Legal Business Environment - Module 1 Notes

LEGAL
BUSINESS ENVIRONMENT

1. TRADE LAW
1.1. INTRODUCTION
For a long time, trade has been conceived as an economic and social phenomenon.
Commercial law, a branch of civil law, was born in the Middle Ages as a set of rules
created to regulate the activities of unions and merchant associations of the medieval
commercial towns, but it was not until the nineteenth century that we first started to
place value on the acts carried out in commercial activities. Nowadays, commercial law
has progressed in the regulation of business professionals, companies and consumers.
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LEGAL BUSINESS ENVIRONMENT

1.2 SOURCES OF COMMERCIAL LAW
There is no theory about the sources of commercial law since it was created based on
law and custom.
It is a uniform and continuous practice of the uses and customs by traders that make
such uses and customs considered law.
We can define the trade usages as the norms of objective law created by the repeated,
uniform and constant observation of the merchants in their businesses.
We can distinguish between various types of trade usages:
§ Conventional, which represents the typical content of a contract.

§ Regulatory, which represents an objective rule of law that prevails when the
content of the contract is contrary to the norm.
Customs, on the other hand, are stronger than trade usages since they can create legal
rules for themselves.
Although the Commercial Code (CCo) establishes that commercial uses are genuine
sources of commercial law, since they may be used to resolve doubts arising from the
interpretation of contracts, it must be borne in mind that the rules of civil law need to
be taken into account before commercial uses.
All in all, the following are sources of commercial law:
§ Custom
§ Jurisprudence
§ The Law
§ Doctrine
§ Contract
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1.3 COMPANY REGISTER
This type of public office serves the purpose of protection, accountability and control of
issues and operating companies. Every country normally has an office in charge of the
registration of these data. In Spain, for instance, there is the Registro Mercantil, which
is responsible for the above-mentioned tasks. In fact, it is the main legal instrument to
make business deals.
1.3.1 ORGANISATION OF THE COMPANY REGISTER
Worldwide, there are numerous structures and possible organisations for a company
register. For instance, and continuing with the earlier example, the Spanish company
register (Registro Mercantil) consists of local registers and a central register, and they
are all under the umbrella of the Spanish Ministry of Justice.
In that country, the central register is purely informative and its structure and functions
are legally established. Thus, it is in charge of the following:
1. Management, handling and informative disclosure of data received from local

commercial registers
2. Archiving and disclosure of companies’ names and legal entities
3. Publication of the Official Gazette of the Commercial Register
4. Managing the register of companies and entities whose production is located
offshore but are still Spanish
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1.3.2. OBJECTIVES OF THE COMPANY REGISTER
This office is responsible for registering the following entries and documents:
1. Individual entrepreneurs
2. Mercantile companies
3. Credit and insurance institutions, as well as mutual guarantee associations
4. Collective investment institutions and pension funds
5. Any legal or natural person, when the law so provides
6. Economic Interest Groupings
7. Companies limited by guarantee, which may be described as companies primarily

used for non-profit purposes, and require legal status
8. Acts and contracts established by law
A company register is also responsible for the legalisation of company books, as well as
the custody and publication of accounting documents.
1.3.3 DOCUMENTS AND BOOKS REGISTERED AT THIS COMPANY REGISTER
Documents and books registered:
a) Registration book and record book
b) Commercial register book and record book
c) Ledger account book and record book
d) Book of appointment of independent experts and auditors
e) Index
f) Inventory book
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Books registered at a company register will naturally be ordered and structured,

