Sponsorship and business promotion contract

This simple descriptive investigation will study the following problematic reality: the legal foundations for incorporating the sponsorship contract into the national legal system, achieving its contractual autonomy.

It is known that one of the most striking phenomena of property law today is the appearance, in recent years, of a long series of new contracts, many of which have been imported from Anglo-Saxon law, while others are only new varieties of traditional contractual types, such as the sponsorship contract, which we will examine clearly and in depth in our research.

It seems that this phenomenon is due to the economic reason for the “outsourcing” of functions and services that were previously performed directly by companies, whereas now they tend to be outsourced to third parties, notably other companies specialized in certain services. It is this economic phenomenon that has driven, in the legal plane, a tenacious multiplication of contracts; because, as a consequence of it, the traditional types have been divided and subdivided, giving rise to new contractual figures that, although they soon acquire their own nomen iuris, on many occasions they hardly receive a fragmentary and incomplete legal regime.

This is what has happened in the wide field of advertising contracts, with respect to which Spanish Law 34/1988, of November 11, offers a range of four new contracts, which it baptizes and regulates only in its aspects more essential and special, but to establish its regime it is limited to a block reference to the general rules of common law, which raises not easy problems when determining the rules by which they are governed.

Among these figures is the advertising sponsorship contract, which is the legal name of the contract commonly known as a sponsorship contract, under which the sponsored undertakes to carry out a sporting, charitable, cultural, scientific or other similar activity, in exchange for a price and with the unique obligation to collaborate in the advertising of the sponsor. Contract that, being of a well-defined social typology, has its own legal regime as scarce as it is vague, which is what it is about clarifying in this project and postulation as an incorporation to Peruvian legislation.

En España, además, el problema se complica por la dificultad añadida que representa el nuevo régimen del mecenazgo previsto por el Título II de la Ley 30/1994, de 24 de noviembre, que contempla una figura de función casi idéntica a la anterior, pero de estructura y naturaleza completamente diferentes. Se trata del llamado convenio de colaboración empresarial en actividades de interés general, por el que el patrocinador da una ayuda económica a una entidad sin fin de lucro, a cambio de difundir la participación del patrocinador, al objeto de realizar actividades de índole semejante a las que hemos apuntado antes. Es claro que, según estas definiciones legales, el nuevo convenio de colaboración es casi igual que el patrocinio publicitario, pero es igualmente claro que su régimen es, sin embargo, bien distinto del que se aplica a este último. Nos encontramos, pues, ante figuras paralelas pero muy diversas entre sí. VICENTE opina que ante el primer caso estamos ante una donación modal; en el otro, en cambio, nos hallamos frente a un típico contrato oneroso.

From this arises, therefore, among other things, the reason for this work, which responds to the classic scheme of the double gaze, one external and one internal. Regarding the first, we are eager to make a brief presentation of the basic normative data, the work will include a broad and detailed study of the concept of sponsorship, its main characteristics, its relationships with related figures and, especially, the difficult delimitation between sponsorship and patronage. With regard to the latter, clarified - according to Spanish doctrine - as well as the features of the sponsorship contract, the work will continue with the typology that it offers in practice, the central problem of qualification and legal nature, as well as the onerous cause -the so-called advertising return- that characterizes and distinguishes it,the usual clauses and the specific problems that sponsorship raises, especially as it may affect the rights of the sponsored person's personality. We are sure that up to this point - without intending to exhaust the subject - the most relevant aspects of the contract studied will be examined, both at the normative level and in business practice.

It is obvious that this is a new topic and we want it to be a documented and serious investigation.

The aforementioned problematic reality has the following characteristics, among others:

• The few studies to the sponsorship contract

The national doctrine has carried out few studies on this contract, there are very few articles, there is no special book that serves as a reference for the study of this contract, to the point that VEGA affirms “the national doctrine has said nothing, until today, about this figure, which seems unknown to the privatists ”, it seems pertinent to us to carry out studies on this contract, which plays a very important role in business activity. We often find out that the very high sums of money that companies enter into contracts with certain clubs or athletes (sports sponsorship contract) or cultural sponsorship contract,held between the Official Chamber of Commerce and Industry of Burgos (Spain) with Dr. Elena Vicente Domingo for the production of her work El Esponsorización Contract.

• The sponsorship phenomenon

If someone outside the legal world were asked what sponsorship is, I would probably venture a fairly simple definition, but, at the same time, consistent with its technical meaning and would tell us that sponsoring is financing or financially helping someone to carry out its activity, of a sports, scientific or cultural nature, with the aim of making it known.

From a technical-legal point of view, GALGANO has defined it as "the contract by which an entrepreneur, sponsor, in order to increase the visibility of its distinctive signs, delivers an amount of money, or goods and services, to the organizer of sports events or cultural initiatives, television shows, etc., or of an individual person in sport, of the show (sponsored), so that he / she can advertise, in the manner provided in the contract, the products or the activity of the entrepreneur ”

We are also facing a socioeconomic phenomenon that in recent years has been of great importance, which is due to various factors, such as the scarcity of public resources as well as the interest that the sponsor represents in society recognizing its work of promoter and sponsor of certain activities of general interest; recognizing that sponsorship is measured in advertising.

Sponsorship as an instrument of communication

For some years now, we have been witnessing a true advertising revolution that has progressively entered the world of sport, the arts and culture in general.

There is no mass show in which the logos or brands of certain companies are not displayed. Sometimes, in the form of fences or traditional advertising spaces such as those that surround soccer fields. Others, in the players' shirts or in the material used in the event, so that the advertising message "is practically part of the landscape"

In France 94 World Cup, North American companies covered most of the advertising in stadiums, fearing that Japanese firms would massively occupy the ads.

We have extracted from the internet –of official pages- some news that broadens the panorama of sponsorship and the millions that are at stake. Let's see, Valencia, the First Division football club of the Spanish League signed a contract of 300 million pesetas with the Metrored company until June 30, 2002. The best golfer in the world, Tiger Woods, twenty-three years old, signed with Nike for $ 90 million, the contract is for five years. Nike also signed with the Brazilian soccer team for $ 160 million. Manchester United is the soccer club that receives the largest sponsorship in the history of soccer; £ 30 million from the telecommunications company Vodafone for showing up for four years.The Audi contract with the German Club Bayern Munich - in force from June 1, 2002 to June 30, 2008 - which will supply 50 cars for the players and the board, in addition to 5 million euros, for season, for advertising rights. As is known, this soccer club had a contract with Opel, the Audi competition that only ended on June 30, 2003; however, it had to resolve due to the economic difficulties suffered by the General Motors branch. In any case, and since all money is welcome, the main sponsor is Deutsche Telekom, which paid 120 million euros until 2008 (20 million per season), for the advertising on the shirts.in addition to 5 million euros, per season, for advertising rights. As is known, this soccer club had a contract with Opel, the Audi competition that only ended on June 30, 2003; however, it had to resolve due to the economic difficulties suffered by the General Motors branch. In any case, and since all money is welcome, the main sponsor is Deutsche Telekom, which paid 120 million euros until 2008 (20 million per season), for the advertising on the shirts.in addition to 5 million euros, per season, for advertising rights. As is known, this soccer club had a contract with Opel, the Audi competition that only ended on June 30, 2003; however, it had to resolve due to the economic difficulties suffered by the General Motors branch. In any case, and since all money is welcome, the main sponsor is Deutsche Telekom, which paid 120 million euros until 2008 (20 million per season), for the advertising on the shirts.The main sponsor is Deutsche Telekom, which paid 120 million euros until 2008 (20 million per season), for the advertising on the shirts.The main sponsor is Deutsche Telekom, which paid 120 million euros until 2008 (20 million per season), for the advertising on the shirts.

In Peru, Cervecería del Sur, the company that advertised its product –Cerveza Cuzqueña- on the t-shirt of the University Sports Club, signed an agreement that included advertising on t-shirts, divers, briefcases, training vests, the credit card –that never it came true-; The purpose of this marketing action was to increase sympathy for the brand and improve its positioning in the Lima market. Now, we see the results, the achievements are quite tangible, they exceeded the growth targets set by more than 50% and they also increased and significantly increased the participation of beer in the Lima market. In addition, Cervecería del Sur supports table sports, car competitions and tennis.

Previously, Anchor sponsored the t-shirt of the University Sports Club, which, as you remember, was an imported product that he used the club t-shirt for the introduction of.

All this phenomenon described above is known as sponsorship, in effect, it can be seen that this last way of making a company known is more "respectful" of the consumer, to whom advertising is always directed, because they do not openly show their product or its service and directly encourages consumption, but it provides you with a show of your liking and at the same time that the viewer watches it, feels grateful to the person who made it possible, the sponsor. This person, without being very aware of it, goes from being a mere spectator to a virtual consumer of the sponsor's products, to whom, at least, he will grant his recognition. Given this mechanism of sympathy that occurs in the viewer, advertising is achieved indirectly, through the activity carried out by the athlete,of the success of a restoration. This form of advertising is known as return, because it returns to the company through activities that are not advertising itself.

