A contract is, according to Pisani (p. 138), an agreement on a declaration of common will intended to regulate the rights of the parties involved in it, from which it can be derived that commercial contracts are common and voluntary agreements with which regulate the rights and obligations of the parties, of which, at least one, is commercial in nature. This text answers, among others, the questions: what is a commercial contract? What types of commercial contracts exist? And what are the characteristics of those contracts? In addition, it delves into the sale contract, as it is perhaps the most representative of commercial contracts and conciliation and commercial arbitration are addressed as elements of alternative conflict resolution,with the aim of combining concepts and becoming an introductory theoretical guide to the topic of commercial contracts.
Introduction
This text analyzes the Commercial Contracts. It is important to consider that each contract has an importance in the commercial legal field, since the existence of these legal institutions helps the parties have enforceable rights and obligations.
Firstly, we have the purchase and sale contract, which is quite extensive, the commercial commission contract, the consignment or estimate contract, the deposit contract, the edition contract, the company bond contract, the loan contract and the insurance, transport contract, etc.
It is also important to take into account that the obligation is a state of legal subordination that imposes on the debtor the need to execute in favor of the creditor and made an abstention of patrimonial or moral character.
Let's also take into account that we understand by contract. Among the legal acts the figure of the contract stands out, which being a kind of the genre agreement, we can define saying that it is the agreement of wills to create or transfer rights and obligations, while in the agreement in the conjunction of the wills it includes so well the modification and the extinction of the rights and obligations.
Each of us requires to develop in our profession, acquire knowledge which offer us tools to perform certain tasks. It is, therefore, that this documentary research, for which we will use it as an essential aid.
1. Commercial contracts
1.1. Contract definition
A contract, a private agreement, oral or written, between parties that are bound on a specific matter or thing, and whose compliance can be compelled. It is an agreement of wills that generates rights and obligations for the parties. For this reason, it is indicated that there will be a contract when several parties agree on a manifestation of will destined to regulate their rights.
Doctrinally, it has been defined as a bilateral or multilateral legal act, because two or more people intervene (unlike unilateral legal acts involving a single person), and which aims to create rights and obligations (unlike other acts legal that are intended to modify or extinguish rights and obligations, such as conventions). The document that includes the conditions of said legal act is also called a contract.
The parties to a contract are natural or legal persons. In a contract there are two poles or extremes of the mandatory legal relationship, each pole can be made up of more than one person, covering the quality of the part.
The contract, in general, has a patrimonial connotation, and is part of the broader category of legal affairs. The function of the contract is to produce legal effects.
It is a bilateral legal act destined to originate obligations, produces legal effect and there is an agreement of wills between the parties from which obligations arise. Although the contract is intended to produce effects within the patrimonial field, it is said that it can also produce them in the moral field.
1.1.1. Contract Elements
- The Capacity The Consent The Lawful Object The Lawful Cause
1.1.2. Legal business anomalies
The members of the Arbitration Board may not be a person directly related to the parties to the conflict, nor linked to them by family ties (4th of consanguinity and 2nd of affinity).
Application:
The application will be accompanied by a declaration from the candidates that they accept the position in case they are elected, the same will be done, if there is no agreement on the appointment of the third arbitrator. Every designation must be notified.
The previous article contains a provision regarding the procedure for choosing the three members of the Arbitration Board. It indicates that the workers will choose a member from a short list that the employer presents. This in turn, will choose the second member of the short list that the workers present. The third member will be chosen by the other two elected members. In the event that the parties do not agree, the Labor Inspector will decide summarily.
By virtue of the nature of the Arbitration Board, its constitution is different from the Conciliation Board. The Arbitration Board cannot form people directly related to any of the parties to the conflict. The prohibition covers family members within the fourth degree of consanguinity and second of affinity. Arbitration is a voluntary resource when the parties cannot agree, when the conciliation fails; At that time, the presence of third parties, outside the interests of the parties to the conflict, is required. The repealed Labor Law established that in the Federal District and in each of the States, there should be a list of labor arbitrators in the respective inspectorate. One was appointed for every two hundred workers and at the time of the conflict,Board members were chosen from those lists. Character of the Members of the Arbitration Board:
In its final section, the transcribed norm orders that the arbitrators appointed or chosen by lot are not related to the industry or occupation in which the dispute occurred. This confirms the criterion that the members of the Arbitration Boards have the character of true judges, capable of being challenged, like all Judges, if their independence from any of the parties is questioned.
Consequently, even if appointed by one of the parties, the arbitrator is not representative of the interest of the person who appoints him. The purpose of the intervention of the parties to constitute the Arbitration Board, in the case contemplated in article 490 of the LOT, is not to accredit their representatives on the board, but rather to give them guarantees as to the objectivity and impartiality of the arbitration.