according to legislation.
As a general rule, record books may be in different formats, also according to the local
regulation. Usually, their pages will be numbered, as well as correctly referenced, and
should include information on relevant aspects or irregularities detected and to be
recorded.
The same applies to registration books, which contain information on every company,
data related to establishment, etc. In turn, commercial register books contain further
information on company owners, establishment conditions, application date and books
and documents provided by the company.
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In the case of the ledger account book, pages will also be numbered and structured
properly. It will include similar data regarding referenced companies and owners, as well
as thorough accounting information.
Thus, it makes sense that the Book of appointment of independent experts and auditors’
pages are well-structured and adequately paginated. With regard to this book type, it
will record the following: audited company, date of audit, auditor and audit results.
In general, there should be available at any company register a general index that
provides the following information, if necessary: company name, owner/s, address,
volume, registration form and sheet number, as well as the tax I.D.
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In each register, there will be an inventory of all the books, and folders or files that there
are in it. Thus, changes in staff in charge of such critical documentation will imply strict
protocols that must be taken into consideration in terms of compliance.
1.3.4 FUNDAMENTALS OF THE COMPANY REGISTER
§ Public disclosure principle
Under this principle, a Company Register is public. This implies that some information is
made available to the public, and some certificates may be obtained, if requested.
Certification from such public bodies is the only reliable means to validate the
information from the records.
§ Material Disclosure Principle
This principle implies that records from a company will only be effective against third
parties in good faith if they have been registered at the Company Register.
A period of time may be necessary until registered records are fully effective. In case of
discrepancy between what has been registered and what has been disclosed, third
parties may request the publication if it is more favourable to them.
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The good faith of the third party is presumed as long as it is not proven that it knew the
act registered and not registered, the published registered act or the mismatch between
what is registered and what is published.
§ Legality Principle
For a registered act to be valid, it must be made and registered in accordance with the
law. Therefore, the registrar must certify, under his or her responsibility, the legality of
said act, in addition to the qualification and legitimation of the person who grants or
subscribes the act and the validity of the content.
Governments usually have the power to appeal these certifications.
1.4. MERCANTILE CONTRACTS
Since ancient times, companies, entrepreneurs and consumers have been establishing
commercial relationships by signing different contracts to carry out their activity.
In this section we will study different types of commercial contracts and we will take a
closer look at the elements and characteristics that define each of them.
Our objective will be to determine what the content is, the utility and goal of each
contract type, as well as to examine the fundamental laws and regulations related to
them.
This will help us to get a better understanding of how the different contracts on services,
goods and rights are connected to allow a proper functioning of the market economy.
The legislation and regulations that control commercial contracts is very extensive, so
we will focus only on the most important ones.
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§ General framework
The distinction between civil law and commercial law, still existing today, is based on a
tradition that goes back to antiquity; when commercial relationships relied on the ability
to subsist on the transactions that were made between the consumer and the merchant.
Nowadays, the basis of those transactions is profit-oriented and does not depend on
subsistence.
Fortunately, the successive legal reforms have made the mercantile rules that prevailed
over civilians disappear. Even so, there is still a double regulation.
To study the different contracts that have been previously mentioned, we can divide
them according to the market in which they are applied:
a) Property market: in which the use of the ownership of property and rights is
transmitted.
b) Market services: in which very extensive services are traded.
c) Financial market: in which the financing for companies or consumers is traded.

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1.4.1. PROCUREMENT WITHIN GENERAL CONDITIONS
We understand procurement within general conditions as those contracts with general

clauses pre-established and pre-written by the employer.
Nowadays, when the market economy is overcrowded, this type of procurement means
saving time and expenses for the employer.
Contracts are not personalised and they do not have individualised clauses for each
contracting client.
These pre-written and general clauses should not contain abusive clauses and should
undergo a control procedure to ensure that the employer and the client are legally
bound.
The controls through which these types of contracts need to pass within the
framework of general conditions are:
a) Inclusion control. The purpose of this control is to guarantee that the person who
signs the contract is aware of the total content of the contract, its conditions,
obligations and rights; giving each party a copy which is clearly written and
understandable for both of them.
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b) The second control to which the contract will be subject is related to legality. It
needs to be clear that any type of condition that appears in the contract must be
in accordance with current regulations.
Any condition that is contrary to the peremptory norm would be invalid
Despite these controls, there are cases of abusive clauses that require greater
protection.
Therefore, in addition to not being contrary to the law, clauses and contractual
conditions cannot be abusive either.
“All stipulations not negotiated and all practices not expressly agreed which,
contravening the requirements of good faith, give rise, in a manner detrimental to
the consumer or user, to a significant imbalance in the rights and obligations of the
parties arising under the contract, shall be regarded as unfair terms.”

http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:62011CJ0415
1.4.2. CONTRACTS WITH CONSUMERS
Consumers are currently considered the weakest party in the procurement process.
Considering this, European legislators understand the need to protect them against
procuring services or products offered by companies.
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Nowadays, regulations, which were scattered in the past, are now gathered together to
defend consumers and users, creating bodies to advise and represent them.
There is regulation of unfair clauses, as well as legal and commercial guarantees.
Consumer and User Law regulates the contracting process with consumers by
regulating, among other things, customer service, information prior to the signing of the
contract, purchase processes, delivery and supply of products and services and the right
of withdrawal, which allows consumers to refuse the contracted product or service.
1.4.3. REMOTE / ELECTRONIC PROCUREMENT
With the advancement of new technologies, commercial relations have changed

substantially and electronic commerce has been overtaking the role of traditional
commerce.
However, this type of transaction may involve a risk or be inconvenient for the consumer
if adequate guarantees are not offered.
Distance or electronic contracts imply that a consumer does not see or know the product
in person, which is risky, as they might not acquire what they really want.
To solve the problems concerning electronic or distance contracting, Spanish Law, which
will be used as an example of trade law, has created various rules for its regulation. The
following regulations should be highlighted:
§ Law 7/1996 on Retail Commerce (which regulates distance sales in arts. 38 and
following)
§ Law 7/1998 about General Contracting Conditions
§ Royal Decree-Law 14/1999 on Electronic signatures
§ Royal Decree 1906/1999, of 17 December, regulating electronic contracting with
general conditions
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However, no specific regulations were established until the entry into force of Law
34/2002 of 11 July, on Services of the Information Society and Electronic Commerce
(LSSICE) (abbreviation in Spanish), which incorporates into Spanish legislation Directive
2000/31/CE (8 June 2000) of the European Parliament and Council on certain legal
aspects of the Information Society services.
We will make a brief reference to the most common legislation implemented recently:
§ Measures to promote the Information Society: The law establishes that

economically relevant companies, which provide services to the public, need to
have an electronic means of communication that allows them to carry out the
procedures of electronic procurement by means of an Electronic Signature.

