Legal nature of the sponsorship contract

Legal nature of the sponsorship contract

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

Well, in the case of the sponsorship contract, due to the inclusion of the contract in the Spanish General Advertising Law (LGP) it has led the doctrine, first, to analyze the contract related to advertising contracts, in particular with the contract of advertising diffusion. We will address this relationship immediately by analyzing the possible analogy of the sponsorship contract with other contracts.

Examining these points will help us to determine if the sponsorship contract has to be attributed its own legal appearance or nature, or if, on the contrary, it is a contract that has to be subsumed under the appearance of another or other types of contracts.

In Peru, from the little that this contract has been studied, some authors believe that there would be a subsumption in some contractual type of the category of provision of services; others, that it would be a pure atypical contract and there are those who point out that it is an advertising contract and a complex contract.

In the Spanish doctrine, it is discussed whether there is a contract for advertising, broadcasting or advertising creation; It is sought if it has analogies with the contracts of partnership and leasing of works or services; However, they attribute their own legal appearance or nature or a contract that must be subsumed in the appearance of another or other contractual types.

The legal nature of this contract does not escape Italians who opt for a public insertion contract, appalto contract, somministrazione contract, corporate contract, opera contract, subordinate contract and onerous contract atypical and corresponding performance..

_{1. THE QUALIFICATION OF ATYPICAL CONTRACTS}

The purpose of the legal qualification is to resolve the problem of legal discipline applicable to the assumption, properly jurisprudential work of study of the nature and content of the contract, which presents two fronts: on the one hand, the possibility of redirecting the contract concluded to a legal type, if this were possible, taking into account that the contract is what it is and not what the parties want; and, on the other hand, if this is not possible because we are in fact faced with a new contract, the purpose will be to integrate the content of the agreement to solve the conflict raised.

From which the importance of qualifying work is deduced, which is not only reduced to the examination of the type and its redirection to one of the legally established ones, but goes further in the non-regulated ones, proposing its concrete integration, as LASARTE has pointed out.

As is known, there are various proposals to resolve this delicate issue. All of them start from the fact that a contract almost always has elements of others, that is, that it is an atypical mixed or complex contract. Faced with this reality, mechanisms are used –logical files- that try to redirect the atypical business to a typical one that is closer to the business created.

RATING THEORIES OF ATYPICAL MIXED BUSINESSES

As the doctrine points out, the legal category of the so-called “mixed contracts” is one of the most difficult to outline in the general dogmatics of the classification of contracts. The mixed contract is one that is formed by the union of two or more typical benefits or is made up of typical and atypical benefits, or is made up of only benefits of the latter class. As we can see, it is a very broad category within atypical contracts whose casuistry can be extended to infinity and which covers practically all atypical businesses, since totally pure atypical contracts exist practically in theory.

As has been highlighted, these contracts are governed by what the parties have stipulated, but as it is not always enough, "the doctrine has raised the problem of the applicability of the rules of the singular contracts nominated to the mixed". Of the theories proposed for this purpose, some seek the complete identification between the atypical and typical, such as the theory of absorption; others try to break down the atypical business into a set of obligations, each of which will be redirected to the type with which they coincide, such as the theory of combination and that of analogy; and, finally, that of the dominant interest, which adheres to the situation of the interests of each case.

1.1.1 THEORY OF ABSORPTION

This theory is due to the article Der Arbeitsvertrag de LOTMAR that appeared in 1908, supports its argument on the following bases: in any mixed contractual figure, composed of various benefits, some of them must be the prevailing one and the one that constitutes the essence of the legal effect sought with the contract; This benefit stands out among the others and begins to absorb the rest that, in this way, will be framed in the type that corresponds to that of the main benefit.

It has been the subject of criticism, both from a dogmatic point of view and from a practical point of view. Regarding the first, it has been highlighted that its application destroys the categories of mixed businesses, since it should be noted that the other benefits, except the prevailing one, are subject to the type. Thus, JORDANO says that it leads us to a forced classification, and that it "falsifies, obstructs and ignores the economic intent of the parties."

And, as regards the practical aspect, it has been pointed out that it is so difficult to distinguish the prevailing benefit, as is the determination of the competent body to indicate it. In this sense, DE CASTRO adds that "it is unsatisfactory whenever one of the reciprocal benefits, the nature of which is typical of two different contracts." For its part, DÍEZ-PICAZO points out that "it is inapplicable in all those in which the different benefits cooperate to obtain a unitary result with the same intensity and, therefore, without being able to find a preponderant element".

1.1.2 THEORY OF ANALOGY

As a reaction against the previous one, the theory of analogical application arises, which advises to resort to the provisions for those typical contracts most similar to the specific case; In other words, in the event that a conflict arises in the execution of the atypical business carried out, the rules of the typical contract that present greater identity of reason will be used.

The sharpest criticism of this theory is that it seems to ignore the category of mixed businesses, since these, being precisely atypical, "are businesses that are characterized by being different and not analogous to the typical ones." It has been rightly said that applying this theory runs the risk of “subjecting the part corresponding to the less characterized contract to improper regulation”, since as JORDANO BAREA has stated, “its main failure is that it completely dispenses with a very important factor when it comes to establishing discipline, what is the legal or social typicity of the practical functions of each of the merged businesses ”.

1.1.3 COMBINATION THEORY

Finally, reference must be made to the theory of combination proposed by HOENIGER, which proposes to apply the rules of each of the contracts that have some element to the mixed contract. DE CASTRO thinks that “the contract is not a combined, but an organic unit”. Hence, the latter being the one with the greatest predicament, it has been pointed out that it supposes the analogical application of the norms that discipline the typical provision in a nominated contract, to another, unnamed, in which a benefit of the same gender fulfills a function identical,and then the resource seems viable if the application of the legal norm of the typical contract corresponding to the provision that appears identically in the atypical one is not hindered by the general economy of this last contract or the clash with different purposes or interests from the others. contractual types involved in it.

