Spanish Commercial Code - Book IV - Of Bankruptcy - End Title - The Enforcement of this Code

SPANISH COMMERCIAL CODE

BOOK IV

OF BANKRUPTCY

(Book repealed)

Final Title

THE ENFORCEMENT OF THIS CODE

Final Rule. This Code shall take effect from 1. January 1867 and be repealed on that date, even the part that are contrary to it, all pre-existing laws
the subjects it addresses, as they can affect business matters.

PURPOSE OF THE CODE OF COMMERCE

And because, after hearing the State Council, I have been pleased to sanction it, so it enacted and take effect in all its parts as the law of the Republic .- .- José Joaquín Pérez Federico Errazuriz.

 CODE OF COMMERCE

(Amended by Law 19,755 dated 27.SEP.2001) 

MESSAGE FROM THE EXECUTIVE

Fellow of the Senate and House of Representatives:

The codification of our laws in general has been long before now a need felt by all, recognized by scientists, and duly estimated by successive governments that have ruled the destinies of the Republic, but this need has been expressed with urgent and compelling character on the trade legislation, which puts us in immediate contact with the various nations of the globe looking for on our soil the benefits of change of the respective products.

During the average time between the conquest and the establishment of the consulate in the capital, our company law was reduced to scattered provisions of the Recopilacion de Indias, Compilation Castellana, parties and other legal bodies of our ancient metropolis, but the trade laws, confused with the civil and lost in the large cluster they were in such compilations, were far from harmonizing with the principles proclaimed the Republic in his glorious emancipation, meet new and growing needs of our social life, much less further the interests to be promoted to a post honorable among civilized nations.

Indiana's collection, though it contained a large number of provisions more or less connected with corporate law, was not really a Commercial Code in the specific sense of this word was, strictly speaking, a collection of precepts of police administration and commerce. She described the legal personality of the trader, completely forgot everything about the functions of the auxiliaries, failed to determine the nature and effects of land and marine contracts, regulated the most meticulous detail restricted trade, so justly called privileged and monopoly, and a compilation, so lacking in substance as imperfect in form, and could not meet the legitimate aspirations of the trade, always eager for freedom and franchises, and justly deserve the name and honors of a real commercial code. Such was the real importance of this legislation should preferably be applied in the Spanish colonies.

The collection Castellana, the Spanish parties and other codes, intended to supply the deficiency of the laws of India, contained many provisions scattered and some titles on subjects whole business, but not these true pieces forming a coherent body of doctrine, just enough to solve certain specific cases between the various and countless lives that occur in business practice. In vain would look into all these titles and unity of plan provisions, the clear and methodical principles generators, or logical deduction of the first consequences, because while it lacks all those qualities that both enhance the work of science, and more weighing on our secular view that the recommendations have survived these supplementary codes, it must be confessed that they compiled in commercial laws were insufficient to meet the needs created by time and progressive civilization people for whom they were issued.

Looking back to the Indian Collection, it must be remembered that the defects were so glaring in that compilation, which recognized the Spanish government made a general and a special test in the second half of last century to improve it and bring it into line with demands of time and civilization that had reached their colonies.

The first was the work of a body of law must replace the Collection of the Indies, and bear the name, now purely historical, Carolino Code. While finishing early this century, the code failed to be enacted: it was a frustrated hope for the colonies, and just paid the anomalous provide service provisions for the resolution of some issues and questions.

The second was the weighted free-trade regulations, published on October 12, 1778. This regulation denied his title, as the freedom to trade was granted exemption from the heavy yoke of privilege and monopoly. His most prominent provisions are limited to determining the conditions of the ships and crews for the colonial trade, to allow access to certain ports on the peninsula and its colonies, to eliminate some duties and taxes that oppressed the trade and revenue sources to establish management rules commercial and police, but not having removed the obstacles that impeded the free flow of commercial industry, and introduced the principles to be followed in the hiring land and sea, did not alleviate the distressing situation of trade, nor made any improvements in the legislation commodity itself.

The schedule for February 26, 1795, which established the Consulate in Santiago, the country also introduced Ordinance of Bilbao, so justly celebrated in the most cultured nations of Europe. Its enactment in the year 1737, imported a large and positive progress in business law from the metropolis and its adoption in the colony was considered the most favorable omen of good fortune was in the interest of our trade. She underwent fixed rules limited the progress of business operations to our traffic was reduced, given strong guarantees of good faith and credit, forcing the retailer required to keep regular accounts, served as a norm for our consular courts to decide fair and equitable issues occurring between merchants and the country could not deny the deserved applause for a code that was delivered from the chaos of Indiana collection, and providing such important benefits.

But the prestige that had caught the Ordinance in the fifteen years between the erection of the consulate and our memorable revolution, began to decline gradually decreased and as he woke up on all the legitimate desire for a broader and more comprehensive legislation.

The lights that provides freedom of inquiry found flaws in the Ordinance that were previously not noticed it, thanks to the favor that had been accepted, and the comparative study and impartiality of its provisions with those contained in the Code of Commerce have come to light in the first third of this century, came to check the effectiveness of this idea and to legitimize the trend of trade towards the codification of our commercial legislation.

To demonstrate the accuracy of the concepts just expressed, and without trying to make criticism of a code to be venerated as a monument marking the history of trade in an era of true progress, a quick glance over the field that embraces our ordinance.

