Legal Framework for Business Transactions and Commercial Law

Item 2: Legal Issues on Company Sales

Sales

A sale is a legal transaction involving the transfer of property between a buyer and a seller.

Duties

The buyer's essential obligation is to pay for the acquired goods. The seller's obligations include:

• Delivering the goods
• Ensuring the goods are free of defects (both apparent and hidden)
• Protecting the buyer's right to the purchased item against legal challenges (eviction)
• Supporting the buyer in any new activity related to the goods
• Refraining from competing with the buyer

Seller Specialties

Sellers can specialize in various types of property, including real estate, personal property, industrial property, credits, debts, contracts, accounts, and customer bases.

Lease

A lease is a contract between a landlord and a tenant, where the landlord grants the tenant the use of a business or corporate operation for a specified price and duration.

Landlord Obligations

The landlord must provide the property and refrain from competing with or harming the tenant's business.

Tenant Obligations

The tenant is obligated to pay the agreed-upon price, avoid competition with the landlord, and return the business in good condition at the end of the lease term.

Item 3: Legal Framework for Business Traffic

Self-Discipline of Competition

Competition is essential for a functioning market. A market without competition cannot be considered a true market. Competition ensures that all business activities occur fairly. However, this competition can be disrupted by individual actions, and the law intervenes when harm is caused.

Unfair Competition Law

Purpose: To prevent acts carried out in the market for anti-competitive purposes.

Scope: Subjective and territorial. The law applies to actions within its jurisdiction.

Prohibitions

General Clause: Unfair behavior is considered objectively contrary to good faith.

Specific Clauses:

• Group 1: Actions that harm competitors' interests.
• Group 2: Actions that harm consumer interests.
• Group 3: Actions that harm public interests.

Right of Self-Defense of Competition

Antitrust law applies to acts that prevent, restrict, or distort competition.

Item 4: Tools of Trade Traffic

Patents

A patent arises from an invention and grants exclusive exploitation rights for 20 years. The inventor must apply for a patent at the Spanish Patent and Trademark Office. Patents are published in the Bulletin of Industrial Property. Failure to exploit a patent can lead to its expiration.

Patent License

A patent license allows others to use the patent. This can be contractual, registered with the Spanish Patent and Trademark Office, or mandatory if the patent holder isn't exploiting it.

Utility Model

A utility model involves modifying an existing product for easier use. It lasts for 10 years and is not renewable.

Industrial Design

An industrial design protects the unique appearance of a product. It lasts for 5 years, renewable up to 25 years.

Distinctive Signs

Trademarks

A trademark identifies a product in a specific market. They are granted by the Spanish Patent and Trademark Office and published in the Industrial Property Bulletin. Trademarks last for 10 years and can expire if not used.

Trade Names

A trade name identifies a business. Examples include company names, legal person names, fantasy names, business objects, anagrams, logos, images, figures, and drawings.

Intellectual Property

Intellectual property rights, such as copyright, protect creative works. Copyright infringement occurs when someone uses a protected idea without permission.

Securities

Securities are documents representing credit rights. They facilitate trading and are characterized by literalness, autonomy, and legitimacy.

Types of Securities

• Bill of Exchange: A payment order involving a drawer, drawee, and payee.
• Endorsement: Transferring a bill of exchange to another party.
• Promissory Note: A promise to pay a specific amount.
• Check: A payment instrument drawn on a bank.

Item 5: The Entrepreneur and Trade Partners

Concept and Types of Employers

An entrepreneur is a natural or legal person engaged in organized business activity within a specific market. According to the Commercial Code, an entrepreneur must be an adult with full legal capacity.

Classes of Business

• Public and Private: Public businesses are initiated by public administration, while private businesses are initiated by individuals or private entities.
• Civil or Commercial: Civil businesses operate outside the commercial sphere and are governed by civil law. Commercial businesses are governed by the Commercial Code.
• Individual or Social: Individual entrepreneurs operate alone, while social entrepreneurs involve a group of individuals.
• Large, Medium, and Small: Commercial law applies regardless of business size.

Business for Married Persons

Spouses can be entrepreneurs. Assets acquired through business profits are considered marital property.

Partnership Agreements with the Employer (Independent Partnership)

Contract for the Commission

A commission contract involves a client requesting a service from a commission agent. The object must be a commercial operation, and at least one party must be a merchant.

Franchise Agreement

A franchisor grants a franchisee the right to use their business model and sell their products or services.

Contract of Agency

An agent promotes and closes deals on behalf of a principal.

Mediation or Brokerage Contract

A broker or mediator facilitates transactions between parties.

Contract Award

A contract where one party facilitates the marketing of products or services in an exclusive area.

Item 6 and 7: The Companies

Concept of Company

A company involves multiple individuals engaged in a business activity for profit. It requires the consent of all partners, a defined purpose, and adherence to legal requirements.

Company Classes

Commercial companies include capitalist societies (anonymous, limited by shares) and partnerships (collective and simple limited partnerships).

Constitution of a Company

A company must have legal personality. This requires a deed signed by the entrepreneurs and registration in the Commercial Register.

Types of Companies

Collective Society

A commercial company where partners have joint and several liability.

Limited Partnership

A commercial company with general and limited partners. Limited partners have limited liability and cannot participate in management.

Mutual Company Background

Cooperative Companies

Cooperatives are social enterprises organized democratically to meet the economic and social needs of their members.

Mutual Insurance

Mutual insurance companies provide insurance coverage to their members.

Mutual Guarantee Societies

These societies help small and medium-sized enterprises access credit and financial services.

Item 8: Commercial Conveyancing

Sale

A sales contract involves the transfer of goods from a seller to a buyer for a price.

Obligations of the Parties

• Seller: Deliver the goods free of defects.
• Buyer: Receive the goods and pay the agreed-upon price.

Risks of Commercial Sales

Risk transfer refers to the responsibility for loss or damage to the goods.

Supply Contract

A contract for the recurring supply of goods or services.

Upholding Contract

A contract where goods are delivered on consignment.

Item 9: Transportation Contract

Overview of Transport

A carrier agrees to move people or goods from one place to another for a fee.

Item 10 and 11: Insurance and Banking Contracts

Insurance Contract

A contract where an insurer agrees to compensate the insured for a covered risk in exchange for a premium.

Banking Contract

A contract related to credit and financial services provided by a bank.