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CHAMBERS OF COMMERCE MODULE 6. MERCHANT'S DUTIES

Article 19 of the Code of Commerce began to force all retailers to:

l. Enroll in the commercial register.

2. Enroll in the commercial register all events, books and documents on which the law requires that step.

These obligations are rooted in corporate merchants. Currently there are only imposed on those carrying on commercial activities, as they have been extended to numerous entities and documents which have little or nothing to do with these activities, as explained below.

I. Durability
INSTITUTION OF MEDIEVAL

1.
previous

The origin of the commercial register at the registration dates in the Liber Mercatorum corporations which introduced the merchants of the Middle Ages for those engaged in buying and selling of goods. In the beginning was not for publicity, but, by their nature highly personal, acted as a census of traders to fulfill the great council-assemblies of the respective body, and to require contributions to enrollees. The records were private rather to exclusive use of members of corporations. Subsequently introduced the registration of certain instruments and documents own business activities and became a media feature information for both members of the corporation and third parties. That was how the record became public.

The French Commercial Code of 1808 did not regulate this matter.

The English Commercial Code of 1829 adopted a dual registration with content: the registration of traders, not only as a means of advertising that condition, but also establishing a requirement of certain acts and documents. The Commercial Code of Chile withdrew from the English model, in the sense that the registration does not confer the quality of trader but was instituted as a means of commercial advertising, and the documents subject to registration emphasized in the writings of commercial society . The Commercial Code of the State of Panama extinguished abolished the institution of record for all traders and retained only for runners, change agents and auctioneers, and established as a requirement for registration of commercial companies in the social register of deeds.

In Colombia, Law 28 of 1931 ordered the registration all traders, industrialists, commission agents and representative of foreign companies and societies, statutory reforms and the appointment of manager and his deputies.

Each state of the international community has its own organization for registration. And, of course, a system is much better in terms of meeting the specifications of centralized, efficient, complete and provide assurance to employers and those with legal and economic relations with them. In fact, the ideal would be one in which the record were to indicate to the public not only the legal situation but also the employer's financial position, because that knowledge spreads confidence Credit facilitates and strengthens the security of transactions. This requires checking and balancing the information so that they are accurate and truthful. Additionally could meet statistical purposes or any other order related to economic activities.

2.
primary objectives of the Registry.

Article 26 of the Commercial Code states as the purposes of:

"Carry the registration of traders and business establishments and the registration of all deeds and documents regarding the which the law requires the formality. "

commercial traffic really transcends the sphere of private interests and enters the community at large. Hence the desirability of the public is in a position to learn from people entered in the register and the instruments, documents and situations that somehow affect others in general.

3. Guidelines from the trade register in Colombia.

a) It is for the Superintendency of Industry and Commerce to determine the necessary books, how to make entries and provide guidelines that tend to further of the institution (c. Co., art. 27);

b) The register is public and, consequently, any person may examine the books and records for, take notes of the entries or records and obtain copies thereof (art. 26, inc. 2 °)

c) The registration of traders and businessmen and the registration of deeds, contracts and documents should be in separate books by subject area, in extract form ratio that the substance of the act, document or event is registered, unless the law or stakeholders require full text insertion (rule 3 of art. 29 ibid.);

d) The means of proof of any entry in the commercial register are the respective certificate issued by the registrar and the court in this inspection.

e) Each employer, subsidiary or establishment is registered as a file which is archived in chronological order of filing, copies of documents to be registered (art. 43, inc.1o). and the document should be returned to the person concerned is enrolled through a copy of the text in the respective books or photocopying or any other method that ensures a legible its conservation and reproduction (art. 42). Moreover, judicial decisions and administrative subject to registration must be submitted in hard copy to be filed in the record of the registrant in question, and in a special book stands the record of delivery which must include the title of the officer who issued the ruling, order, class and date of it (art. 41) and

f) log files can be stored by any appropriate technical means to ensure accurate reproduction, provided that the president and secretary of the respective chamber certify the accuracy of such reproduction (art. 43, inc. 2).

4. Registration authorities.

The entities for maintaining the registry are the chambers of commerce (legal status).

In Colombia, no single, centralized records, but there are many records how many chambers of commerce work now or created in the future.

According to paragraph 1 of Article 29 of the Commercial Code, the acts, contracts and documents will be registered in the chamber of the constituency where they be held or given, and if they have to be outside the space field, also be recorded on the camera for the place of execution or performance. In addition, the functions assigned to the Superintendent of Financial Institutions, appears to issue the certificates on the existence and legal representation of the entities under their control and permanent control.

4.1 Effects of registrations

The primary function of registration is the advertising or informative, since the records contained therein are intended to enlighten the general public. Of course, this function should not be confused with the publication of certain acts or documents in newsletters or magazines of the cameras, which is not essential to its validity or to supply third party effects. Is registration which generates important consequences, such as:

4.1.1. Enforceability of act or document to others, because no one can claim ignorance of having been entered in that record is public. As provided in paragraph 4 of Article 29 of the Code of Commerce:

"Registration will be requested at any time, if the law does not set a special term for it, but the acts and documents subject to registration is not produce effects for third parties but from the date of registration. "

ibid Article 30 indicates the rate evidence: "A registration certificate is tested by the respective chamber of commerce or by judicial inspection in the commercial register."

4.1.2. To consolidate certain legal situations. This is what happens with the regular formation of societies (C. Co., Art. 112), or statutory reforms of the companies (art. 158 ejusdem), or the appointment of legal representatives and statutory auditors of a company (art. 164), or the appointment of liquidators, as only from the date of registration will be named the powers and duties of such (art. 228 ibid.

4.1.3. The formal simply correct deficiencies. For example, registered the deed of a company is presumed to be lawful from the formal point of view, and is no longer possible to attack but by background services (C. Co., Art. 115). So if that suffers from any deficiency purely formal, the registration is under purge.

4.1.4. To supply the documents that have been lost or destroyed. In this respect the provisions of Article 44 of the Code of Commerce:

In case of loss or destruction of a recorded document may be supplemented by a certificate from the Chamber of Commerce where it has been registered, which is inserted to be retained. The document thus supplied has the same probative value as to the original terms or facts stated in the certificate. The provisions of this Article shall not apply to recorded books.

4.1.5. The confer authenticity. Is that in the case of documents whose signatures are not presumed true, or have not been recognized before a judge or notary, is deemed authentic if presented personally by giving the secretary of the respective chamber of commerce (C. Co., Art. 40), because according to paragraph 2 of Article 252 of the Code of Civil Procedure a private document is authentic if it was registered in a public petition signed it. But if it comes to books protected by trade-book-the result is simply annotated formal authenticity.

4.1.6. Preventing or avoiding the confusion of trade names and emblems.

In accordance with Article 35 of the Commercial Code cameras registers must refrain from enrolling a settlement with the employer or other name already registered, while registration will not be canceled by order of authority or who request obtained. But when it comes to individuals, you may enroll same names, provided that applicants for registration subsequent to the respective add a distinctive name to avoid the confusion that always raises the homonymy. By the way, Guillermo Cabanellas refers to the imitation of the trade name or "as trademark counterfeiting, the use of a trade name similar to an existing others, especially registered commercial mode set offense. It is a of the expressions of unfair competition as it tries to confuse the general public rather than to the clientele of social reason: because it almost always well aware of the legitimate holder of a trade name and local traffic. The offense requires that the resemblance is very defined and try to exploit it, which is only consumed by the public use of similar designations.

