Part 2 Chapter 1 Flashcards
What is commercial law
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.
What is the meaning of commerce as the object of commercial law?
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.
Go into more detail
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.
What are internal sources of commercial law
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
What are external sources of commercial law
International conventions
EU Law
Jurisprudence/case law from international courts
Lex Mercatoria
What are considered acts of commerce 1/2
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.
What are considered acts of commerce 2/2
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.
Who can carry out acts of commerce
- Traders
- Individuals, with capacity to exercise, even if they are not traders
What are the special rules applicable to acts of commerce and traders
There are special rules that apply to acts of commerce and to obligations arising in connection with acts of commerce (commercial obligations)
Discuss the simplification of formalities and means of proof
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.
Discuss joint and several liability
Commercial debtors are jointly and severally liable, unlike civil debtors.
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
Each debtor is only liable for a part of the debt, equal to that of other debtors. 1000$ debt, 5 debtors, 200 each.
Provide an example of an obligation of payment in a commercial obligation.
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.
What happens if a personal security is provided in relation to a commercial obligation?
The benefit of prior excussio is waved automatically.
According to article 317 (b) of the Civil code, the following are subject to a time-barring period of two years 1/2
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.
According to article 317 (b) of the Civil code, the following are subject to a time-barring period of two years 2/2
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.
What are interest rates
Within commercial relationships, and unless otherwise established, supply of goods or a provision of services are considered to be for consideration.
How does interest rates fit into a commercial contract
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.
Liability of spouses for commercial debts
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.
What assets are liable for debt in the case of spousal commercial debt
Any assets that are common assets of the spouses and in the absence of such, any of the spouses’ own assets.
What if the debt was incurred by only one spouse?
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.
Are there certain cases where both spouses are responsible for the debts incurred by one of them?
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.
Framework for spousal debt liability in relation to commercial debts
- 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
More detail into liability of spouses
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.
