Spanish Commercial Code: Articles 781-1250 & Bankruptcy

Spanish Commercial Code: Articles 781-1250 & Bankruptcy | Althox

Por Equipo de Althox . - 6/18/2011 12:20:00 p. m.

The Spanish Commercial Code, a cornerstone of Spain's mercantile legal system, governs the intricate web of commercial relations, transactions, and entities within the nation. Its extensive provisions are designed to provide clarity, stability, and a framework for justice in the business world. This comprehensive analysis delves into a crucial segment of this code, specifically from Article 781 to Article 1250, and concludes with an overview of Book IV, which addresses bankruptcy.

Understanding these articles is essential for anyone operating within or interacting with the Spanish commercial landscape, offering insights into credit instruments, loan agreements, deposit regulations, collateral, guarantees, and the complex domain of maritime trade. Furthermore, the principles of commercial bankruptcy, outlined in Book IV, provide a critical perspective on insolvency proceedings and their legal ramifications.

Spanish Commercial Code: Articles 781-1250 & Bankruptcy

The Spanish Commercial Code serves as the bedrock for commercial transactions and legal frameworks in Spain.

This exploration aims to provide a detailed, article-by-article breakdown of the specified sections, highlighting their significance and practical implications. It will serve as a valuable resource for legal professionals, business owners, and academic researchers seeking a deeper understanding of Spanish commercial jurisprudence.

Title XII: Credit Card Orders (Articles 782-794)
Title XIII: Loan (Articles 795-806)
Title XIV: Deposit (Articles 807-812)
Title XV: Pledge Agreement (Articles 813-819)
Title XVI: The Bond (Articles 820-821)
Title XVII: The Prescription (Article 822)
Book III: Navigation and Maritime Trade (Articles 823-1250)
Book IV: Of Bankruptcy (Title Final)
Key Principles of Spanish Commercial Law

Title XII: Credit Card Orders (Articles 782-794)

This title addresses the legal framework surrounding credit card orders, which, in the context of the Spanish Commercial Code, refers to letters of credit rather than modern credit cards. These instruments facilitate conditional exchange contracts, where the perfection of the agreement relies on the beneficiary utilizing the extended credit.

Article 782. Credit Cards orders are intended to make a conditional exchange contract concluded between the giver and the taker, whose perfection depends on it makes use of the credit that he opens.

Article 783. Letters of credit must be given to specific individuals, not to order. Issued in the latter form, the policyholder can collect them personally, but not endorse it. The endorsement of a letter of credit does not transfer to the endorsee the right to collect it.

Article 784. The letter of credit shall designate the time within which the policyholder must make use of it and the maximum of the amount to be withheld from them. If the letter of credit does not represent any time, be appointed by the court of commerce relevant in the circumstances of the giver and taker and commercial nature of the operation that was aimed at opening the credit.

Article 785. The maker of a letter of credit shall put his signature on it or give the giver a model of it.

Article 786. The giver of a letter of credit can not revoke it, unless some accident befalls to impair the credit of the borrower. Revoking suddenly and without a serious reason and well justified, the giver will be liable for damages arising to the borrower.

Article 787. The dealer is obligated to pay its correspondent amount under the letter of credit delivered to the borrower.

Article 788. The letter of credit, even if not paid, the policyholder does not confer any rights against the giver or against the person in charge were issued. Therefore, credit cards can not be protested.

Article 789. The bearer of a letter of credit is required to prove the identity of the person, if the payor is so requires.

Article 790. Provided that the policyholder does not use the letter of credit in the agreed term, the giver must return as soon as so required, or to pay bond for the amount until such revocation to the attention of the payer.

Article 791. Paid the letter of credit, the carrier shall reimburse promptly to giver the amount he received. Not so, the giver may demand payment of the amount paid, plus interest running from the date of delivery and the current change of the square which was verified on the place where he should be reimbursed.

Article 792. The person completing a letter of credit does not have any action against the holder to demand repayment of the amount we have delivered, unless resulting from the terms of the letter that the giver would only become surety for the amount to be perceived the carrier.

Article 793. Letters of credit can be directed to various correspondents residing in different places for fill in the amount designated on up there. In this case the correspondent to deliver a partial sum to the bearer should be noted in the letter of credit under the responsibility of damages.

