Mercantil.
Special regim for comercial contracts? There are some country that has not have specific
regulation on comercial regim.
Why we have a specific statute . Civil 1889 and the commercial code 1885 ( before). We
distinghs Merchants are sofisticaded parties, its not the same sell goods. Commerciants are
precented subjects, specific sophistication, sector particular type of transactions.
The sale, article 325 of the code of commerce, you won’t find any definition regarding what is
a sale. Not define what is a sale is, we have to search the civil code, defines what a sales is. The
code commerces are constructed as a background. Already exists in the common law. Parties of
the law contracts are experts. Also, we have special contracts, the common law rules does not fit
satisfactory, then, we have specific rules of specific transactions. More flexible rules, historical
explain why specific rules, we prefer something flexible and adapated. Third reason of this,
Special course in order to judge, we need special judges.
We have special rule, court of commerce, deal a rational building, offer a way to make a system
of the type of reasons. The court of commerce makes a central assement regarding what an actor
commerce is. We have to define whats scope , article 2 of the commerce code , defines the
scope of this specific regulation. Is defining the scope of application, shall be considered actor
of commerce. Extend of character, act of commerce define the specic rules. Code of commerce,
is important, transactions between acts or between parties. Have a wide application. Its is not
relevant to be a merchant or not. IS define without the subject of position of the commerce. The
position of the parties is not relevant, is making more wide the scope of application, does not
matter if the persons are merchants or not. Acts of commerce is define why itselves, not by the
position of the parties.
Purpose of article 2, is open, is not a closed list, similar nature ( to capt the economic reality).
When commercial rules ends and begins a common law. The court of commerce does not says
about intellectual commercial. Contract if is regulated by the civil law or the commerce law. We
have to define is civil nature or commercial nature. Transfer a licende of trademark con owe say
that this contract is similar nature to an act of commerced tegulated in CCM. How can we
similarity? How can we say that the transaction is similar to the commerce or other ones? Due
to the answer will decide if it’s a commercial or a civil matter.
Article 311 commerce code, LOAN( prestamo) Does not define what is a loan is, what is the
legal effects or consequences. The court of commerce, assumes that you know what is a loan.
Define when shall be reputed by the commerce code, commercial law. 1. If any of a parties is a
businessperson 2. If the items lent are assigned to trading activities. Financial institution is a
businessperson( banks) , financial loans. Trading activities ( connected with professional skills,
personal uses and professional uses). A loan that fits 311 but at the same time we have a loan
that has not fit the 311( civil nature). Bank resources to a family( civil nature).
244 article, a mandate shall be consideres a business agency when the object therof is a
business act or operation and a businessperson or commercial intermediary is the principal or
agent. The subjects matter here.
Article 303 , a deposit ( we have to see in the civil law what is a deposit is) specific nature,
response by the law, the court of commerce. At least, a business person, el depositario tiene que
ser empresario.