4.2 The registration in the registry

not print by itself as a merchant or businessman, but it is a legal presumption of the exercise of commercial activities. In fact their role is primarily census. The omission does not imply that the employer or merchant no longer has that quality. In the case of subjects of legal and commercial relations, Article 28 indicates you should register: a) persons regularly engaged in trade, either individually or through joint ownership or companies; b) commercial companies (L. 222/95, art. 1 °), formed by public deed c) the employers freelancers, whether they are brokers, brokers, agents, representatives of national or foreign firms, etc..

The law requires registration of all property held by the employer to conduct his business, or establishment of , not as subjects but as objects of multiple legal relationships. Not to be confused with the concept of business (which is the activity ) done by setting (set up).

cameras to verify the accuracy of the information provided by the applicant for registration. In fact, Article 36 of the Code of Commerce the authority to require persons requesting enrollment data demonstrate summarily indicated on your application status items, certificates of other cameras or any other reliable means. And if such information appears at odds with the truth, the respective chamber must make a criminal complaint (Rule 38 ibid).

Registration must be renewed annually, within three months of each year, which means it is not definitive but temporary. Sole proprietors must report to the chamber where they are registered when they lose as a merchant, the change of address and other mutations relating to its business activities, in the same way that owners of commercial establishments and corporate legal representatives must register any act or document involving mutations, liquidation or termination of the agency.

Registration provides proof of the quality of trader because the registrar certifies every registration displayed on registration.

4.3 Registration of individual traders, condominiums and de facto corporations.

This statement will include condominiums and companies in fact because those who enroll are not collective entities, lacking personality, but all joint owners or partners, as appropriate (C. Co., S. 31. .)

The person who starts to exercise commercial activities must apply within one month following enrollment in the camera from his home constituency, for which supply the required data on preprinted forms she expends.

4.4 Registration of commercial establishments

Where an employer open an establishment must apply within thirty days, the corresponding registration. This inscription appears as note worthy to highlight the presumption that the owner of the establishment is who is on the registry. Of course, this is a legal presumption and, therefore, likely to be distorted.

4.5 Registration of companies regularly constituted

In this statement is referred to regular corporations, as the de facto and accidental or participation are not legal persons and, therefore, enrollment enroll all de facto partners (art. 31, inc. final) or active participant, as appropriate.

In the case of companies, the legal representative, based on the second copy of the charter, the registration request to the camera whose field include the place where the company establishes the principal residence. And if the charter includes the establishment of branches, copies of which are carried to the chambers for the locations of these secondary homes, when they are not within the territorial understanding of the camera principal residence.

5. Books, records and documents subject to registration

records shall register all legal acts and documents for which the law requires that requirement.

5.1 Registration of trade books

In order to ensure in principle the material integrity of the books belonging to a given person, the object is allocated and the number of pages useful, ordinal 7 of article 28 of the Code of Commerce sent the books to register, the registration of shareholders, minutes of meetings and meetings of members and the governing boards of corporations.

5.2 Registration of acts and documents

Following registration, the employer must register multiple acts and documents in order to be known by third parties in general. Article 28 of the Commercial Code mentioned, as well as trade books, the following:

a) copy of the public in the convention stating marriage when the husband and wife or one of the spouses is a businessman or entrepreneur;

b) Copy of the court order by which a marital liquid, when the husband and wife or either of them is a businessman or entrepreneur. If the spouses choose to dissolve or liquidate the conjugal partnership by mutual agreement, it must be included in a public (Ord. 5 of the art. 1820, Civil Code, as replaced by art. 25 of the Act 1a/76 ), in which case a copy thereof is made in the commercial register;

c) A copy of the ruling in which it is declared the injunction a sole proprietor;

d ) A copy of the ruling that imposed a prohibition on practicing trader trade;

e) Copy of certificate of office of officials disqualify the course of trade, verbigracia those mentioned in the ordinal 2 of Article 14 of the Code of Commerce.

f) The ruling ordering the initiation of the procedure for composition, as well as part of the protocol containing the concordat, together with the order that approves, additions or modifications to be agreed, must register with the cameras the home of the employer and the corresponding branches, agencies or establishments that considers the debtor. (Amended 1116, 2006 law - business reorganization)

g) The ruling ordering the initiation of compulsory settlement procedure, which involves a series of simultaneous filings, including the following: the appointment of a liquidator, the separation of the debtor in property management, and if a partnership, the decision involves the dissolution and suspension of its directors in the exercise of their duties or functions, etc.;

h) The removal or replacement of the liquidator.

i) The document through which the adult child's legal representative authorized to engage in commercial activities on behalf or on behalf of others and under the direction and responsibility of these (C. Co., art. 12, inc. final), or to intervene in the formation of societies in which they commit not unlimited liability (art. 103 ibid.);

j) Any act by which confer, amend or withdraw part or general administration of assets or business of the employer;

k) The opening of commercial establishments or branches, and the acts amending or affect the ownership thereof or its management. And any document of transfer of a business establishment, pledge, lease, usufruct, and any operations antichresis to transfer, limit or modify your property or the right to run, must be enrolled in the registry. Also have to sign documents stating the contract preposition, ie, which concerns the administration of an establishment or a branch of the activity carried on it;

l) liens and civil suits related to rights whose mutation is subject to registration in the commercial register;

m) The establishment, additions or amendments to the statute and the liquidation of companies;

n) The appointment of representatives Legal and liquidators of companies and their removal, and

ñ) Other acts and documents prescribed by law. It refers to a number of situations covered by provisions scattered in the Commercial Code, which must be in writing and whose registration is mandatory. In addition to the countless acts, documents and situations provided for in Title III of Book I of the statute, subject to registration, are examples mentioned in Articles 11, 114, 116, 147, 158, 160, 163, 165, 192, 196,219,228, 300,301,338,361,366,441,484,528 paragraph, 888, 953 second paragraph, 1210, 1213, 1320, 1333, 1335 of the Commercial Code; and in Articles 98 paragraph 6 °, 137, 141, 157, Nos. 3 and 6 and 199 of Act 222 of 1995.

6. Penalties for failing the registration formality

6.1 Managing . Article 37 of the Commercial Code provides that a person engaged in commerce without being registered in the register is liable to a fine of ten thousand dollars, to be imposed by the Superintendency of Industry and Commerce, and such penalty shall also apply where the omission of registration of an establishment. But a decree went beyond the substantive standard above and increased the ceiling several times the minimum wage, regardless of the codes can only be changed through legislation. Of course, the ultimate sanction rule is enshrined in Article 29 4a, whose final proposal stipulates that the acts and documents subject to registration will not produce effects for third parties but from the date of registration.

6.2 The sanction of unenforceability was established in Article 901 of the Commercial Code, which states:

"It will be unenforceable to any third party the legal transaction entered into without complying with the disclosure requirements required by law" .

Hence if the law no fixed term, the registration of any instrument or document may be requested at any time, be understood that while the registration is done, will be unenforceable to third despite its validity and to take their full effect between the parties or concerned.

7. Generalization of these duties (C. Co. Article 19, paragraphs 1 and 2 °)

The generalization of these duties is quite plain and simply mention about additional functions in recent times have attached to the chambers of commerce, namely: the registration of bidders and registration of nonprofit organizations and events and relevant documents.

a) registration of bidders

From the October 28, 1994, a year after the effective date of Act 80 of 1993 or the general status of civil service recruitment , chambers of commerce are the so-called registry of bidders with the same characteristics that set for commercial registration, renewable every year, with prices fixed by the National Government for cameras by way of registrations, renewal and updating and by the certifications on request.

For information about the relevant provisions are reproduced as well:

ART. 22 .- From the records of bidders. All natural or legal persons who aspire to celebrate with state agencies, contract work, consulting, supply and sale of personal property shall be recorded in the chamber of commerce in their jurisdiction and shall be classified and ranked in accordance with the provisions this article.

