Concept of commercial company
The mercantile society can be defined as follows: «a mercantile society is the one that exists under a denomination or company name, through the agreement of wills of a group of people called partners, who join their efforts and capital to achieve a purpose common of economic character with profit purpose ”.
They are two or more people who create relationships of obligation and patrimonial through a unitary treatment for the consequence of a common purpose.
Mercantile companies can be constituted under the fixed capital or variable capital regime, therefore, it should not be thought that the variable capital company is just another company that we have omitted, but that anyone can adopt this modality.
The constitution of the mercantile companies must be done before a notary public, by means of a social deed that will be registered in the public registry of commerce.
Commercial companies are governed by the general law of commercial companies and the cooperative society by the general law of cooperative companies, the constitution of one and the other must be recorded in a social deed before a notary public.
Operating requirements
If it is constituted as variable capital, the minimum capital cannot be less than one fifth of the initial capital (article 217, first paragraph, LGSM).
Its capital stock may not be distributed until after the dissolution of the company, prior liquidation (article 48, LGSM).
Advantage
Perhaps the most important advantage in most partnerships is the opportunity to raise enough capital to get a business going. Forming a partnership is much easier and less expensive than organizing a joint stock company.
Members of a partnership have more freedom from government laws and more flexibility of action than owners of a joint-stock company. Partners can withdraw funds and make decisions of all kinds without the need for formal meetings or legal procedures.
Limited partnership by shares
It is the one that is made up of one or more limited partners who respond in a subsidiary, unlimited and joint manner to the social obligations and one or more limited partners who are only obliged to pay their shares.
This company participates in the characteristics of the so-called personal and capital companies, as they are made up of one or more limited partners who respond in a subsidiary, unlimited and jointly responsible manner, for the social obligations and for one or more limited partners that only they are obliged to pay their shares.
Business name
It will be formed with the names of one or more limited partners followed by the words "and company" or under a company name adding the words Limited Partnership by Shares or S. in C. by A.
Social capital
It will be divided into shares, those belonging to the limited partners are nominative and cannot be assigned without the full consent of the limited partners and two-thirds of the limited partners.
Administration
The administration of the company will be in charge of the limited partners.
Society Constitution
That there are at least two partners, that the share capital is not less than $ 50,000.00, that the cash is displayed, at least 20% of the value of each share payable in cash and that the value of each share that is has to be paid.
Business name
The name will be freely formed but will be different from that of any other company, and must be followed by the words Sociedad Anónima or SA
On the other hand, the name of the company is necessary in order to be distinguished from those with which it can compete and it will also serve as a signature to sign your commercial transactions.
The Law grants almost absolute freedom as to the name that can be chosen for the corporation, it only provides that the indication of "corporation" or its abbreviation must necessarily be recorded: SA and that a name identical to that of another may not be adopted. pre-existing society. For this reason, it is necessary to obtain the corresponding certificate of non-registration that has to be requested in the Mercantile Registry.
Social capital
It is represented by nominative titles that will serve to prove and transmit the quality and rights of the partners. Not less than 25,000.00 pesos fully subscribed. That at least 20% of each payable share is exhibited in cash.
Cooperative Society
Form of social organization made up of individuals based on common interests and the principles of solidarity, self-help and mutual help, with the purpose of satisfying individual and collective needs, through the performance of economic activities.
The cooperative is a society that associates, under a free membership and voluntary withdrawal regime, people who have common interests or socio-economic needs, for whose satisfaction and at the service of the community they carry out business activities in order to satisfy the needs of the members.
Dissolution and liquidation of companies
The circumstances that according to the law are capable of ending the contract are called causes of dissolution, that is, it is the situation of the Company that loses its legal capacity to fulfill the purpose for which it was created and that only subsists for the resolution of the links established by the company with third parties, by the company with the partners and by them with each other.
Article 229 of the general law of commercial companies capitulates about the dissolution and the reasons that can originate this state in a company and as a consequence the liquidation process.
