About the bond of dependence and the borders of the entrepreneur’s surveillance, from the Supreme Court’s ruling of May 27th, 2019, N° 4350-2018 (“Arellano Garrido, Mario v. Cencosud Retail S.A.”)

Abstract

Firstly, we have to bear in mind that the entrepreneur’s civil responsibility on his dependent’s action relies on: (1) a bond of dependence or care between both individuals, (2) on the capability of the dependent, and (3) that the dependent commits and offense within the borders of the entrepreneur’s surveillance. Regarding that matter, we will focus both in the first and third element. On the first, we will consider that is generally accepted the notion exceeds a legal configuration only, and it implies a factual delimitation as well, which can become problematic if proper criteria are not established. With that in mind, we will use the elements of verticality-horizontality of enterprise organization. Regarding the second of these, we will approach the surveillance aspect of the entrepreneur, and criteria for its delimitation. For this purpose, we will apply the Supreme Court sentence in the cause N° 4350-2018, May 27, 2019. This will allow us to provide further analysis regarding the previously set. Thereupon, we will approach some possibly problematic situations for the entrepreneur’s attempt of liability exemption, such as fault in selecting, fault in the organization and in solidum liability. We will end this work with some final comments.