The first eight chapters of the twenty that make up that point code are all useless, because their provisions lost their force and importance since the application of preferential ballot electional reproduced them with short differences. The same should be said of the last five chapters, since its precepts purely local can only be applied to the regime and river port of Bilbao.

The remaining sixteen chapters regulate various land and marine contracts and determine the functions of some auxiliary staff. Justice and fairness of the rules established in those chapters to the government contracting, have casuitismo forget the wording of our ordinance, and are, without doubt, are real and recognized merit. Despite this, we miss that part of the ordinance some important matters of land and sea trade, noted in some of its chapters omission of necessary details and resolutions totally unacceptable in the present state of science and Given all this, no wonder that the country aspired to gain a more complete code better suited to the general customs and trade more in line with the light of day.

Governments patriotic who led our first steps on the path of freedom, understood very early the wishes of the country, but engaged in the fight for independence, and devoted to meeting the high duties imposed on them she could not dispense the commercial encryption all the attention she demanded to improve the deplorable condition of our trade. However, for this we owe a gratitude to the everlasting memory of unblemished patriotism of the leaders of our revolution that the February 21, 1811 allowed "trade with friendly or neutral nations," and in 1813 promulgated the regulation of "openness and promotion of trade and navigation ", establishing our business relationships on the dual foundation of freedom and reciprocity.

The satisfaction of desire as just was reserved for another time and other men. To undertake a result the great work of codification, it was necessary to fully enjoy the benefits of peace, complete our political organization, put the Republic into the path of intellectual progress, giving it all the institutions that promote and encourage, and patiently accumulating the knowledge needed to perform that work with due skill, and the meeting of these conditions, nor was it accessible to the men who ran the fortunes of our liberation war, nor could be expected but the slow and powerful action of time and the gradual spread of lights.

The law of September 14, 1852 came to announce both the advent of so desired time and the firm resolve to tackle with ardor coding of our laws in the various areas embrace. She authorized the President to commission the preparation of projects for the reform of our codes, and use of the authorization was commissioned the drafting of the Commercial Code relating to an active and distinguished jurist, who has dealt with it regularly for a few years. The same Act ordered that each project completed and reviewed by a special commission, be submitted for congressional approval, and fulfilling this duty, I have the pleasure to present the attached project, as remained after the lengthy reviews that he made. I turn now to give account of the new institutions introduced in our trade laws and reforms that they have done.

Under the heading General Provisions have established certain rules that dominate all areas of the Code and could not be entered in any of the securities that compose it, without altering the system and method of writing. Some of these rules determine the limits of the rule of the Code, and authorize the application of common law and customary in cases in which the first is poor. The numerous requirements that must be custom to take an extra force of law, and the nature of proof that must be proven at trial, remove the drawbacks of uncertainty and hesitation of the unwritten law, and allow us to look fearlessly freedom to trade is to introduce new uses within the circle of honest and lawful.

Among the general provisions are also dealing with acts of commerce, more than form the special subject of the Code, provide the broadest base and secure the commercial jurisdiction, and by placing that have been given, has prevented a fair criticism of the codes that have retained the important notion of these acts to the law regulating the jurisdiction of the courts of commerce. The project has fled from the danger of purely theoretical definitions, and instead to define acts of commerce, described practically by listing them with due order, precision and clarity.

Book I of the project deals with the merchants and auxiliary trade.

In Title I defines precisely the person to whom the law attributes the quality of the merchant. Determine the way the conditions that enable minors and married women to trade, detailing the special rights that gives these people the trade profession, and to prevent fraud and dire disappointments he produced, commands open a log at the head of each department to enroll in it all the documents that impose some responsibility to the merchant, in kind or amount, on behalf of his wife, children or boarders. This registration extends to the writings of traders held company and the powers granted to its factors or dependents, to provide contractors the knowledge of their respective personalities, and out as far as possible cheating on a point usually decides the survival of the conventions.

The obligations of the profession of trade is the subject of the second title. It sets the number of books that every businessman must take the proper arrangement of its accounts, knowledge of their true situation and justification of their proceedings in bankruptcy professionals, faith is also determined due to the book trade in the issues between merchants and addressed the seriousness and importance of the subject, adopted several provisions that significantly improve this part of our business law. The Project considers accounting as the mirror that reflects vividly the trader's conduct, the soul of trade in good faith, and the best means that you can use the legislature to prevent fraudulent machinations in bankruptcy cases, and ensure the resulting punishment of fraudulent or guilty, and placed in this view, renders appropriate provisions to guarantee the regularity and purity of the keeping and enforce the responsibilities imposed by the merchant does not carry books, which leads without subjecting the system established, or that eludes the severe inspection of commercial justice.

The obligation to keep books is limited, for the retail trader, the keeping of one, and to facilitate knowledge of the persons to whom the law is said as such, the Bill defines retail trade with more ease and accuracy the resolution of February 10, 1753 and rule 63, 1813.

Trade has always been just jealous of the reservation of his books, and respecting the sake of convenience and fairness to legitimize this right, have adopted several provisions that reconciled with the imperative requirements of justice in cases of dispute. It prohibited the demonstration and general recognition of the books, except in four cases listed by the project, but to sort, ex officio or upon request legitimate and validating partial display of the seats on the question that shook under the protection of certain rulings conducive to preventing the revelation of all the transactions that make up the rotation of each merchant frustrate those whose success depends on the secrecy with which they are handled.