This provision is only aimed at companies with more than one hundred
employees or the ones that have the status of a large company for VAT purposes
and that operate in certain economic sectors (among others, companies engaged
in the supply of electricity, water and gas, telecommunications, financial entities,
insurance, shopping centres, transport and travel agencies).

§ Measures concerning contracts of the Public Sector, which incorporate various
EU directives into the legal systems of EU Members. They aim to introduce
improvements in the public procurement system, which has considerably
strengthened the use of information technologies in public procurement
(electronic auction, contractual advertising by electronic means, use of
electronic, computer and telematic means, etc.).

To protect consumers in E-procurement, several measures have been
implemented in the EU as well, aimed at protecting consumers against unfair
practices.
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1.5. COMMERCIAL CONTRACTS IN THE GOODS MARKETS
1.5.1. PURCHASE-SALE CONTRACTS
§ Concept
The sale is the contract by which one of the parties is obliged to deliver an item
and the other one to satisfy a certain price in exchange for it.

The essential elements of the contract of sale:
§ Item: goods or rights within trade

§ Price: value that is asked for a thing or service. It needs to be true, reliable, full
and fair
§ Persons or parties: the seller, who is the natural or legal entities transferring the
property, and the buyer, who acquires it
§ Formal: the contracts of sale may be granted in writing, since the law may
require such formality. In practice, it is usual for the agreement to be translated
into a private document that serves as evidence. There are exceptions, for
example in the case of real estate, or other contracts that are required to be
done in writing.
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§ Validity: the capacity, by which it is said that every person capable of disposing
of their goods can sell and any person capable of it can buy; and consent, which
refers to an agreement of the parties on the price and the item
§ Duties
The duties of the seller in the sales contract are:
§ Transmitting ownership or right: the seller is obliged to deliver the goods to the
buyer.
§ Keeping the good of the sale until delivery: the sale by itself does not imply the
transfer of ownership of the property, but forces that transmission.
§ Delivering the good
§ Guaranteeing the buyer a useful possession: the seller has to answer for the
quality of the product.
§ Ensuring a peaceful possession to the buyer: the seller has to guarantee the
ownership of that product.
§ Answering for eviction: eviction occurs in a sales contract when the buyer loses
the item due to a final judicial decision, by which a right prior to the sale is
recognised. The eviction can be partial, when the purchaser retains part of the
item sold. This situation gives rise to a liability on account of the seller.
§ Answering for the vices and hidden defects that the good has: in this case the
seller has to answer for the vices or defects of the product both apparent and
those not visible to the naked eye.
The obligations of the buyer in the sales contract:
§ Paying the price

§ Paying interests in case of delay or sale with deferred price
§ Receiving the purchased good
§ Receiving the good in good condition
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1.5.2 THE SWAP
In this type of contract both parties are considered sellers in terms of obligations, since
both parties are those that deliver the product or good.
A swap may be defined as the contract by which each of the contracting parties
is obliged to give one thing in order to receive another.
If one of the two parties had received the item promised in the swap and there is
evidence that the other party does not own it, they may not be obliged to deliver the
item they offered in exchange and will return the one he received. In other words, the
swap is null.
Whoever loses the eviction of the item received in a swap may choose between
recovering the one he gave in exchange, or claiming compensation for damages; but he
may only use the right to recover the item that he delivered while it remains in the
possession of the other, and without prejudice to the rights acquired over it in good faith
by a third party.
According to article 1541, the swap will be regulated by provisions concerning the
sale.