Likewise, Article 230, which contemplates the company in collective name that will be dissolved unless otherwise agreed, due to the death, disability, exclusion or retirement of one or more of the partners, or because the company contract is terminated with respect to any of them.
In the event of the death of one of them and with the understanding of not reaching any agreement with their heirs, the company, within a period of two months, must deliver to the heirs the share corresponding to the deceased partner according to the last approved balance sheet.
Article 231, of the previous provisions, will be applicable to the simple limited partnership and the limited partnership by shares, as regards the limited partners.
For the established term of the duration of a company, it is marked in Article 229, not being the same in the cases of other companies as according to Article 232, which says that the existence of the causes of dissolution has been proven by the company, it is due register in the Public Registry of Commerce but if in the opinion of any interested party there is no cause that justifies the dissolution, then this may occur before the judicial authority within the limit of thirty days from the date of registration and sue in summary proceedings, cancellation of registration.
Likewise, the transformation of the production activity into the liquidation activity is assumed. The termination of the partnership contract is complicated, not like another type of contract that exhausts its effects on the relationships of the parties.
The company directed by third parties, upon dissolving it, demands that the ties established with the people who hired with it be broken and in our country, the law protects good faith and the rights of third parties, so the dissolution of the company in truth involves a complicated legal problem.
The fact that there is a cause for dissolution does not mean that the company will end immediately, but that there will be the starting point of the dissolution situation that will lead to another process such as liquidation.
The General Law of Mercantile Societies in our country, recognizes in Article 234, the principles of the Companies when they are in a state of dissolution, in the same way, in Article 244 of the same law says that the effects to create a dissolution in the company and even in that state, it will retain its legal personality for liquidation purposes.
Dissolution and conservation of the company, the historical consideration of the provisions applicable to the dissolution of commercial companies shows us a strong and complicated relationship between two opposing principles, that of dissolution by will and for strictly personal reasons, that is, the conservation of the company above the personal interests of the partners and the opposite in the individual will of each of the partners.
The foundation of commercial law is found in art. 73 fraction X of the Magna Carta, relative to the legislation on trade.
Location of commercial law
The legal nature of commercial law
It is a public law that addresses the relationships that arise between merchants, primarily serving the legal entities that are, companies of a commercial nature, and merchants who are also individuals.
Trade involves the exchange of goods and has as its main characteristic a commercial gain or profit.
The origin of commercial law
It has its beginnings in the 4th and 3rd centuries BC in the Greek and Roman civilization, it should be noted that by the 7th century AD in Spain and France money began to circulate, and by the 9th century, it began to change for the paper money that we know as a ticket.
Business law concept
It is the set of legal institutions that govern the relationships between merchants derived from the performance of commercial acts; These in turn have the character of determining the legal nature of a commercial nature.
For the author Cervantes Ahumada, Commercial Law, is also considered as the set of instruments that the norm establishes, to achieve the commercial exchange legitimized by the law.
For the author Rafael De Pina Vara; argues that it is very difficult to define Commercial Law, since commercial law establishes assumptions of a commercial nature without these being materially executed by merchants, for this reason it is determined that commercial law does not regulate relationships between merchants, but focuses on the execution of the act of commerce itself.
Regulation of commercial acts according to the parties involved, as well as the applicable legislation
- If two merchants participate, it will be regulated by the Commercial Code. And if two people who are not engaged in commerce participate and what they do is regulated by commercial law, because the object is a Credit Certificate, it will be regulated by the Commercial Code. If an individual and a banking institution or a merchant intervene, the relationship is commercial, article 1051 of the Commercial Code. Two non-commercial persons intervene, but support their action in a credit instrument; in a promissory note or check we are in the presence of a commercial relationship not by the people involved but by the documents regulated by the Law of Titles and Credit Operations. Other assumptions are inspired by Rafael de Pina Vara,The nature of a commercial relationship is determined by the actual execution of the act of commerce, without observing the character of the people involved or the base document of the relationship, only profit or commercial speculation is observed.