The Government will adopt a single form and determine which documents are strictly necessary that the chambers of commerce may require for registration. Also adopt the certification form to be used by chambers of commerce.

Based on the forms and documents submitted, chambers of commerce as a special register of registered classified by specialty, groups or classes according to the nature of the goods or services offered, and issue the certificates or information regarding the same request.

The certification will serve as proof of the existence and representation of the contractor and the powers of his legal representative and will include information related to the classification and qualification the registrant.

In relation to contracts executed include the amount expressed in present value terms, and the respective deadlines and additions. In the certification shall contain also data and information on compliance in previous contracts, experience, technical and administrative capacity, ratio of equipment and its availability, fines and penalties imposed and the term of (...).

registration of bidders will be public and therefore anyone can request to be issued certificates of registration, containing scores and ratings.

b) The registration of non-profit entities.

Article 40 of the Special Decree 2150 of 1995, abolished the act of recognition of legal personality of the civil organizations, the corporations, foundations, community action groups and other private non-profit and decided in the final paragraph:

"The entities referred to in this article, form a non-founding members or individually, from registration with the chamber of commerce with jurisdiction (sic) in the principal residence of the legal person is constituted. "

On the evidence of the existence and legal representation of these private law, Article 43 mandates that:

to be tested by the certification issued chamber of commerce authority, which will keep track of them, subject to the regime for commercial companies and on the same terms, rates and conditions governing their services.

Article 45 sets out the entities without profit to which the provisions do not apply before transcribed as follows:

1. Higher education institutions;

2. The institutions of formal and non formal education (L. 115, 1994);

3. Legal persons providing private security services;

4. Churches, confessions and denominations, federations and confederations and associations of ministers

5. Associations covered by social security law 100;

6. Unions and associations of workers and employers;

7. Parties and political movements;

8. Chambers of commerce;

9. Other legal persons for which the law expressly governs the creation and operation, which are subject to special rules.

As cooperatives, funds and mutual associations of employees and their integration bodies and auxiliary institutions of the cooperative, the provisions of Article 143 of Decree 2150 of 1995 to be established by a public or private document signed by all founding partners and will form a non-member individually considered when carrying out its registration with the chamber of commerce that corresponds to the primary residence. Article 144 adds that the registration of these entities will undergo the same treatment given to other private non-profit. Http://www.gerencie.com/registro-en-camara-de-comercio-de-las-entidades-sin-animo-de-lucro.html . At present this certification is issued by the National Superintendency of Economic Development.

transcribed provisions make it clear that, as well as plausible for the removal of unnecessary bureaucracy, sought to create new revenue streams and strengthen the assets of the chambers of commerce. This purpose is confirmed in the Regulatory Decree 427 of 1996, Article 10 reiterates that:

Legal persons nonprofit that in articles 40 to 45 and 143 to 148 of Decree 2150 of 1995 entered in the respective chambers of commerce in the same terms, with the same rates and conditions for the commercial register of the acts of commercial companies.

Spondylitis Scholarship

WORKSHOP: ACTS OF COMMERCE AND TRADE

LAW PROGRAM

GENERAL COMMERCIAL LAW WORKSHOP I.

Conditions Delivery: Last day for delivery Tuesday August 25, 2009, at the photocopy of the university.

1. A private school in the city of Armenia decides to hire a school bus with Mrs. Sandra Gomez, for transporting the children attending the day in the afternoon, at sports and school teams . Say if the activity is commercial and sustain.
   

1. Soila
   Mrs. Perez sells empanadas at home on Saturdays and Sundays are your days off from work as a seamstress played a famous men's clothing factory. Say if the activity is commercial and sustain.
   

1. The Municipality of Caicedonia decide to tender the printing of the letterhead stationery. To do so invites the private sector companies to submit their proposals. Once concluded the contract with lithography PRINTING, is consulted by a difference that has arisen in this contract between you and lithography local authority about the quality of products delivered. Say if the activity is commercial and sustain.
   

1. Pedro Gómez buy a local riding his law office but later decide to sell because he needs money. Say if the activity is commercial and sustain.
   

1. seller in its Cellular activity dealer Cell Metro wants to hire you for you, on behalf of the company, mounted a stand at the mall QUINDIO EL PORTAL, for which we pay five hundred and fifty thousand dollars ($ 550,000) and a commission on sales. Are you a dealer? Sustain.
   

Luck!