The sponsor has thus achieved its claim: the revaluation of its brand image to distinguish itself from other companies in the same field, from the competition. The message subtly and indirectly launched begins to bear fruit; he has put the viewer in his favor and this good disposition guarantees him at least two things. On the one hand, the aforementioned image improvement, because it will speak well of it, and on the other, increased sales, if the viewer decides to buy a product from that market. In this sense, it has been rightly said that sponsorship is a double-scale communication technique, since, on the one hand, it tends to revalue the brand image and, on the other, to increase sales.

Therefore, sponsorship is an alternative advertising instrument, which, considered, only from this perspective has contributed to a certain confusion about the figure. Thus, the authors who have studied this phenomenon from the exclusive point of view of advertising marketing, fall into deep contradictions from a legal perspective, especially when they identify the sponsor with the patron. Thus, while they do not lose the opportunity to proclaim the intention of "help" and the purpose of patronage of the sponsoring company, they propose the entrepreneur to invest in this type of advertising "because their long-term profitability is greater in the actions of sponsorship, if they are well focused on the precise public –target-, than advertising campaigns woven through traditional media ”, which, to clarify doubts about their nature,It is completed with the following example that the Spanish author gives us: “A businessman invests 100 million pesetas in advertising and can shoot a movie and come out with ten advertisements on television. With the same 100 million, the businessman can carry out a prestigious cultural sponsorship campaign, get the King, Queen, President of the Government or the Ministry of Culture to attend the inauguration of the event, and also get a free campaign in the large media that elevates the image of the brand and gives prestige to the company and the entrepreneur. If a benefit is provided to society with cultural sponsorship, honey on flakes ”.

There is no doubt that sponsorship is another form of the marketing strategy of companies, which diversify their advertising investments in order to reach all fields and overcome a certain saturation effect of traditional advertising media.. Sometimes this instrument is the only one that can be used by certain companies that have restricted advertising for their products, such as tobacco or alcohol.

In short, we find a contract for advertising purposes, which transfers many questions to the field of civil law, which we will try to disengage, first in our project and then in the thesis

• Systematic framing of the figure

The sponsoring contract is part of a series of new contractual figures, all of them close to the business and commercial world, such as leasing, merchandising, franchising, factoring, catering and a long list of import contracts, whose name Anglo-Saxon we have adopted as inevitable. Although the sponsoring contract - we follow TEN-PICAZO-, as a current advertising phenomenon, comes from the Anglo-Saxon sponsorship, its etymological origin is Latin, since the sponsor in Roman law was the guarantor, which meant the terminology adopted.

All these business figures, despite having years of business practice, continue to be known, still as “atypical or unnamed contracts”, in the sense that the legislator has not provided for them a legal scheme and whose validity is not discussed in attention to the principle general autonomy of the will. This has been criticized not only because such a name seems to entail in itself the negative nuance of lack or absence of regulation, but also because, as GHESTIN affirms, “the notion of an unnamed contract does not have in current positive law the same sense as in Roman law ”, so the doctrine has indicated that it is more correct to speak simply of“ new contracts ”.

In our view, the criticism targeted, despite not being substantive, is correct, since the conceptual atypical and unnamed and typical and nominated equivalence is not entirely correct, since the contract, as is known, may have a nomem iuris and, nevertheless, lack legal typicity, as occurs with the sponsorship contract, with franchising, with know-how, and this occurs, because some contracts are complex and atypical, are governed by their specific stipulations and content not uniform, and although it does not have regulation in the private, civil and commercial legal order, its granting is possible in the lawful exercise of the principle of business autonomy and freedom proclaimed by article 1354 of the Civil Code.

All in all, many of these contracts, as has been said, leave us with a feeling of deja vu. An impression that has been a double-edged sword since, on the one hand, it has led to various attempts to redirect the schemes already thought by the legislator, but, on the other, its particularity usually stands out with respect to these, which in many cases justifies its atypicality.

In short, we are facing a phenomenon - that of new contracts - which not only "signifies the normal development of legal-economic life", but is the clearest exponent that current legal transformations do not come from the hands of laws but "the main instrument of legal innovation is the contract"

• Novel contractual figure

In view of the foregoing, the sponsorship contract is a new contract within the advertising contract, which highlights, as a novelty, the elements of support or financial aid in exchange for return advertising.

• Legal atypicality

Due to its novelty, the sponsorship contract does not find its own normative discipline in our legal system.

Economic agents have concluded, over the last few years, a continuous series of these agreements, but often without being aware - like the people who have received the sponsorship - that this is a new contractual modality different from the classic of advertising insertion.

In fact, the parties use the term sponsor without realizing that it is a sponsorship business, and classify the contract as either a common advertising contract or a service provision contract. In other cases, I would say limits but not infrequent, the contractual nature of the agreement is ignored and it is estimated that a given company has collaborated with an event, without noting that the sponsored subject himself has made, as consideration, an advertising return in favor of the sponsor.

In comparative legislation, we find in Spain, it is a legally atypical contract because it does not find a satisfactory answer in the law, since the law only gives it a name and defines it, but does not regulate it. This legislative paucity, however, is at least one way to recognize its legality and extract it from the group of unnamed contracts. The sponsorship or advertising sponsorship contract has found a minimum space in the General Advertising Law 34/1988, of November 11, by virtue of which it has a name that, however, does not remove it from its atypical status.

This purely factual data, along with others, has given rise to doctrine to affirm that the sponsorship contract has a strong social typology. Which is true, for various reasons, as we will see below.

As is known, when it is stated that a certain contract has social typology, it means that said contract is identified, that it has a name that refers to a certain contractual scheme, born spontaneously, but that still lacks an individualized normative discipline.. Therefore, the nomen, as a purely conceptual identification, although it could be a first step to achieve a legal typology, it is also true that it could very well stay there and not satisfy the legal content of the figure. Nomen is an indication that cooperates in the social identification of the contract since in its circulation in traffic - social typicality - it is called by the same name.

• Its legal nature

The natural way to provide a legal regime for institutions that in positive law have it deficient or do not have it is to inquire about its legal nature. Thus, with the assimilation to other figures, it is sometimes possible to endow the analyzed figure with a specific regime.

For the national authors who have dedicated themselves to the subject, they think that there would be a subsumption in some type of contract of the category of provision of services, pure atypical contract, advertising contract and complex contract.

In Spanish doctrine, it is debated whether you are facing an advertising, dissemination or advertising creation contract; It is sought if it has analogies with the contracts of society and the leasing of works or services, however, they attribute their own physiognomy or legal nature or a contract that must be subsumed in the physiognomy of another or other contractual types.

The problem of its qualification does not escape the Italians who opt for that of a contract for public insertion, contract of appalto, contract of somministrazione, contract of society, contract of operative, contract of lavoro subordinate and atypical onerous contract and corresponding provision.

• The word sponsorship and its difference with patronage and sponsorship.

Of the sponsorship contract, it has been said that he is the direct heir of the traditional patronage and that it responds to an evolution and a change of intention of the person giving the aid. Evolution, which as FRANCESCHELLI describes, is a slow passaggio that consists in that the cause of the patrimonial attribution is not the mere liberality but the delivery in exchange for return of publicity. However, even though this is the majority opinion, there are also those who maintain that we are facing a totally new phenomenon whose origin is found in industrialization and in the eagerness of companies to find ways to make themselves known different from the traditional ones that distinguish them from from the competition. In our opinion, both points of view are compatible,Since it is true that sponsorship in its own sense responds to business criteria since it is used as an instrument to achieve publicity, however, its origin is identified with that of patronage or sponsorship.

As for patronage, it is known that it originated around 70 BC, and that its meaning and name are due to Cayo Clinio Mecenas, a wealthy Roman citizen, minister and friend of Emperor Augustus, who distinguished himself for that year for protection and help that he gave to various writers and artists. Later, being Trajan emperor, he continues to support altruistically different artists and architects of the time, such as Pliny the Younger.

It is throughout the 15th century when numerous actions of help and selfless collaboration with the world of the arts are known, mainly in Italy and Spain. Sponsorship is exercised, sometimes, by wealthy families such as the Medici, who practice and project their generous patronage in the city of Florence, and other times, by the Crown, as in Spain. It is noteworthy that the year 1492, with the discovery of America, is one of the dates that the doctrine that has studied sponsorship usually takes as a starting point or as a sponsorship event not without a dose of sponsorship.

Indeed, the Catholic Monarchs, especially Queen Elizabeth, financed the various voyages of Christopher Columbus as a way of achieving worldwide prestige and recognition for the Crown of Spain.

In this sense, the Tummers report indicates that sponsorship is "a form of modern patronage and adapted to today's economic structures", which is the same as saying that patronage does not pursue the advertising purpose that is nevertheless sought in the sponsorship contract.