Theory that "is also insufficient, especially in those cases in which the benefits or elements of the atypical contract cannot be redirected to those of the different typical contracts" From a different point of view, but with the same underlying idea, MARTÍNEZ GARCÍA expresses " the contract, like all myths, operates structurally and in the course of its existence it welcomes a variable stock of fables… by varying the internal relations of the contractual device, new contracts are created, which are not the result of a simple combinatorial game, since each one reflects a original thought that is excited, put to the test and is structured in contact with a singularly rich scheme of virtualities »

PREVIOUS CONCLUSION

As DE CASTRO already pointed out, we may wonder why the atypical business should be subject to the rules not of one of those already provided by the legislator and what problems are solved with it. The point is to find the most appropriate rule to solve the problems that arise in the execution and non-compliance. For which, instead of resorting to the logical constructions mentioned, it is necessary to attend to the content of the contract in particular and in general of the social type to which it belongs. In this sense, it has been pointed out that "the theories outlined are scarcely realistic and not very operative", and what proceeds is "to dissect as best as possible the will of the parties, and taking into account the application of the general rules of contracting".

But, in addition, it happens that “absolutely atypical contracts from the legislative point of view do not allow the application of either of the two theories set forth. In such cases, in the case of contracts that despite their legislative atypicality have a social typicity, the supplementary source of contractual regulation may be established by resorting to the norms or criteria already established by the uses, the jurisprudence of the Supreme Court and by the authors' doctrine ”, an argument that is perfectly transferable to the sponsorship contract.

Our legal system offers resources that must be resorted to primarily to make up for the absence of legal norms specifically applicable to atypical contracts, which, transferred to Peruvian civil law, are: the general principles of law (art. VIII of the Preliminary Title of the Civil Code); the general contracting rules (art. 1353 of the Civil Code), and the will of the contracting parties.

I NGRESSING TO THE QUALIFICATION OF SPONSORIZATION

However, despite the arguments presented, we have to stop, necessarily, in some attempts to qualify our contract, which, in turn, will allow us to verify how, depending on the object sponsored, the business not only is “surnamed ”In a different way –cultural, sports sponsorship, etc.-, but has led to somewhat hasty ratings of the business.

Thus, as we have pointed out, from our point of view we are facing an onerous contract of reciprocal benefits that pursues the purpose of the return of advertising. However, the variety of hypotheses that have been pointed out in their qualification is so wide that it shows that there is no doctrinal unanimity on their legal nature since the range of contracts to which they are redirected takes us from onerous to free businesses. Thus, it is worth highlighting the attempts to redirect the advertising dissemination contract, the service provision contract, the work contract, as well as the modal donation. In our opinion, and based on the onerosity of the sponsorship, the donation with charge cannot serve any case of reception mold of this business,which does not exempt us from their study in order to draw the dividing line between one and the other.

2. SPONSORISATION WITHIN THE FRAMEWORK OF ADVERTISING CONTRACTING

Advertising contracts present an obvious legal-private profile, that is, the advertising contracting rules are Private Law rules. In Peru there is a Single Ordained Text of Legislative Decree 691, Rules of Advertising in Defense of the Consumer of November 11, 2000, but in this Law there is no advertising contract as occurs in the advertising laws of other countries. as for example, the Spanish LGP.

SANTAELLA states that advertising contracts, since they link advertising subjects, refer to advertising matter and are typified in the Advertising Law, are endowed with a legal-advertising nature, halfway between the public and the private.

We do not hesitate to advocate the predominantly private nature of the right to advertising.

Our reality indicates the following, our Commercial Code is from 1902, although it is in force, it has not been updated according to modernity; The 1984 Civil Code contains the classic regulation of contracts according to the French Civil Code and to show that we are so backward and not fashionable, we do not have an Advertising Law that regulates certain advertising contracts, that although, By virtue of the freedom to contract and contract, our contract under study is celebrated, it tends to be confused with the provision of services.

2.1 THE CONTRACT OF SPONSORSHIP AND THE CONTRACTS OF ADVERTISING AND ADVERTISING CREATION

The advertising contract is one by which an advertiser instructs an advertising agency, through consideration, to carry out advertising and to create, prepare or schedule it.

In view of this definition, we will trace the differences with the advertising sponsorship or sponsorship contract. The most obvious difference is the one that refers to the content of both contracts; Thus, while in the advertising contract the advertiser entrusts the agency with a consideration for the creation, preparation or programming of the advertising campaign and its execution, in the sponsorship contract, the sponsored participates in the advertising of the sponsor and The latter financially helps the former to carry out their sporting, charitable, cultural, scientific or similar activity. Therefore, while in the advertising contracts a total or partial advertising campaign is prepared and executed, in the sponsorship contract, the sponsored collaborates in the advertising. On the other hand,The consideration that mediates in both cases also presents differences, because while in the advertising contract the consideration given by the advertiser is usually pecuniary, in the sponsorship the financial aid is, in fact, much more varied.

As regards the contracting parties involved in both contracts, the differences are also obvious. The advertising contract involves, on the one hand, the advertiser and on the other, the agency. In the sponsorship contract, although the sponsor performs the function that the advertiser has, the sponsored person does not constitute an advertising agency in the sense that the fourth definition of art. 1 of Legislative Decree 691.