The French Commercial Code imposes an obligation to the merchant to keep their books for the space of ten years, in Buenos Aires for twenty Dutch and Portuguese for thirty, and to fill the silence of our ordinance in this regard, it was thought more rational and convenient not to fix a limit to the obligation that the marking by the interest and the need for a complete liquidation of the business to which they relate books. This obligation extends to the heirs of the merchant, because they often have to use the news contained therein to carry out the settlement that its author has left pending.

The Title III 

Dealing with brokers who act as brokers for the conclusion of commercial contracts.

Our Ordinance contains many important provisions on the exercise of the broker, but keeping in view the new needs created the great development of our trade and the importance it has acquired these auxiliaries, in facilitating and accelerating the commercial transactions, has been deemed essential to make these provisions throughout the development and amplitude that were susceptible. The project also introduces some rules that are missing from that code, to prevent or repress the easy abuses to which the profession serves essentially based on trust and good faith; lists the people who can not play the brokerage, details the obligations and prohibitions on those who exercise in the various areas to extend their mediation determines the faith that they deserve their records and minutes, requires the manager to buy or sell credits documents designated by the name of public securities The responsibility to pay the price of purchased or sold to deliver, and no doubt, well-calculated using these provisions, the brokerage will produce the benefits that trade has always expected as profitable institution.

Title IV is the final and auxiliaries known as the auctioneers.

Hammer houses have not been considered so far as institutions to promote the trade, but as an industry that could not be raised without the permission of Government and the payment of an amount in treasury, but this, the supreme decree on July 12, 1823 regulatory senate of July 24, 1820, known to us for the most part the powers and duties of auctioneers in his capacity as auxiliary officers. The project deals with them considering them as such, and to regulate the exercise of his office, reproduces the provisions of the decree, adding others is a clear opportunity, extends the prohibitions to cases omitted in the former and, in short, imposes the obligation to carry three books subject to the rules set out in paragraph 2, Title II of the book at hand.

Book II of the project begins by establishing certain principles common to all commercial contracts, and then is particularly concerned with those related to trade land.

In Title I of the project states that the requirements of the Civil Code relating to contracts generally apply to commercial, save the changes he introduced, and after the enactment of this important rule, are reflected in all that he claims imperiously enlightened interest of trade. These changes are worthy of special mention the arrangements for the purpose of the enactment of deposit, the fixing of the objects that should cover the execution of contracts in a foreign country to be fulfilled in Chile, the limitation of the right small change to pay in silver or copper coin, the power of the creditor to make the claim, if the debtor does not check in the act of payment, where you work or novation by the payment negotiable and the inadmissibility of termination due to massive injury, and finally, those designated specialties in the commercial test.

This same title is an issue as difficult as important, omitted from the ordinance and even the Civil Code. Often occurs the need to set the time and place where oral or written proposals assume the character of perfect contracts, and lacking clear and precise rules that direct the trial lawyer and illustrate the conscience of the judge, it is essential to invoke the opinions accommodative and unsafe authors have examined in depth about these points. To overcome difficulties of such importance, the project has been satisfactory solutions to major issues and incidents that offers the matter, and thus has filled a significant gap in our commercial and civil law.

The draft regulates the commercial sale in accordance with the principles established exceptional case law and commercial law of civilized nations. Nor was it possible to bring this trade agreement establishing the requirements of Civil Code, because regardless of whether they refer mainly to the sale of real estate, there are profound differences between civil and commercial sales, which make them inapplicable in trade.

The immediate object of direct sales and civil, but things seen on Furniture is the exclusive use or consumption of the acquirer, the merchant of the transaction is to achieve a profit by reselling or renting the mere use of the thing purchased . The first is usually pure, the second is conditional, since in some respects has a tacit condition, precedent or subsequent, unless the contract concluded between present and one thing that is also present on the spot delivery, and differing from both sales in purpose and quality, was absolutely essential that the project will adopt special rules for commercial sale, to facilitate transactions, to ensure its effects against the estimates of fraud, and by these means to promote the rapid movement of goods.

In dealing with the transfer of goodwill, the Project will not only indicates how to transfer credit documents and the public purpose, but advances to meet the Code's silence on two points of no small importance in this area of use as often as necessary to the speed of transactions. He orders the notification of the assignment of no endorsement is made by a minister of public faith, said a deadline for the debtor opposes the exceptions dormant states that given on the instrument can be opposed to the transferee in the same way may be the transferor, and so appropriate arrangements surely cut the recurrence of the issues which has resulted in the lack of clear and direct statements about points.

In the chapter "of the merchant fees" our slogan Ordinance certain requirements relating to land transport, and even in the Civil Code deals with it in paragraph 10 of the title of the lease. However, being manifestly inadequate prescriptions that contain the codes for the regime of the industry, attended the surprising development that has taken in recent years, has seen fit to give them all the growth and expansion required by the emerging needs of trade.

Title V of Book II

Which is the transportation by land, lakes, canals and navigable rivers, was drafted under the influence of that idea, and to do it in its entirety, the Bill defines the transport sets common rules for public companies or driving , lists the things to express consignment, details the rights, obligations and responsibilities of the carrier, shipper and consignee and, in short, provides and resolves cases that often put in conflict with the interests of the contractors.