Florida Gators Birthday Cakes

MODULE 5. ACTS OF COMMERCE

1. Characteristics of commercial activities.

feature in a commercial activity is that it creates or increases the wealth or helping your circulation by market supply of goods or services valued in money for profit. Activities so that des ¬ intellectual, altruistic, political, religious, charitable, cultural, ¬ sportsmanship, recreation, are not commercial but are developed through an organization and with the help of employees.
economic activities are all too many and varied. And when any of them is taken into account by the law becomes legal activity. In addition, some activities are simple and some complex. Always act out in acts, transactions and yet autonomous businesses linked economically and legally. For example, comprises numerous banking transactions (credit brokerage, brokerage payments, financing, neutral and complementary) and if studied only in the credit intermediation in these combine the active and passive. Formerly
merchantability concept was too narrow, because economists attached to tradition circumscribed as the marketing of goods first, and later also in services. But this purely economic notion was significantly enhanced by the right, and now, in addition to brokerage in all its forms, encompassing production, understood in the sense of bringing original factors to convert them into assets, consumption, transformation of raw materials, semi finished products, goods or services in production or consumption, and as a derivation of this business, industrial consumption, according to which any factor consists of making products more suitable or unsuitable for consumption or use, the distribution of goods, articles, products or raw materials, provision of services and the provision of goods, the management or custody of property, the service provides ¬ tion as well as multiple and various ancillary activities related or complementary of them. The legislative discretion, which is the most accurate criterion for determining the commercial area in Colombia has outlined orbi ta ¬ wide, as were the previous ones, has also included maritime activities identified in the C. Co., item 1429) and civil aviation activities (art. 1773 et seq.) Commercial air services (art. 1853), etc.
2. Non-market economic activities.
Article 23 of the Code of Commerce, lists a series, without limitation ¬ - and even isolated acts of economic activities with an organizing principle, non-commercial, thus: 1 º
The ordinal and non-commercial reputation: the procurement of goods destined for domestic consumption or use of the acquirer and the disposition thereof or leftovers. It is quite plain the absence of intrinsic factors that characterize the commercial sale (the intermediary and the purpose of resale), since anyone who purchases articles or goods destined for domestic consumption or use of the purchaser or his family, but that alienates that goes beyond their immediate needs or does it about, is not driven by the intention of reselling or by the speculative spirit.
The ordinal 2 ° from the ambit commercial procurement of goods to produce works of art and alienation thereof by its author. It can be argued that the artistic and artisan craftsman's work predominates. When he finishes his work, has added staff to their work mate ¬ rials necessary, but not in the acquisition of these elements or further alienation of the finished work there merchantability. Actually, ¬ even the intention of the architect is ab initio to alienate his artistic (painting paintings, handicrafts, sculptures, etc.), Such sale is purely civilian. Very different situation is the broker that artistic production, namely, the employer's stores and galleries that acquired for resale or received on consignment, activities that do are typically commercial.
The ordinal 3 of the same article refers to purchases made by officers to serve in public offices, which is manifested in the absence of merchantability spirit because there is profit not the faintest intention of reselling it to provide agencies State of the elements necessary for its operation.
The ordinal 4 ° reputation as non-market disposals di ¬ rectly to make farmers and ranchers of the fruits of their crops or win ¬ two. Nor will the processing trade of these fru ¬ cough that made farmers and ranchers, provided that the trans ¬ formation is itself not a business.
The first observation concerns the exclusion of all inter ¬ mediary, because the transfers must be made directly by the farmer or rancher ¬ tor. And if they are to advance the holding company and sell the fruit of crops or livestock, no longer meets the requirement by law in such cases as those conducting the activity are juridical persons ¬ nas other than their partners considered individually .
A longstanding classification of economic activities differs between the primary sector under agriculture, livestock and industrial industries ¬ mining, as opposed to the secondary sector includes all manufacturing or processing industries, and the tertiary sector, which include other economic activities, within which appears the provision of services.
Well, the primary economic activities are not considered commodification ¬ les, but their exploitation has in some aspects in common with the business. In fact, the operation requires a set of organized means for the utilization of resources, especially agricultural, livestock and mining. From the point of view of the extension, such farms can be large, medium or small, and according to mode of development, distinguishing the direct, ie when their respective ex ¬ owners are exploiters, and hints if the operator holds the title of landlord, tenant, creditor anticrético, etc.
The farm integrates with a number of factors including: the arable land, working capital or operating, machinery (res ¬ tract, mowers, threshing machines, tools and utensils), human labor, fertilizers, insecticides and other means to increase production, etc., and activities ranging from land preparation (sometimes with drainage works or irrigation), the choice and sowing seeds or seeds, the fight against harmful and encourages ¬ les parasites, the clearing and cleaning of crops and harvesting of fruits to choose from, selecting and packing of these to offer in the market. That makes no economic exploitation in the circum ¬ commercial importance for the operator to acquire machinery, fertilizers, power, or worth of the work of agronomists, engineers, managers or foremen. In livestock
distinction is made between breeding, or up and development and fattening or farming, which is essentially civil, and the activity of dealer in cattle, or those engaged in purchasing livestock for resale. Exploi ¬ tation ranching, conducted by the owner of the property or the tenant, whether for breeding, raising, or fattening, it is also an economic activity organi ¬ Zada, but it is not commercial but the farmer regularly disposed of cattle, have a herd and sell milk.
The same is true for logging or mining and other more specialized such as beekeeping, floriculture, poultry, etc., Nor are lined merchantability if its operators alienate di ¬ rectly fruit in its natural state. Moreover, according to the ordinal ar ¬ 4 of Article 23 of the Code of Commerce, the fruits are subject to a principle of trans ¬ formation without this becoming such commercial activities, provided that such transformation is itself a business. Conse ¬ follows, while mining activity, the farmer, the farmer, and so on., Is the exploitation of the mine or farm, this activity is not commercial but the fruits or products are subject to an adjustment in the market to offer . In contrast, when the operator mounts a facility, or machines for trans ¬ formed or make them semi-finished or finished goods, their activities ¬ economic activity goes beyond the civil and turns to commercial. Of course, it is the organization of economic activity which gives the commercial nature of the act but the transformation natural state of primary goods, or call agro industry. In other words, the farm operator becomes commercial when entrepreneur rather than expending the fruits of their harvest natural state or just a principle of suitability for consumption, open setting and benefit threshing cereals cropped and get flour, oil and certain products, or for canning the fruit harvest. Likewise, the farmer takes the employer commercial time to time to sell milk in barrel, cooled, packaged and pasteurized preferred manufacturing dairy products (cheese, butter, cream, milk powder etc.), Or that instead of selling livestock standing provides a slaughterhouse or refrigerator and supplies meat to the reputations, or whether it offers channel, cooled, chilled, salted, etc. Even in the primary activity of hunting can be the same way: the operator opens a facility to sell live or stuffed animals or meat, skins, feathers, etc. And in the primary activity of fishing, the operator will be a commercial entrepreneur when through one or more stores keep and sell in any form fish, crustaceans, sponges, pearls, coral and other products or byproducts of economic activity.
The above observations clearly distinguish between the primary economic activities of the economy, despite the show organized, have no commercial character, and one that still ab initio primary, secondary sector go to become processing industries, or the tertiary sector since sold, distributed or marketed fruits or products, recent cases in which the merchantability of economic activities is unquestionable .
3. The liberal professions.
The section 5 of Article 23 of the Commercial Code refers to the provision of services relating to the professions. It might be more accurate to alu ¬ dir services of any profession in which predominates the exercise of intelligence, as expressed in the Italian Civil Code. About this expression FERRARA FRANCISCO Italian statute says: "Note that the avail ¬ sition reaches only those who exercised an intellectual profession, which can not become an entrepreneur and therefore does not apply to other people who use the professional performance develop their own economic activity (Ferrara, Francisco. entrepreneurs and companies. Trad. of Francis J, Osset, Edil. Revista de Derecho Privado, Madrid, pp. 26, 27).
. If, for example, hire the services of doctors or lawyers to mount a clinic or a law firm, limiting the activity of those who hire them, at the address or coordinates the work of others, who no doubt this makes a lot of activity of employer, as the medical or legal provision ¬ cates that provides its customers is not his own intellectual activity, but rather that of their dependents, and therefore it has been observed in a service provided by the organization.
and what is a profession? Guillermo Cabanellas defines it thus: "That which is the pursuit of a career followed in university centers in high ¬ ments or special schools, usually only intellectual activity and work, while not excluding manual operations, such as the surgeon , and the architects and engineers to draw your plans (Cabanellas, Guillermo. Encyclopedic Dictionary customary law. Edil. Heliaster, Buenos Aires, twentieth edition, Volume IV, pg. 447.) Understood thus pro ¬ liberal profession, obviously civil nature.
The phenomenon of "proletarianization of the profession" has determined ¬ do the most varied forms of organization to provide the services relating to them with a sense of business primarily. There are plenty of centers is ¬ specialists, consultants and advisors, auditors and accountants, etc., Consti ¬ tuted sometimes as societies and that the work of professionals who are related tend to be directed and coordinated in their development as any other economic activity organized to provide services. On occasions professionals ¬ tions are linked to a foundation or association for a fixed stipend, sometimes for a percentage of net revenue, and some opportunities ¬ des cooperates in special works. Faced with these realities
factual ¬ esbo Zado have two theories, namely
a) The provision of services relating to the professions not ne ¬ mercantile tie when performed by a professional recital ¬ individually and not by an organization business, and
b) When the liberal professions is done in the manner of an organized economic activity, is governed by commercial law given that the configuration of a company providing services, which are said to give as commercial ¬ the wording of paragraph 14 of Article 20 of the Commercial Code, including how such "other (companies) for ¬ tion to the provision of services.
4. commercial economic activities.
The enumeration of Article 20 of the Commercial Code includes isolated acts or legal transactions and legal business activities or that occur in series or mass, which are:
4.1 First .- To acquire goods made to alienate them and their alienation
The ordinal 1 of Article 20 is said to be commercial, for all legal purposes, the acquisition of goods for consideration bound to alienate equally and the disposition thereof.
But generally the term acquisition means the incorporation of a certain thing or right to the estate of a person, it is considered that such activity rar ¬ presupposes a legal relationship, the elements are:
a) A subject, that is, the individual or acquires legal;
b) The purpose of the acquisition, ie, movable and immovable property, divi ¬ sas, ships, aircraft, livestock, commercial establishments, brands, pa ¬ attempts, trade names, credits, securities, parties of interest, fees, actions, etc. Multiple commercial legal business on properties is usually carried by companies ¬ zan, as urbanization for housing, shopping centers or buildings of residential, the safe ¬ ros against risk of fire, earthquake, flood and other disasters, the administration and monitoring ¬ administration, the agency to lease, buy and sell houses. apartments, offices, land and buildings, the commission or brokerage, supply of real estate companies and the sale thereof by the latter, the trust deeds, mortgages and other charges on such goods tend to be entrepreneurs to ensure the fulfillment of obligations, etc;
c) The act by which consolidates the acquisition must be for consideration, ie, involving a payment to the purchaser. Exam ¬ ples: the giving in payment and the sale or exchange. The onerous ¬ sition of the acquisition excludes the so-called original acquisition, such as occupation, accession, Adverse Possession and some derivatives, eg, hereditary succession ¬ ria, donation.
d) The destination of the goods purchased must be selling them in the same way.
Prima facie one might assume that it takes two successive events: 1. onerously acquire the property, and 2. alienate in equally. However, the merchantability arises from the fact that the acquirer the property as intended for resale, although it is not eventually take place. It is also the factor that highlights the difference in the acquisition of property on the market by the end user, whose goal is not to traffic in those goods and industrial consumption. In the first case of a unilateral or mixed commercial act that, under Article 22 of the Code of Commerce is governed by commercial law, while in the second operation is a commercial for transferor and acquirer. EMILIO RUBIO LANGLE and states: "Equally commercial purchase, not just raw materials that the manufacturer becomes industrial products it sells but also the purchase of ancillary things (machines, tools, utensils in general) used in manufacturing, and even of matters which, without going into the very composition of the finished product, you need to use or consume ¬ to develop it, and then sell with gain (classic example, the fuel to feed the furnaces ¬ ment). Such breadth of the concept of commerciality of the ad ¬ acquisitions that the manufacturer does, has the economic base in order to be des ¬ dyed and can be explained in court by the doctrine of the accessory. It is the mediate or indirect role fulfilled things in a box ¬ ration operations carried out with an ultimate goal of speculation. Connection certain purchases economic successive or preceding another character ¬ mer cliff, print them, as he said Salandra-the stamp of commercialism. And similarly, for a relationship with the sale accessoriness commercial trade may be other legal business: think of mediation that prepares the collateral to join him, etc.. "
However, the legal statement involves two different legal situations ¬ TES. The first situation is configured with two elements, namely:
1. Property being acquired for consideration. This excludes the person who obtained by inheritance, bequest, donation or by which any other ¬ mere act of generosity. Indeed, the acquisition for consideration involves a payment or benefit provided by the acquirer. So that it incorporates into its heritage the thing or right in question must provide or make a payment equivalent, as in the purchase (price for anything) in the swap (item by item), and even in the changeover or currency (money money), etc.
2. That anyone who acquires the asset or property is intended to be sold, but not disposed of effectively. In fact what is required is that the acquisition has the mobile ¬ sition of the disposition, even if it is not done before. LOUIS
regard Josserand said: "This is how commercial sale is not by nature but when you meet certain conditions required by law, is necessary, especially, and standing on the buyer's standpoint, the operation has been made by him in order to sell the thing off This mobile and that purpose, the sale would be a civil ceremony. Such is the power of the psychological element, which prints the commerciality of the act, even if the buyer projects are not fulfilled, it is essential that the items are resold, the buyer has just had, to make the acquisition, the intention tion to resell, while, conversely, would be vain are resold ¬ ra then purchase if was not contemplated by the buyer at the decisive mo ¬ ment, ie at the time of purchase: the act civil born under the sign, would not alter its essence. Commercially, therefore, proper to buy with the intention to resell, the two-sided act of whose elements are gathered cough ¬ psychologically from the beginning of the operation, the mobile guide the buyer and the end sought "(Josserand, Louis. Mobiles in legal acts. Translated by J. CARLOS LATORRE. Universidad Nal., Bogotá, 1941, Processed.)
In the second situation involved three elements:
1. Question of a sale actually made, This does not mean it in absolute terms for the same goods, as they have been processed or finished before the alienation.
2. Such property was disposed of were acquired for consideration.
3. That when you bought the goods in the operation had been the target of selling them.
both the first and second situation described above is implicit purpose of obtaining profit, which is assumed in the business but who lack this quality. As a subjective element, the test is difficult. However, it is not necessary that profit actually obtained but simply the profit motive (to speculate some) and enough in the first situation referred to by the standard, the destination of the goods purchased.
isolated in the test business for profit and destination can only be based on evidence the indexing built on two facts: a) the conditions that made the business and b) the personal circumstances of the buyer. The acquisition of property must be conducted in order to resell them and earn a profit. And the resale, considered in isolation of purchased commercial property if purchased with the purpose of deriving profit by reselling speculation that began with the purchase is consummated with the resale.
exception, both the acquisition for value of goods made to be sold in the same manner as the sale thereof, are not commercial because it is absent the profit motive. It is precisely the case with cooperatives, which buy and then sell, but not to speculate, but to deliver from speculators or affiliated cooperative members and while such cooperatives receive a fair profit to cover the spend management, always prevails in them the purpose of service.
4.2 seconds. Purchase furniture bound for lease and lease them.
addition to acquiring the ownership of a chattel for pay, either through cash or as something which legally replaces it, wit: exchange, in lieu of payment, settlement partial or final of a society, it is necessary to the destination to be leased. Just this purpose coexist when purchasing the property, as per se involves the speculative order, but later the buyer decides not to lease or subsequent lease with a loss. This destination is one that gives it merchantability to the acquisition from the moment he is perfected, and any subsequent circumstances, for example, the withdrawal of that purpose, you can take that character.
also commercial leasing of movables that were acquired ¬ arid for consideration to the specific destination when purchasing ¬. For example, computer leasing or machinery, leasing or leasing in all species and subspecies.
4.3 Third .- To lease to lease the goods and subletting them. The purpose speculative
who receives the movable or immovable, as a tenant to sublet or charges a price higher than paid to his landlord, has to exist ab initio, ie from when the property is taken on lease but failure to execute the sublease, and for lack of demand or by ¬ and subsequently decides that the tenant leave the property for their own enjoyment.
For the legal business has a commercial character called subletting is necessary that the object seen on the enjoyment or use tem ¬ porary, for a certain fee, of movable or immovable property that the sublessor took on lease for that purpose. This may include a sublease to ¬ mortality or part of the same goods.
should not confuse the activities under this ordinal 2 ° with the classical figure of the lease contract, as defined and regulated as ¬ tion, the obligations of the contracting, testing, modes of extinction, renewed, extended, terminated, etc., in the Civil Code. The rules of this statute apply to those commercial activities by reference to Article 822 of the Commercial Code, except in areas specifically regulated by the commercial law, as happens with the lease commercial premises (articles 518 to 524 of the Code, with the leasing of ships, arts. ejusdem 1678 to 1687, and the leasing of aircraft, arts. 1890 to 1892 ibid). Fourth .- Receive
money to lend mutual interest and mutual usual
The contract consists of lending money is to occur and perma ¬ nent daily. Those who deal with loans other than money fungible things are becoming less frequent. The reality check that all activities feed eco ¬ nomic credit. And from the point of view, the mutual money is considered as an exchange of present money that gives the lender, by the promise of future currency that makes the borrower.