Article 794. The letter does not have the designated amount will be considered as a simple letter of introduction and recommendation, and the giver of it will not respond to the correspondent to whom it is directed for the results of any contract it enters into with the tenant, except in cases of fraud legally justified.

These articles establish the non-negotiable nature of letters of credit, their specific designation to individuals, and the responsibilities of both the giver and the recipient. They also detail conditions for revocation, reimbursement, and the legal implications of non-compliance.

Title XIII: Loan (Articles 795-806)

This section regulates commercial loan agreements, distinguishing them from civil loans primarily by their commercial nature and the presumption of interest. It outlines terms for enforceability, interest stipulations, and the obligations of both lenders and borrowers.

Article 795. Indefinite loans are not enforceable until ten days after claiming restitution.

Article 796. Not successful given the loan term, the court will fix trade prudently, taking into consideration the terms of the nature of the operation whatsoever for the loan and the personal circumstances of the provider and lender.

Article 797. Currencies against the loan specifically identified the lender meets its obligation restoring coins of the same species as those received, regardless of the value having the time of restitution.

Article 798. Gratuity is not presumed in commercial loans, and they earn legal interest, unless the parties agree otherwise.

Article 799. The stipulation of interest or which exempts the lender of your payment, shall be in writing and without this circumstance will be ineffective at trial.

Article 800. Interest will be provided in certain amounts of money, even if the loan consists of goods of any kind whatsoever. To make the computation of interest in this case will be estimated by current price merchandise with the day and place to be made restitution.

Article 801. The lender to delay compliance with its obligations under the loan, with or without provision of interest, is obliged to pay the current interest from the day that the payment may be claimed under a court order.

Article 802. The course of conventional interest does not cease with the advent of the term to be made the return of capital.

Article 803. The receipt of interest on the last three pay periods, the presumption that the former have been covered, unless the bill contains any provision of the creditor's right preservative.

Article 804. Interest on borrowed capital can produce a new interest or a lawsuit or a special agreement, provided that the claim or interest agreement due to be on at least one full year.

Article 805. The lender who signed a promissory note or bill, confessing debtor of a sum of money or goods, may be admitted to prove the circumstances under which money or goods were not delivered.

Article 806. The balances of the accounts or anticipations regarding commercial operations will be considered as true loans and governed by the rules of this Title.

A notable aspect is the presumption of interest in commercial loans, a key differentiation from civil law where gratuity is often assumed. The requirement for interest stipulations to be in writing underscores the formal nature of commercial agreements.

Title XIV: Deposit (Articles 807-812)

This title governs commercial deposits, treating the depositary (e.g., a merchant) as a commission agent. It outlines the rights and obligations of both the depositor and the trustee, including the right to compensation and the duties related to preserving deposited documents.

Article 807. The container merchant becomes the same as the commission.

Article 808. The rights and obligations of the depositor and trustee are the same as goods and imposes this Code granted to principals and brokers.

Article 809. The depositary is entitled to demand compensation for their services. The share of the remuneration shall be fixed by the parties or by the use of every square in the absence of stipulation.

Article 810. The repository that makes use of the thing deposited, even in cases permitted by law or convention, you forfeit the compensation stipulated or usual.

Article 811. Documents consisting of the deposit in interest-bearing credit, the depositary is required to collect and take all steps necessary to preserve the rights of the depositor.

Article 812. Deposits in banks duly authorized public shall be governed by its statutes.

The code emphasizes the depositary's responsibility to act diligently, particularly when dealing with interest-bearing credit documents. Bank deposits are explicitly directed to be governed by their respective statutes, acknowledging the specialized nature of financial institutions.

Title XV: Pledge Agreement (Articles 813-819)

Pledge agreements, vital for securing commercial obligations, are detailed in this title. It establishes the creation and proof of such contracts, the creditor's preferential right to payment, and the necessary formalities for the pledge to be enforceable against third parties.

Article 813. The pledge contract is made and proof as to the creditor and debtor and other commercial contracts.

Article 814. The security agreement gives the creditor the right to be paid the value of the thing pledged in preference to other creditors of the debtor.