All in all, the aforementioned evolution has not caused, as we all know, the disappearance of traditional patronage, but rather quite the opposite, as demonstrated by the Spanish VATTIER FUENZALIDA in his work on exegesis of the Foundations Law, in which they recognize at least four different assumptions of patronage.

Consequently, due to the coexistence of the two figures, in our opinion it is convenient to clarify as clearly as possible the concept and the features that characterize them in order not to confuse both assumptions.

Approach to the concept of sponsorship

As we have just pointed out, with the conceptual delimitation being always important, in our case it is essential, since sponsorship can not only give rise to different meanings in itself, but also, and systematically, tends to be confused with other assumptions. The very use of the term is disputed and the doctrine has stated that "we have the words like sponsorship and patronage that very faithfully translate the Saxon concept of sponsoring and that make the use of the English term totally unnecessary".

In our opinion, the term sponsorship may be debatable, in a burst of linguistic purism, since the richness of our language allows us to find the appropriate translation. But it is clear that their translation is not that of sponsorship or patronage, which identifies another legal reality, but that of advertising sponsorship or even that of business sponsorship, which does not lead to misunderstandings about the nature of the legal business carried out. In Italian doctrine the terms "sponsorizzazione" and "sponsorship" or "mecenatismo" are used. While the former is considered as an act of commerce linked preferably to sport, the latter ("sponsorship" or "patronage") are classified as acts of liberality that may pursue non-exclusively commercial ends, such as the protection of artistic goods, architectural,etc., to achieve an improvement in the image of the benefactor. However, in practice, the differences between the two figures are not as clear and clear as it might seem at first sight, being often impossible to keep the meaning of both expressions out of line.

In French doctrine, a distinction is made between “sponsoring” and “mécénat de d´entreprise”. In France the Anglo-Saxon terms "sponsor" and "sponsoring" are also used. But the use of these neologisms has been prohibited in the official documents of the Public Administration. Hence, the Council of the French Academy of Language proposed to replace them with the terms “parían” or (“commandataire”) and “parrainage”. However, in practice, despite these restrictions, those voices are used frequently. There was a sentence rejecting the use of the name sponsoring and recommended that of parrainage publicitaire.

In England the terms "sponsorship" and "patronage" are used, in correspondence with the French words "sponsoring" and "mécénat d´entreprise" and the Italian words "sponsorizzazione" and "sponsorship" (or "patronage". TOWNLEY and GRAYSON define the “sponsorship” in this way: “Sponsorship involves a commercial relationship, mutually accepted between two or more parties, in which one of them (sponsor) seeks to promote the image of your company, its products or services by associating itself with a person individual, already with your event (subject or sponsored event) ”.

In American doctrine the terminology is more complex. This is how we speak indiscriminately of "patronage", "philantrophy", "grant-making", "giving", "gift", "support", "sponsorship", "underwriting", "contribution", "donation", etc. And, as a consequence, the terms "donor", "patron", "funder", "sponsor", "underwriter" are also used. The term "sponsoring" is used in the television sector and associated with sports; the voice "patronage" is associated with the arts; and the term “underwriting”, which comes from the insurance and advertising industries, is used above all in cases of sponsorship of television programs. Anyway, the referred voices are used, vulgarly, in an interchangeable way, without too many claims of precision.

In Spain, to designate the person who provides financial aid to carry out sports, charitable, cultural, scientific activities, etc., in return for the advertising collaboration that the beneficiary of the aid must provide, various words are often used: " sponsor ”,“ patron ”,“ philanthropist ”and“ sponsor ”. As an example, we note that in the Dictionary of the Royal Spanish Academy, sponsorship is identified as "protection, protection, help"; and the sponsoring voice with “defend, protect, protect and favor”, however the new edition already contains the voices sponsoring and sponsoring, although the latter is related to “sponsoring”.

In our research we will choose most of the time to refer to the sponsorship contract and, sometimes, to advertising sponsorship.

In addition, the concept should be specified, since, on the one hand, sponsorship, as such, refers according to international doctrine to two different realities, depending on whether the phenomenon occurs in the field of international trade or in that of advertising. We are facing international sponsorship when a company, generally a multinational, contracts with the government of an undeveloped country to carry out what is usually known as a joint venture, for which it will charge a commission. Supposedly we put aside because their legal problems are foreign to our reality, unless otherwise agreed.

And on the other, let us remember that the sponsorship contract that interests us is the one that also arises between a company and a person - physical or legal - or a group or even an entity to finance an activity of a sporting or cultural nature, with the order to advertise. It is the company that through the delivery of aid becomes the sponsor of the person or activity to be carried out. In exchange, the recipient, the sponsored, agrees to carry out the financed activity and, in addition, to make known to the public which company has made it possible.

This is the most common assumption of sponsorship and the one that forces us to specify as closely as possible the reality to be dealt with, since this figure, being quite new, presents the particular problem that its contours tend to be confused with others, much less new, that exert on that great power of attraction. I refer to patronage or sponsorship, that other form of promotion of activities of the so-called civil society.

Within this reality, it has been highlighted by the most specialized doctrine in the matter that the conceptual delimitation of both assumptions - sponsorship and patronage - exceeds being a purely terminological question, as we will have occasion to see, since it deeply affects nature business and therefore involves a basic issue, which we must define as a preliminary matter.

• Sponsorship and related figures

All in all, it is convenient to delimit the sponsorship contract not only of the traditional patronage, which we are going to deal with in more detail, but also -although briefly- of a series of close and more unknown figures, such as partnership, merchandising, product placement and advertising insertion.

• Sponsorship and partnership

Through this contract, a company and a sports club agree that the former will give an amount of money to the latter, which, in turn, will allow the use, for advertising purposes, of certain activities or places within its competence. However, what differentiates it from the sponsorship is that the participation of athletes and the commercial exploitation of their image is excluded from the agreement.

• Sponsorship and merchandising

The merchandising phenomenon is as recent as that of sponsorship, and together they make up that group of atypical contracts known as “new contracts”. The term is already suggestive in itself because it refers directly to commerce and consists of the granting of a license for the manufacture, marketing and distribution of products of a certain type, with the emblem, logo, image or any other sign of the sponsored. It is about the commercialization of the distinctive sign of a person that, due to their personal or professional characteristics, serves as an advertising claim for consumption.

• Sponsorship and product placement

The line of division of the two figures is so fragile that there are authors who consider product placement as one more species of sponsorship. This is a form of hidden advertising since it consists of the sample of a certain product in a show, in a film or in a cultural event, without being easily recognizable, since it is not advertised, but appears as a consumer product. The most eloquent example is that of the Arman that Richard Gere wore in American Gigolo, although this hidden way of advertising while financing a television program is increasingly common among us. As COSTANZA has stated, “sponsorship is close to hidden advertising,or to that form of advertising in which a good or a product is shown in particular circumstances in a way that makes it appealing to the consumer ”.

The note that distinguishes both phenomena is that of the ability to recognize advertising, evident but indirect in sponsorship, difficult in the second, to the point that it may seem like something fortuitous. Product placement is shown as a form of advertising in the absence of specific regulation.

• Sponsorship and testimonial

The contractual figure of the testimonial, widely disseminated in the United States, maintains important differences with the sponsorship. We are before a testimonial when a famous person, in exchange for an amount of money, makes public statements about this or that product, implying expressly or implicitly that he uses it. This is another way of advertising by marketing the image of a famous person that differs mainly from that of sponsorship in that in the first, advertising is not done at the same time as the activity for which one is a known person, but directly the product is advertised. It is noteworthy that in the United States there is a very specific regulation of this contractual modality to protect consumers,After the well-known case of singer Pat Boone and the Federal Trade Commission, it has been established that in this kind of "sponsored advertising", everything that is claimed must be based on personal experience in using the product. Otherwise it will be considered as misleading advertising.

• Sponsorship and advertising insertion

In advertising insertion, the businessman seeks the dissemination and advertising promotion of his products through the mass media and the like. Newspapers, newspapers, radio and television, notices and signs placed on public roads, are direct means of advertising, so to speak, typical and common. In this case, the economic agent contracts a space (in the printed media and posters) or a time segment (on radio and television) to reach the consumer.

The links and the path taken in advertising insertion are, in some way, more numerous and longer, respectively. In effect, the businessman contracts with an advertising agency so that it is who devises the campaign; contract with the actors who will lend their image in the realization of the spots; and ultimately contracts with the owners or dealers of the mass media. In this journey, in addition, the businessman has invested large sums of money to know how to reach consumers, creating, when it does not exist, the need to acquire the good that it produces.

There are other cases of advertising insertion that have less life. Thus, the spaces that are taken up by the businessmen in the places where events of great concurrence take place.

Advertising insertion is also a theory that seeks through it to explain the legal nature of the sponsorship contract, however, this theory aims to reduce the phenomenon of sponsorship to the simple temporary granting of an advertising space.