The wording of paragraph 3 of Article 20 does not address itself to the opera ¬ active participation of credit institutions, or to ¬ cas legal relations of varied nature that tend to arise between them and their clients, which are mentioned in the ordinal 7 ° with the generic name of opera ¬ tions banking.
three different situations are envisaged, namely:
1 "From the position of the borrower: a) the receipt of money in mutual sig ¬ significant that takes into account the passive aspect of the loan, b) the contract is onerous, as if the money is received without interest, lack this condition ¬ ed as commercial reputation, c) that taking the money in mutual intends to give, in turn, on loan.
2 "From the lender's position: a) give money in mutual interest, namely that provided the active side, b) lent money must come from sums received in mutual interest.
3" activity the jobber. In this no matter the source of money.
In the three situations described are disregarded the ra ¬ zon guarantees to its eminently fitting.
Pursuant to Article 1163 of the Commercial Code, the interest is an element of mutual commercial nature. The purpose of the phone is perceived that drives lender shall hire. Interest is the price paid for the use of capital that is the subject of mutual, although the profit or remuneration received by the lender is not always money or provided at a rate precisely. If the borrower agrees to repay a greater sum than that received from the lender shall, the difference represents the interest, which may be paid wholly or partly in kind. In addition, there are times when the interests are included in a lump sum, which is deducted from the amount to be paid to the repayment of the loan. In summary, the mutual trade, the parties may agree or not interest, but if there is silence on the matter, the law requires that the borrower pays the lender shall legal interests commercial. Fifth .-
acquire or dispose of commercial establishments and contracts related thereto.
The first sentence of Article 515 of the Commercial Code enshrined this notion: It means establishing a set of goods trade organized by the employer for the purposes of the company. This together with ¬ no legal personality but has its own life and is composed of tangible and intangible elements of the owner, ie the employer organizes to carry out a specific economic activity. Since then, the structure of establishments is not the same but differs in line with the activity through each develops and the organization which prints the employer to do it. Thus, as under that generic name are included warehouses, factories or factories, shops, branches of companies (art. 263), agencies of a company (art. 264), hammers and stock exchange (art. 1202), hotels and restaurants, banks or credit institutions and similar to previous ones. So the acquisition or disposition, and any contract related to them are strictly commercial, as irrelevant the people who held the Finali ¬ DAD particularly pursued and the bond of connectedness with other or other legal business, as it outstanding is the object of them: a commodity.
Article 13 of the Code assumed, for all legal purposes, that a person carries out commercial activities have a place to eat when ¬ open space.
The statement that says (Ord. 4 of art. 20) requires the acquisition or disposal of the establishment is for consideration, which can be inferred that if the root causes of transmission does not imply any consideration for acquirer or the transferor on the other hand, is governed by common law. For example: the gift, inheritance, legacy, the award, the separation of property from a marital property. A contrario, if the transmission holds onerous because ¬ is made by purchase, exchange, contribution to society, in lieu of payment, judicial auction, award ¬ tion in the partial or final liquidation of a company, a division of property jointly owned or society in fact, shall always be commercial and will be applicable provisions such as that for the forced sale, liquidation of companies, the partition of jointly owned establishments ¬ ments prefer effected as an economic unit or block (art. 517) , which presumably block the transfer, without specifying the elements that compose it (art. 525), which establishes the ad substantial and not just ad solemnitatem probationem of the deed or document recognized by the contracting parties, without which it takes effect between the parties (art. 526), \u200b\u200bwhich prescribes the joint liability transferor and the transferee of all obligations at the time of the sale.

