then the same, it is customary not require large expenses prepaid system, because the studies done by hiring are quite rigorous and it is rare that a very sick person is admitted, if not at a higher price.
The truth is that the service requester is a long time in paying and not receiving services. Is the period of greatest profitability.
After a while people get sick. The trend is reversed, since the company must begin to spend much more money you receive for the fee is paid by the borrower.
As can be seen clearly, the curves of marginal utility are reversed as in all contracts for the duration.
supposed to come to the point where they must spend more than it receives, the PROVIDER spread the cost of two ways. First, it makes up for what he received before the borrower now sick, this is the role of grace periods.
Secondly, the existence of a mass Affiliate can spread costs among all systems, netting between those who are healthy and those who are sick. Normally statistics show that only a small fraction are sick, and it is unusual that all sick at the same time. Exception to this are some systems that gather elderly and often ill, and the Institute for Retirees and Pensioners (PAMI), but for that very reason, the spreading of risk carrying extending direct contributions to those not are retirees or pensioners, that is, the active staff.
If the company keeps the contract until charges and not spent and it terminates when he has to spend more than it charges, you break the contract balance.
The notion of contractual equilibrium should be extended. If you study the issue in the bilateral relationship is probably confusing, but not if it is studied within the established delivery system.
contractual imbalance must be treated as system imbalance, both for a party and for the other.
In a case where the borrower pays little and receive many health benefits, bilateral analysis lead to a conclusion that there is no reciprocal obligations, but should be evaluated as previously paid and what you pay for the rest of the system.
In other cases, when a member must pay too much and for too long the system can be unbalanced, as we shall see later otherwise.
Therefore, we believe that we must speak of a "systematic and accountable performance," to refer to this phenomenon.
This criterion should be used to examine both the unilateral termination (art. 1200, Cod. Civ) to the covenant commissory (art. 1204, Cod. Civ) or the exception of breach of contract (art. 1201, Code . Civ.)
4) constitutional law health
The right to health is constitutionally recognized.
National Congress is obliged to do what it takes to make it a reality through social insurance (art. 14 bis, Const. Nac), a task that has formally met through laws 23,660 and 23,661.
When we are in the scope of a contract governing the private autonomy (art. 1137, Cod. Civ.) Since the contract of prepaid medical care tends to will guide the protection of health by the private road, we have a contract which is implied a fundamental right.
The presence of a fundamental right contractarian logic can be unbalanced, as are granted rights and actions that would be unthinkable in a common contract.
This impact is on two levels:
A) The rejection of the buyout clause based on the right to health
who commented this decision correctly points out that:
At stake is the health and lives of people, not only their economic interests, no one escapes to a recipient who is excluded from a system is in a situation of vulnerability to the failure to obtain satisfaction of their needs health in any other similar institution for a considerable time. If you intend to enter another system, you must meet their requirements, always providing "grace periods", ie periods during which the recipient can not access certain services. Moreover, no service provides coverage of diseases and injuries that have already arisen. And this event may have occurred during the user's membership to the system that was excluded, which itself was to be responsible (GERSCOVICH, Carlos G. and Palavecino, Federico M., prepaid medical Contract: unilateral termination and uncaused. Protection innovative consumer injunction in the JA 07/27/1994).
B) The innovative preventive health protection
says the ruling that:
As the contract and would have been terminated, it make an order to innovate on the situation of the and restore services allow doctors of yore. This provision was incorporated in doctrine and decree subject to the terms of Article 232 of the Code of (Conf. Fenochietto, Carlos E. and Arazi, Roland, Code of Civil and Commercial Procedure , Astrea, Buenos Aires , 1983, t. 1, p. 742, § 5).
At present, Article 43 of the Constitution expressly provides that situation
Source: rubinzal.com.ar
www.juridicokomisarski.com.ar Source: rubinzal.com.ar
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