Twenty-four hours after delivery, the project allows the carrier to collect the agreed size and expense made in the conservation of ported goods, and not getting the payment, we also authorized to solicit the sale of them, preferably with hammer and paid their product under the privilege granted on all objects that make up the load. At this point the project is separated from the Civil Code, for disappearing for the delivery of the cargo retention that he granted this right to the carrier does not provide a guarantee and effective serious. However, wishing if possible to reconcile the interests of shippers to the carrier's rights and prevent the hint of privilege is an obstacle to free and open movement of goods, it limits the duration of the short space of three days when ported out of the hands of the shipper or consignee after the expiry of this period, and does all respects cease, provided that the carrier did not use their right within one month of delivery of cargo.

Although the trade mandate is a genus of several species, the project only deals in Title VI of the known commission considered in its most common applications, and which factors play and dependents.

The commission is undoubtedly one of the most useful creations of modern times. It allows the merchant to perform the most extensive speculation speed and economy, without leaving his place of business, or abandon the personal direction of their negotiations, allows communication to merchants of different nations of the globe and close relationships of interest the bond of mutual services, ensures the success in riskier operations, leveraging the knowledge that the correspondent of the customs and needs of each locality, facilitates the appropriate use of credit abroad, by sending merchandise is guaranteed , and put it all at once, the commission subrogation and under every advantage over the factories creating the wasteful to keep traffic trade with distant countries.

Between us, the trade commission has taken truly colossal proportions, thanks to the abolition of laws that prohibit overseas and this was extremely urgent circumstances to supply the deficiency of our Ordinance, the rules dictate that this contract should be adjusted in each the various forms it takes in business practice. Fortunately, the principles of the common mandate wisely are outlined in the Civil Code, and alleged the existence of such a precious history, the real work of writing project has involved the classification of materials to be included in the composition of Title VI, the expansion and modification of these principles according to the unique needs of commerce and the aggregation of certain rules relating to the administration of the Commission in general, the lien is given to ensure payment of their wages in advance, interest and cost, and the establishment of the special obligations imposed on brokers to buy, sell or make your own name in the transport of goods.

The proposed regulations mandate dependent factors and subject to general principles and in order to complete this matter that does not address our ordinance lists the cases where, even if the contract or dependent factor in his own name , means that it has done on behalf of his client, noting the causes that authorize the termination of their service efforts and the extinct.

The project accepts and confirms the tripartite classification that the Civil Code makes the partnership agreement, adding known as "society accidental" or "share accounts", and subdividing the limited partnership in "simple" and " actions. " The exposition of the principles of commercial law governing these different species of society, is intended Title VII of Book II of the project.

The partnership is the type of the other and that deviates less from principles of civil law, and therefore to treat it, the wording has been made particularly to the establishment and development of rules to modify those principles in everything that affects more closely the legitimate interests of trade.

In the development of this plan, the draft constitution stipulates that the proof of the existence, dissolution, extension and modification of society are made by deed, duly recorded, posted and published under penalty of absolute nullity between the partners, regulates correctly use the name that embodies the partnership, all partners extends the solidarity of the social obligations in the name, that the ordinance limited to "those under whose signature the company corriere" adds useful management principles, intended to stabilize in all relationships, introduces an expeditious settlement system and set the precise form of the appointment and powers of the liquidator, and finally, five-year also introduces the requirement for members who are not involved in the settlement, leaving subject to the provisions of civil law prescribing the actions against the clearing members and partners together.

The law of November 8, 1854 on corporations has been incorporated into the project with the deletions made inevitable the fact of its incorporation, the aggregation leading to the perfection of the system adopted by them, and certain changes in wording and order number . The convenience of this law has in its favor the practice of some years, and it was thought prudent to keep the letter and spirit in its entirety.

The Civil Code establishes the two fundamental principles of simple limited, but they do not suffice to remove the doubts that occur in practice, it has been deemed absolutely necessary to regulate their application, and add some rules supplementing the rules of that society.

To fulfill this purpose, the project extends sympathy to the limited partner that tolerates the inclusion of his name in the name: it means the things you can not take society by way of capital confers the right to require the return managing partners of excess amounts of their contribution has been paid to creditors have been mixed in social administration or tolerated the insertion stated, describes the actions that can run without losing its character and exemptions, and, ultimately, close the paragraph concerning the limited partnership simple, stating that in case of doubt the company is said to be collective.

I hope that these provisions preclude the renewal of the issues on the merits given the principles of simple limited by lack of proper development in its most frequent applications.

As for the limited stock, so common in France, I need only announce that the project has received the necessary modifications to the law enacted in that country on July 23, 1856.

Fruit of long experience and the meditations of many years, the law offers ample guarantees convenience and accuracy in its provisions, and no doubt she will produce in the country that promises all the benefits that society, bringing together both the benefits of the partnership and the anonymous, open a vast field of applications fruitful principle of association.

Title VIII 

Book review is that "security in general and in particular ground" and in the first part of the insurance described in the abstract, define the words most frequently used in the field, and exposed, with the distinction that requires its novelty among us, the common principles to secure land and sea, following the track of the laws of the nations that have long practiced this contract, which provides civil and commercial property truly priceless advantages.

The second part of this Title insurance particular to land.

After dividing them into "mutual" and "premium" means the Project on dealing ordinary objects, states that the abandonment of the insured and the termination by the mere will of the insured are inadmissible on the ground safe, except transport; points within five years for the extinction of the actions that produce the contract, and concludes by setting the rules peculiar to life insurance, fire, products of agriculture and land transport.

