Commercial law is a special branch of private law, while civil law stands as common law.
1.1 Definition
Commercial law (or commercial law) is the set of rules relating to merchants in the exercise of their profession, to acts of commerce legally qualified as such and to the legal relationships derived from the performance of these; in broad terms, it is the branch of law that regulates the exercise of commerce. One of its foundations is free trade.
In most laws, a relationship is considered commercial, and therefore subject to commercial law, if it is an act of commerce. Current commercial law refers to these acts, of which they are intrinsically, although in many cases the subject that it does not have the quality of merchant (objective system); Notwithstanding this, there are legal systems in which the system is subjective, based on the company, regulating both its legal status, and the exercise of economic activity, in its contractual relationships between businessmen and each other and with third parties.
Commercial law is a special branch of private law, while civil law stands as common law.
Commercial Law has two regulatory objects, called Objective Criterion and Subjective Criterion. The Objective refers to the trade or acts of trade, the Subjective is the one that refers to the person who carries the quality of merchant.
1.2 Sources
The quintessential source of commercial law is commercial law. A law has a commercial character not only when the legislator has explicitly given it to it, but also when it falls on a matter that by the law itself, or by a different one, has been declared commercial.
The Commercial Code, the General Law of Commercial Companies, etc., expressly declare their character; but it is also commercial, for example, the Law on the Insurance Contract, since it is an act of commerce. Therefore, it must be said that those precepts that, although included in a law that is not generally commercial in nature, directly delimit or regulate commercial matters are part of the commercial legislation.
1.2.1 Supplementary Sources
Like all legislation, the mercantile one presents gaps, there are cases not foreseen by the legislator and that cannot be solved by applying the legal precepts; The commercial law itself foresees the way to fill these gaps, and establishes for this purpose two different systems: one, contained in the Commercial Code, and that for that reason to be considered of general application; another, enshrined in the various special commercial laws, and which is only related to the special law in question. Thus, the Commercial Code establishes that “in the absence of provisions of this Code, the provisions of common law will be applicable to commercial acts”.
The custom: it is very important in this case, due to the uses of commerce.
Jurisprudence.
1.3 article 75. The law is said to be acts of commerce:
I. All acquisitions, disposals and rentals verified for the purpose of commercial speculation, maintenance, articles, furniture or merchandise, whether in their natural state, or after they have been worked or worked;
II. Purchases and sales of real estate, when made for the purpose of commercial speculation;
III. Purchases and sales of portions, shares and obligations of commercial companies;
IV. Contracts related to State obligations or other current commercial credit instruments;
V. Supply and supply companies;
SAW. Construction companies, and public and private works;
VII. Factory and manufacturing companies;
VIII. The companies that transport people or things, by land or by water; and tourism companies;
IX. The bookstores, and the publishing and printing companies;
X. Commission companies, agencies, commercial business offices, pawnshops and sales establishments in public schools;
XI. Public entertainment companies;
XII. The commercial commission operations;
XIII. Mediation operations in commercial businesses;
XIV. Bank operations;
XV. All contracts related to maritime trade and internal and external navigation;
XVI. Insurance contracts of all kinds, provided they are made by companies;
XVII. Deposits for commercial reasons;
XVIII. Deposits in general warehouses and all operations made on certificates of deposit and pledge bonds issued by them;
XIX. Checks, bills of exchange or remittances from one place to another, among all kinds of people;
XX. The vouchers or other titles to the order or to the bearer, and the obligations of the merchants, unless it is proved that they are derived from a cause strange to the trade;
XXI. The obligations between merchants and bankers, if they are not essentially civil in nature;
XXII. The contracts and obligations of the employees of the merchants regarding the commerce of the merchant who has them at his service;
XXIII. The alienation that the owner or the cultivator make of the products of his farm or of his cultivation;
XXIV. The operations contained in the General Law of Securities and Credit Operations;
XXV. Any other acts of an analogous nature to those expressed in this code.
In case of doubt, the commercial nature of the act will be determined by judicial discretion.
1.4 Merchant
I. People who, having the legal capacity to exercise commerce, make it their ordinary occupation;
II. Companies constituted in accordance with commercial laws;
III. Foreign companies or their agencies and branches that carry out commercial activities within the national territory.
1.4.1 Individual Traders
The individual who has the required capacity acquires the quality of merchants when he makes commerce his ordinary occupation. Understanding as "ordinary occupation" the repetition of commercial acts suitable to confer the quality of merchant.
1.4.2 Legal Persons Merchants
Legal entities organized according to one of the types of commercial companies have the legal status of merchant, whatever the activities to which they are engaged, and regardless of the nationality attributed to the companies themselves.
1.5 Legal Prohibitions to Be a Merchant
The following cannot trade:
a) Public brokers / notaries
b) The bankrupt who have not been rehabilitated
c) Those who have been convicted of property crimes (including falsehood, embezzlement, bribery and concussion) by executory sentence.
1.6 Legal Personality of the Merchant
Legal personality of a merchant or of any citizen: means the full domain or knowledge of the laws to assert their rights and the exercise of commerce as an ordinary (common) activity that can adhere to what the constitution establishes in relation to each Citizen can engage in any activity as long as it is lawful.
Exercise of trade as an ordinary activity is something that is carried out in a similar way to any other work, within the realization of an activity that allows survival.
1.7 Obligations of all Merchants:
All merchants, by virtue of being so, are obliged:
- To the publication by means of the press, of the mercantile quality with its essential circumstances, and, in its opportunity of the modifications that are adopted, the inscription in the Public Registry of Commerce, of the documents whose tenor and authenticity must be made notorious. accounting system in terms of the law to the preservation of correspondence related to the business of the merchant.