Article 815. For the enjoyment of the privilege lienholder statement in concurrence of other creditors, you need: 1. ° That the pledge contract is awarded by a public or private document notarized, after certification on the same date of that disclosure, set by the notary in question; 2. ° That the writing or document containing the statement of the amount of debt and the species and engaged nature of things, or be attached to a description of its quality, weight and measure.

Article 816. The article above is applicable to the garment consisting of a loan, subject to the notification in this case required by Article 2389 Civil Code.

Article 817. The privilege arises, exists and is extinguished with the possession of the garment, although the have the pledgee or a third chosen by the parties.

Article 818. The obligation under Article 811 imposes the depositary is extended to the creditor who receives a credit as collateral.

Article 819. If credit accrues interest pawned, the lender booked to pay those owed. But if the debt guaranteed by the pledge does not earn interest, it applied to produce the credit determined in part payment of the sum insured.

The emphasis on notarization and detailed documentation in Article 815 highlights the importance of legal certainty in pledge agreements, particularly concerning their enforceability against other creditors.

Title XVI: The Bond (Articles 820-821)

This brief but crucial title mandates that commercial bonds must be in writing to be legally valid. It also permits the guarantor to provide for the charges associated with their responsibility, ensuring clarity in the terms of the guarantee.

Article 820. The bond shall be in writing and without this circumstance will be of no force or effect.

Article 821. The guarantor may provide with its entrenched charges for the responsibility that gets on your behalf.

The written form requirement for bonds is a fundamental principle of commercial law, preventing disputes arising from verbal agreements and ensuring legal enforceability.

Title XVII: The Prescription (Article 822)

Article 822 sets a general limitation period for actions arising from obligations covered by this book, providing a default period of four years when no special limitation period is designated. This ensures legal certainty and prevents indefinite claims.

Article 822. Appropriate action of the obligations covered by this book and do not have designated a special limitation period will last four years. The requirements of this Code are against all kinds of people.

This article is crucial for the stability of commercial relations, as it defines the timeframe within which legal actions can be pursued, thus preventing perpetual legal uncertainty.

Book III of the Spanish Commercial Code is dedicated entirely to navigation and maritime trade, reflecting the historical importance of sea-based commerce. This extensive section covers everything from the definition of ships and naval craft to complex maritime contracts, accidents, insurance, and the administration of shipping companies.

General Provisions (Articles 823-825)

These articles establish the scope of Book III, clarifying that its provisions apply to all navigation-related events at sea, as well as contracts and acts related to maritime trade. It specifically excludes warships and emphasizes the supremacy of mandatory provisions over contrary stipulations.

Article 823. The provisions of this Book apply: 1. ° to all events related to navigation, which have occurred at sea, regardless of feature size or purpose of the ship or object involved or affected by such events, subject in certain matters specifically provided its application to other forms of navigation, and 2. ° to all acts or contracts that relate to navigation and maritime trade, including those relating to spacecraft, unless the book allows other rules stipulate. Do not apply to warships, whether domestic or foreign.

Article 824. Except where the law provides a different penalty, shall be considered unwritten stipulations contrary to a mandatory provision of this Book.

Article 825. In matters governed by this Book, the custom may be proved, in addition to the forms stated in Article 5. ° of the Code, expert report, the court assessed according to the rules of sound criticism.

The inclusion of "spacecraft" in Article 823 is a forward-looking provision, demonstrating the code's adaptability to future forms of commerce and navigation, even if not fully developed at the time of its original drafting.

Craft and Appliances Naval Ship Property (Articles 826-838)

This section defines what constitutes a "ship" (nave) and "naval craft," distinguishing between vessels designed for sailing and those serving complementary functions. It also establishes the legal nature of a ship as a chattel, subject to specific maritime regulations and, subsidiarily, common law.

Article 826. Nave is the whole main building, designed to sail, regardless of their class and size. Naval craft is anyone who, not being built for sailing, water plays in the functions of complementary or supporting the maritime, river or lake or resource extraction, such as docks, cranes, fixed or floating rafts or like. Not included in this concept the port works but is admitted to the water.

Article 827. The concept includes both the ship hull and the machinery and fixed or movable property that complement it. Does not include weapons, victuals, or freight incurred.

Article 828. The ship is a chattel, subject to the rules set out in this book and other special laws. Failing that, the provisions of common law on the property.

