Implications of the implementation of the duty to mitigate damages in the Ecuadorian Code of Commerce.

Abstract

The mitigation of damages in cases of contractual breach is established as a right in the Ecuadorian Commercial Code. This characterization implies a significant limitation as it fails to dissuade the affected creditor from adopting a passive attitude that exacerbates the losses instead of mitigating them. Therefore, this study reflects on the treatment of mitigation of damages in the Ecuadorian legal framework. This with the aim of determining the relevance and necessity of partially reforming the Article 347 of the Commercial Code. It involved an analysis of the duty of mitigation in English law, as it is in the common law where it has been most developed. Finally, it addresses the legal treatment in Ecuador, along with the legal, economic, and moral implications of its implementation, with the intention of allocating, more efficiently, the burden of damage mitigation for the benefit of businesspeople and entrepreneurs.