Sources of commercial law
- It is the Constitution art. 73 Section X: International Treaties The Commercial Code 1889 - 1896 Commercial Laws Jurisprudence The General Principles of Law, which are the maxims, the apothegm product of the investigation in legal matters that has been originating through of historical becoming. It should be noted that the general principles of law, as well as jurisprudence, are instruments of interpretation of the law, in the particular case of the general principles of law are contemplated in article 14 of our Magna Carta. of the mercantile order.
The act of commerce
It is the manifestation of the will whose purpose is to produce legal consequences, in creating, modifying, extinguishing, transferring, conserving rights and obligations.
- Legal fact.- It is the realization of events of nature and the will of man does not intervene. Act of commerce.- It is the manifestation of the will of man with the purpose of producing legal consequences. In the act of commerce it is conditioned to the legislation, that is to say, to the quality of certain activities that are provided for in the Commercial Code art 75; but it is also conditioned to the personal character of those who intervene in its execution (merchants) of the above, it is valid to consider that the act of commerce is determined by law (act of objective commerce), but it is also determined by the subjects who intervene, that is, by the merchants (subjective act of commerce).
Classification of commercial acts.
- Absolutely mercantile acts.- They have that character or nature that is determined by the Commercial Code itself, in addition they are those that are provided for in article 75 of the Commercial Code and others are in the General Law of Titles and Credit Operations and some examples of they are; repurchase agreement, credit opening agreement, bank deposit agreement, habilitation agreement, trust agreement, checking account agreement, and security deposit agreement. Acts of conditional commerciality.- Are those activities that apparently imply the application of the Commercial Code and the application of the Civil Code, for example: the conclusion of a lease with respect to a real estate that will be used for the construction of a company. Commercial acts according to their purpose.- Are those activities that are carried out by merchants with all the intention of obtaining a profit or legal gain, but also such activities may be carried out by people who do not have the character of merchants, however, the intention must be noted regarding the obtaining of a profit. Commercial acts by any of the people who intervene in them.- These are those activities that are carried out exclusively by certain people to whom the commercial law recognizes the character of merchants, in this sense so that the act of commerce is configured in itself, it is sufficient that one of the persons involved has the character of merchant art. 1050 Commercial Code. Commercial acts by their object.- Are those activities that are commercial in nature for two reasons, the first being found in these assumptions in some document (object) such as the Commercial Code and the second that are materialized or expressed in instruments or documents that the commercial legislation establishes. for its operation and development (object) - credit titles). Accessory and related mercantile acts.- Are those manifestations of the will that strictly derive from a main commercial act. In this sense, the viability of accessory acts strictly depends on commercial acts that are of a general nature.
Elements of the contract's existence
conclusion
Commercial law
Bibliography
- Astudillo Ursúa, Pedro. «» The Credit Securities »». 2nd. edition, Ed. Porrúa, SA Mexico. 1988 Barrier Graf, Jorge. «» Business Law Issues »». the. Ed. UNAM, México, 1983.Cervantes Ahumada, Raúl. «» Commercial Law »». 3rd. Ed. Herrero, SA Mexico, 1980.Cervantes Ahumada, Raúl. «» Securities and Credit Operations »». 12a. Ed. Herrero, SA, Mexico, 1982. Updated Commercial Code.Dávalos Mejía, Carlos. «» Securities and Credit Contracts. Bankruptcies »». the. Edition. Ed. Harta, SACV, Mexico, 1984. From Pina Vara, Rafael. «» Dictionary of Law »», 3rd. Edition, Ed. Porrúa. SA Mexico 1973.Labariega V., Pedro. «» Securities »», in Mexican Legal Dictionary, Ed. Porrúa, SAT VIII, Mexico, 1985. Law of Securities and Credit Operations. Mantilla Molina, Roberto «» Mercantile Law »», 23rd. edition, Ed. Porrúa, SAMexico, 1984. Introduction to commercial law, mtro. Ricardo De La Fuente CastilloMtro. Egidio Torre Gómez. Mercantile Law First Course Cervantes Ahumada, Raúl. info4.juridicas.unam.mx/ijure/fed/2/default.htm?….