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1.5.3 INTELLECTUAL PROPERTY CONTRACTS
Intellectual property contracts are used to protect the author's creations; considering
them unique creations and not produced in series or industrially.
The creations that can be included within the intellectual property can be artistic or
literary works, works of art, musical pieces, paintings, photographs, drawings, sculptures
or architectural designs.
Countries normally have offices or bodies involved in the registration and recognition of
patents, trademarks and intellectual property.
One will usually find this kind of regulation:
§ Generator Fact
Intellectual property of a literary, artistic or scientific work belongs to the author by the
mere fact of its creation.
§ Content
Intellectual property is formed by personal and patrimonial rights that attribute to the
author the full disposition and the exclusive right of the exploitation of the work, without
further limitations than those established by law.
§ Characteristics
The copyright should be independent, compatible and cumulative with:
1. Intellectual property and other rights inherent in the material thing in which
intellectual creation is incorporated
2. The industrial property rights that may exist over the work
3. The other intellectual property rights recognised in the volume II of this law
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§ Dissemination and Publication
Regarding the purpose of the provisions of this law, the disclosure of a work means any
expression of it that, with the author's consent, makes it accessible for the first time to
the public by any means or process. The publication means that a number of copies of
the work is made available to the public and these copies allow satisfying their
reasonable needs, taking into account the nature and purpose of the work.
1.5.4 INDUSTRIAL PROPERTY CONTRACTS
The concept of industrial property includes four rights in Spain: the brand, commercial
name, patent and know-how.
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§ The patent
The registration of a patent in the Industrial Property Registry gives the right to the
exclusive exploitation of said patent for 20 years, after which the patent becomes public
domain.
According to Article 10, the right to the patent belongs to the inventor or his
successors in title and is transferable by all means recognised by law.
When the same invention has been made by different people independently, the
right to the patent will belong to the one whose application has a previous date
of filing in Spain, provided that such request is published in accordance with the
provisions of article 32.
Spanish law establishes that:
1. New inventions that are susceptible to industrial application and involve inventive
activity shall be patentable, even if they concern a product that is composed or
contains biological material, or a process by means of which biological matter is
produced, transformed or used.
2. Biological matter isolated from its natural environment or produced by means of a
technical procedure, may be the subject of an invention, even if it previously occurred
in nature.
3. For the purposes of this law "biological matter" shall be understood as the material
containing self-reproducible or reproducible genetic information in a biological
system; and by "microbiological procedure", any procedure that uses a
microbiological material, including an intervention in it or that produces
microbiological matter.
4. The following elements will not be considered inventions in the sense of the previous
sections:

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a) Discoveries, scientific theories and mathematical methods
b) Literary, artistic works or any other aesthetic creation, as well as scientific

works
c) The plans, rules and methods for the exercise of intellectual activities, for
games or for economic-commercial activities, as well as computer programmes
d) The ways of presenting information
§ Brand and Trade Names
We can define a brand as those signs, distinctions or denominations that commercially

identify a company, product or service in the market.
The brand can contain words, images, symbols, sounds, figures, etc.
At a legal level, the Law on Brands 17/2001, of December 7th regulates this.
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§ Know-how
We understand know-how as a set of non-patented practices that are typical of a

company and facilitate the production of a service or product.
These practices are considered to be an added value that can also be transmitted
through licensing agreements to allow their use.
1.6. COMMERCIAL CONTRACTS IN THE SERVICES MARKET
1.6.1. RENTAL SERVICES CONTRACTS
Rental services or outsourcing services agreements are normally characterised by the

lessee's commitment to perform a specific activity.
Unlike previous contracts related to the goods market, in this type of contracts an
obligation to perform rather than to provide a good or service is included.
The activities or services that may be performed are very different. Currently,
outsourcing of services is very common since companies need to engage outside firms
to perform services instead of hiring their own staff to perform them.
Examples of outsourcing may be the hiring of training staff for specific courses for
employees, cleaning, labour consultants, catering services, auditors, etc.
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1.6.2. INTERMEDIATION CONTRACTS
§ Contracts of mandate and commission
The mandate contract is an agreement by which a person is obliged to provide a

service or do something on behalf of or at the request of another (art.1709C.C)

Usually, the nature of the mandate is free of charge unless the agent has to perform
services of the mandate, which would presume the obligation to repay it.
Whether the mandate contract is binding or not is conditioned by the action of the
mediator, depending on whether the mediator acts on his/her own behalf or on the
behalf of another.
If he/she acts in his/her own name, he/she is the one who has the obligation. Whereas,
if he/she acts on behalf of a third party there is no relationship between the mediator
and third party
This is the reason why the third party must know the limits of the power granted since
only the Principal would be bound within those limits.
§ Agreements commonly terminate due to:

- Revocation
- Resignation of the Chief Executive Officer
- By death or insolvency of one the parties
§ The commission shall terminate due to:
- Revocation of the customer
- Death of the commission agent

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§ Brokerage Contract
The brokerage contract is an atypical contract that sometimes has no general regulation.
This type of contract is characterised by the intermediary's search for a third party, with
certain conditions, to get in contact with the main party.
In these contracts the mediator has no participation whatsoever. If it is not covered by

the commercial code, there are no regulations that limit the freedom of the agreements
between mediator and principal. Even so, it is a commercial contract governed by the
jurisdiction, commercial legislation and civil jurisdiction.
These contracts are used, for example, in matrimonial or real estate agencies.
Usually, these are specific commercial operations and there is no commercial continuity
between the mediator and the Principal.
In the mediation, the Mediator puts the Principal in contact with the future client or
supplier, lacking the proxy power to perform any specific business.
Freedom of covenant among the parties is very wide and there is no need to negotiate
exclusivity among them.
The Mediator may be a natural or legal entity and the Principal can revoke the contract
freely.
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The brokerage contract shall terminate due to:

- Implementation of the mandate.
- Death or disqualification of the mediator.
- Resignation of the mediator.

