The owner of a business fund may register it for the purpose of affecting a certain activity and giving it autonomy. The registration of the business fund is made in the Registry of the domicile where the fund is located and is governed by the legal provisions that regulate Public Registries.
1. Introduction
From time to time some subjects appear that deserve to be studied by the writers, in this sense in Roman law civil law appeared, in the Middle Ages commercial law appeared, in the contemporary age the law of the company or law of business or corporate law and later corporate law in this regard appeared at the present time is a matter of study by trade writers the goodwill that is one of the latest developments to study in Peruvian law, but which has no regulation Legislative, being the only norm that can be studied in this matter, the law on business transfer that is little known in current times, in such sense to be up to date with the latest news we must study it.
In other words, it is totally normal for new topics to appear that should be the subject of study by the writers, and in this sense it is clear that we must review the legislation and other sources of law applicable to this important legal institution.
2. Background
In all research work, the background must be studied in order to locate ourselves in time and thus understand the economic legal institution in time.
In this sense, we will review the main background of goodwill in foreign and national or Peruvian law. The main antecedents of goodwill are the French bankruptcy law of 1838, and in 1909 the law on the transfer of goodwill was established in that country or state.
Just as we must also take into account Argentine Law 11,867, that is, Argentine positive law in this regard is more developed than Peruvian law. In this sense, without going too far, we can obtain a large bibliography on this important legal institution. In Peruvian law, we find a preliminary draft entitled the draft business law, which regulates the goodwill but is not in force, so it is clear that it cannot be taken into account for the purposes of application but only for study effects.
In addition, in the doctrine as an antecedent we must take into account the Argentine work of Jorge ZUNINO, entitled Trade Fund, which constitutes a research work published as a book and is dedicated only to this topic, in this sense it is clear that we recommend its study to have solid knowledge of foreign law and more exactly Argentine on this important topic.
3. Sources of law
Among the sources of commercial, business and corporate law, the uses stand out, and the law, for which it is clear that in all research work they must be taken into account to follow in detail the sources of law applicable to these branches of the law. right. In any case, to consult these topics, we must consult the Peruvian commercial code of 1902 and the preliminary draft of the business law. In other words, the sources of law are not the same as supplementary law and in any case they are established differently in each branch of law, making it clear that tax law has different sources of law and in any case the 1984 Peruvian civil code does not specify which are the sources of civil law, which does comply with specifying the Spanish civil code of 1889,stating that in the proposed amendments to the Peruvian substantive code indicated as is the 1984 Peruvian civil code it is intended to include a norm that expressly specifies the sources of Peruvian civil law, but this article has been drafted without seriousness corresponding, since it does not consider many sources of law and the only thing missing was that it consecrates the one-dimensional theory of law or normative theory of law, however, it refers to some sources of law, but for these times it constitutes a proposal out of step with the norm, which makes it clear that the corresponding legislative commission has not acted seriously, that is, it points out that the work that is being carried out is not serious work and consequently leaves much to be desired,especially that we are within the Germanic Roman legal family in which the law prevails over other sources of law.
The preliminary draft of the business law expressly specifies in its article VI of the preliminary title that the uses and customs in business matters prevail over the other sources of law, with the exception of the Constitution and the Law. The doctrine will be warranted for the justification of the resolutions. That is to say, it is clear that for these times this draft does not contain an advanced norm since it contains many legislative defects such as, by the way, it leaves aside doctrine and jurisprudence and in any case leaves aside the multidimensional theory of law according to the which it is made up of many elements which is a subject of study by us in other research works on comparative law,which will constitute a great legislative advance for these times since the octadimensional theory of law has already been outdated for these times and consequently it is evident that not even this theory has been proposed in the aforementioned preliminary draft.
Apparently the commission does not know what is an element or part or source of the right, in this sense it is evident that this has been noticed in a very notorious way at the time of writing the cited article since it contains many legislative defects and are not precisely of legislative technique, but rather substantive issues for which it is clear that these legislative commissions cannot be made up of improvised people, but must only be made up of jurisconsults, who must act duly advised by specialists, that is,These legislative commissions must be made up of highly trained people and in any case it is notorious that to be a congressman, it must be a requirement to be a lawyer with a master's degree in law, which will bring as a necessary consequence that the norms approved in said state or parliament power are of Better quality not only in matters of legislative technique but also in matters of substance, that is, with the proposed matter of analysis it is clear that the standards would be of better quality in Peruvian and foreign law, for which reason it is convenient to modify the Peruvian political constitution of 1993, in the sense of modifying, among other issues, the requirements to be a congressman or parliamentarian.With the proposed matter of analysis it is clear that the norms would be of better quality in Peruvian law and in foreign law, for which reason it is convenient to modify the Peruvian political constitution of 1993, in the sense of modifying, among other issues, the requirements to be a congressman or parliamentary.With the proposed matter of analysis it is clear that the norms would be of better quality in Peruvian law and in foreign law, for which reason it is convenient to modify the Peruvian political constitution of 1993, in the sense of modifying, among other issues, the requirements to be a congressman or parliamentary.
4. Codified law
The law is divided into two branches which are the codified law and the uncoded law. The first being the one that is gathered in codes, so it is clear that in the present case we must take into account the same because we must take into account the Peruvian political constitution of 1993 and also the Peruvian commercial code of 1902, that is, whether to study codified law on this subject. Without taking this right into account, it is clear that we could be misled by biased approaches on this important issue, such as the business fund. The 1902 Peruvian commercial code must be studied because the sources of law must be studied and these are regulated within the commercial law known by many as commercial law in the aforementioned code,In this sense, without taking it into account, it is clear that we can be misled by biased approaches.
5. Uncoded law
The uncoded law must also be taken into account because we must take into account the applicable law and the uses in this sense, if the present topic is investigated without taking them into account, it is clear that we will not be studying the subject correctly but incompletely. or partial or partial, since an important part of commercial, corporate and business law or business or company law is left aside, however, another source of law that has been considered in this work is the doctrine which will serve to substantiate the positions chosen, since in the aforementioned not only information is collected but also criteria or positions are adopted which are sustained using legal argumentation which is a tool of procedural law mainly, however,it is clear that it is not the only legal discipline to which it is applied, but it applies to all branches of law and even applies to comparative law, philosophy of law, epistemology, axiology, among other important legal and extra-legal issues, recording that we do not say legal issues because the law is not only law or, in other words, it is not exhausted in the law but goes further, that is, it seems that the norm that is intended to mislead is the Peruvian commercial code of 1902, Therefore, it is clear that we must not apply it in order to have more light in this branch of law, which, by the way, has had few studies within the law and in them if other sources of law have been taken into account, such as jurisprudence. and doctrine. That is to say,In addition, we must take into account other sources of law or elements or parts of it that must be consulted in order to have a solid knowledge of law, but in any case it is clear that the sources of law are not exhausted by law, but go further.
6. Public law
In this research work we must take into account or study public law because we must study constitutional, registry, notary and tax law, among other branches, stating that in public law it cannot be modified by agreement of parties, for example Within the registry, no conditions can be agreed to register the titles that are presented, stating that the titles are divided into formal titles and material titles.
7. Private law
In this research work we must take into account private law because we must study commercial law, which is made up of many branches of law within which it is worth mentioning for our purposes communications law, telecommunications, international trade law, defense of free competition, among other branches that are located within private and commercial law.
8. Social law
We must also consult social law because we must study mixed law in which branches of law appear that are located both in private and public law and commercial law that is located in the first because it encompasses corporate, cardboard and exchange, but it is located within the public because it encompasses bankruptcy, that is, to investigate, much experience and mastery of the location of the branches of law are needed, which serves to improve the quality of this investigation and thus guide the reader through a path studded with torches or with a compass.
9. Knowledge Area
When we study the goodwill, the study of commercial law is necessary because the Peruvian commercial code regulates which sources of commercial law in Peruvian law.