4.8.2. Impediments
The Magistrates, with the exception of the Justices of the Peace, the Prosecutors, the Public Prosecutors and the Coercive Executors, the President, the Vice-Presidents, the Parliamentarians and members of the Constitutional Court, General and Superior Officers of the Armed Forces and National Police have impediment., except for assimilated professionals, the former magistrates in the cases they have heard, the Comptroller General of the Republic in arbitrary processes in which the entities under their control participate (Art. 26, law 26572)
Conclusions
It is concluded that it is of great importance for students of Legal Sciences to know completely and profoundly everything related to purchase-sale contracts, since it is of great importance among contracts of its kind., because it is the type of transfer contract of domain and, in addition, because it constitutes the main modern form of wealth acquisition; that is, both in its legal and economic function, it must deserve a special study.
It is, therefore, that they form the basis of a whole range of legal actions that are presented in practice and in which the accountant's legal practice, because the days are full of decisions already based on the fulfillment of contracts, execution of contracts, violation of contracts, nullity of sales acts, radiation of mortgages.
Finally, there is the satisfaction of having done a concise and clear work that helps us understand something more about our career as accountants, on the theoretical basis and several practical aspects related to this topic were clarified.
Bibliography
- Arias- Schereiber PezeT, Max. Exegesis of the Peruvian Civil Code of 1984. Legal Gazette. Lime. 2002.Barandiaran, León. civil law treaty. contract law. I take v. Legal Gazette. Lima Peru. 2002.Biondi, Biondo. The goods. 2nd. Edition. Bosch. Barcelona, Spain. 1961.Castillo Freyre, Mario. Contracts on other people's assets. FIESSA. Lime. 1990.Castillo Freyre, Mario. The good subject of the sale contract. 2nd. Edition. Editorial Fund of the Pontifical Catholic University of Peru. Lima Peru. 1995. Campana Valderrama, Manuel. iuris verba. Latin Voices in Law. 1st. Edition. A&B Editores. Lima Peru. 1994 Civil code commented by the 100 best specialists. General Contract. Volume VII. Gaceta Jurídica SA 2nd. Edition. Lime. 2007. López Curbelo, Jorge and Díaz de Lezcano Sevillano, Nicolás.,Commercial law of the company. 1st Ed. Las Palmas, Spain: University of Las Palmas de Gran Canaria, 2018. Montero Montiel, Gabriel & Others. Commercial Law. SUAyED. National Autonomous University of Mexico, Peña Cabrera Freyre, Alonso Raúl. criminal law. special part. tome 2, idemsa editorial, lima- Peru, 2008.Pisani. Osvaldo E., Business Commercial Law. 3to ed. Buenos Aires, Argentina: Astrea, 2016.Roppo, Vincenzo. Contract. 1st. Edition. Gaceta Jurídica SA Lima- Peru. 2009.Rubio Correa, Marcial. the preliminary title of the civil code. 9th. Edition. Editorial Fund Pontificia Universidad Católica del Perú. Lima Peru. 2008.
Annexed. Examples of commercial purchase and sale contracts
Property purchase-sale contract model
For the present document, the Purchase - Sale contract signed by a party, Mr. MANUEL PALACIOS TELLO, identified with DNI. No. 05641705, with address at Calle Lima No. 920 - Piura, single, who will hereinafter be called THE SELLER; and on the other hand, don JOSÉ RÍOS FLORES, identified with DNI. No. 04477726, domiciled at Calle Ricardo Palma No. 354- Piura Urbanization - Piura, single, who will hereinafter be called THE BUYER; in the following terms and conditions:
FIRST.- The sellers are owners of the property located at Av. Chulucanas No. 1257-District, Province, Department, Piura Region; duly registered in file No. 1258 of the Registry of Real Property of Piura of the Grau Region. The area and boundaries of this property appear in the aforementioned registration form.--------------
SECOND.- The Seller has acquired the Property at the merit of the Public Deed of Advance of Legitima granted by his parents Mr. VÍCTOR PALACIOS and Mrs. PAULINA TELLO TÁVARA in his favor, before the Notary Public Dr. Víctor Lizana Pelles on April 04, 2005, and registered the same in the card indicated above.
THIRD.- THE SELLER through this Purchase-Sale contract gives for real sale and perpetual sale in favor of THE BUYER, the property described in the first clause, with all the rights and actions that correspond to it, without reservation or limitation.
FOURTH.- The agreed sale price of the Property subject to this contract is $ 30,000.00 (Thirty thousand US dollars), the same that are paid in full upon signing this document.
