Solemnidades y ejecución judicial en el Ecuador de los Clickwrap Agreements en novaciones de contratos de mutuo.

Abstract

Under the increase of the use of information technologies in commerce and in the practice of law, clickwrap agreements have been implemented to incur obligations derived from the novations of loan agreements, known as debt refinancing and debt restructuring. Faced with this new application of clickwrap contracts, we analyze the legal recognition that Ecuadorian regulations have given to this type of contract and the applicable procedural rules in case of demanding compliance by judicial means. The general objective of this work is to analyze the current applicable regulations for this electronic contracting in order to be able to determine which are the solemnities that must be fulfilled to be legally recognized and as a consequence of this, that may be legally enforceable. The methodology applied in the present work has a qualitative approach, which focuses on the study of the procedural legislation that protects the judicial execution of these contracts in case of non-compliance based on the analysis of comparative law and the legal criteria that they currently have legal professionals and judges on the matter. The results that have been obtained in this work demonstrate the need to incorporate a section in the Law that deals with the procedural norms that must be applied for the judicial execution of the clickwrap agreements in the cases of collection of money generated from novations of contracts of money loans agreements.