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.
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