The extension of Title VIII does not allow me to offer a summary of the many provisions it contains, but enough to excite your attention to the knowledge that many European nations today have no laws on this important matter, and she is completely new in the country.

The contract talks Title IX

Known under the name "current account" pays to trade services of the highest importance to the parties providing a convenient way to carry out their claims and merchandise, without the risks and costs that ordinarily she claims. This contract was not incorporated until the day when none of the commercial codes that we know, but having their own existence and well characterized in the use of trade, has seen fit to make room in the project, and compile the principles that govern jurisprudence and the practice of traders understood.

Consistent with this purpose, the project describes the current account with all the clarity necessary to distinguish it from the management accounts, indicates the things which constitute its legal, declares the admission innovation that produces current account above values ​​due; prohibits the charging those received payment of a specified item of the account sets out the purposes of final adjustment of the balance and character, allowing secure a mortgage in the event the contract and establishes Finally, several other rules to help not certainly widespread knowledge of the current account, considered, not as an accounting term, but as a real contract, created by the needs of commerce.

Chapter 13 of our Ordinance, dealing with bills of exchange, has received the recommendations of merchants and lawyers for the accuracy of the principles it contains, but its provisions were not to give us the fundamentals of the changeover from a place to another, are limited especially regulate the course material for the letter that serves as an instrument for the execution of this contract, and suffer more than some dark natural consequence of the neglect of its wording and the lack of method in the distribution and exposure of the subject.

All this was necessary and urgent improvement of this interesting branch of our company law, and this need has been satisfied, merging and sorting materials estimates that offers the Ordinance, and supplemented by acquisitions that have enriched science after the enactment of that code.

To properly perform this task, the Bill defines the change, specifically the transportation of currency from one place to another, explains the word in universal use in commerce and the law peculiar to this contract, and then regulates the neatness and appropriate detention everything relating to the form and requirements of the letter, the manner and purpose of transmission to the obligations of the drawer, drawee, acceptor and others involved accidentally in negotiation, payment, protests, replaced, and prescription hangover stock from the exchange. The timing of the classifications and the good order and clarity of presentation, let me hope that soon become general knowledge of the rules governing change throughout the business world.

Not close the magazine of Title X 

Without calling your attention to one point on which the trade of all countries there has been in constant conflict with written company law. Such is the use of blank endorsement.

Despite the prohibition contained in our self Ordinance and agreed January 31, 1848, trade has persisted in the use of endorsements in blank, and considering that this persistence is the expression, not fancy, but a real need, it was thought wiser to give legal existence to these endorsements, which reagravar providences that some codes have wanted outlaw. However, to compensate for the lack of statements that characterize the act and determine their effects, the draft states that the blank endorsement transfers ownership of the lyrics, and imports the evidence of receipt of its value, and thus leaves the endorser free to choose between the use of this dangerous method of transmission and the possibility of a breach of trust.

Titles XI and XII deal "of drafts and notes to the order and credit card orders" documents which, taken in trade law as auxiliaries to the bills, make them "the complement of the varied and ingenious effects negotiable. "

These titles contain the provisions necessary to design the nature and effects of contracts that justify those loan documents, and among them is one that should draw your attention to the importance in the defining of the civil and commercial jurisdiction.

Such is the rule that subjects the Civil Code of the warrants and notes to the order, not from business.

In a situation analogous to the implied titles are the four ending with Book II of the project. However, it deserves a particular recommendation the provision, in order to prevent fraud so prevalent in the approximation of bankruptcy requires the concurrence of certain requirements for the lienholder may have against others the privilege granted by law.

Book III 

Project is dedicated to exposing matters concerning maritime trade.

Although this part of commercial law among us has a special significance, because the peculiarities of the geographical location of Chile is calling us to promote and stimulate trade by sea, is not given to undertake the analytical examination of the provisions contained in this book because the nature of this communication and the limits set in the beginning, keep me from playing this work. However, consistent with the plan I have proposed, will do a slight review of those that by their novelty, or some other special reason, may merit your consideration.

Title I of the book speaks of "ships and owners and joint owners of them."

In paragraph 1 of this title explains the legal scope of the word "ship" and "rigging" and to avoid the error could lead to certain pronouncements of the Ordinance and the Civil Code concerning the legal status of ships, the states Furniture Project, subject to the modifications introduced in the legal status of same.

Consequently, the project affects the ship to pay the joint debts and privileged of the owner, gives creditors the right to pursue it with third parties, the duration of its responsibility, introduces a special way to the foreclosure sale, considering the influence that this valuable piece of furniture in the owner's credit, required to establish a public private sale to third parties, detailing the preferential debts and determines the nature of the test to be justified, and, finally, sets the time to spend to acquire by prescription the domain of the ship.

Paragraph 2 rule the rights, obligations and responsibilities of owners and joint owners of the ship. They can manage, with ability to trade, but lack of it, is obliged to appoint a person who administers it on behalf of the community with the relevant powers of the agent. Assuming the existence of collective management of the joint owners, the project provides for the frequent conflicts between them on weapons, equipment, supplies, charter, repair, voluntary sale, appointment of captain and other objects and in our view, he adopts the measures more conducive to prevent or resolve them in the most equitable and in accordance with law and convenience of all partners.

Title II deals with "persons involved in maritime trade."