§ Agency Contract
An agency contract is an agreement whereby a natural or legal entity, referred to as

agent, is obliged, in exchange for a remuneration, to guarantee acts or trade
transactions on behalf of third parties; or to promote and conclude them on behalf of
others as an independent intermediary, without assuming, unless otherwise agreed, the
risk and venture of such operations (Law 12/1992 of May 27) against another, in a
continuous or stable manner
§ The agent is obliged to:
a) Take care, with the diligence of an organised businessperson, of the promotion

and completion of the acts or operations entrusted to him/her.
b) Give the principal all the information necessary for the proper management
of the acts or operations whose promotion and, as the case may be, completion
has been entrusted to him/her. What is of particular interest is the solvency of
the third parties with which there are pending operations of completion or
execution.
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c) Develop his/her activity in accordance with the reasonable instructions

received by the principal, provided that they do not affect his/her independence.
d) Receive on behalf of the employer any kind of third-party claims concerning

defects or flaws in quality or quantity of goods and services provided or sold as
a result of the operations promoted, even if they had not been completed.
§ The employer is obliged to:
a) Make available to the agent, sufficiently in advance and in an appropriate

quantity, the samples, catalogues, fees and other documents necessary for the
exercise of his/her professional activity.
b) Obtain for his/her agent all the information necessary for the execution of the
agency contract and notify the agent as soon as he/she anticipates that the
volume of acts or operations will be significantly lower than the agent could have
expected
c) Pay the agreed remuneration
e) Keep an independent accounting of the acts or operations related to each

principal on whose behalf he/she acts.
§ Agent remuneration:
a) The remuneration of the agent will consist of a fixed amount, a commission or

a combination of both. In the absence of an agreement, the remuneration shall
be set according to the trade usages of the place where the agent carries out
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his/her activity. If they do not exist, the agent will be entitled to reasonable
remuneration taking into account the circumstances.
b) A commission is understood as any element of remuneration that varies

depending on the volume or value of the acts or operations promoted and,
where appropriate, concluded by the agent.
c) When the agent is totally or partially paid on commission, the provisions of the
following articles of this section shall be observed.
§ Prohibition on competition:
1. Among the stipulations of the agency contract, the parties may include a
restriction or limitation of the professional activities to be developed by the
agent once said contract has been terminated.
2. The restraint of trade clause cannot exceed two years from the agency
contract termination date. If the agency contract has been agreed for a shorter
period of time, the restraint of trade clause cannot last longer than one year.
3.The restraint of trade clause, which must be executed in writing to be valid,

may be extended only to the geographical area and to the group of persons
entrusted to the agent and may only affect the class of goods or services subject
to the acts or operations promoted or concluded by the agent.
§ Termination of the contract:
Termination of the contract by time (Art. 24)
1. The agency contract agreed for a specific time will be terminated upon the
fulfilment of the agreed term.
2. Notwithstanding the provisions of the previous number, the fixed-term
agency contracts that continue to be executed by both parties after the
termination of the initially agreed term should be converted into open-ended
contracts.
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Termination of the agency contract for an indefinite period: notice (Art.25)
1. One of the parties may terminate the agency contract of indefinite duration
by notice.
2. The notice period has to be equal to one month for every year that the
contract remains in force. If the agency contract has been valid for less than one
year, the notice period will be one month.
3. The parties may agree on longer periods of notice. The term for the agent
should not be shorter than that for the principal.
4. Unless otherwise agreed, the end of the notice period will coincide with the
last day of the month.
5. To determine the period of notice of fixed-term contracts that have been

converted by law into open-ended contracts, the duration of the fixed-term
contract time shall be computed, adding to it the time since it became an open-
ended contract.
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§ Exceptions to the previous rules (Art. 26)
Each one of the parties in an agency agreement, for a specific or indefinite period,
may terminate the contract at any time, without the need for prior notice, in the
following cases:
a) When the other party has breached, totally or partially, the obligations legally
or contractually established
b) When the other party has declared bankruptcy
In such cases, it will be understood that the contract ends upon the receipt of the written
notice that states the will to terminate it and the reason for the termination.
§ Compensation in agency contracts:
Compensation for customers (Art.28)
1. When the agency contract terminates, whether for a fixed or indefinite period,
the agent who has brought the principal new clients or has significantly increased
the operations with the pre-existing clientele, will be entitled to compensation if
his/her previous activity continues to bring substantial benefits for the employer
and it is equitably appropriate for other circumstances that may arise, in
particular, the existence of agreements to limit competition, or the commissions
lost by the agent.
2. The right to compensation for clients also exists in the event of contract
termination due to death or declaration of death of the agent.
3. The compensation may not exceed, in any case, the average annual amount of
the remuneration received by the agent during the last five years or, during the
entire period of the contract, if it is shorter.
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Compensation for damages (Art.29)
Without prejudice to the clientele compensation, the employer who unilaterally

