Part 2 Chapter 1

Question 1

What is commercial law

Answer 1

A body of law that governs commercial legal relationships. It is a system rules, concepts and legal principles that regulate commercial facts and legal relationships.

Question 2

What is the meaning of commerce as the object of commercial law?

Answer 2

A set of business activities, subject to regulation that are autonomous in relation to Civil law, that require a discipline suitable to the protection of credit, the security of transactions and the swiftness characteristic of business.

Question 3

Go into more detail

Answer 3

There are general legal frameworks applicable to commercial legal relationships, and there are special commercial legislative acts, applicable to specific acts of commerce or activities.

Question 4

What are internal sources of commercial law

Answer 4

Internal Sources:
1. Normative acts/Legislative acts: Statutes, decree laws and other normative acts
2. Usages and customs
3. Jurisprudence/case law: The courts interpret and apply the law.
4. Doctrine: Only insofar as it is taken into consideration by the legislator and the courts

Question 5

What are external sources of commercial law

Answer 5

International conventions
EU Law
Jurisprudence/case law from international courts
Lex Mercatoria

Question 6

What are considered acts of commerce 1/2

Answer 6

All acts that are specifically regulated in the Commercial code (and in other commercial legislation published after, notably financial leasing, factoring contracts, etc) which are considered acts of commerce in an objective sense.

Question 7

What are considered acts of commerce 2/2

Answer 7

All contracts and obligations of traders that are not exclusively civil in nature and if the contrary does not result of the act itself (if the act was not carried outside the commercial activity of the trader) which are considered acts of commerce in a subjective sense.

Question 8

Who can carry out acts of commerce

Answer 8

1. Traders
2. Individuals, with capacity to exercise, even if they are not traders

Question 9

What are the special rules applicable to acts of commerce and traders

Answer 9

There are special rules that apply to acts of commerce and to obligations arising in connection with acts of commerce (commercial obligations)

Question 10

Discuss the simplification of formalities and means of proof

Answer 10

Simplification of formaltiies and other requirements provided for by Civil law;
Under commercial code, pledges are established through symbolic delivery of the pledged thing
All means of proof are accepted to prove the existence of a commercial loan.
Aims to facilitate the granting of credit.

Question 11

Discuss joint and several liability

Answer 11

Commercial debtors are jointly and severally liable, unlike civil debtors.

Question 12

Provide an example of an obligation of payment in a civil nature where there are several debtors and when they are in the absence of an agreement to the contrary

Answer 12

Each debtor is only liable for a part of the debt, equal to that of other debtors. 1000$ debt, 5 debtors, 200 each.

Question 13

Provide an example of an obligation of payment in a commercial obligation.

Answer 13

Each debtor is liable to the creditor for the total amount of debt. After paying the creditor, he/she may then request reimbursement of what was paid in excess from the other debtors.

Question 14

What happens if a personal security is provided in relation to a commercial obligation?

Answer 14

The benefit of prior excussio is waved automatically.

Question 15

According to article 317 (b) of the Civil code, the following are subject to a time-barring period of two years 1/2

Answer 15

The credits of traders for things sold to those that are not traders or that, although being traders, do not apply said objects to their trade.

Question 16

According to article 317 (b) of the Civil code, the following are subject to a time-barring period of two years 2/2

Answer 16

The credits of those for which the exercise of an industrial activity is their profession, for the suppl of goods or products, execution of a certain work or provision of management services, except if intended for the exercise of the debtor’s industrial activity.

Question 17

What are interest rates

Answer 17

Within commercial relationships, and unless otherwise established, supply of goods or a provision of services are considered to be for consideration.

Question 18

How does interest rates fit into a commercial contract

Answer 18

Commercial interest for late payment are those due for the late payment of debts related to commercial contracts or other acts of commerce.
The obligation to pay interest may result from the law or from a written clause in a commercial contract or other acts of commerce.

Question 19

Liability of spouses for commercial debts

Answer 19

When debts are incurred jointly by both spouses or by one with the consent of the other, both spouses are liable for the payment of debt.

Question 20

What assets are liable for debt in the case of spousal commercial debt

Answer 20

Any assets that are common assets of the spouses and in the absence of such, any of the spouses’ own assets.

Question 21

What if the debt was incurred by only one spouse?

Answer 21

Except otherwise provided by the law, only the spouse that has incurred the debt is responsible for its payment. Therefore, the assets liable for debts that are the responsibility of only one spouse are the assets of the debtor spouse and additionally, his share in the joint assets of the spouse.

Question 22

Are there certain cases where both spouses are responsible for the debts incurred by one of them?

Answer 22

Yes, in the case of inter alia, the debts are incurred by a trader spouse in the exercise of his/her commerce.
In this case, both spouses are liable for the debts incurred by the trader spouse in the exercise of his commerce, unless it is proven that it was not done in the common interest of the couple or if the couple is married in a separate property regime.

Question 23

Framework for spousal debt liability in relation to commercial debts

Answer 23

• According to article 15 of the commercial code, commercial debts incurred by a trader spouse are presumed to be incurred in thee exercise of his commerce
• Debts incurred by trader in exercise of his commerce spouse assumed to be in the common interest

Question 24

More detail into liability of spouses

Answer 24

Unless they are married in a separate property regime, it is up to the non-trader spouse to either prove:
- Debt was not incurred in the exercise of his commerce: assumption, although rebuttable favors creditors, which only have to prove that the debtor is a trader and debt is commercial
- Debt was not in common interest, but is assumed to be.

Question 25

In what situations can it be believed that a debt incurred by trader spouse in exercise of his commerce was not in the common interest

Answer 25

In case where spouse and trader spouse are separated, they lived in different houses and trader is not supporting the other spouse in any way since the date of separation. Debt has to have been incurred post separation.

Question 26

What assets of the non-trader spouse are liable in the debt?

Answer 26

Common assets of the spouses and in the absence of common assets, or if they are not enough, the non-trader spouses’ own assets.
Rules made this way to protect commerce, granting creditors better chances to obtain payment.

Question 27

What is considered a trader

Answer 27

Individuals who, have capacity to carry out acts of commerce, make these their profession

Question 28

When is the quality of being a trader established?

Answer 28

When the person executes acts that reveal the intent of pursuing a commercial activity and making it his/her profession.
Ex. Establishing a business

Question 29

Are there exceptions to this rule?

Answer 29

Yes, there are situations where one act will suffice for individuals to obtain the quality of traders
Ex. When a person enters an agency agreement, as agent he/she is automatically considered a trader.

Question 30

Is registration necessary to become a trader?

Answer 30

No, nor is it sufficient to acquire the quality of trader (which can be obtained prior to registration).

Question 31

Are there people who are not allowed to be traders?

Answer 31

Yes,
Incompatibilities (article 14(2) Commercial code
Culpable insolvency and bankruptcy fraud.

Question 32

What does incompatibility mean in this context?

Answer 32

Situation where the law does not allow people that occupy certain positions to exercise trading activities, some result from public law others from private.

Question 33

What does Culpable insolvency mean in this context?

Answer 33

Judge must identify the person(s), notably directors certified accountants and statutory auditors, affected by this qualification, establishing, where applicable, the respective degree of fault and, inter alia, declare these person(s) disqualified from engaging in trade for a period ranging from 2 to 10 years. As well as being appointed for the corporate bodies of commercial or civil companies, associations or private foundations of economic activity, public companies or cooperatives.

Question 34

What are commercial companies

Answer 34

Those whose purpose is to exercise commercial activities, and which take the legal form of a:
1. General partnership
2. Private limited company or quota company
3. Public limited company or share company
4. Limited partnership, or limited partnership with shares.