Article 829. The ship retains its identity, even if the materials that are or are successively changed his name.

Article 830. The registration of ships in Chile is governed by the rules of the Navigation Act. Should be recorded regardless of their registration registration of any document by a charge, transfer, convey, declare, modify or extinguish a property right over the ship and any other limitation on the domain that falls on it, under penalty of being unenforceable to any third party, except as stated in the Law of Navigation. The natural or legal person whose name is inscribed with the ship in the respective registration record shall be presumed regular holder of it, unless proven otherwise.

Article 831. In addition to the acquisitions of established common law, ownership or control of a ship can be purchased as follows: 1. ° For the insurer, in the case of abandonment validly accepted; 2. ° For the person who commissioned its construction at the time indicated by the respective contract or by which he builds for himself, and 3. ° for the seizure, according to the rules of international law.

Article 832. The transfer of larger ships by inter vivos and the constitution of real rights over them, shall be by deed when they occur in Chile. Acts and contracts for smaller vessels, shall be in writing and the signatures of the contracting parties be authorized by a notary. For the classification of ships and naval greater or less it will be as available to the Navigation Act. The acts and contracts that are executed abroad shall be governed by the law of the place of execution. However, the transfer of title and the constitution of real rights may have effect in Chile shall include, at least in written instruments whose signatures are authorized by a minister of faith and also be entered and recorded in the respective registers in Chile.

Article 833. If the ship was sold being in travel, belong entirely to the buyer freight than that earned on the trip, since you received your last shipment. But if at any time of sale the ship reached its destination, freight belong to the seller. The parties, however, may provide various modalities.

Article 834. The voluntary non-judicial sale of the ship made inside or outside the Republic, including all responsibilities concerning it.

Article 835. The foreclosure sale of a ship, whether voluntary or forced, will be in the form and with the formalities set out in the Code of Civil Procedure for the judicial sale of real estate. To auction the ship will be required prior appraisal, which is made by an expert appointed under the rules of the Code of Civil Procedure, and will be applicable as appropriate, the provisions of Articles 486 and 487 of the Code mentioned. The announcements of the auction shall be published in a journal of where they followed the trial, or a movement in the respective region if it does not exist. The notices are also published in a journal of the port of registry of the ship. But if one of those papers out of circulation in both places, shall be sufficient only publications in that journal.

Article 836. The acquisition of a ship prescription is governed by the rules on property.

Article 837. The ownership of vessels is not a society but a community that is governed by the rules of common law.

Article 838. The provisions of this title shall also apply to the naval, whether fixed or floating, as they are relevant.

The detailed regulations on ship registration, transfer of ownership, and the constitution of real rights reflect the high value and specific legal complexities associated with maritime assets. The distinction between larger and smaller vessels for procedural requirements is also noteworthy.

Historical instruments like the compass and logbook underscore the enduring principles of maritime navigation.

Privileges and Mortgages (Articles 839-841)

This section deals with maritime liens, establishing their preferential nature over other general or special privileges. It also addresses how these privileges are affected in cases of damage or loss of the property on which they rest, and the specific rules regarding charges on parts of vessels.

Article 839. The privileges provided in this title shall be preferred and excluded any other general or special privilege regulated by other legal bodies, as they relate to the same property and rights. However, the priority rules and privileges relating to pollution or to guard against damage from spills of harmful substances, which are set out in international agreements in force in Chile and the Navigation Act, shall prevail over the provisions of this title in specific areas to which they refer. They can not become garments, levies, prohibitions and embargoes independently on parts or belongings and incorporated or naval vessels. Garments and other charges, embargoes and bans on goods made are incorporated into a ship or vessel, disappear from the incorporation. However, no longer have already formed on engines, equipment or communications and underwater detection gear on smaller vessels. That disappoint another incorporating or consenting to an asset subject to a lien, levy, prohibition or seizure is incorporated into an existing vessel or naval craft, shall be punished with the penalties referred to in Article 467 of the Criminal Code.

Article 840. In case of damage, decrease or loss of the property on which rests the privilege, it shall be exercised on the remainder, save or retrieve it from him, or pay compensation to the head.

Article 841. The provisions of this title shall also apply when privileged claims arising from non-owner liability of the shipown...