Paragraph 1 of this title lets us know the legality of the shipowner or operator, powers, obligations and contracts from the master, and the wrongful acts of self and seamen, or constitute a crime or tort, or imported a mere fault. In the interest of our navigation, and to stimulate the arms trade, the project enables the shipowner to be freed from the responsibilities expressed abandoning ship and the rates charged to be received on account of the journey that they come from, and to characterize conveniently neglect, determine its limits, the effects produced by the solemnity with which must be done and the way we should proceed to agree the co-owners of the ship, when acting as the agent.

Paragraph 2 deals with the proper arrest of the captain, who plays the main role in the realization of the contract establishing the maritime trade. The project gives the captain three times a delegate of the public authority to preserve order on the ship, shipping factor with regard to the interests of itself and as representative of shippers in all matters relating to the load and the result of the expedition, and refers to the age and sufficient conditions to be met which intends to perform the duties of such a ship of commerce. Immediately considered in the various situations which puts the nature of his office, the project describes his duties: specified with the neatness and necessary distinction the obligations incumbent upon it in each of these situations, details the acts that are prohibited and, lately, he declared civilly liable even slight fault committed in the exercise of his office and the theft of the crew, while fixing the time begins and ends this responsibility for the shipping and chargers.

As for the provisions contained in paragraphs 3, 4 and 5 ending with Title II, just to announce that all of them are aimed at determining the functions, duties and responsibilities of the pilot, boatswain and surcharges.

Although Chapter 24 of our Ordinance is the same people that the project called "men of the sea",

Title III of Book III

Which deals with contracts of these individuals should be considered as a work really new in substance and form. Missing in our company law provisions that govern the adjustments of the crew, taking into account that individuals who compose it are those who only support the tough work and the hardships of navigation and, happily, the project has successfully supplied the missing regulate the settings of the more believed that in fairness and the nature of these contracts.

Title begins at hand by defining the word "seaman," "Seafarer", explains the legal nature of the adjustments made by a fixed amount per month or per trip, freight or share in the profits of the expedition , lists the rights and obligations of the seaman, prefix the ultimate responsibility for the costs of care and cure diseases caused by regular and special services for the ship, said the compensation owed in certain cases and in short, refers to the causes that authorize the termination and produce the extinction of their efforts, and leads to foresee everything that was fair to improve their condition, without breaking the principles of justice.

The following four titles cover subjects that our ordinance has been treated with maturity and wisdom. This consideration leads me to point out to limit this review: that Part IV deals with "the charter", the project has added a paragraph that contains the rules regarding the maritime transport of passengers in the V is defined and divided the fault "in coarse or common" and "simple or particular" as inaccurate by deleting the "ordinary" in the VI, "the loan to the heavy or marine peril," has been granted privileges on objects giver directly affects the loan instead of the mortgage on them must be the borrower under applicable law, and in the VII, "marine insurance" has been widely regulated in all respects the right of abdication granted to insured, thus supplying the deficiency of our Ordinance, which only five articles devoted to the explanation of this serious matter.

The final title of the Book III 

Is "the prescription of the specific obligations of maritime trade and the plea of ​​inadmissibility of some special actions."

In the first paragraph of this Part sets out the statute of limitations on actions expressed therein, and which are not identified in the Book III, And the fix has been taken in view of the need not maintain indefinitely the merchant under the impression of a threat that undermines the assiduous attention to their businesses and avoid the hassle and difficulty of keeping long documents for his defense which can easily disappear in the fast moving business operations.

Project in the second paragraph states certain facts that, even assuming that the action is not required, the make totally unacceptable and this inadmissibility is based on the assumption of the absence of the event legal action occurs, or throws a waiver of the performance of certain acts when there have been previous protests.

This same presumption, strengthened by the above considerations, justifies the revocation of the action, when having protest was not made and notified within seventy-two hours, or if made and notified in time, not lawsuit has been filed within two months from the date of the protest.

Book IV and last project is "of bankruptcy." This matter, the most difficult, serious and embraces many important corporate law, has unfortunately been the most neglected among us. The provisions that currently govern us in bankruptcy are contained in the law, civil and commercial time, from February 8, 1837, chapter 17 of the Ordinance of Bilbao, Title 32, Book 11 of the newest collection, and some scattered laws contained in our old codes, but the most superficial knowledge of these provisions is sufficient to deeply convinced of their utter failure to effectively protect creditors and trade in general against the serious damage and disruption produced by bankruptcy, to satisfy the entire society, and ensure the debtor, in cases of misfortune, all the regard to reconcile the different interests than those engaged.

This state of affairs urgently demanded the complete abandonment of this legislation composed of heterogeneous elements, and the introduction of a new one able to give strong guarantees to the merchant in good faith, prevent fraud and ensure the prosecution and punishment of those who abuse the confidence of the trade, seeking wealth in the dispossession of those who have recklessly dispensed.

Fortunately, the project has welcomed, with necessary modifications, the French law of June 8, 1838, which amended the Book III of the Commercial Code, using the lights that had accumulated the experience of thirty years, and forum discussions the meditations of the most eminent jurists, and so give me credit history advisable to wait for the faithful application of the provisions it contains will decrease the number of bankruptcies, hindering the success of the fraudulent machinations that the approximation of the fatal moment suggests the prospect of destitution, or the desire to enrich punishable with the fortune of others.

Paragraph 1 of Part I defines the bankruptcy with the greatest propriety and accuracy, not by the decomposition of the complex elements of this fact, but through the legal assessment of the material fact of default, a characteristic sign of the absolute loss necessarily cause the credit trading merchant of death, and thus forestall the danger you lose awareness of the Commercial Court, submitting appreciation mere symptoms or circumstances on which scope and importance could easily be wrong.