denounces the agency open-ended contract, will be obliged to compensate the damage
that the early termination has caused to the agent, provided that the termination does
not allow the amortisation of the expenses that the agent, instructed by the employer,
has made for the execution of the contract.
Cases when there is no right to compensation (Art. 30)
The agent will not be entitled to compensation for clients or damage:
a) When the employer has terminated the contract due to breach of the
obligations legally or contractually established by the agent
b) When the agent denounced the contract, unless the complaint was caused by
circumstances attributable to the employer, or it was based on the age, disability
or illness of the agent and could not be reasonably required to continue his/her
activities.
c) When, with the consent of the employer, the agent has assigned the rights and
obligations that he held under the agency contract to a third party.
Contracts of distribution, commercial concession and franchise:
§ Distribution or commercial concession contracts:
The distribution or commercial concession contract is a contract not specifically

regulated in our law.
It is an agreement by which a grantor and a concessionaire commit to acquire,

under certain previously agreed conditions, certain products to resell them in a
determined geographical area under the supervision of the concessionaire.
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The characteristics of this contract:
a) Collaboration between a businessperson and grantor to bring and distribute

a trademarked service or product to the market
b) Selling the goods in the same state in which the concessionaire supplied
them without transforming them
c) The concessionaire or reseller must give the buyers the attention that they
need once the sale is performed
d) The concessionaire must assume the risks of the commercial transactions
carried out with customers by the grantor
e) The grantor receives benefits from what the concessionaire sells
Obligations of the grantor:
a) Supplying the agreed merchandise to the concessionaire

b) In the case of exclusivity, the supply of products or services cannot be offered
to other resellers who act in the same area.
c) If the grantor is the manufacturer of the products, they are obliged to assume
responsibility for those products.
Obligations of the concessionaire:
a) Purchase of a certain number of products

b) Recruitment of qualified staff
c) Having optimal facilities for the development of the activity
d) Promotion of the offered products
The termination of this type of contract will depend on the causes agreed upon in it.
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§ Franchise agreement:
The franchise contract is an agreement whereby the franchisor allows the franchisee to
use their system to market certain products and/or services in exchange for an economic
compensation.
Unlike the distribution or commercial concession contract, the franchisor must transmit
its work methodology (know-how) and its commercial methods.
The franchisor must design, direct and pay for their advertising campaigns to grow brand
awareness.
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There are three elements that determine the basic content of this type of contract:
1) The brand.
2) The know-how
3) The continued support
The franchise agreement, as it is not specifically regulated, needs to clearly outline the
essential elements related to any contract, and include a detailed regulation of the basic
content:
- Header
The header should provide the identification details of the franchisor and franchisee.
- Exposed:
- Detailed content of the obligations and commitments that affect both

parties
- Transfer of the brand, trademarks and distinguishing symbols and usage

rules
- Transmission of the know-how
- Requirements of the facilities
- Conditions of the supply of the product and/or services
- Geographical and territorial exclusivity of the franchise
- Technical and technological support
- Advertising campaigns
- Duration of the contract
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- Reasons for contract termination
- Etc.
The main difference between this contract and the distribution contract is the obligation
of the franchisor to transmit his/her know-how. The franchisor is obliged to transmit the
essence of a business that has proven to be effective, so that the principal can act as an
employee under the trademark.
1.6.3. ADVERTISEMENT CONTRACTS
The General Law of Advertising 34/1998, of 11 November, includes four types of

advertising contracts:
1. Advertising Contracts:
An advertiser entrusts an advertising agency, in return for some economic

compensation, with the implementation, creation, preparation and programming of an
advertising campaign.
When the agency creates an advertising campaign, the rules of the contract of
advertising creation shall also apply.
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2. Contracts for disseminating advertising:
The contract for disseminating advertising is the one by which, in exchange for an
amount set at pre-established rates, a medium allows the advertiser or agency to use
the units of space and time available and to develop the technical activity necessary to
achieve the advertising result.
3. Advertising creation contracts:
The advertising creation contract is the one by which, in exchange for an amount, a
natural or legal entity is obliged, in favour of the advertiser or agency, to devise and
develop an advertising campaign project, a part of it or any other advertising element.

Advertising creations can benefit from intellectual or industrial property rights

when they meet the requirements of the regulations.

Notwithstanding the provisions of the preceding paragraph, the rights of
exploitation of the advertising otherwise agreed, will be assigned exclusively

to the advertiser or agency, under the contract of advertising creation and for
the same. (Art.21)
4. Sponsorship contract:
The advertising sponsorship contract is an agreement by which the sponsored party, in

exchange for financial aid in carrying out their activity related to sports, charity, culture,
science or other activity, agrees to collaborate in the sponsor’s advertising.
Advertising sponsorship contracts are regulated by the advertising broadcast contract

rules if applicable.
According to this law, there are certain conditions for subjects participating in these
advertising contracts.
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These are:
- Advertiser: natural or legal entity in whose interest advertising is carried out.