When we study the goodwill, the study of business law is necessary because commercial law is located within the first branch of the indicated law.
When we study goodwill, the study of corporate law is necessary because commercial law is located within the first branch of law mentioned.
When we study goodwill, the study of company law is necessary because we must review whether it contains studies or norms or other sources of law that cover goodwill.
When we study goodwill, the study of tax law is necessary because we must review the implications of this important issue or economic legal institution.
When we study the goodwill it is necessary to study the registry law because we must review the sources of registry law to determine whether or not it corresponds to the registration of acts related to commercial acts.
When we study goodwill, the study of notarial law is necessary because we must study which is the applicable notarial document to register acts related to goodwill.
When we study the goodwill, the study of constitutional law is necessary because it must be taken into account that the 1993 Peruvian political constitution expressly establishes in its article 139 that jurisdiction is exclusive in the Peruvian law of the judiciary, making reference that there are two exceptions that are arbitration and military justice.
When we study the goodwill, the study of procedural law is necessary because we must analyze the registrable judicial resolutions regarding the goodwill.
When we study the goodwill, it is necessary to study the contractual law because with respect to it, some contracts can be entered into as a lease or sale, which, in the event of a positive registry qualification, would cause registration entries.
When we study the goodwill, it is necessary to study the right of guarantees because it can guarantee the fulfillment of some contracts concluded by the company.
When we study the goodwill the study of the stock market law is necessary because the goodwill can guarantee the issuance of shares or bonds by the company in the stock market or capital market.
When we study goodwill, the study of finance is necessary because this study covers the study of stock market law, which is applicable to finance.
When we study goodwill, it is necessary to study international trade law because the former may be the subject of international contracts and guarantees, such as international sale and purchase, international leasing, international loan, international mortgage, among other acts, all referred to by the way. to the goodwill or business fund.
When we study the goodwill, it is necessary to study the exchange and cartular law because the former can issue shares, commercial papers and bonds which are securities and in any case are regulated, among other rules, by the current Peruvian securities law, issues that they were not regulated by its predecessor, which was law 16587, that is, it constitutes an important legislative novelty. For the record that the cartular law is part of the exchange law, that is, the first is part of the second, which has been little studied by national, foreign, and comparative treaty writers.
When we study goodwill, the study of bankruptcy law is necessary because the former may be a matter of bankruptcy previously known or regulated in Peruvian law as insolvency and also bankruptcy issues that are governed by the general law of the approved Peruvian bankruptcy system. by law 27809, which has not been a matter of regulation, but it has deserved many executions which have served to clarify the doubts of the text of said law subject to study in this paragraph.
When we study the goodwill, the administrative and municipal study is necessary because the operating license must be processed in the respective municipality according to the corresponding administrative procedure, which is governed by the operation license law that is recently approved and is supplementally governed by the law of general administrative procedure law 27444, which is the Peruvian law in force on the matter, which abrogated the supreme decree 006-67-JUS, for which it is clear that the law is very changing and if we do not follow his steps permanently happen what Couture maintains or anticipates that every day we can stop being lawyers or jurists.
It is also necessary to take into account the municipal law because when companies acquire real estate or vehicles, the municipal tax law must be taken into account, which has been the subject of important and notorious or evident legislative reforms which must be the subject of study by the writers.
When we study the goodwill, the study of industrial law is necessary because industries can integrate the former, in which case, among other sources of law, we must study and apply Peruvian industry law.
When we study the goodwill it is necessary to study the trademark law because trademarks can integrate the first one, in which case the corresponding norm to study and apply is the industrial property law.
When we study goodwill, the study of industrial property law is necessary because the former may be integrated by intangible assets such as trademarks and patents, which are regulated by industrial property law.
When we study goodwill, the study of copyright is necessary because the former may be made up of national or foreign copyrights.
When we study goodwill, it is necessary to study the right of defense of free competition because the former cannot incur monolios or oligopolies.
When we study goodwill, it is necessary to study computer law because the former may be the subject of computer contracts and electronic signatures, among other topics specific to this branch of law.
When we study goodwill, it is necessary to study Internet law and information and communication technologies because the former may be the subject of contracts using the Internet and information technologies.
When we study goodwill, the study of comparative law is necessary because comparisons can be made, which can be macro or micro comparisons, total or partial comparisons, internal or external, and receptions and transplants that can be internal or external, total or partial, between other types or classes thereof, in the first of the topics mentioned in this paragraph of this subtitle. That is, if we would not apply this legal discipline in the present work, it is clear that it could seem that the subject of the present investigation is unimportant, which is wrong because it is an issue that deserves a lot of importance within Peruvian and foreign law. In any case, it is clear that it has an important economic function in the market, which is where goods and services are exchanged.
When we study goodwill, the study of civil law is necessary because the former may be the subject of contracts and guarantees which are regulated, among other rules, by the civil code and, of course, by the recently approved law, such as the security of property law.
When we study the goodwill, the study of customs law is necessary because the company can export or import, in which case we must study and apply, among other rules, the general customs law, on which the important book by Fernando COSSIO JARA has been written.
When we study goodwill, it is necessary to study telecommunications law because the former may be made up of telephones.
When we study goodwill, it is necessary to study regulatory law because for the former we must study, among other topics, regulatory agents such as the BCR, indecopi, sunass, osinerg, ositran, conasev, among other topics of this important but little investigated as the branch of law indicated.
When we study goodwill, the study of communications law is necessary because the former can make use of communications, among which the fax, telephone, mail or couriers, emails, among others, stand out.
When we study the goodwill, it is necessary to study the right of legal persons because in some cases the companies from which the goodwill is constituted or formed are legal persons, that is, it is not the same legal person as the company which we have distinguished in another venue and in any case we do not repeat it because we do not want to incur the tautology that consists of repeating knowledge.
When we study goodwill, it is necessary to study criminal law because the company to which the former belongs may be the subject of criminal proceedings.
When we study goodwill, it is necessary to study sanctioning law because the company to which the former belongs may be subject to sanctions.
When we study goodwill, it is necessary to study banking law because the company to which the former belongs may be a bank.
When we study goodwill, the study of financial law is necessary because the company to which the former belongs may be an entity of the financial system.
When we study goodwill, the study of insurance and reinsurance law is necessary because the company to which the former belongs may be a matter of insurance and reinsurance.
When we study goodwill, it is necessary to study the law of obligations because the former may be a debtor or creditor in obligations within or outside the national territory.
When we study the goodwill, it is necessary to study the real rights because the first one can be their subject matter, they can even be registered in the registry areas or registry offices.
When we study the goodwill, the study of private international law is necessary because the first can be located in several countries and in this sense we must take into account the applicable law and also of course the competent judge, among other issues.
When we study goodwill, it is necessary to study labor law or labor law because the former may belong to a company that has hired workers or, in other words, that has concluded labor contracts.
When we study goodwill, it is necessary to study aeronautical law because the former may be made up of aircraft, among other assets.
When we study goodwill, the study of maritime law is necessary because the former may be made up of, among other goods, ships and also fishing vessels.
When we study the goodwill, the study of cosmic law is necessary because the former can be integrated among other goods by interplanetary ships.
10. Economic Function
The subject studied has an important economic function in the market because it makes goodwill can be the subject of contracts or guarantees, which will result in an increase in commercial traffic, however, we must record that the difference will not be noticeable. Because the Peruvian security guarantee law, which is inspired by a CIDIP, has already introduced some important legislative innovations that were going to be introduced by the preliminary draft of the business law, in this sense it is clear that said body is important for the Peruvian economy and In any case, regarding the goodwill, its function will be noted as long as the security interest is not regulated, which constitutes a topic of current interest in Peruvian, foreign law and also of course within comparative law.