FIFTH.- The contracting parties declare that between the good that is sold and the agreed price, there is a fair and perfect equivalence, and that if there is any that they do not currently receive, they make mutual grace and reciprocal donation, renouncing any action aimed at invalidating the effects of this contract.
SIXTH.- THE SELLER declares that mortgages, charges, encumbrances, or judicial or extrajudicial measures that limit or restrict their right of free disposal do not weigh on the good subject matter of purchase-sale.
SEVENTH.- The property described in the first clause and subject of this contract is in the position of the Buyer, as Lessee, who, with the conclusion of this sale, becomes sole and new owner of the aforementioned property.
EIGHTH.- The Seller assumes before the Buyer, the additional and accessory obligation to supply the total documentation of the good as well as the services.
NINTH.- All the expenses caused by the perfection of this contract, including the notary and registry will be covered by both parties including the taxes and payment of Alcabala, if required.
TENTH.- The contracting parties submit to the competence and jurisdiction of the judges and courts of Piura, in the unlikely event of any discrepancy arising from this contract. The domicile of each of the parties for legal purposes will be the one indicated in the introduction of this contract.
Two copies are signed, one for each part, of the same text and to a single effect, on the tenth day of the month of April of the year two thousand and five.
Solar Purchase-Sale Contract Model
Between:
On the one hand, LILIANA REYES BISOÑO, Dominican, of legal age, single, holder of the Identity and Electoral Card No. 031-9999999-3, domiciled and resident in the city of New York, United States of America and accidentally in the Los Jazmines sector of this City of Santiago de los Caballeros; who in what follows of the present act will be called: THE SELLER or by her own name; --------------
On the other hand, LUZ DEL ALBA NÚÑEZ, Dominican, of legal age, single, holder of the Identity and Electoral Card No. 031-5555555-3, domiciled and resident in the Los Jazmines sector of this City of Santiago de los Gentlemen; who in what follows this act will be called THE BUYER or by her own name: -----------
All capable freely and voluntarily have agreed and agreed the following:
FIRST CLAUSE: THE SELLER through this act, GIVES, with all the ordinary guarantees of law and under the conditions set forth below, in favor of THE BUYER who accepts, formal and irrevocable PURCHASE-SALE ACT, with respect to the property described below: --------
«Within Parcel No. 10-Ref., Of Cadastral District No. 9 of the Municipality and Province of Santiago, Sitio de Pontezuela, a portion that measures 510 (five hundred and ten) SQUARE METERS, LIMITED: Al Norte, Calle 8; To the South, Solar No. 16; To the East, Solar No. 12; and to the west, Solar No. 10.¨
SECOND CLAUSE: The price set for the PURCHASE-SALE of the property described above, is ONE HUNDRED AND TWENTY-SEVEN THOUSAND FIVE HUNDRED DOMESTIC PESOS WITH 00/100 (RD $ 127,500.00). Sum that will be paid at the signing of this contract, therefore, through it, THE SELLER gives the BUYER a letter of payment, discharge and legal settlement for the aforementioned amount.---
THIRD CLAUSE: THE SELLER justifies her right of ownership over the property described above, by means of the Certificate of Certificate of the Original Title, Duplicate of Owner No. 98 (Annotation No. 20), issued in her favor on the 16th of January of 1986 by the Registrar of Titles of the Department of Santiago.-------------------------------------–
FOURTH CLAUSE: For the legal purposes and consequences of this act, the parties make a choice of domicile, where they have their known addresses.-----------
WRITTEN IN GOOD FAITH, READ, APPROVED AND SIGNED in two (2) originals of the same tenor and effect, one for each of the contracting parties. In the city of Santiago de los Caballeros, Municipality and Province of Santiago, Dominican Republic, Twenty-two (22) days of the month of February of the year two thousand and twelve (2012).----------
LILIANA REYES BISOÑO LUZ DEL ALBA NÚÑEZ
THE SELLER. THE BUYER.
I, Lic. ANDRÉS FRÍAS SERRANO, Notary Public number 8535 for the Municipality of Santiago; I CERTIFY AND ATTEST: That the signatures that appear in the preceding document were placed in my presence by the ladies: LILIANA REYES BISOÑO AND LUZ DEL ALBA NÚÑEZ, of qualities that appear in the preceding document and those who have declared me under faith of the oath that these are the firms that they use to use in all their acts, both public and private. In the city of Santiago de los Caballeros, Municipality and Province of Santiago, on the Twenty-two (22) days of the month of February of the year two thousand and twelve (2012).-----–
LIC. ANDRÉS FRÍAS SERRANO
Notary Public No. 8535.