In short, as can be seen, the sponsorship contract maintains similarities with other equally novel advertising contracts, but differs from all of them in its essence or in its most particular characteristics. On the contrary, where the doctrine that has studied the subject has found more difficulties has been with the well-known patronage figure, which leads us to show another characteristic of problematic reality.

• Sponsorship and patronage

The contrast between the figure of the patron and the sponsor is at first sight diffuse and, in our opinion, sometimes deliberately provoked, since it is easy to see how in the advertising and business fields the expressions sponsorship and patronage and There is talk of advertising or business sponsorship, as well as company patronage, when referring to a reality such as that of sponsorship, whose profile has features that distinguish it from the figure of patronage, as we will analyze below.

In this sense, as soon as the matter is deepened, doubts about the identity of both figures dissipate. It is relatively easy to see that both phenomena have common characteristics, but aspects that clearly differentiate them are also appreciated. In fact, in our view there are two phenomena that must be distinguished: patronage or sponsorship, and sponsorship or advertising or commercial sponsorship. Let's see what distinguishes the subjects who deliver the aid.

Broadly speaking, taking into account the subjective aspect, the sponsor is the one who finances the activity of athletes, artists, organizes art exhibitions or television programs, in order to advertise. It is increasingly common, also that through the sponsorship the rehabilitation of the historical artistic heritage is financed, which is known as cultural sponsorship. This activity the company is channeled through the sponsorship contract. Therefore, sponsor is the company that provides the aid. We are, as has been pointed out before a “commercial operation and a special contract”. As GOBIN affirms, "the sponsor's essential motivation is to make his name or his trademark known".

We have just defined the sponsor; For its part, patron is one who gives a free attribution to promote or protect certain activities related to the arts, literature and culture in general, without any commercial purpose, since the contract does not go beyond the parties. In this sense, the Tummers Report is pronounced, which has defined the patron as "who provides economic means to an artist or cultural organization, without seeking personal advantages." For his part, GOBIN states that "les mécènes sont ceux qui, sans but lucratif, consacrent, en toute liberté de choix et d´intervention, leur temps, leur argent, ou les deux à la fois, à la création artistique, à son épanouissement, à sa protection ”

Speaking of patronage, in Peru, Víctor Delfín, who chairs the National Culture Commission, is gathering information on cultural patronage to propose a draft law to encourage culture.

This Commission has formed a working group, this Executive Committee is made up of Fernando Bryce Vivanco, José Carlos Mariátegui and Natalia Majluf.

Among us, whoever wants to make a donation has to pay 18 percent of IGV.

Below we present a table of the companies that sponsor the cultural theme in Peru:

BUSINESS	SPONSOR
BACKUS CORPORATION	- Through an agreement with the National University of Trujillo, it finances the enhancement of the Dacha de la Luna. - Laboratory for the Restoration and Conservation of Metals of the Brunning Archaeological Museum of Lambayeque. - Promotion of the Peruvian horse of passage in agreements with the universities Pedro Ruiz Gallo de Chiclayo and Universidad Agraria de La Molina. - Collection "Culture and Arts of Peru" with the publication of the books "Acho: altar de arena", "Sipán", "Perú, Fiestas y costumbres", "Calendar of Peru", etc. - Support for the recovery and restoration program of pictorial works at the Art Museum, where Backus is part of the Board of Trustees.
BANCO WIESE SUDAMERIS	- Culture Rooms in Trujillo, Lima, Arequipa and Cusco. He has recovered the Casa de Mayorazgo de Facalá in Trujillo and the Tupac Yupanqui Palace in Cusco. - The contests of the Diego Quispe Tito School of Fine Arts and the Craft Contest “El Santurantikuy”, in Cuso, annually sponsor the competitions; and in Trujillo it co-sponsors the National Coca Cola Painting Competition. - Supports the El Brujo Archaeological Project in Trujillo.
COCA COLA	- The Corporation has created the Inca Kola Foundation with an annual investment of $ 300,000. The objective: to promote interculture Among other activities, it will publish books in Quechua, Aymara and Amazon languages ​​to distribute them in rural and marginal schools on the coast, mountains and jungle. - National Coca Cola Painting Competition in Trujillo. It sponsors the Cultural Association Art to Grow. It sponsors the Latin American Film Meeting of the Cultural Center of the Catholic University. Cooperator of the National Museum of Archeology. Cooperator of the Brunning Museum in Lambayeque.
TELEPHONE FOUNDATION	- Restoration of the Cathedral of Cusco. Approximate investment 1 million 200 thousand dollars. - Annual Art Exhibitions in his gallery and in the Art Museum of Lima. - Telephone Plastic Arts Contest (in process of improvement). - Publications of art, archeology, history. - On the Internet it has the Virtual Peru Cultural Center. - Edits CD ROM in multimedia formats: “Chavín” by Luis Lumbreras; "The Incas" by María Rostworowski; and "The Inca city of Cusco", by Santiago Agurto, among others.
BBVA FOUNDATION CONTINENTAL BANK	- Sponsor of one of the contests of the Silver Board of Peru in Cusco. - Galleries in Cusco (Casa Cabrera), in Trujillo (House of Emancipation) in Iquitos and in Lima. - Los Mochicas Exhibition at the Lima Gallery (Esq. Larco and Tarata) until December. - Publication of academic texts.

• Inapplicability of article 1428 to the sponsorship contract.

In the terminology of our Civil Code it is accepted that one of the characteristics of the sponsorship contract is that of a reciprocal benefits contract, where one of the parties, the sponsor, agrees to make a benefit (to give or to do) in favor of the sponsored, in exchange for benefits of active or permissive type predetermined by the same sponsor.

To that extent, it seems feasible to apply the regime on this type of contract provided for in the aforementioned Code in articles 1426, 1427, 1428, 1429, 1430, 1431, 1432 and 1433.

However, given the way in which the benefits charged to both parties are usually executed, the eventual application of art. 1428 of the Civil Code (relative to the exceptio non adimpleti contractus or exception of a breached contract), could require some precision.

In effect, the sponsor who finances the activity of public scope of the sponsored person (by means of the delivery of sums of money), or provides him with goods or materials useful for the execution of that activity, first fulfills his provision. In turn, the sponsored person carries out the work that is his / her own and habitual by exhibiting or bearing the name, brand or other sign of the sponsor. However, this obligation is always fulfilled at a later time.

Including, in the event that the sponsored is obliged to other benefits (allow the use of his image, of the statements made on the products or goods of the service, etc.), the execution does not coincide in time with the obligation that concerns the sponsor. In other hypotheses, in addition, the sponsored can record spots -which will be broadcast by the sponsor- before receiving the sponsorship. But here they do not run simultaneously either.

This would seem to indicate that the assumption that both parties to the contract are obliged to fulfill their services at the same time is rare configuration, making the application of art. 1428 of the Civil Code.

• Wrongly applied as a service provision contract

Due to the extensive wording of art. 1757 of the Civil Code, the operator could fit this figure into service provision contracts, due to the absence of an ad hoc legislative treatment for this contract.

The aforementioned article if it says “also” is because article 1756º refers to the modalities of the provision of services nominated for the Civil Code: location of services, work contract, mandate, deposit and kidnapping.

However, it is difficult to apply arts sponsorship to the sponsorship contract. 1758, 1759 and 1762, given the nature of the agreement.

On the other hand, the obligation of the sponsored may also be a provision of not doing (pati), such as tolerating that the sponsor makes use of the image or name of the sponsored, or allowing, without demanding any other additional consideration, that Promote your company or products with the quality of official sponsor of a certain event.

In this section we follow the national author VEGA who affirms: “it is inconsistent to maintain that, if the obligation assumed by the sponsored is to make a clear allusion to the sponsor (preparing television sets or placing posters with the name of the sponsor), - which indicates an indisputable provision to do at your expense - in this case, art. 1757 of the Civil Code, since then the sponsorship contract would be classified as a modality of the provision of services, while in other hypotheses - such as the one described in the previous paragraph, in which the provision is a no-do - the contract of Sponsorship would not be properly framed within the categories of service provision provided in the Code ”.

And it is that, beyond this impossibility of finding a classification in which the sponsorship contract is framed, we are –he tells us- facing a pure atypical contract, due to the novelty of benefits that it involves.

The doctrine, which has devoted so much effort to devising a method of applying the rules of typical contracts to atypical contracts, has proposed various options, depending on whether it is a pure typical contract, that is, with entirely new elements, whether it is a mixed atypical contract, that is, an agreement that involves elements similar to those of some typical contracts, which concur with elements unrelated to any regulated figure within the respective legal system.

For mixed atypical contracts the absorption and combination methods have been formulated. According to the first, it is necessary to determine which is the main benefit contained in the mixed atypical contract to apply the typical contract regime that contemplates said benefit as the one that characterizes and distinguishes it from the others. According to the combination method, since it is not always possible to establish which is the main benefit in a mixed atypical contract, with the risk of subordinating duties that are equally important, it is more appropriate to apply the treatment of the contract individually to each benefit. typical that gives rise to an equal debit. However, it would be extremely difficult, if not improbable, for such an application to be peaceful and free of serious obstacles,to the point of invoking incompatible or contradictory rules.