In other words, if the Peruvian security guarantee law did not exist, it is clear that the economic function would be clearly noted because the assets of companies could be the subject of more contracts and, above all, guarantees, which are not always mortgages or security guarantees. Consequently, this topic must be carefully studied by the writers with solid knowledge of economics, which will serve to reactivate the economy of the different states. In this sense, it is clear that the states that have legislation on the subject studied have greater development. and a greater tendency to it, all of which must serve to disappoint or transplant Peruvian goodwill,But of course, the difference will not be noticed much because, as was specified, the Peruvian security guarantee law has been advanced and in any case, the more options investors have, it is clear that the market is more agile; that no more categories should be created than those needed by reality or current requirements.
Consequently, we must specify that if the preliminary draft has been approved and not the security interest law, it is clear that the benefits were only applicable to companies and not to other economic agents, which does not happen in the present case because what The exact opposite has happened since the security guarantee law has been approved but the business law project has not been approved.
11. Definition
In all research work, it is convenient to define the term investigated to take the bull by the horns and thus be able to carry out the research with solid doctrinal knowledge on the subject matter of research, as in this case the institution studied. Goodwill is the set of assets that make up the company.
Whether natural or legal persons, the commercial fund or goodwill is only held by companies. Therefore, it is clear that if a marital society does not own a company, the former cannot own a goodwill. In other words, every company has a commercial fund, regardless of its legal organization, in this sense it is clear that it merits the corresponding studies in order to provide other legal definitions. It has been defined by saying that it is the set of productive and goods forces, homogeneous and heterogeneous related to a certain commercial or industrial exercise and that, as a compact economic organism and in its function and existing independently of the life of the founder and his successors, is called to attract and retain its clientele (Di Guglielmo). Or the set of elements,corporal and incorporeal, reunited with a view to a mercantile expansion (Mazeaud).
The definition provided by Di Guglielmo seems to be a definition of an economic type, so it is clear that it must be poorly understood by jurists, but Mazeaud's definition if it is a legal definition, in this sense it is necessary to record which is easily understood by lawyers. That is, the definition that can be provided by jurists or economists, among other writers, varies in doctrine. For Rosenberg, goodwill is the goodwill or possession of intangibles that allow a company to continue obtaining a higher rate of profit than that normally earned by other companies that carry out the same type of economic activity. In this sense, this author confuses goodwill with goodwill, since they are two totally different terms,Because goodwill is the interrelated set of assets of the company, while good will is a part of goodwill.
That is, there is a relationship of everything to part, but not of equality, for which it has been agreed for our purposes to differentiate them and thus have solid knowledge about the company and especially about goodwill. Ribo Duran and Fernández Fernández specify that one of the intangible elements that make up the company, made up of customers and negotiable expectations; that is to say, the intangible asset of the company, which cannot be used without transfer of it. With the expression goodwill (good consideration or volutand) it is intended to mean the spiritual or immaterial side of the company as a business, which is the core of goodwill. These authors also specify that its value, as an intangible asset, is only reflected in the accounting when it is the result of an onerous acquisition.Its extra-accounting valuation is obtained by capitalizing the difference between the profit obtained by the company and the normal profit in the productive branch.
That is, this last author does not define the company but makes or makes a comment on the goodwill that, as we need, is part of the company or business fund, but it is not the same as the first, therefore it is clear that few authors or writers they know or have been able to define these legal-economic terms, in this sense the investigation becomes difficult which encourages us to continue investigating in order to get to the truth as required by authors who have written about epistemology, within Peruvian law and within law foreigner, for which we must specify that the important thing is to get to know the truth in our investigations. Each author offers different approaches,but some confuse the terms used in this sense, it has been agreed for our purposes to differentiate goodwill from goodwill so as to have taken the bull by the horns and be able to continue our investigation.
A definition is contained in the preliminary draft of the business law, so we will quote it to have a clearer idea of what it means for our national legislators, who although it is true they have not approved the rule but have discussed it, which has served to improve it and polish its rough edges and thus be able to provide a definition according to the reality of the Peruvian state in which this topic has not been worked in depth, but only superficially in the best case by the writers, but in In any case, in Peruvian law there is not even a single book that exclusively develops this topic, but we have only had brief articles on this topic in view, which has led to little dissemination of the term used,In conclusion, it is clear that it warrants the corresponding studies to assimilate them into Peruvian law, and then we will review the proposed definition.
The aforementioned preliminary draft specifies that the business fund is the set of goods and rights organized by one or more natural or legal persons, destined to the production or marketing of goods or the provision of services, which once registered limits the responsibility of the entrepreneur.
The same person may be the owner of several business funds and in turn a single business fund may have several people as holders. That is, it is convenient to take into account this definition in Peruvian law because it is a definition that was discussed in the Congress of the Peruvian state, for which it has been prepared by the corresponding members of the respective commission as well as by the advisers of the aforementioned commission.
In conclusion, there are several definitions of goodwill that we quote to have a clearer idea of what it means, however, other writers point out that this term means the same thing as the company, which serves to better understand this economic legal term. In this sense, it is clear that it requires the corresponding studies in order to have broader approaches to the subject matter of study, such as goodwill.
This definition provided by the legislators is clear that it clearly states that the same person may be the owner or owner of several goodwill, in this sense it is clear that nothing stands in the way of a natural or legal person owning several commercial funds because the Legal persons may be owners or co-owners of commercial funds or companies. In this sense, this precision has been agreed in order to understand or understand the spirit of said draft or bill, that is, this body of said draft clarifies the picture because without it, things were not clear enough, in conclusion, this second paragraph because without it things would not be clear enough.
The aforementioned draft clearly differentiates the company from the business fund, because it is specified that the company is the economic organization dedicated to the production or marketing of goods, or to the provision of services. The business background and business activity are essential elements of the company.
That is, it is specified that the business fund is part of the company, in this sense it has been worth investigating the meaning of the legal term economic goodwill in the preliminary draft studied, because without studying it we would not have had enough elements of judgment on the subject in question, since this subject has been little worked on in Peruvian, foreign doctrine and even worse in comparative law. That is, if we did not consult this term in the preliminary draft, it is clear that we could easily have been misled by sources of little serious information and in any case we now have greater elements of judgment which allows us to take the bull by the horns and carry out our investigation. in a more serious way.
In few dictionaries we find definitions on the business background, in this sense it is difficult in our environment to investigate these topics in Peruvian law, which constitute a novelty in it since they do not have legislative consecration, but it is in a preliminary draft or bill, which has resulted in a few studies being carried out or carried out on this important economic legal institution such as the goodwill or business fund.
In other words, we have consulted nearly forty legal dictionaries, having found in the same few definitions about the institution studied, which has resulted in the fact that although the sources of information consulted are abundant, but very little information has been found in them., stating that the dictionaries mentioned have been almost all of national authors, that is, these authors have been influenced by the positive Peruvian law which does not consecrate legislatively the goodwill but there is a draft or draft law that refers to the itself and consequently this has motivated the present research work.
In the dictionary carried out under the direction of Henri Capitant, it is specified that goodwill is the set of rights and personal property (clientele, reputation, right to the location, trade name, banner, invention patents, trademarks, raw materials, merchandise, etc.) belonging to a merchant and allowing him to carry out his commercial operations. These goods and movable rights, taken together, constitute a legal universality, to which special rules apply (law of March 17, 1909, relating to the sale and pledge of goodwill). Note that in France goodwill is only made up of movable property.
12. Definition of company and entrepreneur
Taking into account that we must differentiate the company from the business fund, we quote below some definitions of company and entrepreneur.
Rodrigo González Fernández, on the web http://arbipyme.blogspot.com/2006/05/casi-100-conceptos-de-empresa-y.html has grouped the following definitions of company and businessman in comparative law:
1. Villanueva Haro, the company as a set of situations that relate to and coordinate with market behavior, capital, information, advertising, consumption, computing, competition, records, innovation, technology, business and political wills, the legal-economic order, productive and investment activity, etc.