Internal Combustion 7

MODULE 4.

The Colombian legal system provides, despite its predominant objective, a statute about the occupation of merchant. However, confirms the objective criterion about this concept, which states that traders who are professionally involved in commercial activities. On the contrary, traders do not consider those who run commercial activities so unusual.

ARTICLE 10. TRADE - Concept - QUALITY. Are business people who professionally are engaged in any activity that the law considers commercial. The quality of merchant acquiring while commercial activity is exercised through an agent, broker or an intermediary.

This definition can clearly extract the key elements that the Code had in mind to label people, precisely because of those elements were categorized as traders:

1. Conducting an activity on a professional basis. Historically, people have been dealing with a commercial activity have specialized in the activity, point to develop special skills in their field to develop a step beyond the ordinary experience of any subject.
   
2. usual. This means that trade can not be exercised on a casual or temporary, but it requires more or less continuous realization of marketing activities. Not that this activity is required daily, can be periodic, ie a repeating pattern, as opposed to a merely transient activity.
   
3. The execution of business activities. Reaffirms the objective test that prevails in the Commercial Code, in the sense that a merchant is a person who engages in commercial activities, a contrario, it will not be who do not perform such activities but civil, and complete them permanently and professionally. Eg a doctor, an engineer, who despite performing its activities on a permanent and professional, do not run commercial activities. Similarly a trader who buys a house for his own room and not to exercise of its activity, that activity does becomes commercial for itself.
   

IMPLEMENTATION OF THE COMMERCIAL RULES OF NON-COMMERCIAL TRANSACTIONS MERCHANTS. Article 11. People occasionally running business operations are not considered traders, but will be subject to trade rules in respect of these operations.

If a person performs occasionally classified as commercial activities, ie continuous or discontinuous but not regular, that person does not acquire the quality of merchant for that fact. However acts running business will be subject to trade rules. Such is the case of a person who participates as a partner in a company, because its activity is reputed commercial business rules apply, however given that its contribution is purely accidental and probably sporadic in itself is not a merchant. Otherwise each member should register individually as a merchant and this does not happen in practical life. If a person buys and sells sneakers to make a profit, this may be a commercial act (buy for consideration to sell wholesale value) but does the individual trader

ARTICLE 12. Enabling and disabling PEOPLE FOR TRADE PRACTICE. Any person under the common law has the capacity to contract and bind, is able to engage in commerce, which under those same laws are incapable, are unqualified to perform commercial acts.

enabled The lower age can exercise freely trade and dispose of or encumber, in its development, all kinds of goods.

Minors are not eligible age who are 18 years and have professional peculio can engage in commerce and to commit itself to developing the concurrence of the expense.

Adult minors can, with permission from their legal representatives, to engage in commercial activities on behalf or on behalf of others and under the direction and responsibility for them.

* * Act 27 of 1977, published in Official Gazette No. 34,902 of November 4, 1977, established the age of majority at 18, 340 Article of Civil Code granted the qualification as to age from 18. In this sense repealed the authorization of age.

ASSUMPTIONS OF EXERCISE OF TRADE.

Article 13 sets out a series of legal presumption (rebuttable), suggesting that a person pursues trade:

1) When entered in the commercial register;

2) When you open business establishment, and

3) When you advertise to the public as a trader by any means.

DISABILITIES AND DISABILITIES FOR THE EXERCISE OF TRADE .

ARTICLE 14. PEOPLE INABILITY TO USE THE TRADE. Are unfit to engage in commerce, either directly or through another person:

1) traders declared bankruptcy , until they obtain their rehabilitation, this provision was expressly repealed by Article 242 of Law 222 1995. At present, the insolvency of traders, is governed by this standard, we law 550 of 1999 for companies undergoing restructuring during its term and now, by the insolvency law 1116 of 2006.

2) officials and semi-official entities for commercial activities relevant to their functions.

For semiofficial entities must be understood according to law 489 of 1998 (by which it determines the organizational structure of state), those in which the state has an interest as a mixed economy companies (literal f) Article 38.

3) Other persons who by law or court decision prohibiting the exercise of commercial activities.

If the particular trade or business activity is exercised by unqualified person, it shall be punished with consecutive fines of up to fifty thousand dollars be imposed by the civil judge circuit address of the offender, ex officio or upon request of any person, subject to the penalties established by special rules.

This standard applies to persons who by court order can not carry on trade. Such is the case of penalties in sentencing for crimes against property, public faith, the national economy, industry and trade, or smuggling, competition unfair infringement on industrial property rights and free check writing against deposit or account closed, shall be imposed as penalty, the prohibition to engage in commerce from two to ten years. (Art. 16 C. Co.).

