Chapter 1: Planned obsolescence: a non-restrictable industrial practice? answers from constitutional law, compared law and abuse of the la
| Autor | Magdalena Correa Henao |
| Cargo del Autor | Head director of the Constitucional Law Department at Universidad Externado de Colombia. Lecturer of Constitutional Law at Universidad Externado de Colombia. |
| Páginas | 15-80 |
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Chapter 1
planned obsolesCenCe: a non-restriCtable
industrial praCtiCe?
answers from Constitutional law,
Compared law and abuse of the law
magdaleNa correa heNao1
INdex: I. Introduction; 1. Planned Obsolescence: What is It?;
1.1. Concept and History; 1.2. Categories and Scope; 2. Planned
Obsolescence from Constitutional Law and Legal Assets in
Dispute; 2.1. Legal assets whose fulfilment is favoured; 2.1.1.
Achieving Objective Legal Assets; 2.1.2. Subjective rights
Grounds; 2.1.2.1. The pro libertate principle; 2.1.2.2. Animus
Lucri faciendi; 2.2. Affected rights and Interests; 2.2.1. Affected
collective assets; 2.2.2. Violation of Subjective Rights; 2.2.2.1.
Limitations to the Consumers’ right to information; 2.2.2.2.
Narrowing the right to quality goods?; 2.2.2.3. Affecting the
right to safety and activating the right to damage reparation?;
2.2.2.4. Violation of consumers’ freedom right and proprietary
rights and violation of rights associated to consumption; 3.
Answers from the sources of law and assessment; 3.1. Hard
Law, Semi-Hard Law and especially Soft Law; 3.2. Solutions
1 Thanks to my young colleague and collaborator veróNIca delgado, for her
much appreciated support at researching and preparing this document.
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proposed by the doctrine; 3.3. assessment; 4. A complemen-
tary Solution: An answer from the principle of Non-Abuse of
rights; 4.1. How to Apply the principle of Non-abuse of Rights?
A Proposal arising from its structural elements; 4.2. Planned
Obsolescence as an abuse of righ; II. Conclusion.
aBStract: The main purpose of this research is to approach
the study of the planned obsolescence from the sight of consti-
tutional law, as a concept that in law has two sides (faces); on
one hand the planned obsolescence favours the achievement
of legal assets and find itself protected by the principles of pro
libertate and pro legalidade, and on the other it affects collecti-
ve (public) goods and infringes subjective rights such as the
consumer’s right to information, the right to quality goods,
the right to security and the damage repair. In this context, a
review about the answers offered by the different sources of
law and the possible classification of the planned obsolescence
as a hypothesis of abuse of rights, must be made.
Keywords: Planned obsolescenes, principle of pro libertate,
principle of pro legalidade, consumers, abuse of fights.
I. INtroductIoN
How can constitutional law analyze planned obsolescence,
which is a “firm’s decision to limit a product useful life”?
Which legal assets are stressed by its application and which
answers are offered by the higher legal order?
The thesis put forward in this document suggests that
planned obsolescence is supported by the pro libertate and
pro legalidade principles, so that those rights that might be
affected as a result of a firm’s decision to limit lifespan of pro-
ducts, can only be addressed in the presence of breaches of
Competition Law, Environmental Law, Consumers rights or,
generally, measures of intervention on the economic activity.
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Such answer does not seem to be very protective of
rights, therefore we feel it is appropriate to complement it
with some rules-principles that give greater fairness and
justice to the legal solutions offered.
Our thesis, and its complement, will unfold as follows:
first, we’ll review the concept of planned obsolescence,
in order to identify the object on which our analysis fall.
Secondly, we will analyze the structural elements of free
enterprise, that underlies the strategy of producing obsolete
goods; third, we will point out those rights and interests
that are breached due to the acceptance of such a practi-
ce. Fourth, we will briefly review the answer drawn from
Comparative Law on planned obsolescence, to formulate
preliminary conclusions that confirm the proposed thesis.
This, in turns, opens the way to studying abuse of right and
the principle prohibiting it, as a possible legal basis to turn
to, in the event of lack rules-hard rule, to reduce the une-
ven costs and benefits allocation, caused by this business
strategy, between producers on the one hand and consu-
mers, the State and society in general, on the other hand.
1. Planned obsolescence: What is It?
1.1. Concept and History
Doctrine seems to agree on the concept of “planned ob-
solescence”, as the expression that describes the “set of
techniques”2, strategies3 or business practices that seek to
2 latouche, Serge, Hecho para tirar, La irracionalidad de la obsolescencia programa da,
Barcelona, Octaedro, 2014, p. 78. Ver gIleS, Slade, Made to Break: Technology
and Obsolescence in America, Cambridge, Harvard University Press, 2006.
3 Soto pINeda, “En torno a la relevancia jurídica de una estrategia empresarial
consolidada y subyacente: la obsolescencia programada”, Colección Enrique
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