The very definition of bankruptcy rejects the project shows that the middle state between solvency and insolvency that some have tried to introduce in the bankruptcy law under the name of "suspension of payments." To solve the problem of solvency or insolvency of a merchant, would be essential to implement all procedures of bankruptcy, to complete the sale of all the objects that make up its assets, and to cut this painstaking research, which ultimately produce the same results the bankruptcy, the project states that bankruptcy is not the state of bankruptcy when creditors granted unanimously expect the common debtor.

Bankruptcy is the legal personification of all assets and debts of the failed merchant, and therefore includes everything up its assets and liabilities, all claims, whether they come from an act of commerce, whether born of a purely civil case .

Paragraph 2 is classified fortuitous bankruptcy, guilty and fraudulent. The first is easily characterized by the nature of the event which occurs, but not the second and third, the difficulty to draw line fixedly, often imperceptible, separating the guilt of fraud. To overcome this difficulty, the project determines the facts attributed to the bankruptcy law the character of guilty or fraudulent, and that simply throw a presumption of guilt or dishonesty, which can be dissipated by regular testing. In the same paragraph designating the facts constituting complicity in the fraudulent bankruptcy, and that the main accused and his accomplices do not go unpunished, it gives creditors and the prosecution the right to prosecute criminally and sent form in trade courts for qualifying a record of bankruptcy, which must end before them or before the criminal courts to throw on the merits.

Title II is "the declaration of bankruptcy and its effects, which causes the cessation of payments and appeals against the order refusing or declaratory."

Bankruptcy can be reported by creditors and the debtor himself. For those manifestation of poor debtor's right, but for this it is not only a duty of honor and conscience, but a strict obligation, breach of which, more than deprive him of the many advantages that the law rewards spontaneity of the complaint, establishes a presumption against him guilty of bankruptcy. The demonstration in any case she should be exhibiting with the documents required by the Project, and born of the debtor must be verified within three days of cessation of payments, telling them the day it occurred.

The court pronounces the auto trade plea of ​​bankruptcy, if there is enough merit in the audience following the day on which it was made the manifestation tentatively fixed on him the time of default or subject to further fixation; appoints interim trustees, ordered the arrest of the debtor, and sends judicial proceeding to the occupation of the property, books, correspondence and documents of their membership and sets all other measures that lists the project aimed at giving publicity to the declaration time and avoid a concealment of property and improper payments.

The project introduces serious changes to the status of the debtor and the creditors, all aimed to keep intact the real assets of the bankrupt, to unify the procedures of it, and maintain complete equality among all stakeholders in the mass. For while such laudable intentions, divestment of the debtor's right to manage their assets and transferred to the trustees from time to pronounce the declaration of bankruptcy, common prohibits creditors from initiating or continuing a run that have pending, orders accumulate all commercial or civil cases to trial contest universal; declared due and payable on the debts of the bankrupt, only for objects that designates the law and what is more important attributes to the bankruptcy the effect of irrevocably fixing the rights of creditors in the state they were the day before delivery. However, she does not deprive the debtor of the exercise of civil rights, except in cases expressly determined by law.

The French law, which has taken the project as the most complete and forward to as many know, it punishes the guilty flawed or fraudulent, because it was unfair to grant impunity for a crime that carries so many calamities and misfortunes to trade and to society, but fixed his attention more especially to prevent the disastrous machinations of fraud gives rise to the approximation of the failure to preserve this environment in its entirety the assets of the estate, and appropriating the spirit of the wise provisions it contains, Project identifies as the main effect of the default invalid acts translaticios property free of charge, the prepayment of the debt due that have not been made in cash or negotiable instruments, and mortgages, antichresis garments and after the time granted to the court referred to cease trading or within ten days that precede it.

The project also provides for the termination of payments in cash or credit value of outstanding debts and contracts for pecuniary interest, verified in the mean time between default and bankruptcy, provided that the request justify the creditors, or third parties who have contracted with the bankrupt, have acted with knowledge of that event, and to complete the system which introduces precautionary protection of the common ground and avoid misunderstandings about the scope and impact of new termination formally reserves the exercise of creditors' action to set aside in accordance with the requirements of the Civil Code.

Payment of bills and notes the order is just exempted from the above provisions, except that the return of the amount paid is required of the person on whose behalf the payment have been verified, proving that while doing so, she had knowledge of cessation. Justice of the exception is clearly evident if one takes into account the one hand the need to guarantee the free and expeditious course of these papers give up to trade credit as important services, and further that the holder can not dispose of the payment being offered, without losing his appeal against the co-debtors of the bankrupt, since in this case can not keep using the protest.

The invalidity and termination can not affect the registration of mortgages validly constituted and compensation of debts due before the bankruptcy filing. It can be done until the day of the declaration and shall be irrevocably accomplished this, given that both debts meet the requirements under the Civil Code.

The project gives the bankrupt, creditors and other interested parties the right to request the replacement of the Bankruptcy car, fixed the time within which to exercise this right and that should end the article, and if that car revoked, confers the failed action to demand compensation for damages to the creditor who has filed for bankruptcy.

Such are the main provisions contained in Title II of the project, and certainly they will give creditors more effective protection and fruitful than could be expected from the laws that have needlessly felled the last penalty against fraudulent failed.