- The advertising agency: natural or legal entities who are in charge of organising,
creating, preparing, scheduling or executing advertising on behalf of an
advertiser.
- Advertising means: natural or legal entities, public or private who, in a regular
and organised manner, dedicate themselves to the dissemination of advertising
through the media or social media whose ownership they hold.
1.7. CONTRACTS IN THE FINANCIAL MARKET
1.7.1. MEANS OF FINANCING FOR THE COMPANY: CREDIT AND VALUE MARKET
The financial market is the physical or virtual place where consumers and companies
obtain financing.
Consumers and companies interact in order to obtain financing or negotiate assets,

financial instruments and products.
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Given the complexity of the financial market, we will reduce the classification to two
different markets:
1. Credit Market
In the credit market financial intermediaries receive money from investors

through deposit contracts.
An agent makes the credit obtained available to third parties. For this reason,
there are two different relationships created: on the one hand, a contract with the
investor is signed and on the other hand, a contract with the person who receives
the credit or loan.
It will always be the credit institution that must commit to meeting the obligations
agreed to in those contracts.
2. Stock Market:
In this type of market a company that needs funding offers value stocks to
investors.
The investor acts as a "lender" with the businessperson or company that must
return the money of the issued bond within a certain period, as well as the interest
that has been agreed upon.
The investor acquires rights to the shares and the issuer obligations to the
investor.
The advance sale of the securities before the agreed term is carried out in the
stock markets in which these value stocks can be sold or acquired.
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LOAN MARKET
§ The Loan.
The loan contract regulated by the Code of Commerce (CCo) and Civil Code (CC) is
defined by the Royal Decree of July 24, 1889 as one by which a party gives to the other
something not fungible to use for a certain time and return it, in which case it is called
bailment, with the condition of returning the same species and quality item, in which
case it retains simply the name of loan. The loan is essentially free. The simple loan can
be free or with an agreement to pay interest.
The loans regulated by the Mercantile Code are those that are made by a merchant that
loans for commercial operations, while the other loans are regulated by the Civil Code.
Since the loan, as we have said, is free, the interests that may be agreed between the
parties must be in writing according to art. 314 CCo.
The purpose of the interest is that the lender obtains a benefit and to avoid the negative
causes that inflation may entail.
Although the CCo in its article 315 says that there is no limit on the amount of interest,
the Supreme Court admits that the interest on the commercial loan can be greater than
a civil loan.
According to articles 175 CC, 318 CC and 1110 Civil C. if the provider receives capital
without stating that it reserves the right to charge interest, the obligation to pay interest
expires and the borrower who pays interest without it being stipulated cannot claim it
as an undue payment.

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§ Consumer Loans
Law 16/2011 of June 24th, 2011 establishes a special regime for loans in favour of
consumers. This regulation tries to prevent abuse and provide consumers with sufficient
information.
This law establishes the content of the contract and regulates, among other things, the
total cost of the loan, the early repayment, the annual equivalent rate (APR), overdrafts,
etc.
Transparency duties regarding contracts (Art.4)
1. Companies must have at their disposal the general conditions of the contract
they use. Consumers will not have to face any expenses or assume any
commitment for receiving them. This information must be available on the
website of companies, if they have it, and in establishments open to the public
or offices where the services are provided.
2. The accessibility of persons with disabilities to the information provided in the

previous section must be guaranteed in the terms required by law or regulation.
Transparency duties regarding prices (Art.5)
1. Companies will freely establish their rates of commissions, conditions and

expenses that can be passed on to consumers, without other limitations than
those contained in this law in terms of abusive clauses.
2. The fees for commissions or compensations and repercussions, including

advisory activities, shall indicate the assumptions and the periodicity with which
they will be applicable. The commissions or compensations and expenses passed
on must respond to services actually provided or to expenses incurred. Under no
circumstances may the commissions or expenses for services not accepted or
explicitly requested by the consumer be charged.
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3. Companies will not be able to charge higher amounts than those derived from
the fees, apply more burdensome conditions or unforeseen expenses.
4. Companies are obliged to notify the Registry in which they are registered, prior
to their application, of the prices of the services, the fees of the commissions or
compensations and expenses that may apply, at most, of the operations and
services they lend, and of the maximum interest rates of the products they
market, including, where applicable, interest rates for late payment.
5. The prices, fees and expenses applicable to the previous section will be
included in a brochure, which will be written in a clear, precise and
understandable way, avoiding unnecessary or irrelevant concepts that may
confuse the consumer.
§ Leasing
Elements involved in the leasing contract:
1) The manufacturer of the good

2) The leasing company
3) The user of the asset

A lease is a contract by which one party agrees to rent property owned by another party.
Leasing is an operation where the company, in exchange for regular payments, rents to
another a certain good for a specific period of time.
Once the agreed period has expired, the user can purchase the product by paying a
residual price, extend the contract or terminate it.
In this type of contract, the liability clauses must be well defined since the user, when
dealing directly with the leasing company, cannot claim damages from the manufacturer
of the product.
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§ Bank contracts
The bank contract is defined as an agreement to create, modify or terminate a legal

relationship of a banking nature.
Banking contracts must consist of:
ü A nominal interest rate.