DISABILITIES NOTICE OF THE CHAMBER OF COMMERCE . (Art. 15).

The merchant who takes possession of a position that disqualification for the exercise of trade, communicate to the respective chamber through a copy of minutes or taking of possession or a certificate of the officer before whom he met diligence, within ten days of the date hereof.

The possessed evidence of the compliance of this obligation, within twenty days of possession to the official who made the appointment, certified by the Chamber of Commerce, under penalty of losing office or employment.

QUALITY LOSS OF MERCHANT FOR DISABILITIES supervening . (Art. 17)

will be lost as a merchant by the failure or inability to supervening the course of trade.

Annulments INABILITY TO USE FOR TRADE . (Art. 18) The nullification from lack of capacity to engage in commerce, shall be declared and may be corrected as provided in the common law, without prejudice to special provisions of this Code.

OBLIGATIONS OF DEALERS. It is the duty of every trader:

1) Enroll in the commercial register;

2) Enroll in the commercial register all deeds, books and documents on which the law requires that formality

3) Take regular accounts of their business according to legal requirements;

4) Store in accordance with the law, correspondence and other documents relating to its business or activities

5) Report to the competent judge to cease the current payment of commercial obligations and

6 ) Refrain from acts of unfair competition (Law 256/96).

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DEALER MODULE 3. GENERAL PRINCIPLES OF LAW (WORKSHOP READING)

The General Principles of Law. Miguel Reale. Madrid.

Any form of philosophical or scientific knowledge implies the existence of principles: logical statements that are supported as the basis of validity of the remaining claims.

Appearance

logical foundational truths have been proven to be obvious and practical reasons operational budgets for research and practice.

Three types of principles:

omnivalent: Valid for all forms of knowledge.

multivalent: Valid for various forms of knowledge.

Monovalent: Valid for one form of knowledge.

Some principles have positive consecration v. gr. Isonomy: equality before the law, non-retroactivity of criminal law, but as I said Josef Esser, are effective principles outside the legal system.

The insertion of the general principles of law enforcement to gain strength, can be done through legal sources. Although in principle is given in the legislative process is most often inserted through the judicial activity, the customs and practice bargaining.

Origin of the General Principles of Law:

Patriot Law. are obtained from the positive law of each country through a process of induction and abstraction, in such a way that will be valid to the extent that will be obtained from the system of rules in force in each country. However, this theory has its cracks because it is undeniable equality but find great similarities between the principles governing the laws of countries like Spain, Brazil, Colombia, etc.. But equally there are some that apply to specific systems: eg. Soviet law and Western nations.

Comparative Law. Independent place and time the man is located in the same social structure against which to work and react the same way, resulting in equivalent regulatory solutions. Thus it is stated that the general principles become more consistent when they are confirmed by the comparative study of laws which they are most moral and cultural affinity. This is not a study of the laws regardless of social and political structures of each of them.

 

Derecho Natural.

Esta corriente sostiene q no puede basarse en el derecho positivo de las distintas naciones sino que tiene su origen en presupuestos lógicos y axiológicos, es decir, en principios de derecho natural. Según las diferentes civilizaciones el derecho natural tuvo varias acepciones:

 

Griegos. Sócrates lo estructura en formas lógicas adecuadas a las constantes de la vida diaria. Es común a todos los hombres.

Estoicos. Es deber de todo hombre seguir a la naturaleza pues esto equivale a live according to reason. Not distinguish rational law (which govern human behavior.) Influenced the Romans as Cicero.

Rome. It conceives of a natural law that needs no validation in the system q positive but instead she's q is giving legitimacy to ethical precepts of positive law.

There are two ways of conceiving the natural law:

1. The transcendent. Thomistic philosophy. Above the positive law there is a set of ethical imperatives that are expression not only of human reason, but divine.

2. The transcendental. Kant. Based only on historical experience, which is influenced by a number of concepts or constants axiological (categories) that make it possible.

The person is the source value. The immediate general principles are inherent to any form of society. The media are those own customs and experiences of each people in particular.

function and degree of the general principles of law:

Custom-principles-analogy. Not considered to be case of a mandatory order because, for example by using the analogy to stand comparison to two realities, leading to the level of principles.

legis Analogy: is solved two such cases by referring them to a single legal text. Juris Analogy: A number of similar cases apply the same legal grounds.

Gradation. From one point of view is the natural law that provides greater generality, to the point of being called universal principles or transcendent. Obviously a reconciliation, without excluding the principles of countries belonging to the same cultural family (compared) and the country's own (native).

Conflict of Principles.

As

act in case of conflict between a principle of comparative law and a patriotic right? As much as you want always right individualization of public order rules of law will be imposed, at least in our law.

Even more serious is the conflict between natural law and the right patriotic because we are dealing with the application of legal rules but unfair. In practice, the conflict is smoothed when these rules are interpreted in correlation with each other and the overall sense of order which is a part.

brocard proverbs and legal. is assumed that is allowed what is not prohibited, no one is obliged to do the impossible, exceptions are strict interpretation.

UNIFICATION OF PRIVATE LAW: THE UNIDROIT PRINCIPLES AND INTERNATIONAL TRADE AGREEMENTS (Conf. 3).

The unification of private law in the international context has been through the lex mercatoria, which can be used for internal unification private law, at least on issues such as obligations and contracts.

There was wide variation in standards between laws and international treaties, supranational law, community, traditions and customs collections.

The international economic law: the legal view of the global economic order.

international trade law: the set of legal rules governing the specific problems of international trade companies.

Contract Regulatory International Sources:

1. Rules of public international law. Mainly the 1969 Vienna Convention, applicable to all treaties between States.

A treaty is an international agreement between two states, governed by international law, whether embodied in a single document or related documents.

2. Treaties between states to provide the commercial traffic of any right or uniform conflict rules.

3. Common commercial usage and traffic behavior in question.

4. Terms of the contracts.

5. Rules adopted by international associations.

6. Rules suggested by the participants of the trade to be adopted as the law of contract.

7. General principles of law applicable to international transactions.

8. V. court precedents gr. Arbitral awards.

Obstacles:

Reluctance of states to cede some sovereignty

Delay and cumbersome procedures for incorporation into domestic law

interpretation criteria of law by judges.

systems or methods to unify private law.

a. Adoption of common law through a treaty or convention

b. Directives. Approximation of the laws of both countries for the common market.

c. Model legislation suggested by international bodies like the UN Commission for the RH. International Trade - UNCITRAL.

d. Adoption of codes by foreign countries.

e. Tools developed by international bodies to regulate as guides, international contracts where the parties have agreed to submit its provisions example. UNIDROIT.

The great obstacle to the unification and harmonization of the UNIDROIT Principles is to protect consumers and users, leading commercial relations actors because these principles and the Vienna Convention of 1980, excluding those related to them.

The UNIDROIT Statute adopted in Rome in 1940, was adopted by our law by Law 32 of 1992.

Purpose of the UNIDROIT .

study means of harmonizing and coordinating private law between states or group of States and gradually prepare for their adoption of uniform legislation on private law.

Principles for International Contracts

1. Origin, structure, purpose and legal nature.

Origin. In 1968, forty years after the creation of Unidroit, the idea of \u200b\u200bcreating a body of law for international contracts. The board of directors in 1971 included in its agenda the development of a test of unification on the general contract. Only until 1980 he created the working group with representatives from different cultures and legal systems.

structure. Is divided in seven chapters with 120 articles, divided into: i) preamble: general provisions, ii) formation of the contract, iii) validity, iv) interpretation, v) content, vi) compliance, vii) failure.