2. So the doctor. Benito Villanueva Haro conceptualizes the company: The Company is a social, legal, economic, axiological, virtual, mobile entity, evolutionary in time, locatable in space; that is linked to the world through contractual, registry and informational relationships, it also carries with it an integrating, interrelational, intermediary, intelligent, capitalizing, cooperative, solidarity and aid engine in economies. You need the presence of human behaviors to be able to energize the market and show your products, services, capital so that they generate greater prestige, profitability and employment. It is subject to political, social, economic, cultural, legal, computer, technological and natural changes; and coexists under the general principles of law, economy, administration, accounting, etc.
3. Good: company as an organization «(…) that is conceived as a system or« set of elements ordered according to the rules of a certain structure and related to the fulfillment of a common plan », in this case consisting of five aspects with which You can study the main company or subsystems: technical system (ST), human system (SH), management system (SD), cultural system (SC) and political or power system (SP). " (Well, 1993, 35).
4. JM Peiró from the psychology of organizations (JM PEIRÓ, 1986). According to this, the concept of organization traditionally gathers, at least, 5 distinctive characteristics that we can synthesize in the following definition: «A set of individuals or groups (1) who are dedicated to obtaining certain objectives or goals (2) through of Differentiated Functions (3) and Intentional Rational Coordination (4) based on a continuity of interaction (5). »
i. (Vivante, Ferrara, Garrigues, Broseta Pont). The company as an organization: It is argued by some authors that the company is an organized set of elements or productive forces that the entrepreneur uses for his economic and productive purposes. It is the simplest concept. It approaches economic conceptions. Only the static aspect is taken.
5. Graziani, Ferri, Ascarelli, Escarra Y, Supervielle. Certain authors understand that the company is the economic and professional activity of the entrepreneur for the production or mediation in the market of goods and services (Casanova, Messineo,)
6. The company, as an arduous or difficult action, that is undertaken or begins resolutely. It is a symbol alluding to an attempt or a quality that is flaunted, and that usually carries a slogan. Intent or design., Company, commercial or industrial company that executes large projects. Work or design that has been carried out.
7. Company: as an organization of different elements to achieve an end. It is an organized economic activity, with the intention of profiting from the placement on the market of its products or services.
8. Company: from the commercial point of view, the company is the basic element in an economic market system; establishes the principle of freedom of enterprise within the framework of the market economy Core of production and distribution of goods and services in the market.
9. José María Ferrer. from the point of view of commercial law within bankruptcy law; the company is the engine of wealth and source of income to satisfy the interests of creditors and debtors. Therefore, the salvation and continuity and refloating of the company is fundamental and a priority for the entire development of the bankruptcy procedure.
10. Professor broseta: “Organization of capital and work destined to the production of goods or services for the market”.
11. Our conclusion is that we start from the economic concept to study it: the company, a legal functional concept The company is a set of elements of different condition and nature that, duly organized, have the purpose of exploiting an economic activity. The personal (work), material and immaterial (real capital) elements that make it up are united by the organization and by the economic end that the group pursues. There are functional legal interdependencies between them.
12. Vásquez del mercado explains to us: an economic activity company: “Therefore, it is an economic activity, that of the manufacturer, that of the seller, while the activity of one who limits himself or herself by moral satisfaction to study, is not do some sport, etc., even when benefits of any nature are obtained directly or indirectly, there being no intermediation within the market in general, there is no economic activity, so there must be a productive activity or a creator of new economic profits. ”
13. Fernando Vásquez Arminio Points out: “All organizing activities of production factors in order to participate in the market, will be commercial, regardless of whether such organizing activity is done with or without profit, because although this spirit is inherent to companies, is not always essential, since what characterizes them as mercantile is, it is insisted, the desire to intervene or participate in the market. ” For this author, the important thing in the organizing activity of the factors of production is the fact of participating in the market even if it is done with or without the profit motive, contrary to what was exposed by the teacher Vásquez del Mercado who indicates that it should be directed to the creation of wealth.
14. The company is an organizational activity. This occurs when it is developed by people coordinated by the entrepreneur, in such a way that each one performs his or her own function, that is, an activity that is carried out by organizing the work of others or a complex of goods (personal and real factors of production) or combining both organizations.
15. Author Mario Bauche tells us that the company is characterized by being an independent organization. Where the entrepreneur enjoys autonomy by coordinating the various elements of production, not obeying the dictates of the administration, but still observing the general laws and regulations that discipline economic activities, so within these legal limits organizes economic activity at its discretion.
16. The company is the institution or economic agent that makes the decisions on the use of factors of production to obtain the goods and services offered in the market. The productive activity consists of the transformation of intermediate goods (raw materials and semi-finished products) into final goods, through the use of productive factors (basically labor and capital).
17. The company is the universally used instrument to produce and place in the hands of the public most of the goods and services existing in the economy.
18. The Company is the economic unit of production in charge of combining the factors or productive resources, labor, capital and natural resources, to produce goods and services that are later sold in the market.
19. Luis Sambrano Ortíz,, The company from no point of view constitutes a subject of rights and obligations we must say that there are differences and we must distinguish between company and businessman; But to understand the difference between company and businessman, you have to start from a concrete and poorly understood fact. Who is the subject of rights and obligations is not the "company", but the "entrepreneur". The company constitutes a legal fiction and as such is an immaterial element, therefore it cannot have the prerogatives of a person.
20. The entrepreneur is the person who contributes capital and performs at the same time the functions of management: organizing, planning and controlling.
21. The Present Entrepreneur is an individual or collegiate body that makes the appropriate decisions to achieve certain objectives present in the companies and the circumstances of the environment. The individual or collegiate entrepreneur is the one who coordinates the internal fabric of the company with its economic and social environment.
22. In the legal sense, a company is considered in some cases as acts of commerce and also as the activity carried out by an entrepreneur.
23. But is this really the concept we are looking for?
24. Rather, the legal sense is to say that a company is doing something… an activity to a trade, we deduce this according to the way of dividing the company within the commercial code. What we are really looking for is the concept of a company as an organism, as a broader economic-legal entity.
25. The company is the economic unit of production in charge of combining the factors or productive resources, labor, capital and natural resources, to produce goods and services that are later sold in the market.
26. why is the company born? The company was created to meet the needs of society and creates satisfiers in exchange for remuneration that compensates the risk of investors. In the company, the human factor is decisive and the administration establishes the foundations for harmonizing the numerous interests of shareholders, managers, employees, workers and consumers.
27. Anthony Jay Institutions for the efficient use of resources through a government (board of directors), to maintain and increase the wealth of shareholders and provide security and prosperity to employees.
28. Dictionary of the Royal Spanish Academy The entity made up of capital and labor, as factors of production and dedicated to industrial, commercial or service activities, for profit and the consequent responsibility.
29. Isaac Guzmán Valdivia It is the economic-social unit in which capital, work and management coordinate to achieve a production that responds to the requirements of the human environment in which the company itself operates.
30. José Antonio Fernández Arena It is the productive or service unit that, constituted according to practical or legal aspects, is made up of resources and uses the administration to achieve its objectives.
31. Petersen and Plowman Activity in which several people change something of value, be it goods or services, to obtain a profit or mutual benefit.
32. Roland Caude Group of collective human activities, organized in order to produce goods or yield benefits.
33. Lourdes Munch Social group in which, through the administration of capital and labor, goods and / or services are produced aimed at satisfying the needs of the community. Social body It is a social entity with legal capacity to carry out specific purposes, stable and formally structured in such a way that it allows the efficiency of group work in achieving its objectives as an institution, company and organization.