For this reason, in German doctrine - which has been at the forefront of this topic - the prudent use of analogy has been suggested, in order to avoid conclusions at odds with the nature of the mixed atypical contract.

In the case of pure atypical contracts, on the other hand, the option of resorting to analogy has slipped, for which it is essential to identify the typical contract regime that is closest to them.

However, the atypical nature of this contract is not without serious setbacks, mainly because there is no contractual figure within the Civil Code that is close enough to deduce from it the discipline that is closest to it.

The fundamental thing is that, given the collaboration bond of the parties, from which the most varied benefits may come from the sponsor, and taking into account that all of them point towards a single objective, that is, the advertising return in favor of the sponsor, it should be noted that there is a single cause and not a plurality of causes, as happens in the so-called linked contracts.

The sponsorship function, therefore, is assisted by a myriad of behaviors of the most dissimilar that makes any attempt at uniformity difficult to analogically apply the rules of some or some typical contracts.

Through Resolution No. 009-2002 / CCD-INDECOPI of 01/30/02, file kept by The Coca-Cola Company (complainant) against Pepsico Inc. Peru Branch (Pepsico), Bebidas La Concordia SA (La Concordia) and Embotelladora Rivera SA (Rivera), for alleged infractions to the principle of non-denigration contained in article 7 of Supreme Decree No. 039-2000-ITINCI, Single Ordered Text of the Norms of Advertising in Defense of the Consumer.

The complaint was filed as a result of an advertising campaign by Pepsico in the Program called "R con R" conducted by Mr. Raúl Romero. Mr. Romero during the “Sing and Win” sequence on April 9,11,16, 2001 made statements about the suitability and quality of the products that competed with the “Pepsi” drink, the same as having been broadcast in a segment sponsored by Pepsico and La Concordia would constitute a reality publicity as a consideration derived from the sponsorship or sponsorship contract existing between the accused (the emphasis is ours).

When Pepsico made the releases, it stated: " Pepsico entered into an advertising service provision contract with Panamericana Televisión SA - hereinafter Panamericana-, for the purposes of promoting the product" Pepsi "in the" R con R "contest program, since Pepsico The right to control and / or supervise the claims that Mr. Romero made on his own initiative had not been reserved. ”

As we can analyze from the text reproduced from the Resolution, that contract is called as such, this being an advertising insertion contract (note, insertion is different from sponsorship), however, the Commission classifies the contractual figure poorly. This is our interest in making it very clear that although the sponsorship contract and the service provision contract have similarities there, they are not the same; And, the operator does wrong in trying to persist in this purpose, which does nothing else, than, harm this contractual figure.

In Part III corresponding to the Analysis of the controversial matter, it is indicated “the claims of the complaint regarding the returnable plastic containers for soft drinks have been released by Mr. Romero during the sequence that is sponsored by Pepsico”, it is clearly at least, that we are facing a sponsorship contract.

The Commission, analyzing the responsibility of Pepsico, states: “According to the complainant, the claims that were the subject of analysis would have been disseminated within the framework of the advertising campaign for the 2 ^1/4 liter “ Pepsi ”product; being that Mr. Romero would have made them as a consideration derived from the existing sponsorship or sponsorship contract among the accused ”

In this regard, Pepsico stated that: "Pepsico Inc. Peru Branch entered into an Advertising Services Provision contract with the company Panamericana Televisión SA (…)

Under the aforementioned contract, Panamericana Televisión SA was obliged to provide advertising services in favor of (sic) our company, granting us the right to transmit advertising notices to promote our product within the “R con R” program in the “Sing and Win” segment. (…).

As it is clearly appreciated, our relationship is with the medium and not with the television entertainer and in no way do we reserve the right to control or supervise his personal initiatives (from Mr. Romero), as was the reference to returnable packaging (…).

(…) We reject the alleged condition of advertisers in relation to the statements made by Mr. Romero, since they were not part of our campaign, nor were they advertising in nature, and even less did they originate or be linked to any Pepsico instruction.

By proving that there is no causal link between our conduct and the commission of the alleged violation (…) our company is not responsible for it (…) ”

The Commission referred in the following terms: “Finally, regarding the requirement referring to the existence of a link between Pepsico and the dissemination of the allegations that are the subject of the complaint, we must point out that, from the existing evidence in the file, specifically the contract for the provision of advertising services held between this company and Panamericana Televisión, it has been established that the accused contracted the dissemination of advertising spaces for the "Pepsi" product to promote said product within the "R con R" program in the "Sing and Win" segment.

• Breach of benefits

Let us see, if the obligatory relationship does not unfold regularly and the phenomenon of non-execution is entered, it is necessary to distinguish the supervening impossibility from non-compliance. The aforementioned impossibility, in addition, may be due to some of the parties or occur without their fault.

The lack of compliance on the part of the sponsor does not present, in reality, great difficulty for the interpreter, except that the faulty performance of the provision incumbent on it causes serious damage to the sponsored party, but, in any case, the issue of compensation for damages.

Greater importance is presented when we are faced with the frustrated satisfaction of the sponsor's interest as a consequence of the lack of execution of the service provided by the sponsored party.

It is worth reiterating, once again, that the sponsor is not a creditor of the public outreach activity that is usually carried out by the sponsored. In the case of sports activities, the athlete is the debtor of the organization that has hired him. In the case of cultural or artistic activities, the organizers generally carry out the event independently. On the other hand, it is known that the creators and producers of television programs do not bind themselves to the sponsor of the performance of the show. Not even the driver - who may be a person other than the producer - owes his behavior to the sponsor (but to the producer).

As has been pointed out, the purpose of the sponsor is to take advantage of the activity of the sponsored person to send signals to consumers.

By virtue of this clarification, it is evident that the impossibility or the lack of execution of the habitual activity of the sponsored, when both are imputable to him, lead to the non-fulfillment of the benefits that he assumed in front of the sponsor. If the environment has not been created for the display or communication of the messages that ensure the advertising return, it is obvious that the sponsor does not receive anything in return and will be able to try the repair action.

The hypothesis of non-compliance will be different when it is verified despite the execution of the ordinary and habitual activities of the sponsored. This happens when the latter does not exhibit or does not expose -and I am referring to the basic obligations in his charge- the name, the brand, etc. of the sponsor, when he carries out the sporting, cultural activity or the television show, without justification.

The phenomenon of non-compliance, however, is not as simple as it might seem at first glance. When the doctrine refers to this issue, it starts from a broad concept of non-compliance, considering it as a synonym for any violation of the legal duty that weighs on the obligor; In this line, BELTRÁN DE HEREDIA Y ONÍS believes it advisable to extend the limits of non-compliance to the maximum in order to include within it the various situations that may occur in the daily life of obligations

The sponsored subject may be an organization of the most diverse nature, the same that, in turn, may have people under its charge who, individually considered, have no link with the sponsor.

This possibility occurs, for example, when the contract has been concluded by a football association and a certain company. Faced with this assumption, a series of questions arises that should be asked in order to know what is the scope of the responsibility incumbent on the sponsored party for not having complied with the "advertising return" that it owed to the sponsor.

A first question arises if - within the proposed case - one of the players from that football association goes out onto the field of play with clothing in which the name of the sponsor is not displayed. Does this non-compliance suppose that the non-execution is attributable to the sponsored organization?

Likewise, if the host of a television program, which has been instructed by the organizers to repeatedly mention the name of the sponsor and urges the audience to show the product delivered by the sponsor and, when the time comes, does not comply, Who should answer ?.

In this regard, it must be taken into account that for the creditor it is completely irrelevant that the activity that makes the advertising return possible is carried out by the organizer himself or the people he uses. If it is possible - and even indispensable - for the organizer to have the participation of third parties, with whom the sponsor has no connection, said intervention goes even further than the theory that postulates the equivalence of behaviors between the debtor and third parties (assistants, assistants, etc.), since the sponsor (like the organizer) knows, from the beginning, that the activity will not be carried out by the sponsored directly, but through other people.

Nor is it important that there be a relationship of subordination or dependency between the organization and the subjects that carry out the activity of public scope.

The sponsored organizer is, in all cases, the one who is in the best position to determine what is necessary and how the advertising return must be met. The sponsor cannot exercise any control over the third parties that the organization hires.

Hence, the lack of compliance could be claimed to the sponsored, that is, to the organizer of the event, without prejudice to the action of return that he tries in front of the subject of which he served.

It would be unfair to accept the allegation of the (sponsored) organizer in the sense that he was not the one who has failed to comply, since then the sponsor would be obliged to pursue a remedial action against a third party - dependent or not on the sponsored - with whom he does not have any relationship. The action that the sponsor would have to try, in this case, would be due to Aquilian or non-contractual liability, which would subject him to all the consequences of the regime of this source of liability (highlighting a shorter statutory period than that of contractual liability). To this it would be added that the sponsored person would be in an advantageous situation since it would suffice to affirm that he used a third party to free himself.