Title III explains all steps subsequent to the bankruptcy. It imposes on the prosecution and the trustees the obligation to request the arrest of the bankrupt, authorizing the trade court to exonerate the prison to the debtor who has declared bankruptcy spontaneously, or to grant a temporary pass if he were imprisoned, provided that the consideration of the balance, books and papers does not lead to enough credit to qualify bankruptcy guilty ordering the deposition of stamps at home and facilities of the bankrupt, and it empowers the court to waive this hearing all objects lists, and order the sale of those exposed to a near-term deterioration and eventually duplicate the training has a particular inventory and deposit one copy in the clerk of commerce for the proper instruction of creditors, and allows employees of the prosecutor to attend the preparation of the inventory.

In Title IV is the final appointment of trustees to do the trade court, after hearing the opinion of the creditors in general meeting have, are designated in those unfit to perform the receivership; clearly specified the powers and duties of the trustees, and issuing all necessary steps to accelerate and regulate the procedures of those agents, to prevent fraud could be committed in the administration and make it more beneficial to creditors than fruitful for managers .

Title V contracts to regulate the examination and admission of claims against bankruptcy. This diligence should be done at a general meeting of creditors convened for this purpose and chaired by the Commercial Court. The bankrupt and the creditors listed in the balance sheet submitted by him, or made by the trustees, may challenge the claims subject to verification. The uncontested claim and irrevocably jury is recognized, unless fraud or a legitimate subject for the car you declare completed the verification process, but credit is subject to failure objected that the court must pronounce trade at the same hearing, if to give not need the help of the test. This simple verification system can use the knowledge of all creditors of the origin and other particulars of their claims, provides this important act of advertising collateral, and avoids the serious disadvantages and dangers that entails the recognition based solely on the silence of the trustees, creditors and failed.

Title VI speaks of the agreement between the bankrupt and his creditors, regulating all matters relating to their formation, effects, cancellation and termination. Noting that the agreement is the way to end the contests more in keeping with the habits and trends in trade, the project has taken special care to adopt all measures necessary for him to be a genuine expression of the free and enlightened will of the creditors form it, and not the result of collusion involved, or the guilty condescension most influential creditors or with the same failed, and no doubt the well calculated project system will produce the effect indicated, and help to destroy the prejudices spread class in civil society against justice and utility of this institution, identified with the interest and the universal custom of trade.

The competitions are often drag on because the failure of the asset does not cover the costs demanded by the bankruptcy proceedings. The paralysis of these indefinitely puts creditors in a situation so anomalous as painful, and allows the failed start new businesses in the shelter of the exemptions inherent bankrupt, and to implement an effective remedy for the ills that such a situation, the project has enacted the provisions contained in the Title VII. According to them, the court may order ex officio trade, or at the request of the trustees or any of the creditors, the stay of the proceedings of the contest, and though the resolution leaves the bankrupt subsistent, return to the creditors the right to individually pursue the person and property of the bankrupt. However, this refund is prohibited writ of execution dispatch personnel outside of bankruptcy fraud cases.

In the Title VIII 

Establishes the rules which must be met realization and liquidation of assets and liabilities of the bankruptcy, when there is no agreement to terminate the bankruptcy proceedings. Project Title This authorizes the trustees to sell the furniture, estate and credit of the mass, in the manner prescribed, to compromise all disputes relating to the disputed rights in bankruptcy, subject to what is provided by law, for demand the return of the garments covering debt capital, interest and costs, to pay in any state of bankruptcy, secured creditors or mortgage, which expresses the formalities, and after agreeing to certain other provisions relating to and knowledge management to be given every three months to creditors on the state of realization and liquidation, directing the trustees concluded the presentation of his final account to the board to be convened for that purpose, and the termination of the exercise of their functions.

The commercial claims, termination and retention in bankruptcy cases, are the subject of Title IX. The project has been compiled in this title the principles accepted by the European codes and case law and commercial practice, and it is fair to expect widespread among us, will facilitate the resolution of many issues that have given rise alternately silence and uncertainty our legislation.

Title X contains provisions concerning the ranking of creditors. ...

And among them only deserve a special recommendation authorizing the creditor obligations subscribed, endorsed or guarantor of people failed to appear on all bankruptcies for the face value of their securities and participate in the respective dividends, and denying the masses the right to sue each other the refund of any dividends each given unless they exceed the amount to mount the credit principal, interest and costs.

The bankruptcy court declared the failed subject to certain prohibitions that can not stop it through the rehabilitation of concern to Title XI of the Project. It designates the persons to whom the law denies this benefit, and lists the objects that must deal with the proof required to grant it, the court before whom the request must be reduced and people can make opposition to it, and finally is to be published in extract that application or fully the decision to grant rehabilitation, to give due importance to the act which replaces the failed in its lost position.

The final title says the time should begin to govern the Code.

To introduce, under the State Council, the deputy project, I am far from assuming that he is a perfect work in every way, because I know that nothing comes out of the hands of the man who deserves such an epithet, but I attend the most inner confidence that he greatly improved the condition of our business institutions and places them in the way of progress. The experience and the gradual increase of our lights we discover the errors it contains and the gaps that leave, and knowing it will be easy to correct and complete each other without running the risks entailed by thoughtless and violent transitions of legislation to another.

Santiago, October 5, 1865 .- .- José Joaquín Pérez Federico Errazuriz.The President of the RepublicSantiago, November 23, 1865.Because Congress has approved the following