Object. Be a set of rules that can be used independently of the various legal and economic systems worldwide. Determine the law of the forum and the law applicable to international commercial contracts.

Nature. Are a set of general rules applicable to international commercial contracts, with an optional nature and borderline mandatory rules of national, international or supranational level.

Where derives its obligation. of the autonomy of the contractors, although some international tribunals have found the form simply apply the general principles of international commercial contracts.

2. Scope.

apply to international commercial contracts, where i) the parties have expressly or indicate Ppios q be applied. hensive of law, the lex mercatoria or similar expression. ii) when you can not determine the rule applicable to the case iii) to interpret international instruments dcho. Uniform.

What is meant by international commercial contract?

1. Merchantability.

Wanted regulate all commercial acts in its broadest sense, including professional services, excluding in our legislation for the art. 23 of C.
Co.

However, it excludes the so-called "acts of consumption" understood by those who made by a person in its contracting activity, not an act of trade or in the exercise of their profession. However, this exclusion is controversial because although it attaches to such acts as those made by consumers, does not clearly define when a person has as such. AS IT IS IN THE AIR THAT WANTED JOIN CIVIL AND COMMERCIAL OPERATIONS AND RATIFY THE END OF DISTINCTION.

2. Internationality of the contract.

Unidroit principles does not take a clear criterion to define the internationality of the contract. To give scope to the concept q states exclude only those contracts in which all elements are linked to one country.

3. Functions of early (applications jurisprudence).

UNIDROIT Principles are important because being collected from multiple legal and economic cultures provide innovative solutions that enrich the jurisprudence, while mean a step towards harmonization and unification of private international law.

Exercise jurisprudence, in particular the arbitration of the ICC (International Chamber of Commerce) are two functions: a normative and interpretive.

3.1 As contract law. The parties can decide on the basis of the autonomy that the principles are "law of contract", provided q does not conflict mandatory national standards.

3.2 As a lex mercatoria. When is agreed to be governed by general principles, the lex mercatoria or similar expressions. It is different because here it is debatable whether or not to have embraced the principles of Unidroit.

further discussion Log in nature, if the above principles to all positive law, usage or custom. Not to be confused only with custom, because as has been said there are other UNIDROIT rules do not obey these rules but apply only by express agreement of the parties as they are standards adopted by consensus among the countries.

3.3 Application as a way of interpreting existing international instruments or national law. Connection with the 1980 Vienna Convention on international sales.

When used in these cases are not part of the basis for exclusion or inclusion, it can even be used to interpret the will of the parties and even to interpret domestic law. Case of the Swiss distributor and Singapore, claiming the principal Belgian. For refunds, we applied the local exchange rate, similar to the solution given by the Swiss legislation, which could be clarified and supplemented by the UNIDROIT Principles.

4. Reference to the guiding principles.

The general principles governing the preliminary negotiation, formation, validity, interpretation and enforcement of contract recognized by the various legal systems are mainly: Freedom of choice (freedom of contract and freedom of form), enforceability of legal acts in good faith and fair dealing.

4.1 Freedom of contract: It includes the freedom to enter into the contract, with whom, why and determine its content.

4.2 Freedom to form and test. Set q q is not required any of the principles in writing and may be proved by any means, including witnesses.

However, if the national legislation of each country or the parties require for their existence and validity of certain formalities, these shall be observed.

4.3

pacta sunt servanda. The contract validly entered into is a law for the parties and can only be invalidated by the provisions of the agreement of the parties and the provisions of these general principles.

4.4 Hierarchy and limits of the principles. There are mandatory principles, well porq are indicated as such by the UNIDROIT or porq the parties enter the contract, in which case if they acquire real constraint. Other supletivo, which can be expressly excluded from the contract.

as limits on freedom of contract are those with good work faith and fair dealing, restrictions on practices which the parties established between them and the customs widely recognized in the trade.

4.5 Interpretation and integration.

In interpretation should take into account its international character, its purposes and seek uniformity in its application.

In integration should observe the following order: analogy of its own provisions, the ideas on general principles and specific rules, and finally national law to make a complete integration of the principles.

4.6 Good faith and fair dealing. It is an imperative principle. Two obligations arising of good faith are confidentiality and duty to guide the business to fruition.

4.7 Recognition of usage and custom. Uses whose application has been agreed or practices between the parties and uses widely known and reported in the trade. Conditional that their implementation is reasonable.

5. THE INTERPRETATION OF THE CONTRACT.

Article 822 C. Co. Ppios that govern the formation, interpretation, effect, termination of contracts and civil actions shall apply to commercial.

ARTICLE 1618. \u0026lt;PREVALENCIA OF INTENCION>. Known clearly the intention of the parties, it is could you be more than the literal words.

ARTICLE 1619. \u0026lt;LIMITATIONS THE CONTRACT TO YOUR FIELD>. In general they are the terms of a contract shall only apply to the matters that have been recruited.

ARTICLE 1620. DIRECTION TO PRODUCE \u0026lt;PREFERENCIA EFECTOS>. The sense in which a clause may have an effect, should be preferred to one that is unable to produce any effect.

ARTICLE 1621. \u0026lt;INTERPRETACION NATURE OF contract>. Where will not it appear otherwise, shall must be at the interpretation that best fits the nature of the contract.

commonly used clauses are presumed but not stated.

ARTICLE 1622. \u0026lt;INTERPRETACIONES SISTEMATICA, FOR COMPARISON AND APPLICATION PRACTICA>. contract clauses will be interpreted by each other and be given to each one the sense that best suits the entire contract.

may also be interpreted by another contract between the same parties and on the same subject.

O

the practical application that have made them both parties or a party with approval the other party.

ARTICLE 1623. \u0026lt;INTERPRETACION CASE FOR INCLUSION IN THE contract>. When a contract has been expressed to explain if the obligation does not mean only that have attempted to restrict the convention in this case, excluding the others to spread naturally.

ARTICLE 1624. FOR THE DEUDOR> \u0026lt;INTERPRETACION. Unable under any of the foregoing rules of interpretation, interpret the ambiguous provisions in favor of the debtor.

But the terms were ambiguous extended or given by either party, whether credit or debit, shall be construed against it, provided that the ambiguity comes from the lack of an explanation because it has taken for it.

5.1 Intention of the parties. But, q sensible people would have thought.

5.2 Representations and unilateral conduct. Q always the other person knew or not have been unaware.

5.3 Relevant circumstances. The subjective test of reasonableness is based precisely on this: prior negotiations, established practices between the parties, conduct after conclusion of the contract, nature and purpose of the contract, common sense given the expressions in the commercial sector uses. 5.4 Interpretation

contextual logic of the contract and its provisions. Be construed together. Interpretation logic in q can produce an effect.

against proferentem 5.5 Interpretation. The ambiguous clauses are construed against those who made the award. Applies to contracts of adhesion.

5.6 Integration of the contract. When the parties have not agreed on an important provision to determine your rights or obligations, that provision shall be deemed integrated q best fits the circumstances.

Factors to be considered for such integration: a. intention of the parties; b. nature and purpose of the contract, c. good faith and fair dealing; d. common sense

JURISPRUDENCE.

Constitutional Court. Formal sources of law. Article 8 of Law No. 153 of 1887 which established the absence of applicable standard qa apply the law regulating such cases q (analogy) and in the absence of constitutional doctrine and principles general law repealed by section 230 of the CN which indicates that judges are only subject to the law?. The Court considers that no early q since it is extracted via the analogy of positive law and jurisdiction in the same way the constitutional doctrine, which means that it is applying the same law.