The possibility of agreeing solidarity between the organizer and the people he uses, in front of the sponsor, seems, moreover, irrelevant and unnecessary.

The sponsor may claim the responsibility of the sponsored organizer, under article 1325 of the Civil Code. As said, it is not at all important that third parties are dependent or not on the sponsored.

The limits of the resolution clauses

Here we must make some clarifications, the breach of a certain duty of provision may give rise to the resolution on the basis of a resolution clause included in the contract, provided that such lack of execution has been determined to exercise the power to extinguish the binding bond that way.

In the sponsorship contract, the cases of total non-compliance or defective compliance that does not guarantee an effective advertising return, provided by the parties to exercise the resolving power, may not be entirely peaceful.

For example, in the case of a television program, the sponsor may agree that it reserves the right to terminate the mandatory relationship if the tuning or "rating" has dropped significantly. To avoid doubts about the popularity of the show, the best thing is that both parties designate, jointly, the company that would be in charge of carrying out the survey or poll. But what happens if the sponsorship has been granted to a sports squad, can the resolution be agreed if, for example, it is relegated from a championship and, therefore, "loss of division"? As it is easy to see, the results of the tournament cannot be guaranteed by the team or by the organization. But, despite the fact that the sponsor is not a creditor of the habitual activity of the sponsored,The latter can commit to carrying out the work that is incumbent on him with the greatest effort, so if it has been agreed that the loss of division will give rise to the sponsor being able to exercise the resolution, it seems that there would be no obstacle for him to terminate the link. The advertising return would not be the same if the squad has lost category, which would be detrimental to the expectations of the sponsor.

If, on the other hand, the sponsorship contract has been concluded with an athlete, can their poor performance or suspension, and even illness, entitle them to resort to resolution?

It should not be forgotten that, in any of the proposed hypotheses, the sponsored has been complying with exhibiting or bearing the name, brand, etc. of the sponsor, so that the advertising return has been, until then, a reality. That is, the athlete has been compliant for a certain time. Regarding this particular example, VEGA tells us that poor performance, suspension or illness (not attributable) are not, per se, grounds for termination, but, if their eventual inclusion in the contract is discussed as such, we must confess that we find a strange pact. Suspensions, moreover, may be due to the vicissitudes of the activity itself, which escape any good intention and any foresight (even if the sponsored person promised to observe respectful and regulatory correct behavior).The assumption of illness seems contrary to any stipulation in this regard. The low performance, in turn, depends on so many factors that it is complex to give a sure answer.

However, the parties are the ones who configure the benefit plan in charge of the sponsored and they are free to stipulate the clauses that they consider appropriate to their interests. However, none of them should be at odds with the elementary principle of good faith.

A possible cause for resolution may be the triggering of a public scandal by the sponsored party. Although no one can rule out that perhaps with this event, the advertising return would be more effective and, therefore, the demand for sponsor products would increase.

Reparation of damages in case of default

One of the most complex topics of the sponsorship contract arises when the damages caused by the failure of any party must be repaired.

If the sponsor fails to provide financing or goods or clothing to the sponsored, it will be necessary to analyze the significance of the non-execution.

The payment of the emergent damage seems to present no greater difficulty, something that does not necessarily occur in the case of the repair of lost profits.

The determination of the quantum for the failed profit must be based on the effects of default. If it does not affect in a capital way the habitual activity of public scope of the sponsored (which only sought to reduce certain costs, but which can be met directly by him), the compensation can be set on a more affordable guideline. But if the activity itself is frustrated, the problems can be serious.

Indeed, how to determine the profit that was frustrated for the sponsored? Reference or consultation of past experiences can help in some way. If this is not possible, art. 1332 of the Civil Code.

I believe that the same would happen in the event that the non-compliant is the sponsored, since although the emerging damage suffered by the sponsor can be determined, the lost profit is difficult to quantify. This is so because it is not possible to know with certainty what the concrete results would have been in the increase in the demand for goods produced by the sponsor if the "advertising return" had been met.

Given the difficulty in applying safe criteria, it is advisable to include criminal clauses that guarantee reparation of the damage, without ruling out the subsequent damage agreement in the event that the sponsor is able to demonstrate the quantum of the damage that would have been suffered. for the failure of the sponsored.

• We consider that the contribution of our study will consist of: contributing and increasing to national doctrine the few studies that have been carried out on the sponsorship contract; Thoroughly study the sponsorship contract following the classic system of the contract; explain the phenomenon of sponsorship and its importance as a communication tool for business promotion modality; distinguish the sponsorship contract from other related contractual figures; in particular, patronage; specify the inapplicability of article 1428 of the Peruvian Civil Code; distinguish and differentiate between the sponsorship contract and the service provision contract;demonstrate the usefulness of typifying the sponsorship contract and the elaboration of a normative proposal for the incorporation of the contract into the Peruvian legal system.

BIBLIOGRAPHIC REFERENCES

• ARIAS-SCHREIBER P. Max et al. (1999). The sponsorship, sponsorship or sponsorship contract. In his modern contracts, (pp. 369-403), Lima: Gaceta Jurídica. 510 p. ARIAS-SCHREIBER P., Max and GUTIÉRREZ C., Walter (2001). Advertising contracts. In his The Contractual Technique, (pp. 449-462), Lima: Gaceta Jurídica. T.II.ARNAU R., Lidia (2001). The advertising sponsorship contract, La Ley, Madrid, 407 P. BELTRÁN DE HEREDIA Y ONÍS, Pablo (1990). The breach of obligations, EDERSA, Madrid, 137 p. BIANCA, Mirzia (1990). I contratti di sponsorizzazione, Maggioli, Rimini, 362 p. BISCONTINI, Guido (1992). Onerosità, corrispettività e qualificazione dei contratti: il problema della donazione mista, Edizioni scientifiche italiane, Napoli, 239 p. CHULIÁ VICENT, Eduardo and BELTRÁN ALANDETE, Teresa (1995). Legal Aspects of Atypical Contracts, Bosch, Barcelona, ​​T.II.; CORREDOIRA AND ALFONSO, Loreto (1991). Patron on screen. Sponsorship of television programs, Ediciones del Drac, Barcelona, ​​116 p.COSTANZA, Maria; BARILLI, Domenico and GIORGI, María Vita de (1989). Sponsorizzazione e pubblicità. Atti del Convegno di Parma, 15 April 1988, IPSOA informatica, Milano, 154 p. DE GIORGI, Maria Vita (1988). Sponsorizzazione e mecenatismo, CEDAM, Padova, 176 P. TEN-PICAZO AND PONCE DE LEÓN, Luis M. (1996). Fundamentals of Civil Heritage Law, 2nd ed., Civitas, Madrid, Vol I. and Vol. II.; 912 and 516 p. TEN-PICAZO AND PONCE DE LEÓN, Luis M. (1995). The sponsorship contract. IPEF Legal Review of the Peruvian Institute of Forensic Studies, Year II No. 2, Lima, 1995, pp. 43-49 ESPINOZA E., Juan (1999). Notes about the sponsorship contract. Legal News Section. Legal Gazette. (71-B), 41-49 ESPINOZA E., Juan (2000). Sponsorship contract. In H. Huayanay, Contracts (pp. 439-456), Lima: RAO.GALGANO, Francesco (1998). Contract and print: dialoghi with the giurisprudenza civile e commerciale, CEDAM, Padova, 134 p.GALGANO, Francesco (1996). Encyclopedic Dictionary of the Spirit, CEDAM, Padova, Vol. I (AL) and Vol. II (MZ); 926 and 928-1570 p. GHESTIN (1992). I tried civil droit. Les obligations. Les effects du contrat, Libraire Generale du Jurisprudence, Paris, 1048 p. GOIN, ​​Alain (1987). Le Mécénat: histoire, droit, fiscalité, Enterprise Moderne d'Édition, Paris, 223 p. JUAN DE ANDRÉS, Amado (1993). Patronage and sponsorship: the keys to marketing in the 21st century, EDITMEX, Madrid, 202 p.LANDABEREA UNZUETA, Juan Antonio (1992). The Sports Sponsorship Contract, Aranzadi, Pamplona, ​​240 p. LORENZETTI, Ricardo L. (2000). Outline of a systemic contract theory. In AAAlterini et al., Contemporary Contracting. General Theory and Principles (pp. 15-46), Lima: Palestra and Bogotá: Temis. The cultural patrons. The Sunday. Trade. Cultural News Weekly, Year 49 No. 188, September 22, 2002, pp. 14-16 Much more than t-shirts: the sponsor market grows in the country. Business, Mercados Consultora y Publicaciones SA., Year 2 No. 7, April 1995; pp. 60-63 PLAT PELLEGRINI, Véronique and CORNEC, Alain (1987). Sponsoring: Le parrainage publicitaire, 2nd ed., Delmas, Paris, 181 p.ROSOTTO, Riccardo and ELESTICI, Claudio (1994).I contratti di pubblicità: il contratto di agenzia, il contratto di sponsorizzazione, Giuffré, Milano, 284 p.SLEIGHT, Steve (1992). A new and effective marketing system, McGraw Hill, Madrid, 237 p. ZYBOWICZ, André and MAGISTRALI, Sylvié (1990). Sponsorship and patronage, Gestion 2000, Barcelona, ​​134 p.TOWNLEY, Stephen and GRAYSON, Edward (1984). Sponsorship of Sport, Arts and Leisure: law, Tax and Business Relationships, Sweet & Maxwell, London, 333 p. VEGA M., Yuri. (nineteen ninety six). Sponsorship or sponsorship contract. In his Private Law, (pp.249-268), Lima: Grijley. I. VICENTE DOMINGO, Elena (1998). The sponsorship contract, Civitas, Madrid, 192 p. VIDAL PORTABALES, José Ignacio (1998).The advertising sponsorship contract in Spanish law, Marcial Pons, Madrid, 258 p.