Finally, the economic function that both contracts perform presents specific peculiarities. Thus, the purpose of the advertising contract is the preparation and execution by the agency of an advertising campaign for an advertiser; On the other hand, the economic function of the sponsorship contract is that the sponsored person provides a collaboration with broader and more diffuse profiles in the advertising of the sponsor.

Regarding the relationships of the sponsorship contract with the advertising creation contract, the latter is defined as the one by which, in exchange for a consideration, a natural or legal person agrees in favor of an advertiser or agency to devise and develop an advertising campaign project, a part of it or any other advertising element.

In view of this definition, it does not seem difficult to distinguish between this contract and the sponsorship contract. Indeed, in terms of content, the advertising creation contract is centered on the commission made by the advertiser to the agency to devise and develop an advertising campaign project, a part of it, or any other advertising element; content that is clearly different from the sponsorship contract itself. And when both contracts are considered from the perspective of their economic function, there are clear differences between them: compared to the function that characterizes the advertising creation contract (that is, the ideation and preparation of an advertising campaign project), the sponsorship contract, with the amplitude and diffuse character already indicated, pursues, on the side of the sponsored,make it easier for him to carry out his activity, and, on the side of the sponsor, to obtain an advertising advantage.

In view of the above, it must be concluded that the sponsorship contract constitutes - as we have seen in relation to the advertising contract - an autonomous and independent contractual figure from the advertising creation contract. The only point of connection between the two is given by the fact that both are part of the generic category of advertising contracts.

2.2 THE CONTRACT OF SPONSORISATION AND THE CONTRACT OF ADVERTISING DISSEMINATION

The advertising dissemination contract is one by which, in exchange for a consideration set in pre-established rates, a medium is obliged in favor of an advertiser or agency to allow the advertising use of available space or time units and to carry out the technical activity necessary to achieve the advertising result.

As regards the relationship between the two contracts, it is important to first see the notes that differentiate them; and in a second section the analogies that both contracts present will be drawn.

2.2.1 DIFFERENCES

• The sponsorship contract cannot be subject, due to demands of its own nature, to pre-established rates or to general contracting conditions; free market play will determine in any case the compensation that the sponsor is willing to pay for the sponsored person to collaborate in its advertising. On the contrary, in the advertising dissemination contract, the existence of pre-established rates by the medium are incorporated into the essence of the contract. The sponsor does not fundamentally value the communication medium; on the contrary, the medium, in the advertising diffusion contract, is the object of a careful evaluation by the advertiser. In his considerations, the medium used (whether newspaper, radio, film or television) occupies a fundamental place in his forecasts; instead, in sponsorship,the vehicle of the message is the object or event and the mass media are taken into account by the sponsor in an indirect way, insofar as they can be used to amplify the result of the sponsorship. On the other hand, it is noteworthy, as a note differentiating factor, the fact that in sponsorship the relations between the contracting parties are usually closer. Thus, in the sponsorship contract, the sponsor has an interest in monitoring the contractual relationship since the brand image that it tries to enhance with the use of this contract may be affected by the most varied incidents. And on the side of the sponsored, the conservation of the sponsor on many occasions is vital to continue developing the sponsored activity;Hence, both contractors tend to maintain closer relationships than those that occur in the advertising dissemination contract, where the medium is limited to allowing the advertising use of available space or time units and to develop the necessary technical activity to achieve the advertising result. For the rest, a sample of the closest relationships that arise in the sponsorship contract is the existence of frequent exclusive agreements that are included in the contractual content. Also in terms of the content of the contract, the differences are notable. Well, while in the broadcasting contract the medium is obliged to "do something" ("to allow the advertising use of available units of space or time"), in sponsorship,The content of the sponsor's obligations is much more varied: from the simple obligation to consent to the placement of the sponsor's emblems on their clothing, to the more complex obligations of television sponsorship, where the sponsored person can assume obligations related to the set design, either consistent in the repetition of advertising messages, or in the demand for certain behaviors. And as regards the obligations of the advertiser or agency in the broadcasting contract and of the sponsor in the sponsorship contract, there are also important differences. Thus, in sponsorship, on many occasions, the obligations to give,in the sense that the material provided by the sponsor may constitute the only consideration that the sponsor provides for the sponsor to collaborate in its advertising. This relevance of the obligation to give, in the sponsorship contract, contrasts with the little meaning that this type of obligations has in the advertising dissemination contract, since in it, the advertiser or agency is limited, ordinarily, to pay the amount of the pre-established rate. In the advertising dissemination contract, the content of the message and its effectiveness are indifferent to the medium. Its provision is specified in the provision of the agreed units of time or space, and the result of the message, in terms of advertising effectiveness, does not concern it. On the contrary, the sponsored is more involved in the message. Being the vehicle of the message,It must endeavor to disseminate the brand or its sponsor's product as intensively and effectively as possible, since the duration of the contract or its renewal will often depend on this circumstance. In this sense, INZITARI affirms that it has no doubts that traditional sponsorship and advertising differ in the veicolo di diffusione.Another distinctive note is the fact that in the advertising broadcasting contract there is a figure that normally represents the culmination of a series of business relationships (started with contacts between the advertiser and an agency). In sponsorship, contractual relationships are established between the sponsor and the sponsored person according to their mutual economic convenience.The sponsoring entrepreneur is frequently freed from the financial burden represented by the realization of the content of the advertising message. This saving in expenses is especially for small businessmen who cannot take on large mass media campaigns.

2.2.2 ANALOGIES

The differences that separate the sponsorship contract with the advertising broadcasting contract do not make the existing analogies between the two contracts disappear. In the lines that follow, the main analogies are exposed, even briefly.