34. Amitai Etzioni Social units deliberately built or rebuilt to achieve specific ends.
35. Richard Hall Communities with relatively identifiable limits, with a normative order, with a scale of authority, with communication systems that exist on a relatively continuous basis in an environment, are related to a goal or set of ends.
36. Antony jay: Institutions for the efficient use of resources through a government (board of directors) to maintain and increase the wealth of the shareholders.
37. José Antonio Fernández Arena: It is the productive or service unit that, constituted according to practical or legal aspects and is made up of resources.
38. Roland Caude: Set of collective human activities, organized in order to produce goods or benefits.
39.. From wikipedia A company is the professional exercise of a planned economic activity, with the purpose or objective of intermediating in the market for goods or services, and with an organized economic unit in which the entrepreneur carries out his professional activity by himself or by middle of their representatives
40. The company as a productive unit: It is a productive unit dedicated and organized for the exploitation of an economic activity.
41. Company as an economic unit It is the economic unit responsible for the production of goods and services. From another point of view, a company can be understood as the organic set of production factors, ordered according to certain social and technological norms that aim to achieve economic objectives.
42. According to Sordecilla: In a broad sense, the organization of the company is defined by the integration of the various productive activities necessary for the production of a complex good and by distribution.
43. According to Pfiffner and Sherwood, (1969): Company is a “Pattern of ways in which large numbers of people, too many to have close face-to-face contact with others and dedicated to a complex of tasks, relate to each other to systematically establish and carry out goals that we have all agreed upon ”.
44. Nuri Rodríguez Olivera and Carlos López Rodríguez (Uruguay) the company is the organization of other people's work and capital, to produce goods or services destined to be exchanged
45. The Honduran commercial code, from an accounting point of view, establishes an empirical concept of a mercantile company: «unitary set of elements that serve the merchant to carry out his professional activity». The conception of the company is seen from an accounting point of view, since the plurality of elements refers to the same economic subject.
46. The Colombian commercial code defines the company as »any organized economic activity for the production, transformation, custody of goods or for the provision of services». All of these definitions are given from a strictly economic perspective.
47. The asset restructuring law (Peru), for example, defines the company as »… an economic and autonomous organization in which the factors of production, capital and labor come together, with the aim of producing goods or providing services, established in made or constituted under the protection of any of the modalities contemplated in national legislation ”.
48. The law of the individual company with limited liability, (Peru) defines this business modality as a "legal person under private law, constituted with a single-person will with its own assets different from that of its owner, which is constituted for the exclusive development of activities Small Business Economics ».
49. Entrepreneur is the person who organizes and operates the company. The company is a product of the entrepreneur's work. Every company supposes a holder, natural or legal person, who has created it, who has endowed it with organization, who makes it work and who obtains the profits that its operation obtains or that takes charge of the losses that it produces.
50. Consequently, when we speak of a Company, we must consider it as a concept of organization of goods and services; Its owner may be a businessman or a civil or commercial company.
51. Universidad de Chile: a company is a social unit that "imports" (buys) human, material, technological, financial and administrative capacity, transforms these resources and "exports" (sells) the product that results from that transformation. With the resources obtained from the sale, he again acquires the elements he needs to continue with the transformation process. ”
52. University of Chile broad concept: we understand a company as a social system, that is, a set of organized individuals that seeks to achieve the objectives set by the system, which is reached by a stream of inputs *, both human and material and financial. Within the system these inputs undergo a transformation to produce a stream of goods or services that are traded in the environment. The product of this transaction is used for the acquisition of input inputs. Thus the social system is kept in action. Under our definition both private companies and those belonging to the mixed area and the social area fall
53. «the company as a subject of law». Chilean Uruguayan Conference on Comparative Law (September 28 and 30, 1967) "The company as a subject of law". The economic and sociological concept of business goes beyond the traditional notions of Civil Law. But, as a factual structure, the company is relevant to the Law because it makes it the recipient of obligations, attributes and legal situations. However, it is not yet possible to substantiate the points of view that see the company as a new subject of law, which does not hinder the progress of this trend.
54. Economic concept of company ». Economic science uses markedly different variants of the concept of the company, in the different fields covered by its theoretical horizon. The characteristic feature of the different business concepts is the figure of the entrepreneur.
55. E-business: The most basic definition of e-business is simply the following: "use of the Internet to connect with customers, partners and suppliers". But the term also implies the transformation of existing business processes to make them more efficient. To fit into e-business, companies need to be able to “open up” the information stored in their back-end databases, so that they can share information and direct electronic transactions with customers, partners, and providers through the Internet.
56. E-business: then “A more inclusive and general definition such as the following: e-business is the application of information technologies to facilitate the sale of products, services and information through public networks based on standards of communications. There must be a computer program at one end of the business relationship and at the other end either another computer program, or a person using a computer or a person with the necessary means to access the network.
57. Hanna: company as a specific activity, we try to define it as an organization of goods and services aimed at achieving a certain purpose.
58. The board of the Cartagena agreement has recognized the "Company" as an economic concept when it states: "It is not unknown… that the multinational company is fundamentally an economic concept and fact and that the corresponding regulatory system has no other scope than to facilitate the planning of the productive activity of goods and services according to the new space and the conditions that the integration is generating »… Concept that, to transcend the legal world, must have a holder who is recognized by law as a subject of right. It is the physical and legal subject who, as the owner of the Company, identifies himself in the economic world as "Entrepreneur" and, providing the initial impulse, is responsible for all the legal relationships assumed by the Company, said Alfredo Hanna Musse
59. Mossa, expressed in this regard that the company constitutes an economic person;
60. Van Ryn, initially held that the company was a subject of law, but later modified his opinion and stated that it will be a long time before the company is recognized as such.
61. Despax, in his work L'enterprise et le Droit, maintains that the company is a subject of nascent law, which means, strictly speaking, that it has no legal personality.
62. The company is not subject to law Nuri Rodríguez Olivera And Carlos López Rodríguez (uruguay), the company is not an asset. They add It is not susceptible of appropriation. It is said to be an immaterial quid, an organization that at a certain moment acquires importance and rises above the entrepreneur who created it. Norms have even been dictated that tend to preserve this business organization despite vicissitudes that affect the subjects that have created it, but we do not have any norm in our Law that establishes that it is a good, that it is susceptible to appropriation and that it can be object of contracts or legal business.
63. For Andean law multinational company «… a company (which… may be a conglomerate of companies)
… a production or service center that, in some way and to a greater or lesser degree, has become part of the economy of more of a country, a visible pact in its decision system, in its internal organization and in its economic behavior ”.
64. In Ecuadorian law, national company: We must accept the doctrinal definition - stated in Ecuadorian law - of companies that develops in the national territory, as a national company. In other words, the company whose field of action does not transcend national territory and following the Andean Law contained in Article 8 of Decision 46, the company whose natural legal owner is not a foreigner; as well as that characterized by having a technical, financial, administrative and commercial decision in the hands of nationals.
65. Business economic concept: it is an organized set of human, material and monetary elements, aimed at satisfying the needs of the community through the development of products or the provision of services, it aims to achieve well-being for its owners and those who work in it.
66. The dictionary of general economy and business states: “Company. From an economic point of view, it is defined as a basic economic unit of production. In other words, the company, through production factors, properly combined, obtains goods and services that, once carried out, lead to achieving defined objectives. ”
67. Rafael De Pina Vara points out "The company is the organization of an economic activity that is directed to the production or exchange of goods or services for the market." (An economic sense)
68. The author Garrigues and Díaz Canabate, for his part, comments “Economically, the company is the organization of the factors of production (capital, labor) in order to obtain unlimited profit.”
69. An economic concept of company: Company is the economic unit, tending to the organization of the factors of production (capital, land, work), activity carried out by a natural or moral person, for the satisfaction of public needs in general and for the purpose of profit, gain or benefit.