VICENTE, The Sponsorship Contract. Civitas, Madrid, 1998, 151.

ARIAS-SCHREIBER P. Max et al. (1999). The sponsorship, sponsorship or sponsorship contract. In his Modern Contracts, (pp. 369-403), Lima: Gaceta Jurídica; ARIAS-SCHREIBER P. Max and GUTIÉRREZ C., Walter (2001). Advertising contracts. In his The Contractual Technique, (pp. 449-462), Lima: Gaceta Jurídica. T.II; ESPINOZA E., Juan (1999). Notes about the sponsorship contract. Legal News Section. Legal Gazette. (71-B), 41-49; ESPINOZA E., Juan (2000). Sponsorship contract. In H. Huayanay, Contracts (pp. 439-456), Lima: RAO; VEGA M., Yuri. Sponsorship or sponsorship contract. In his Private Law, (pp.249-268), Lima: Grijley. 1996. IT

VEGA, op. cit., 259.

GALGANO, Encyclopedic Dictionary of the Spirit. CEDAM, Padova, 1996, Vol. II., 1534

JUAN DE ANDRÉS, Patronage and sponsorship: the keys to marketing in the 21st century. EDITMEX, Madrid, 1993, 9

Vine. Much more than t-shirts: the sponsor market grows in the country. Business, Mercados Consultora y Publicaciones SA, Year 2 No. 7, April 1995; pp. 60-63

FRANCESCHELLI, I contratti di sponsorizzazione. Giurisprudenza commerciale, Year XIV, Giuffrè, Milano, 1987, TI, pp. 291 et seq.

INZITARI, Bruno; «La sponsorizzazione» in COSTANZA, Maria; BARILLI, Domenico and GIORGI, María Vita de; Sponsorizzazione e pubblicità. Atti del Convegno di Parma, 15 April 1988, IPSOA informatica, Milano, p. 248

GOBIN, Le Mécénat: histoire, droit, fiscalité, Enterprise Moderne d'Édition, Paris, 1987, p. 67

PLAT PELLEGRINI, Véronique and CORNEC, Alain; Sponsoring: Le parrainage publicitaire, 2nd ed., Delmas, Paris, 1987, p. 13

V.gr., SZYBOWICZ, André and MAGISTRALI, Sylvié; Sponsorship and patronage, Gestion 2000, Barcelona, ​​1990, p. 16. “The problem of the meaning or the different interpretation between patronage and sponsorship… the difference is so negligible… that we will use indifferently: patronage, sponsorship, sponsorship, collaboration…”.

JUAN DE ANDRÉS, op.cit., P. 2. 3.

GIORGI, Maria Vita de; Sponsorizzazione e mecenatismo; CEDAM, Padova, 1988, p. 9

SINGLE ORDERED TEXT OF LEGISLATIVE DECREE Nº 691 ADVERTISING RULES IN DEFENSE OF THE CONSUMER. Article 9.- Tobacco television and / or radio announcements must be broadcast within a time period between zero hours and six in the morning. Advertising of high alcoholic beverages and tobacco, whatever the media used, should always be directed at adults and should not give the impression that its consumption is healthy or necessary or convenient to achieve personal success. or social acceptance.

Advertisements for erotic content phone calls for adult entertainment should always be directed at adults. The diffusion of this type of announcements is only allowed in written press of restricted circulation for adults and, in the case of radio and / or television, within the hours of zero hours to six in the morning. In all cases, the advertising of these services must clearly indicate the destination of the call, the rate per minute, the time it is applicable, the identification of the advertiser and the advertising agency, if applicable.

GHESTIN, Traité de droit civil. Les obligations. Les effects du contrat, Paris, 1992, p. 99

Art.1354.- Contractual freedom

"The parties can freely determine the content of the contract, as long as it is not contrary to a mandatory legal norm."

In the European Union: Council Directive 89/552 / EEC of 3 October 1989 on the coordination of certain laws, regulations and administrative provisions of the Member States relating to the exercise of television broadcasting activities. In Portugal: Article 24 of the Publicity Code. In France: Arrêté du 6 janvier relatif à la terminologie économique et financière; Loi n ° 87-571 du 23 juillet 1987 sur le développement du mécénat; Loi n ° 90-559 du 4 juillet 1990 créant les fondations d'entreprise et modifiant les dispositions de la loi no 87-571 du 23 juillet 1987 sur le développement du mécénat relatives aux fondations; Decree n ° 91-1005 of September 30, 1991,Decree pris pour l'application de la loi n ° 90-559 du 4 juillet 1990 créant les fondations d'entreprise et modifiant les dispositions de la loi n ° 87-571 du 23 juillet 1987 sur le développement du mécénat relatives aux fondations; Decree no 2002-998 du 11 juillet 2002 modifiant le décret no 91-1005 du 30 septembre 1991 et relatif aux fondations d'entreprise. In Spain: Law 34/1988, of November 11, General Advertising; Law 25/1994, of July 12, incorporating Directive 89/552 / EEC into the Spanish legal system, on the coordination of laws, regulations and administrative provisions of the Member States relating to the exercise of television broadcasting activities; Law 30/1994, of November 24, on Foundations and Tax Incentives for Private Participation in Activities of General Interest; Law 22/1999,of June 7, of Modification of Law 25/1994, of July 12, by which the Directive 89/552 / EEC, on the coordination of legal, regulatory and administrative provisions of the Member States, is incorporated into the Spanish legal system relating to the exercise of television broadcasting activities. In Italy: Legge 31 luglio 1997, n. 249 Institution of the Authorization for the guarantee of communication and the norm of the telecommunication and radio television system; Legge 27 dicembre 1997, n. 449 "Misure per la stabilizzazione della finanza pubblica"; Legge August 6, 1990, n. 223 (in Gazz. Uff., August 9, 1990, n. 185) DISCIPLINE OF THE PUBLIC AND PRIVATE RADIO-TELEVISION SYSTEM; D.Lgs. 18-8-2000 n. 267, Testo unico delle leggi sull'ordinamento degli enti locali. Pubella nella Gazz. Uff. 28 September 2000, n. 227, SOof Modification of Law 25/1994, of July 12, which incorporates Directive 89/552 / EEC into the Spanish legal system, on the coordination of laws, regulations and administrative provisions of the Member States relating to the exercise of activities of television broadcasting. In Italy: Legge 31 luglio 1997, n. 249 Institution of the Authorization for the guarantee of communication and the norm of the telecommunication and radio television system; Legge 27 dicembre 1997, n. 449 "Misure per la stabilizzazione della finanza pubblica"; Legge August 6, 1990, n. 223 (in Gazz. Uff., August 9, 1990, n. 185) DISCIPLINE OF THE PUBLIC AND PRIVATE RADIO-TELEVISION SYSTEM; D.Lgs. 18-8-2000 n. 267, Testo unico delle leggi sull'ordinamento degli enti locali. Pubella nella Gazz. Uff. 28 September 2000, n. 227, SOof Modification of Law 25/1994, of July 12, which incorporates Directive 89/552 / EEC into the Spanish legal system, on the coordination of laws, regulations and administrative provisions of the Member States relating to the exercise of activities of television broadcasting. In Italy: Legge 31 luglio 1997, n. 249 Institution of the Authorization for the guarantee of communication and the norm of the telecommunication and radio television system; Legge 27 dicembre 1997, n. 449 "Misure per la stabilizzazione della finanza pubblica"; Legge August 6, 1990, n. 223 (in Gazz. Uff., August 9, 1990, n. 185) DISCIPLINE OF THE PUBLIC AND PRIVATE RADIO-TELEVISION SYSTEM; D.Lgs. 18-8-2000 n. 267, Testo unico delle leggi sull'ordinamento degli enti locali. Pubella nella Gazz. Uff. 28 September 2000, n. 227, SO

VICENTE, op. cit., 25 states that “it lacks an appropriate legal regulation”.