• The most obvious similarity between the two contracts is the one that compares the sponsor with the advertiser and the sponsored one with the medium. Another note that brings the two contracts closer is that relative to the independence with which both the medium and the sponsored one perform their own exercise. Indeed, the sponsor must not exert influence on the activity being sponsored; and in the advertising dissemination contract, the contracting party must not exert any influence on the medium, as regards the technical activity that it has to develop to obtain the advertising result. Lastly, in the sponsorship contract, collaboration that the sponsor agrees to carry out the sponsor's advertising is inserted in the last phase of the advertising communication process (the dissemination of the message);And the same is what happens in the advertising broadcasting contract, in which the medium intervenes in the terminal phase of communication to the public.

2.3 THE CONTRACT OF SPONSORSHIP AND THE CONTRACT OF ADVERTISING INSERTION

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

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

There are other cases of advertising insertion that have less life. Thus, the spaces that are taken by businessmen in the places where large events are held.

Advertising insertion is also a theory that is sought through it to explain the legal nature of the sponsorship contract; However, this theory tries to reduce the phenomenon of sponsorship to the simple temporary concession of an advertising space.

Ultimately, as can be seen, the sponsorship contract maintains similarities with other equally innovative advertising contracts, but differs from all of them in its essence or in its most particular characteristics.

3. RELATIONSHIP OF THE SPONSORSHIP CONTRACT WITH OTHER CONTRACTS

In this section we will stop at some civil contracts that may have some common characteristics with the sponsorship contract; Obviously, it is not a question of comparing it with all the contractual figures of an onerous nature, but only with those with which it is most similar. Specifically, we will dwell on the analysis of its possible relationships with the service provision contract. It should be noted that foreign doctrine has tried to assimilate it to other types of contracts; for example, the mandate contract, regulated in art. 1790 of the Cc.

For example, in Italian doctrine, it has paid special attention to certain affinities between the sponsorship contract and the partnership contract. Part of the Spanish doctrine has studied the possible assimilation of the sponsorship contract with the contract for the lease of work or services, regulated in art. 1,544 of the Spanish Cc; We collect said article between us through arts. 1764 that defines the service lease contract and 1771 that defines the work contract.

3.1 SPONSORIZATION AS THE PROVISION OF SERVICES

Let us address the possible identification of the sponsorship contract with the service provision contract, in order to satisfy, as SIMONE has affirmed, an 'innate propensione all' dogmatic framework. In effect, the typical contract that is most frequently used when it comes to fitting in or qualifying for our doctrine is the provision of services.

The contract for the provision of services in our legal system comprises five modalities, as stated in art. 1756 of Cc.

The service rental contract is regulated by article 1764 to 1770.

We have pointed out that the definition of the service rental contract is found in art. 1764 of the Cc. CASTÁN TOBEÑAS (1886-1969) defines it as that contract by virtue of which “one of the parties undertakes, with respect to the other, to carry out a service of her activity or work, for a specified time or without a fixed term, in exchange for remuneration proportional to the time or quantity of work produced ”.

On the other hand, we have art. 1757 of the Cc referring to the unnamed contracts for the provision of services. It is clear that the first definition of the article could fit the sponsorship contract since, in essence, it can be included in the category of contracts to which the aphorism “do ut fatias, fatio ut des” is applicable. The Spanish RUIZ DE VELASCO considers that the sponsorship contract is closer to the leasing of services -in us, the location of services- than to the contract of advertising diffusion.

Due to the broad wording of art. 1757 of the Cc the operator could frame this figure within the contracts for the provision of services, due to the absence of an ad hoc legislative treatment for this contract.

The aforementioned article if it says "also" is because art. 1756 refers to the modalities of the provision of services nominated for the Civil Code.

From an external point of view, the sponsorship contract shares each and every one of the characteristics of the contract for the provision of services, that is, consensuality, bilaterality, onerousness, free in terms of the form of celebration. However, what is really important is to contrast the main obligations of the type - price delivery and service provision - with our contract.

Thus, the price, the consideration to which the principal undertakes, can be identified with the help that the sponsor provides to the sponsor. This may consist of the payment of a fixed liquid amount, or the delivery of the material necessary to carry out the activity.

Regarding the service provided, as DÍEZ-PICAZO has highlighted, “sponsorship constitutes a special form of advertising message, which is carried out through the connection of the name or brand of the sponsor with the figure, the fame of the sponsored and with the cultural or sports activity carried out by him, which constitutes a prestigious event ”. We find ourselves with an obligation to do, to provide a service in sports sponsorship since the sports activity itself is financed. However, from our point of view, it follows from here that the service that the sponsored person provides, contrary to what has been said. Thus, LÓPEZ MENUDO defines sports sponsorship as “one in which the advertising company or commercial firm hires the services of the athlete to carry out their activity,either on a regular basis or for isolated actions ”. It is not, exclusively, that of carrying out its own activity, but it assumes the advertising commitment of transmitting the name and distinctive of the sponsor with its activity. Both issues are closely related but, especially, are clearly distinguished in the non-compliance regime, since the sponsored person does not comply if he carries out his activity but does not transmit or disclose the name of the sponsor.since the sponsor does not comply if he carries out his activity but does not transmit or disclose the name of the sponsor.since the sponsor does not comply if he carries out his activity but does not transmit or disclose the name of the sponsor.

The doctrine has settled the issue as this qualification could be used for sports sponsorship, because the features of both contracts are close, but in no case would it serve as the final and only qualification of sponsorship because it is not adapted to cultural sponsorship.

The key to rejecting this option is that the sponsored person is not a mere service provider –their activity-, but is “helped” or finances this activity so that the sponsor's message is made known to society.