ü Dates of payments.
ü Dates of the interest accruals.
ü Methods used for the calculation of interests.
ü Commissions.
ü Expenses.
ü Rights of the Bank.
ü Rights of the customer.
In most loan operations, a credit institution is directly or indirectly involved, hence the
relevance of bank contracts.
Banking operations can be classified into:
1. Active operations: when the bank is the one that loans (opening of credit, loan).
2. Passive operations: when the bank receives a loan (irregular deposits).
3. Neutral operations: when a different service is given to the credit relationship.

The current account contract should be highlighted in bank contracts.
We can define the current account contract as a management contract, an accounting

technique in which the bank provides the customer with cash services by making
collections and payments for the customer and also by controlling income and
withdrawals. Within the cash services we can find: direct debit of receipts, ATM, banking
online, transfers, payment of cheques, credit card service, etc.
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Credit and debt transactions are recorded in each operation obtaining a balance in
favour of the subjects.
Current accounts may be pools or indifferent. The pools are those that require the
signature of all the account holders to withdraw money from it.
Despite the insufficient regulation of banking contracts, considering most of them

atypical, the Bank of Spain has a claims service where reports are made on appropriate
practices or not that are followed by credit institutions despite not being binding.
Page 45

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LEGAL

1.2 SOURCES OF COMMERCIAL LAW

We can distinguish between various types of trade usages:

§ Conventional, which represents the typical content of a contract.

All in all, the following are sources of commercial law:

1.3 COMPANY REGISTER

1.3.1 ORGANISATION OF THE COMPANY REGISTER

1. Management, handling and informative disclosure of data received from local

1.3.2. OBJECTIVES OF THE COMPANY REGISTER

3. Credit and insurance institutions, as well as mutual guarantee associations

4. Collective investment institutions and pension funds

5. Any legal or natural person, when the law so provides

6. Economic Interest Groupings

7. Companies limited by guarantee, which may be described as companies primarily

8. Acts and contracts established by law

1.3.3 DOCUMENTS AND BOOKS REGISTERED AT THIS COMPANY REGISTER

Documents and books registered:

a) Registration book and record book

b) Commercial register book and record book

c) Ledger account book and record book

d) Book of appointment of independent experts and auditors

Books registered at a company register will naturally be ordered and structured,

1.3.4 FUNDAMENTALS OF THE COMPANY REGISTER

§ Public disclosure principle

§ Material Disclosure Principle

Governments usually have the power to appeal these certifications.

1.4. MERCANTILE CONTRACTS

1.4.1. PROCUREMENT WITHIN GENERAL CONDITIONS

We understand procurement within general conditions as those contracts with general

Any condition that is contrary to the peremptory norm would be invalid

1.4.2. CONTRACTS WITH CONSUMERS

There is regulation of unfair clauses, as well as legal and commercial guarantees.

1.4.3. REMOTE / ELECTRONIC PROCUREMENT

With the advancement of new technologies, commercial relations have changed

§ Measures to promote the Information Society: The law establishes that

1.5. COMMERCIAL CONTRACTS IN THE GOODS MARKETS

1.5.1. PURCHASE-SALE CONTRACTS

The essential elements of the contract of sale:

§ Item: goods or rights within trade

The duties of the seller in the sales contract are:

The obligations of the buyer in the sales contract:

§ Paying the price

1.5.2 THE SWAP

1.5.3 INTELLECTUAL PROPERTY CONTRACTS

One will usually find this kind of regulation:

The copyright should be independent, compatible and cumulative with:

§ Dissemination and Publication

1.5.4 INDUSTRIAL PROPERTY CONTRACTS

Spanish law establishes that:

a) Discoveries, scientific theories and mathematical methods

b) Literary, artistic works or any other aesthetic creation, as well as scientific

d) The ways of presenting information

§ Brand and Trade Names

We can define a brand as those signs, distinctions or denominations that commercially

We understand know-how as a set of non-patented practices that are typical of a

1.6. COMMERCIAL CONTRACTS IN THE SERVICES MARKET

1.6.1. RENTAL SERVICES CONTRACTS

Rental services or outsourcing services agreements are normally characterised by the

1.6.2. INTERMEDIATION CONTRACTS

§ Contracts of mandate and commission

The mandate contract is an agreement by which a person is obliged to provide a

§ Agreements commonly terminate due to:

In these contracts the mediator has no participation whatsoever. If it is not covered by

The brokerage contract shall terminate due to: