Notes, summaries, assignments, exams, and problems for Law

Business Transmission: What Employers Need to Know

Business transmission occurs when a company changes ownership, such as through a sale, succession, or subrogation. If the owner dies, their heirs are responsible. Otherwise, the business is typically transmitted through a purchase. This process has important implications for workers:

Individual Employment Contracts

• Transmission of a business does not, by itself, terminate employment contracts.
• The business is transferred from the transferor employer to the transferee.
• The assignee assumes the rights and obligations of the assignor.
• A system of joint liability is established in case of breaches by either employer, covering:
• Labor obligations arising after the transfer (settled for 2 years).
• Job duties

Domicile is the legal seat of a person, emerging as a key concept in civil law. It allows for locating the subject, ensuring stability and security in legal relations. Without it, legal relations would be highly unstable and unsafe.

The domicile also helps locate the subject and may have relevance for other aspects, such as determining the territorial jurisdiction of a court or tribunal. Professor Albaladejo stresses that, despite its importance, domicile does not create any legal relationship between the person and the dwelling place, nor does it imply any civil status for the resident.

The primary role of domicile is to constitute the juridical seat of the subject, making it the place to exercise their rights and meet their obligations.

Types

Corporations

Corporations are voluntary associations seeking to provide benefits for themselves or company profits. There is no mercantile community of goods based on a contract where particular property is owned undivided by multiple people.

• Minimum Social Capital: Did not exist.
• Minimum Capital: Did not exist.
• Taxed: Income tax.
• Social Security: General/Autonomous Regime.
• Naming: Common name + CB

Civil Society

A civil society is a partnership agreement where two or more persons pool resources, property, or industry to share profits.

• Minimum Partners: 2.
• Tax: Personal Income Tax.
• Social Security: Autonomous.
• Naming: Free name + SC

Rights and Obligations

Rights

• Participate in activities.
• Elect or be elected to positions in social agencies.
• Make proposals and

Free Competition

Free Competition: Situation in which any economic subject—supplier or buyer—has complete freedom to enter or exit the market, and no participant within it has the possibility to impose conditions in terms of trade.

Territorial Jurisdiction

Territorial Jurisdiction: Applies when a court determines that concerted actions and legal processes should be decided according to territory. In these cases, jurisdiction varies between competition authorities at the same hierarchical level but belonging to different geographic areas.

Types of Jurisdiction

• The Establishment — General

  The Establishment: That which, in response to an objective criterion, specifies the class of competent court—from magistrates' courts up to the Supreme Court.

Federal Subject Matter Jurisdiction

Federal Question: A claim arises under federal law, the Constitution, or a treaty. This must appear on the face of a well-pleaded complaint; a federal defense is insufficient.

Diversity Jurisdiction: There must be complete diversity at the time of commencement (no plaintiff from the same state as any defendant).

• Corporations: Citizens of the state of incorporation and the principal place of business.
• Unincorporated Associations: Citizens of every member's state.
• Executors: Citizenship of the decedent.
• Amount in Controversy: Must exceed $75,000 based on good-faith complaint allegations, unless it is legally certain the plaintiff cannot recover. Injunctive relief is valued by the benefit to the plaintiff or the cost

The Oviedo Convention on Human Rights and Biomedicine

The Oviedo Convention, officially called the Convention on Human Rights and Biomedicine, is a Council of Europe treaty adopted in Oviedo in 1997. It entered into force in 1999 and has 31 ratifications.

It establishes binding minimum standards to protect human rights in biomedicine. While there is high divergence between states—for instance, it is considered "too restrictive" for the UK and "not restrictive enough" for Germany—it serves as a reference for EU law and the United Nations.

Article 27: Protection Standards

Each country may provide people with more protection than the Convention requires, but never less.

Article 1: Main Objective

To protect the dignity and identity of all human beings...

Migrant Worker Rights Under Article 19

The following are seven fundamental rights for migrant workers and their families established under Article 19 of the European Social Charter:

1. Right to free assistance and accessible information (Art 19.1): Member States are required to provide free assistance to workers who wish to emigrate or immigrate. Information must be accessible, comprehensive, and free. There is also an obligation to prevent misleading propaganda related to emigration and immigration.

2. Right to be treated no less favorably than nationals: This applies to matters of remuneration, employment conditions, and the right to join trade unions or enjoy the benefits of collective bargaining. States must ensure the absence of discrimination.

Article 10: Freedom of Expression

• Definition: The right to hold opinions and to receive and share information.
• The Golden Rule: It protects popular ideas, but also those that "offend, shock, or disturb" (Handyside case). Without this, democracy cannot exist.
• Limitations: Restrictions are only permitted if they meet three strict conditions:
  • It is prescribed by law.
  • It pursues a legitimate aim (e.g., national security, public health, or protecting reputations).
  • It is necessary and proportionate (not an overreaction).
• Journalists as Public Watchdogs: They receive the highest protection because they inform society.
  • Responsible Journalism: They must act in good faith and verify facts.
  • Protection of Sources: Forcing a journalist to reveal a source is illegal—except

Understanding the Business Person and Personalist Companies

Case 1 examines the concept of the business person and the initial types of companies, specifically personalist companies.

Natural vs. Legal Persons in Business

A business person is the legal subject that carries out a commercial activity. This entity can be a natural person or a legal person:

• Natural Person: The business person is the individual. For example, if Marta opens a clothes shop as a sole trader, Marta herself is the business person; there is no separate company.
• Legal Person: The business person is the company itself. For example, if Marta creates Marta Fashion S.L., the business person is Marta Fashion S.L., not Marta personally. While Marta may be the founder or shareholder,

Duties to Client: Introduction

• Lawyers are expected to perform their duties with integrity and professionalism. Hence, the duty must be performed accordingly.
• The client-solicitor relationship is basically based on the retainer agreement, warrant to act, letter of appointment, or in some cases, it may arise by implied action or conduct of the lawyers concerned.
• This solicitor-client relationship provides legal rights to both parties.

Duties of Counsel

Primary Duties

• Duties to client
• Duties to court
• Duties to lawyers

Conduct & Duties Towards the Client

Client Engagement and Trust

• Clients approach solicitors with legal problems, requiring professional assistance from the lawyers.
• In some situations, clients retain lawyers when they need legal services.