In this sense and hypothetically seeking the application of the rules of the Service Provision contract, we find that arts. Is inapplicable or at least difficult to apply to the sponsorship contract. 1758 referring to the contract for the provision of services between absentees, 1759 which deals with the opportunity to pay the remuneration and 1762 about the responsibility for the provision of professional or technical services, given the nature of the agreement.

On the other hand, the sponsor's obligation could also be a provision not to do, such as tolerating the sponsor to make use of the sponsor's image or name, or allowing the sponsor to promote their company without demanding any other additional consideration. or their products with the quality of official sponsor of a certain event.

VEGA affirms that “it is inconsistent to maintain that, if the sponsor's obligation is to make a clear allusion to the sponsor (preparing television sets or placing posters with the sponsor's name), -which implies an indisputable provision of doing at your expense - in this case, art. 1757 of the Cc, since then the sponsorship contract would be classified as a modality of the provision of services, while in other hypotheses - such as the one described in the previous paragraph, in which the provision is a failure to do - the sponsorship contract it would lack a proper framing within the categories of provision of services provided for in the Code ”.

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

However, the atypicality of this contract does not stop presenting serious setbacks, fundamentally because there is not, within the Civil Code, a contractual figure that is close enough to deduce from it the discipline that is closest to it.

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

The sponsorship function, therefore, is assisted by innumerable behaviors of the most dissimilar that make any attempt at uniformity difficult to apply analogically the norms of one or more typical contracts.

And to demonstrate that in Peru the sponsorship contract is denatured developing as a service provision contract, let us analyze the following administrative jurisprudence issued by Indecopi.

This is Resolution No. 009-2002 / CCD-INDECOPI of 01.30.2002, a file brought by The Coca-Cola Company (complainant) against Pepsico Inc. Sucursal del Perú (Pepsico), Bebidas La Concordia SA (La Concordia) and Embotelladora Rivera SA (Rivera), for alleged infractions of the principle of non-denigration contained in art. 7 of Supreme Decree No. 039-2000-ITINCI, Single Ordered Text of the Rules of Advertising in Defense of the Consumer.

The complaint was filed as a result of an advertising campaign by Pepsico in the program called “R with R” conducted by Mr. Raúl Romero. During the “Canta y Gana” sequence on April 9, 11, 16, 2001, Mr. Romero made statements about the suitability and quality of the products that competed with the “Pepsi” drink, the same ones that had been disseminated in a segment sponsored by Pepsico and La Concordia would constitute a reality advertisement as a consideration derived from the sponsorship or sponsorship contract existing between the denounced (the emphasis is ours).

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

As we can analyze so far, the contract signed is not for the provision of services or sponsorship but rather for advertising insertion, because Pepsico seeks the dissemination and advertising promotion of its Pepsi product through a television channel, that is, the Pepsico company hire a segment of time to reach the consumer. The first thing you notice is that the Commission does not adequately qualify the contract, first, because it confuses the sponsorship contract and the service provision contract, that both contracts have their particularities does not mean that they are the same; it is through these nonsense that the institution is denatured.

In part III of the Resolution corresponding to the analysis of the controversial matter, it is stated that “the statements that are the subject of the complaint referring to returnable plastic containers for soft drinks have been disseminated by Mr. Romero during the sequence that is sponsored by Pepsico”. clearly, at least, that we are facing an advertising insertion contract.

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

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

By virtue of the aforementioned contract, Panamericana Televisión SA was obliged to provide advertising services in favor of (sic) our company, granting us the rights to transmit advertisements to promote our product within the "R with R" program in the "Sing and Win" segment. (…).

As can be clearly seen, our relationship is with the medium and not with the television host and in no way do we reserve the right to control or supervise their personal initiatives (of Mr. Romero), as was the reference to returnable packaging (…).

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

By demonstrating that there is no causal link between our conduct and the commission of the alleged infringement (…) our company is not responsible for it (…) "

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

3.2 THE WORK CONTRACT: CULTURAL SPONSORSHIP

The alternative of qualifying the sponsorship as a work contract has been considered, as this is a priori a contract related to the sponsorship of a cultural nature, and especially to help with advertising purposes for the rehabilitation of artistic heritage.

It should be noted that cultural sponsorship does not end with this assumption, but it can be any aid to events related to culture, the arts, such as concerts, plays, etc. Likewise, we are faced with cultural sponsorship when the writing and preparation of a book is financed or when a musical work is financed. By way of example, on the first page of the LASARTE ALVAREZ manual, Principles of Civil Law, III, the following statement appears: “The writing and preparation of this book has been possible thanks to a generous sponsorship from Banco Bilbao Vizcaya, to which the author wishes to express his warm and sincere gratitude ”. In us, Professor Humberto CAMPOS, when he presented his book Banking and Financial Law,on the back cover was the Banco de Crédito advertising referring to a type of loan (Hipotecasa); Although not explicitly stated in the presentation, such funding is taken for granted.

Strictly speaking, we are not facing a different or peculiar sponsorship due to the fact that it focuses on the cultural field, since we have already seen how the object of sponsorship is not limited to the sports field. And yet, it turns out that this kind of sponsorship definitely contributes to breaking the legal framework of the contract for the provision of services, since the provision of the sponsored is not configured as an obligation to do, but rather we find that in cultural sponsorship, the sponsor gives money or other utility for specific cultural purposes and in return reserves the exercise of a series of powers for advertising purposes.

This cultural sponsorship, in the opinion of a sector of the Italian and French doctrine, the latter that has studied the parrainage publicitaire, while still stating that we are facing an atypical contract of a complex nature, have understood that the only typical mold in which this contract fits is in the contract d´enterprise. From a legal point of view, it could be classified as a work contract in accordance with the provisions of art. 1771 of the Cc.

But is this your rating? Definitely not. It is in the hypothesis of contractual breach, as it is best seen that the frustration of the business occurs when, even when the work is carried out, the informative and publicity obligations are not fulfilled. The work is the means that makes the sponsor known, but the purpose of the business is not the work itself. The aim pursued - the return of publicity - is achieved through the restoration or the writing of a book.

In Trujillo a mural is being built on the front of the National University of Trujillo of approximately one kilometer financed by Aerocontinente; in the construction of the mural the sponsor does not appear, but it can calmly appear, if it appears with a panel, in this way the sponsor would be made known. The purpose of the contract would have been frustrated by culpable breach if the mural had been completed without the mural appearing.

In conclusion, the qualification of cultural sponsorship as a work contract is a hasty qualification that is reached by the sole fact that the object to be sponsored is a certain work, which at no time obscures the true profile of the sponsorship contract and his already mentioned distinctive notes. In the same sense, BIANCA manifests itself, who affirms that despite the fact that the proposal to redirect the sponsorship contract to the “locatio operis”, both in the form of appalto di servizi and in that of contratto d´opera, is original, the physiognomy particular sponsorship does not allow the application of contractual schemes that alter its original purpose.

3.3 SPONSORIZATION AS A CONTRACT OF RECIPROCAL SERVICES

We have pointed out that one of the characteristics of the sponsorship contract is that it is a contract with reciprocal benefits and that is how our national doctrine is unanimous; which is different, that its legal nature is explained through these contracts.

Even when it is a contract with reciprocal benefits and we try to explain its nature via this modality, it is necessary to know if the articles referred to in this contract are applicable in our order to the sponsorship contract.

Reciprocal benefit contracts in our Civil Code are regulated in arts. 1426 to 1433.

The art. 1426 sanctions the exception of non-compliance; the art. 1427 prescribes the exception of expiration of the term; the art. 1428 sanctions the termination of the contract for breach; the art. 1429 the resolution of full right; the art. 1430 referring to the express resolution condition; the art. 1431 prescribes the theory of risk in contracts with reciprocal benefits; the art. 1432 about the resolution due to the impossibility of the provision due to the fault of the parties; and, art. 1433 which deals with breach for partially impossible performance.

The sponsorship contract has the nature of reciprocal benefits as long as the sponsor agrees to make a benefit (to give or to do) in favor of the sponsored, in exchange for active or permissive benefits predetermined by the same sponsor.

To that extent, the application of the regime on this class of contracts provided for in the aforementioned Code seems feasible; However, given the way in which benefits are usually carried out by both parties, the eventual application of art. 1428 of the Cc, relative to the exceptio non adimpleti contractus or exception of a non-fulfilled contract, could require some precision.

DE LA PUENTE Y LAVALLE tells us that the resolution for non-compliance is oriented to the fact that, by means of the action intended to deprive the effectiveness of the legal obligation arising from the contract with reciprocal benefits, the duty of one of the parties ceases, to whom it is to be called by hyperbole "the faithful party", to execute the provision under his charge by virtue of the non-performance of the provision in charge of the other party, who is also going to be hyperbolically called "the unfaithful party", for reasons other than the impossibility.

In effect, the sponsor who finances the sponsored activity of public scope (by delivering sums of money), or provides it with goods or useful materials for its execution, first fulfills its provision. In turn, the sponsored person performs the work that is his or her own and customary by displaying or bearing the name, brand or other sign of the sponsor. However, this obligation is always fulfilled at a later time.

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

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

3.4 SPONSORIZATION AS A MODAL DONATION

Although the doctrine is practically unanimous regarding the onerous nature of the sponsorship contract, there are doubtful, “intermediate” cases, which are between the onerousness of the sponsorship and the gratuitousness of the donation, which has led to an attempt doctrinal qualification as modal donations.

In Spain, intermediate sponsorship, in which certain gratuity and other onerous notes are given, has the characteristics of a modal donation, burdensome or onerous, since this, as is known, consists of a free attribution by the donor, in exchange for which something is received from the donee. This consideration is of diverse consistency and nature and enters the business as an accidental element, as a burden, which is regulated in art. 619 of the Spanish CC. The typical problem of this figure, which has a nuance of onerousness, but which is also a donation, is that of establishing the mobile border between the act of liberality and the contract.

In Peru, it is called a remunerative donation or subject to charge, regulated in art. 1642 of the Cc. This numeral must be interpreted in coordination with arts. 185 that regulates the enforceability of the office; the art. 187 that prescribes the unenforceability of the position and art. 188, which sanctions the transferability and non-transferability of the position, declares, in this case, originated by the modal donation, if the taxpayer dies without fulfilling the charges intuito personae, returning the assets to the person imposing the charges or his heirs.

In comparative legislation we can find modal donation in art. 793 of the Italian Cc.

Our Code is not explicit about the problem of non-compliance with the charge by the taxpayer. The Code sanctions this breach with the resolution of the donation contract, if it has been foreseen by the parties (art. 793, fourth paragraph). That is why in doctrine there are those who maintain that in the Italian legal system the modal donation has the nature of a contract with reciprocal benefits, because: “the fact that the breach of the charge legitimizes the termination of the contract denotes that each of the benefits are the cause of the other, which between them runs the link of the synalagma: this places such contractual hypothesis outside the donation. On the contrary, it is stated that: “paragraph 4 of article 793, confirming that the fulfillment of the position is not the consideration of the patrimonial attribution, recites,In effect, that the donation does not become ineffective if the mode is breached: the attribution remains in place in any case, even in the event of a breach by the person in charge (except in the hypothesis that the resolution for breach has been expressly provided for in the act) ».

Juan ESPINOZA points out that in the national legal system, the breach of the position does not entail the invalidity of the modal donation, however it corresponds to the donor the exercise of the right to enforce the same to the donee or, where appropriate, request compensation. If the parties agree that the validity of the donation depends on the fulfillment of the position, the position ceases to be such and becomes a condition or, where appropriate, a consideration. Both the condition and the position or mode are modalities of the legal act: in the first we are faced with a future and uncertain event in front of which the effects of the act are made depend, in the second it is the activity or activities that have to carry out a part that has benefited from an equity attribution free of charge,whose breach does not entail the invalidity of the act.

Well, if we transfer this typical scheme to our business, the modus would consist in removing the fact of the patrimonial attribution from anonymity, either by allowing the sponsor actions to disclose the aid, or by the sponsor himself seeking the disclosure of the liberality. So that the donee does not cease to be a recipient, no obligation should be imposed either to do or to give, but exclusively to support the disclosure of the aid, under the agreed terms. In this case, the more the obligations of the sponsored subject (donee) are articulated and complicated, "the more clearly we are faced with the reciprocity of the contractual benefits and the onerousness of the contract in question."

The power to publicize the fact of the provision is usually carried out by displaying the logo or distinctive of the person providing the aid, on the donated material, or by placing a plaque of appreciation to the entity that has contributed financially.

The question that arises here is where is the dividing line between the modal donation and the sponsorship contract, that is, if the aid that is provided is done as a donation as a modal donation, with charge or onerous, or if, on the contrary, in these cases there is no such spirit and the rules that must govern are those of the contracts.

We understand that as long as the cargo does not reach the consideration category, the rules that govern are those of the donation. So this type of dubious ad sponsorship could qualify as a modal donation.

On the contrary, if the modus is consideration, the doubtful assumption would have exceeded the line from gratuity to onerousness and the rules by which it would have to be governed would not be those of the donation but those of onerous contracts, since the burden would pass from being an accidental element of the gratuitous act to a true consideration for the sponsor. Thus, it has been pointed out that this reference is made to move the regime from the donation area by extracting it from it. As if the donation with burden were a fully onerous business and, therefore, did not contain a bounty.

In this case, the publicity obtained by the mere disclosure of the aid is understood to compensate the sponsor for the economic sacrifice made and the breach of the sponsor would empower the sponsor to resolve and compensate for damages.

If, on the contrary, it is understood that the charge is accidental and that it is not a consideration, one of the consequences of its non-compliance by the donee, which does not allow or makes it difficult for the donor to disclose, will be the revocation of The donation. Indeed, if the donee fails to comply with the load, art. 1642 of the CC empowers the donor to wield the powerful weapon of the unilateral revocation of the donation. The donee should return the aid received: money, material, equipment, etc., as well as the fruits and interests received after the breach of the load in accordance with art. 1643 of Cc.

On the other hand, it has been used as an argument to separate the two assumptions, that of damage, in the sense that the act will be onerous if the donee suffers damage as a result of the heavy burden imposed; that is, the damage would arise when comparing the donation with the load. From our point of view, this criterion of distinction is not valid since it is evident that in the assumption that arises there is onerous because there is a burden that exceeds the gratuity of the act of the donor. If this happens, there is no damage, but what happens is that the donee returns by way of an excessive load as much as is delivered by way of donation.

Ultimately, in our view, the interpretation of these intermediate assumptions must necessarily be restrictive and they must be applied whenever there is reasonable doubt about the value of the cargo, and whether or not the rules of the contracts, as a guarantee of the balance of the contract and as a way to protect the weakest contractor, in this case the sponsored-donee.

However, once again the examination of the specific case will be the only way to draw the fuzzy line between the gratuitousness and the burdensomeness of these assumptions, because let us not forget that the patron also seeks recognition of his work and does not lose his spirit of liberality.

In the doctrine that has studied this subject there are different opinions. Thus, critical of the alleged altruistic spirit of internal sponsorship. SIMONE states that “the tendency of the doctrine to frame sponsorship contracts in the field of atypical contracts with reciprocal benefits has offered the opportunity to examine, in cases of internal sponsorship, if possible within the scope of art. 770, last paragraph of the Code «.

3.5 THE BUSINESS COLLABORATION AGREEMENT

Once the dividing line between modal donation and sponsorship has been drawn in theory, it is the right time to address what is behind the business collaboration agreement.

A business collaboration agreement is understood to be one entered into by a company and a foundation or a non-profit association, by virtue of which the former will provide aid for the realization of the purposes -of general interest- of the latter. In return, it undertakes to disseminate the participation of the collaborating company. The commitment may never consist of the delivery of a share in sales or profits.

The Regulation of Legislative Decree 821, General Sales Tax offers in art. 4.3 the concept of a business collaboration contract.

Of both definitions, the first of the doctrine and the second of the Peruvian law, it deserves to make some comments, first; in Peru it is valid between two or more companies, a situation that is not contemplated in the doctrine; second, the consideration is clear in the definition of the doctrine, for Peruvian legislation, there is silence.

In comparative legislation, such is the case of Spain, which has Law 30/1994, of November 24, on Foundations and Tax Incentives for Private Participation in Activities of General Interest, especially in art. 68 focuses on this convention.

The first reaction to reading the concept outlined above is that the collaboration contract is a form of sponsorship. The objective elements of this are given at first glance, namely, aid in exchange for advertising, with a clear parallel with the definition of advertising sponsorship; however, the idea is immediately rejected because the rule itself (art. 68) expressly excludes sponsorships; hence we wonder what type of contract we are in.

In view of the examination that we have carried out on impure sponsorship or modal donation, the agreement concluded does not introduce any structurally innovative element regarding it. The company, for the purposes of this Law, is carrying out an act of liberality that is specified in the delivery of financial aid. In return, it obtains a certain recognition that, as it seems to be limited to the fact of making the aid known, it is a mere burden that is not enough to be a consideration.

Therefore, the quality of donor is disseminated, the amount donated, but it should not be possible to advertise the goods or services that it offers to the public, although this is something that can be deduced to the contrary because the consideration is limited to the dissemination of aid.

However, as Spanish law, logically, neither sets minimum amounts to be able to show the quality of collaborator, nor does it require the dissemination of the amount, it could happen that a company with a small amount appears as a collaborator of a cultural event. In this case, the publicity obtained with the dissemination of the aid would be, in our opinion, a real consideration.

On the other hand, we can highlight two other aspects that expressly distance us from sponsorship.

In the first place, it is the final paragraph of Article 68 that says "in no case may said commitment consist of the delivery of percentages of participation in sales or profits." From our point of view, we are facing a clear limit to the charge or mode of this donation since the commitment that the described entity subscribes with the sponsoring company can never consist of it receiving a percentage of benefits or a participation in sales at cost of the results achieved with the sponsored operation. This clause, on the contrary and in the affirmative sense, is usually common in cultural sponsorship contracts, as we have seen. The sponsor, together with the dissemination of the aid, completes its consideration by reserving a share in the profits eventually obtained, either in the sale of tickets,in exhibitions, etc.

However, this subsection of Article 68 has been interpreted in a different way, and from the perspective that it is the sponsoring company that assumes the commitment to deliver a present aid and to which the law does not allow to assume the commitment to deliver a percentage of its profits or its sales to the aforementioned entities.

In our view, this formula does not limit the form of the aid, but rather a barrier is being placed on the company to the temptation to demand any other consideration from the donee other than the diffusion of the aid. Cargo can never be consideration. According to GIACOBBE, to check if in the specific case we are facing a sponsorship contract, the name given to the contract by the parties is not decisive; as contracts of this type are called by the parties as "promotional-advertising collaboration agreement" or with similar formulas. The individualization of the characteristic elements of the type is essential.

Second, it is noteworthy as a difference between the two assumptions that the subjective data varies. In sponsorship, the sponsored person can be a natural or legal person, for profit or not, while in the business collaboration agreement it is signed exclusively with Foundations and Associations of public utility.

And, finally, regarding the nature of the agreement, it is necessary to frame the agreement in the philosophy of the norm, which is to promote private participation in activities of cultural interest. Promotion that, as is often the case, is not enough for it to be a declaration of intent, but must be accompanied by fiscal measures that push companies to feel and act as patrons.

Well, from the fiscal point of view, we also find arguments to justify that we are dealing with a modal donation, since the tax advantages that the law offers to companies for the amounts it allocates to activities of general interest, has a different regime of sponsorship advertising, because in this case the expense would be computed as an advertising expense. Furthermore, in sponsorship, the consideration would not be limited by the mere burden of disseminating the aid but could be integrated by any of the usual clauses in this type of contract.

4. RECAPITULATION ON THE LEGAL NATURE

Through the examination of the various attempts to qualify the sponsorship contract, the opposite effect arises, in our opinion. Indeed, sponsorship cannot be classified as any of them, because it presents conceptual autonomy and maintains essential and basic features of the type. Along with them, it is clear that we can find the most diverse benefits, which do not slide the business to the legal types studied, because in them we do not find the distinctive notes of sponsorship.

For this reason, CORREDOIRA Y ALFONSO is partially correct when presenting the idea that sponsorship is something prior to the typical or atypical contract entered into, with essential notes that define the relationship between the sponsor and the sponsored person and that lead it in practically all cases. to onerous contracts.

Therefore, I join the dominant doctrine in asserting that the sponsorship contract is atypical. We are facing a contract capable of fulfilling its economic-social purpose through various contracts, which can make it difficult for the legislator to decide to classify it. Hence, it has been chosen, almost mostly, for its plural denomination, that is, not for “the sponsorship contract” but for “the sponsorship contracts”.

It is useless to try to permanently identify the sponsorship contract with any of the aforementioned typical assumptions, both due to the particularity of its cause and the versatility of its content that requires a casuistic examination to apply the appropriate regulations to conflicts between parties..

It happens, however, that although an individualized discipline may not be absolutely necessary, it is nevertheless a “horizontal” type of discipline that limits freedom of contract and avoids the imposition of excessive clauses on the weakest contractor.

In short, the recognition of atypicality does not solve the problem of what the applicable discipline will be in the event that problems arise from the contract, either of non-compliance, of imbalance of benefits, of violation of personality rights, etc.

Thus, following JORDANO BAREA, in the first place the general rules of an imperative nature contained in Title II of Book IV of the Code, that is, the rules on obligations, will be applied.

Second, the Civil Code calls for the exercise of the autonomy of the will, for freedom of contract, in art. 1,255. Hence, once the validity requirements have been met, it will be necessary to comply with the content desired by the parties, with the "self-regulation freely consented to by the parties."

Third, as it is a contract with a strong social typicity, both national and international, in which the parties have not foreseen, it will be necessary to comply with the features that characterize this social type, that is, the criteria established by practice., by the uses, by the jurisprudence and by the scientific works on the matter, all of them based on the models that are repeated in practice. And finally, to the general principles of obligations.

In short, sponsorship contracts as an expression of the autonomy of the will between the parties will be governed by what they stipulate and by the general rules of the contracts in what has not been provided for by them. The Italians BRIANTE and SAVORANI affirm that the sponsorship agreements are atypical businesses, an expression of contractual autonomy and that the applicable discipline is that of the contract in general and the general principles of the legal system.

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