70. Felipe Tena Ramírez explains: “Economists understand the company as the body that coordinates the economic factors of production. Wherever an individual or social person coordinates the factors of production, using workers on the job to make them fit, taking advantage of the forces of nature and providing necessary capital (machinery, raw materials, etc.); If this coordination is aimed at satisfying the needs of consumption in order to obtain instead the corresponding remuneration, the body called company arises there. ”
71. The entrepreneur is that person or persons who answer what to produce, how to produce, what to produce for and for whom to produce. Thus the entrepreneur must have certain characteristics in the formation of each company where his character intervenes in an important way.
72. Jorge Barrera Graf points out: the company as an economic figure: “The company or commercial negotiation is a figure of an economic nature, whose intrinsic nature is beyond the law. Its complex and protean nature, the presence in it of disparate elements, different from each other, some personal, objective or other assets (…) makes the company an institution impossible from a legal point of view. ”
73. Given the previous comment by the master Barrera Graf, we can see that it is difficult to give a legal concept of the company; moreover, the dictionary of commercial law presents the same difficulty.
74. Carlos López Rodríguez (Economic concept from Uruguayan Law) Preliminarily, we propose the following definition: the company is the organization of the work of others and capital, to produce goods or services destined to be changed. That is: capital can be their own or someone else's; Regarding work, the work of others must necessarily be organized, to be considered as a company.
75. Entrepreneur is the person who organizes and operates the company. The company is a product of the entrepreneur's work. Every company supposes a holder, natural or legal person, who has created it, who has endowed it with organization, who makes it work and who obtains the profits that are produced in its operation or that takes charge of the losses
76. The company as an economic reality The company is of great importance as an economic unit for the production of goods and services, it is important due to its social dimension, it is the driving force behind great innovations and it is also complex, changing and diverse.
77. Concept of company The company is a system in which production, financing and commercial factors are coordinated to obtain its ends.
78. For manara, the company would be a set of legal acts carried out thanks to a peculiar organization of the forces capable of producing them. Therefore, when commercializing the company, the Code would have commercialized acts that considered in isolation and by themselves, could be considered civil
79. From Peruvian law: From an economic perspective, the company is a production unit in which the factors of production are organized and combined: capital and labor, in order to supply the market with goods or services at a certain price, and all with the aim of making a profit.
80. For Nogaro –quoted by Guelferin-, the businessman is “the person who assumes the burden of arranging and coordinating production in the great modern company, in which it is not the same people who provide capital and organize production with a view to the market".
81. Entrepreneur: according to Adamastor lima - also quoted by Guelferin - the entrepreneur is the one who gathers, coordinates and directs the elements of the company under his personal responsibility, 82. Entrepreneur: Ferrara –in an appointment made by Guelferin- maintains that “it is an entrepreneur who exercises professionally and in his own name, using an organization of people or goods, a lawful activity, aimed at production for the exchange of goods or services, that do not consist of works of genius or intellectual works ”[
83. It will be an entrepreneur who carries out an activity aimed at including goods and services for profit in the market and that an economic activity is carried out professionally, but also, to be an entrepreneur it is required to carry out the acts in a professional manner, likewise, the The entrepreneur differs from the rest of the company personnel because he acts in his own name, an action that allows the social entrepreneur to be distinguished from its representatives.
84. A legal concept of business An attempt has been made to find a way to trace the legal contours. There are two conceptions;
85. 1st An Atomist conception; they consider that it is impossible to give a univocal legal concept of a company relevant to the Law. They do not conceive the company as such, but the different elements that will be governed by different rights and rules. Each of its parts will be governed by its specific rules.
86. 2º A Unitary conception; does not renounce the possibility of giving a univocal concept of a company despite the different parts of it. Among the unitary conceptions are; subjectivizing position, patrimonial position, dynamic position.
87. Felipe Tena Ramírez explains: “Economists understand the company as the body that coordinates the economic factors of production. Wherever an individual or social person coordinates the factors of production, using workers on the job to make them fit, taking advantage of the forces of nature and providing necessary capital (machinery, raw materials, etc.); If this coordination is aimed at satisfying the needs of consumption in order to obtain instead the corresponding remuneration, the body called company arises there. ” This concept, from my point of view is very complete. It shows us the coordination of the economic factors of production, by a natural or moral person using workers (work factor),the necessary capital is provided (the capital already implicit in the economic factors), in addition a profit is obtained and the social function is satisfied.
88. Dictionary of commercial law “The legal concept of the company has been highly debated. Some authors have considered it as a separate heritage, others as a universality of things, it has also been considered as an organization of material and immaterial goods, and, lately, as the activity carried out by the entrepreneur to obtain its own end. It should not be confused with the commercial establishment, since the same company may have different establishments ”.
89. In the Omeba legal encyclopedia: “in law, the company means a collaboration of efforts for a certain purpose, in which the employer and the worker collaborate and are parties to this activity; being conceived, in the popularized definition of Jacobi, as a contest of personal, material and immaterial means destined for a certain purpose, set by the businessman. ” Here we find part of the work factor, personal, material and immaterial elements coordinated for a certain purpose.
90. Raúl Cervantes Ahumada (Mexico) provides us with a company concept that for my particular point of view is the most accurate, and says: “it is a universality in fact, made up of a set of work, material elements and incorporeal values, coordinated for the production or exchange of goods and services destined for the market in general. ” In this definition we clearly find the legal essence of the company; the work factor that for the authors that we saw previously is an indispensable element, the material elements; As we can see, it does not confuse the establishment with the company, it talks about the company separately from the company, it also includes the incorporeal elements that give it greater value.
91. The limited liability company, these are defined as a legal person, with its own assets different from the owner, of a commercial nature, subject to the commercial code, which may carry out all kinds of civil and commercial operations, except those reserved to corporations.
92. Company in labor law: art. 4 CT (Chilean) defines the company: that »understands by a company any organization of personal, material and immaterial means, ordered under one direction, for the achievement of economic, social, cultural or beneficial purposes, endowed with a determined legal individuality.
93. The company (Peru): the company is considered the center of interest of the project, and it is defined as the economic organization dedicated to the production, transformation or commercialization of goods or the provision of services, socially responsible, that is, that complies with society permanently seeking quality and productivity.
94. This is how article 9 of the project has the following text: “company is the economic organization dedicated to the production, transformation or commercialization of goods, or to the provision of services, socially responsible, that is, that its objective and Action is not limited only to economic terms, but to their involvement with society, their community and with their own environment. It can be organized by a natural or legal person ”.
95. Entrepreneur: text of article 34 of the project states that “an entrepreneur is the natural or legal person who exploits a business estate or fund on his own account and assumes the risk of business activity”. Complementing in article 35 that “it is recognized as an entrepreneur who in his own name carries out business activity, in fact or through any of the forms provided by law”
96. Concept of entrepreneur: Is that natural or legal person who professionally and in his own name, regularly exercises the activity of organizing the necessary means for the production or exchange of goods or services. Therefore, the entrepreneur is not only the merchant, but the producer of said goods
These definitions of company and businessman in comparative law have been grouped by their compiler for analysis in the National Congress of Chile.
13. Motivation to carry out this research work
All work has a motivation to carry out, for example, the work entitled registry qualification of judicial documents has been motivated by the existence of abundant unconstitutional or illegal court orders for registration, which has resulted in some research work such as those carried out. by registrars. While the reason for carrying out the investigation of the guarantees in Peruvian civil law was that in the Peruvian state the security of property law has been approved. In this sense, the motivation to carry out this research is the almost null Peruvian research by national researchers on this topic, such as goodwill, by national researchers.
And in this order of ideas it is clear that it merits the corresponding studies in Peruvian law, stating that in Argentine law there are works on this subject that have been published in different media. In Peruvian law we find a brief work that we have reviewed, as is indeed the work of Daniel Echaiz Moreno, which appears published on the Internet, which is a rarity within Peruvian law, for which it is clear that it merits the corresponding studies by of the writers, that is, this writer has contributed to the Peruvian legal culture, but it is necessary to record that there is still much to do within Peruvian law on this subject.
Therefore, it is necessary to highlight that this same author, such as Echaiz, in an interview a few years ago, spread this topic, specifying that he offered his students some points if they found the legal basis of the business fund in the current general law of Peruvian companies, for which is evident that he could not grant these additional points since the legal basis did not exist in the Peruvian positive law, but was found in a preliminary draft or bill of business law and in foreign law, the closest being the case of the Argentine Republic, for which reason it is necessary to resort to the teachings of foreign law.
In other words, the information existing in Peruvian law on the business fund is extremely scarce to such an extent that even recent Peruvian legal dictionaries do not contain a definition on this topic, which has influenced that it is not disseminated within this law and In any case, one must resort to foreign law, being one of the countries that regulate it are the Argentine Republic, Spain and Italy, among others, that is, by tradition in Peruvian law this issue is not regulated by even the Peruvian trade codes that are the first of a century and a half ago and that of 1902, there is some regulation that regulates it in such sense, it is clear that these codes were receptions of Spanish law in both, and in the Spanish codes that served as inspiration to Peruvian trade codes,There were no rules to regulate the information studied.
In any case, another motivation to carry out this investigation has been the importance for the registration areas of this important bill, such as the Entrepreneurship Bill, as it contains some rules similar to the security interest law, but it is clear that the latter is applicable to all, while the draft bill of study is applicable only to companies that are debtors or guarantors, therefore with the current regulation the field of application is increased and in this order of ideas we can affirm that for In these times, the preliminary draft of the business law does not contain many novelties in the branch of registry law, which is a branch of public law, that is, the security of property law constitutes a major legislative advance within Peruvian, foreign and comparative law,In this sense, we hope that the writers pronounce themselves with the publications of the corresponding books, on this important legislative body, as is the cited norm.
Having noted that this norm has passed almost unnoticed in Peruvian law, however, it is clear that this is not appropriate because this legal cataclysm must be taken into account for better regulation in the event that it is thought to improve and approve the draft of the business law.
That is, the law must always be perfected and when we say law we do not mean only positive law or legislation, but we also refer to other sources of law or parts or elements of law such as uses within corporate law and also Of course, within commercial law, that is, they constitute important sources of law, which cannot be left aside because, by making this mistake, it is clear that we could be providing a different treatment to the one that corresponds to these important branches of law., without neglecting that business law encompasses corporate law, that is, this branch of law is part of business law,which has been poorly developed in our environment and in any case we have recorded it in some of our publications, that is to say, we have been able to access this novelty thanks to sources of information on epistemology which search for the truth and in this order of ideas seeking the same is that we have warned of this detail, which constitutes an important advance within Peruvian, foreign and comparative law.
14. Theories on the legal nature of goodwill
14.1. Introduction
The doctrine has developed several theories on the legal nature of goodwill, in this sense we will study them following the teachings of foreign doctrine. Which is important to know the true nature of the studied economic legal institution or subject of study in the present work. That is, in the doctrine there is not only an orientation regarding the legal nature of goodwill but there are several which have motivated the writers to group themselves according to their criteria on the legal nature of the legal economic institution studied.
Therefore, we will study or review the different theories briefly, stating that in some other legal institutions there are several theories about the legal nature of a legal term, for example, in the case of the mortgage, for some it is a contract and for others it is a real right, but for us it is clear that it is a real right, and something similar occurs in the case of the bill of exchange which has a different legal nature for different writers and all this was a matter of study by the writers.
14.2. Negative theories of their legal individuality
14.2.1. Atomistic Theory
Atomistic theory understands that goodwill is a mere set of goods.
14.2.2. Theory of universality without legal individuality
Goodwill does not constitute an autonomous universality.
14.2.3. Intermediate theory
Goodwill can be divided or separated in part but without losing its legal individuality.
14.3. Theory that considers that it has legal individuality
14.3.1. She is a moral person
For which the goodwill is a legal entity.
14.3.2. It is a universality of law
As Calamandrei maintains it, among other authors who study this topic.
14.4. Theory according to which it constitutes an affectation patrimony.
Is it a legal business, or is it a legal object.
15. Strasbourg Congress OF 1962
Some legal disciplines have been studied in legal events such as comparative law has been studied at the 1900 International Congress in Paris, so it is clear that to study this legal discipline we must study the documents of that international congress, in that sense changing what needs to be changed, in corporate law or business law or company law, and in corporate law we must study or analyze the events carried out in which goodwill has been studied.
In order to study the goodwill, it is necessary to take into account the 1962 Strasbourg congress, in which papers were distributed on this important economic and legal issue, which is why it is clear that it merits the corresponding studies of the papers of this congress, however, we must point out that we have not had in sight the same which does not allow an adequate study of the subject matter of study in said important event, which is little known in Peruvian law. In other words, within the background we must take this event into account to deepen our knowledge, in this sense we recommend the study of these papers.
16. Classification of the goods that make up the goodwill
In the preliminary draft of the business law, it is specified in its first article that the business fund may be made up, among others, of the following elements:
- The real rights on movable and immovable property that are part of the current and fixed assets of the company. The sums of money. The patrimonial rights of intellectual property and the rights on other intangible assets. The contracts, rights and obligations related to the business activity.
The elements of the business fund retain their individuality. The acts or contracts that are celebrated with respect to said elements are governed by the law of the matter, in everything that does not oppose the provisions of this law.
Therefore it is clear that in Peruvian law it covers not only furniture, but also real estate and intangible assets, which motivates that the existing system in Peruvian law has been logically determined as long as the aforementioned preliminary draft is approved. Therefore, below we develop the goods that make up the goodwill, according to our opinion, which will serve to have solid knowledge about the goods that make up the goodwill and in this way we can have more elements of judgments on this topic which we develop in the present research.
Article 1 of law 11,867 that regulates the transfer of goodwill, published on August 20, 1934 (this law is Argentine), establishes the constituent elements of a commercial establishment or goodwill, for the purposes of its transmission by any title: the facilities, merchandise stock, commercial name and banner, the clientele, the right to the premises, invention patents, trademarks, industrial designs, honorary distinctions and all other rights derived from the commercial and industrial or artistic property.
That is to say, in the Argentine Republic for more than 70 years, goodwill has been regulated, which is not the case in Peruvian law, which is why in that country said subject or legal institution has reached greater development.
16.1. Tangible assets that make up goodwill
The tangible assets that make up the goodwill are, for example, computers, vehicles, merchandise, land and buildings, among other tangible assets that are owned by the company.
16.1.1. Personal property that makes up goodwill
The movable assets that make up the goodwill are vehicles, machinery, computers, merchandise, desks, chairs, kitchens, pots, tables. Among other movable assets that make up goodwill.
16.1.2. Real estate that make up the goodwill
The movable assets that make up the goodwill are the land, apartments, stadiums, buildings, contracts, among other real estate that make up the goodwill.
16.2. Unrealized assets that make up goodwill
The intangible assets that make up the goodwill are, for example, trademarks, patents and copyrights, among other intangible assets.
17. Denomination
Goodwill is also known as a business fund, commercial fund or commercial finance, so it is clear that the name varies in some states, but they refer to the same thing.
18. Registration of the business fund
It is necessary to take into account that the business fund will be registered in the public registries, but nothing has been regulated about the incorporeal assets owned by the companies since these assets are not registered in the registry offices but in Indecopi, for which is clearly worthy of the corresponding legislative reform at a comprehensive level, all of which will allow an adequate application to Peruvian law. In the second article of the preliminary study matter, it is specified that the owner of a business fund may register it with the purpose of affecting it to a certain activity and giving it autonomy.