ARIAS-SCHREIBER P. Max et al., Op. cit., p. 378.

VEGA, op. cit., p. 260.

ESPINOZA, Notes, op. cit., p. 43 and 48; and in Sponsorship Contract, op. cit., p. 443 and 448 .

Law 34/1988, of November 11, General Advertising. Article 15.- “Advertising contract is that by which an advertiser instructs an advertising agency, by means of a consideration, the execution of advertising and its creation, preparation or programming.

Law 34/1988, of November 11, General Advertising. Article 19º.- “Advertising diffusion contract is one in which, in exchange for a consideration set at pre-established rates, a medium is obligated in favor of an advertiser or agency to allow the advertising use of units of space or time already available develop the technical activity necessary to achieve the advertising result ”.

Law 34/1988, of November 11, General Advertising. Article 22º.- “Advertising creation contract is one in which, in exchange for a consideration, a natural or legal person is obligated in favor of an advertiser or agency to devise and prepare a project for an advertising campaign, part of it or any other advertising element ”.

The art. 116 of the Commercial Code defines the Company contract as one by which two or more people are obliged to put in common assets, industry or any of these things, to obtain profit, it will be mercantile, whatever its class, provided that has been established in accordance with the provisions of this Code. For its part, art. 1,665 of the Civil Code defines the partnership contract as one by which two or more people are obliged to pool money, goods or industry, with the intention of dividing the profits among themselves.

The art. 1.544 of the Civil Code prescribes: In the leasing of works or services, one of the parties agrees to perform a work or to provide the other with a service for a certain price.

VIDAL, The advertising sponsorship contract in Spanish law, Bosch, Barcelona, ​​1998, p. 92

Art. 1655. Nozione

The appalto (2222 e seguenti) è il contratto quale una parte assume, with organization of the necessary necessity and with its own management, the compiment of an operation or a service was a corrective in Danaro.

Art. 1559. Nozione

Art. 2222. Contratto d'opera

When a person is obliged to compose a competing verse (1351) un'opera or servizio, with the preference of the senza vincolo di subordinazione nei confronta of the committente, if applicano le norme di questo Capo, except that il rapporto abbia a particular discipline in Book IV (1655 e seguenti).

ROSSOTTO, Riccardo and ELESTICI, Claudio; I contratti di pubblicità: il contratto di agenzia, il contratto di sponsorizzazione, Giuffré, Milano, 1994, p. 203

FRANCESCHELLI, op. cit., pp. 288 et seq.

BIANCA, I contratti di sponsorizzazione, Maggioli, Rimini, 1990, 35

GIORGI, op. cit., p. 8. It should be clarified that in Italy it is identified with what is called “patronage” in doctrine

PIQUET, Sponsoring et mécénat: la communication par l'événement: union des annonceurs, 3rd ed., Vuibert, Paris, 1992, p. 124.

“Sponsorship is a mutually acceptable commertial relationship between two or more parties in wich one party (called the sponsor) acting in the cause of a business, trade, profession or calling seeks to promote or entrance on image, product or service in association with an individual, event, happening property or objet (called the sponsee) ”(TOWNLEY, Stephen and GRAYSON, Edward; Sponsorship of Sport, Arts and Leisure: law, Tax and Business Relationships, Sweet & Maxwell, London, 1984, p. 4).

GIORGI, op. cit., p. 5

Dictionary of the Spanish Royal Academy (2001). Voice «patronage». Available: http: //buscon.rae.es/drae/drae.htm

Dictionary of the Spanish Royal Academy (2001). Voice "sponsor". Available: http: //buscon.rae.es/drae/drae.htm

"one. F. Action and effect of sponsoring ”. Dictionary of the Spanish Royal Academy (2001). Voice «patronage». Available: http: //buscon.rae.es/drae/drae.htm

"one. tr. Sponsor (? Support or finance an activity). Dictionary of the Spanish Royal Academy (2001). Voice «patronage». Available: http: //buscon.rae.es/drae/drae.htm

Cultural patrons. The Sunday. Trade. Cultural News Weekly, Year 49 No. 188, September 22, 2002, pp. 14-16

ARIAS-SCHREIBER et al., Op. cit., 378; ESPINOZA, Notes…, op. cit., 44; VEGA, op. cit., 256.

Article 1426.- Exception of non-compliance

"In contracts with reciprocal benefits in which they must be fulfilled simultaneously, each party has the right to suspend the fulfillment of the benefit at their expense, until the consideration is satisfied or its compliance is guaranteed"

Article 1427.- Exception of term expiration.

“If, after the conclusion of a contract with reciprocal benefits, the risk arises that the party that must fulfill the second place cannot do so, the party that must make the provision first may suspend its execution, until the latter satisfies the one that concerns it or guarantee its compliance ”

Article 1429.- Full resolution

"In the case of article 1428, the party that is prejudiced by the non-compliance of the other may request it by letter through a notary public to satisfy its provision, within a period of not less than fifteen days, with the warning that, otherwise, the contract is terminated.

If the benefit is not fulfilled within the stated period, the contract is terminated as a matter of law, with the debtor being compensated for damages. ”

Article 1430.- Express resolution condition

"It can be expressly agreed that the contract is terminated when one of the parties does not comply with a certain provision at its own expense, established with all precision.

The resolution is produced by right when the interested party communicates to the other that he wants to use the resolution clause ”.

Article 1431.- Theory of risk in contracts with reciprocal benefits.

“In contracts with reciprocal benefits, if the provision by one of the parties becomes impossible without the fault of the contracting parties, the contract is terminated as a matter of law. In this case, the released debtor loses the right to the consideration and must return what he has received.

However, the parties can agree that the risk is borne by the creditor. ”

Article 1432.- Resolution for impossibility of rendering the fault of the parties.

"If the provision is impossible due to the debtor's fault, the contract is terminated as a matter of law and the latter cannot demand the consideration and is subject to compensation for damages.

When the impossibility is attributable to the creditor, the contract is legally terminated. However, said creditor must satisfy the consideration, corresponding to the rights and actions that may have remained related to the benefit. ”

Article 1433.- Non-compliance due to partially impossible provision.

“The rules of articles 1431 and 1432 are applicable when the fulfillment of the provision becomes partially impossible, unless the creditor expresses to the debtor his agreement for the partial fulfillment, in which case a proportional reduction must be made in the due consideration.

The contract is terminated when the reduction is not possible ”.

Article 1428.- Termination of the contract for breach

“In contracts with reciprocal benefits, when one of the parties fails to comply with their benefit, the other party may request the performance or termination of the contract and, in one case or another, compensation for damages.

From the date of the summons with the request for resolution, the defendant is prevented from fulfilling its provision. ”

Article 1757.- Unnamed contracts for the provision of services.

"They are also modalities of the provision of services, and the provisions contained in this chapter are applicable to them, the contracts I give for you to do and I do for you to give"

Art. 1758.- Contract for the provision of services between absentees

"Acceptance between absentees is presumed when the services subject to the contract constitute the habitual profession of the recipient of the offer, or the exercise of its official quality, or when the services are publicly announced, unless the recipient makes his excuse known without delay".

Art.1759.- Opportunity to pay the remuneration

"When the service is remunerated, the remuneration will be paid after the service has been rendered or its result accepted, except when by agreement, by the nature of the contract, or by custom, it must be paid in advance or periodically."

Art.1762.- Responsibility for rendering professional or technical services

"If the provision of services involves the resolution of professional issues or technical problems of particular difficulty, the service provider is not liable for damages, but in case of intent or inexcusable fault."

VEGA, op. cit., p. 260

Varying his position that he held at the Second National Congress of Civil Law and Civil Procedural Law held in the city of Trujillo from July 7 to 10, 1994, in which he was inclined to characterize the sponsorship contract as a mixed atypical contract, bringing it closer to the provision of services.

The underline is ours.

The underline is ours.

For TEN-PICAZO (Foundations of Civil Heritage Law. Compulsory relations, 5th ed., Civitas, Madrid, 1996, T.II., p. 567), the phenomenon of non-compliance can be seen from the perspective of legal duty that weighs on the debtor, or from the perspective of the law or the interest of the creditor. From the first point of view, it is necessary to ask to what extent the debtor has observed or infringed his legal duty; From the other point of view, it will be necessary to find out to what extent the creditor has received satisfaction or has violated his right or interest.

BELTRÁN DE HEREDIA Y ONÍS, The breach of obligations, EDERSA, Madrid, 1990, p. 18

Art.1325.- Responsibility for obligations executed by third parties

"The debtor who uses third parties to execute the obligation, is liable for the intentional or wrongful acts of the latter, unless otherwise agreed".

VEGA, op. cit., p. 266.

Art. 1332.- Equitable valuation of compensation

"If the compensation for the damage cannot be proven in its precise amount, the judge must determine it with an equitable assessment."

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