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(Book repealed)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 January 1867 and be repealed on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.
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.
Comentarios