The registration of the business fund is made in the Registry of the domicile where the fund is located and is governed by the legal provisions that regulate Public Registries. That is, it is specified that it will have registration as long as it is requested and it will be borne by the registry offices, but taking into account that the security interest law has regulated a similar issue, it is clear that the field of novelty in positive law Peruvian has gone into the background so it is clear that it merits the corresponding studies to update the mentioned norm and consequently it is clear that without the necessary agreement within the law it is clear that we can be misled with partial or little serious studies that all they do is mislead readers, students, lawyers,and researchers and self-taught, so it is clear that for all this it is necessary to take into account the registry rules, but the problem is that it cannot be determined if a set of goods are already registered in another goodwill for which the registry would mislead third parties and third party registrars, the latter being the ones to whom the registry should protect their rights.
19. Regulation in Peruvian law
In Peruvian law this legal institution is not regulated, which is why it is clear that it constitutes an important legislative vacuum, therefore it deserves the corresponding regulation. However, it is clear that in it we must take into account the preliminary draft of the business law, which contains some articles on this subject, however, this preliminary draft has not been approved and is therefore not in force. But it is also necessary to take into account that the law of movable guarantee allows to grant in guarantee all the movable and incorporeal goods through the movable guarantee, consequently to study this subject we must take into account this law, which for some constitutes a great or notable legislative progress, while for others it constitutes the opposite, that is,for others it constitutes a setback, in any case it is a subject that has attracted or originated the debate on the part of scholars who, by the way, are not only lawyers and jurists, but also other professionals, all of which must be a matter of study by the writers.
20. Mortgage on goodwill
The aforementioned preliminary draft specifies that the goodwill may be a matter of mortgage, so it is clear that the same in law falls on real estate, according to the corresponding classification of things, and we say things because it is not the same as the assets since things are the physical assets that can be for certain movable and immovable and on these last ones the mortgage falls on the Peruvian law, which does not happen on the Spanish law, since in the same it exists in addition to the real estate mortgage the movable mortgage, which falls on movable property, that is, the positive right varies according to the legislative option chosen by the legislator, that is, this commented article would originate the regulation of the movable mortgage, which causes them to be forced things,but it motivates an inadequate application of the law because it makes the mortgage apply to the incorporeal which are not things but intangible assets because they do not have or lack corporeality, consequently it is clear that not enough care has been taken when drafting the aforementioned draft, which will cause many problems of interpretation in Peruvian law, that is, before it comes into force it must be modified so that said mortgage is known as a guarantee on goodwill and not as a mortgage on goodwill or on a business fund, which are two concepts that mean exactly the same, in that sense we await the corresponding modification before it comes into effect.
21. Extrajudicial execution
The aforementioned bill regulates extrajudicial execution, so it is clear that said norm cannot be integrated or applied in Peruvian law as it is openly against Article 139 of the 1993 Peruvian political constitution, which establishes that the administration of justice It is in charge of the Judicial Power, and it also specifies that there exists in Peruvian law arbitration and military justice, for which reason it is clear that it deserves the previous modification of the Peruvian constitution to allow extrajudicial execution, it is in this order of ideas that the proposals to amend the 1984 Peruvian civil code cannot include extrajudicial foreclosure for the mortgage, but that this requires prior modification of the Peruvian magna carta, without which this type of foreclosure cannot be included,for all of which we await the corresponding modification.
Taking into account that this topic has constitutional implications, we will study and analyze them following the teachings of foreign law and comparative law, that is, the branches of law are united in practice because law is one that is divided for study purposes in branches and in each of these there are different sources of law, for example they are not the same in commercial law as in tax law, so it is clear that this topic deserves a separate treatment with the corresponding opinions of the writers.
22. Diffuse control and concentrated control
Therefore, it is clear that in the event that said norm comes into force, two controls may be applied in Peruvian law, which are concentrated control or unconstitutionality action by the Constitutional Court and also diffuse control by all law judges. Peruvian, that is, either concentrated control or diffuse control is applied in said hypothetical case. That is to say, all the norms must fit like a puzzle in the right of a state and not be against norms of superior hierarchy, in this sense it is clear that when violating this draft the Peruvian constitution it is clear that the same should not be approved.
In foreign law we find legislation or positive law important for the subject matter of study, for which it is clear that in this case we must resort to Spanish and Chilean law in which the prior concentrated control by the constitutional court to the approval is established of the unconstitutional norm and consequently in these states approval is not needed to declare the unconstitutionality of the preliminary drafts and bills, consequently in Peruvian law it is clear that these foreign experiences can be received with proper partial external reception of constitutional law to the Peruvian constitutional law legislation,since as we know and have been working on another book on comparative law, the receptions have many ramifications and this has not been developed by the writers in Peruvian or foreign law, nor in comparative law, so it is clear that we must leave record that this legal discipline is very important in the development of peoples because it allows considering the insertion or not of a right a part of a foreign or internal law knowing this institution as incorporation or more properly as reception, which is not the same that the transplant, since it constitutes a reception of a very important part of a right to another national or foreign law.Therefore, it is clear that we must record that this legal discipline is very important in the development of peoples because it allows us to consider whether or not to insert a part of a foreign or internal law into a right, knowing this institution as incorporation or more properly as reception, which is not the same as the transplant, since it constitutes a reception of a very important part of a right to another national or foreign law.Therefore, it is clear that we must record that this legal discipline is very important in the development of peoples because it allows us to consider whether or not to insert a part of a foreign or internal law into a right, knowing this institution as incorporation or more properly as reception, which is not the same as the transplant, since it constitutes a reception of a very important part of a right to another national or foreign law.since it constitutes a reception of a very important part of a right to another national or foreign law.since it constitutes a reception of a very important part of a right to another national or foreign law.
23. Democratic constituent Congress
The democratic constituent congress approved the constitution in Peruvian law, but its regulation did not study it carefully because it has many legislative defects that we have been working on in a work entitled urgent reforms to the 1993 Peruvian political constitution, because said magna Carta contains many defects legislative for example it is not possible to regulate in the sense that the congressmen can have another job and the worst thing is that it regulates that they are not responsible for the votes they cast in the congress, for which it is clear that the corresponding modification is warranted, but it is clear that these gross errors are also found in other great letters, which is why in many of these cases or assumptions comparative law is not very useful,which has been defined by some and for us consists in the application of the comparative method, receptions and transplants to comparative law, in conclusion it is clear that for some it is a simple method but for others this is not so but it would be a science and for us it is clear that we are not facing a method or a science but that we would be facing a legal discipline, which has many followers and scholars in foreign law, but few in Peruvian law, for which reason the work of Julio Ayasta Gonzales, constitutes a novelty or an island in Peruvian law, in which there are not many books on this topic, but there are legal books on other topics such as branches of law such as civil, procedural, criminal law, constitutional, registry, notary,tax, administrative, customs, business, mercantile, consular, corporate, insolvency, stock exchange, postal, exchange, telecommunications, communications, among other branches of law, that is, when we investigate we must take into account all the branches of law involved with the subject research subject.
24. Tax implications
When a company is transferred, it is only necessary to pay taxes when companies are transferred on a regular basis, so it is clear that if it is isolated transfers, it is clear that no taxes should be paid, but all goodwill the company must pay taxes in the rus which is the single simplified regime or in the general regime of income tax or special regime of income tax and general sales tax. In other words, to understand this issue, you must also know the tax law because it is important for every company, businessmen, and administrators to know the applicable legal framework of the tax law to the company to be able to fulfill its formal and substantial obligations of this important branch. of public law.
If the company is a legal person, the RUC number is not modified, but if it deals with natural persons, it must be modified, because the ruc number of the previous owner of the business fund must be removed and another ruc number must be removed. or register which is the same in the single taxpayer registry. That is, there is a noticeable difference in treatment if you are a natural or legal person.