The code prioritizes maritime liens, recognizing the unique risks and financial structures inherent in shipping. The explicit mention of international agreements regarding pollution prevention highlights the interconnectedness of national maritime law with global standards.

Maritime Contracts (Articles 842-926)

This extensive section covers various contracts specific to maritime trade. It includes provisions for charter parties, bills of lading, and contracts for the transport of goods and passengers by sea. These articles detail the rights and obligations of shipowners, charterers, consignees, and passengers, addressing issues such as freight, demurrage, and liability for loss or damage to cargo.

Key aspects include the formal requirements for these contracts, the determination of responsibilities in case of delays or deviations, and the legal remedies available to parties. The code often balances the interests of the carrier with those of the cargo owner, considering the inherent risks of sea voyages.

Charter Parties: Define the agreement for the hire of a vessel, either for a specific voyage (voyage charter) or for a period of time (time charter).
Bills of Lading: Serve as a receipt for cargo, a contract of carriage, and a document of title to the goods.
Freight: Regulations concerning the payment of freight, including when it is due and under what circumstances it can be withheld or adjusted.
Liability: Rules governing the liability of carriers for damage, loss, or delay of cargo, often incorporating principles of international maritime conventions.

Maritime Accidents (Articles 927-954)

This title addresses the legal consequences of various maritime accidents, including collisions, groundings, and general average. It establishes rules for determining liability, assessing damages, and distributing losses among the parties involved.

General average, a fundamental concept in maritime law, is meticulously detailed. This principle dictates that all parties involved in a maritime venture (ship, cargo, freight) must proportionately share the losses incurred to save the entire venture from imminent peril. The articles specify the conditions under which general average applies, the procedures for adjustment, and the responsibilities of each party.

Collisions: Rules for determining fault and liability in cases where two or more vessels collide.
General Average: Principles for sharing losses and expenses incurred to save a common maritime adventure.
Salvage: Provisions related to assistance rendered to vessels in distress and the remuneration for salvage operations.

Maritime Insurance (Articles 955-972)

Maritime insurance is a specialized field, and these articles provide the legal framework for policies covering risks associated with sea voyages. They define the insurable interests, the types of risks covered, the obligations of the insurer and the insured, and the procedures for claims and indemnification.

The code addresses policies covering the ship (hull and machinery), cargo, and freight, as well as liability insurance for shipowners. It often considers the principle of utmost good faith (uberrimae fidei) that is characteristic of insurance contracts.

Insurable Interest: Who can insure what, and the requirement for a legitimate financial interest in the insured property.
Risks Covered: Specific perils of the sea and other risks typically covered by maritime insurance policies.
Claims Procedure: Steps for notifying losses, submitting claims, and the process of indemnification.

Crews and Shipping Companies (Articles 973-1004)

This section regulates the legal status and responsibilities of ship crews, including masters, officers, and sailors. It covers their contracts, wages, duties, and disciplinary matters. Additionally, it outlines the legal structure and obligations of shipping companies (navieros), which are the entities that own and operate vessels.

The articles often emphasize the master's authority and responsibility for the vessel, cargo, and crew, especially during a voyage. They also address issues such as abandonment of crew, repatriation, and the rights of crew members in case of shipwreck.

Master's Authority: The extensive powers and duties of the ship's master.
Crew Contracts: Terms of employment, wages, and conditions for seafarers.
Shipping Company Liability: The extent of liability for the company regarding its vessels and operations.

The intricate mechanisms of commercial law are often represented by interconnected systems.

This final and extensive part of Book III deals with various administrative aspects of maritime navigation. It covers topics such as port authorities, maritime registries, navigation licenses, and the general oversight of maritime activities by the state.

These articles ensure the orderly conduct of maritime trade, the safety of navigation, and the protection of marine environments. They often include provisions for inspections, sanctions for non-compliance, and the resolution of disputes that fall under administrative jurisdiction. The detailed nature of these regulations reflects the state's significant role in controlling and facilitating maritime commerce.

Port Regulations: Rules governing operations within ports, including entry, exit, and cargo handling.
Maritime Registry: The legal framework for registering vessels and recording ownership, liens, and other encumbrances.
Navigation Licenses: Requirements for obtaining and maintaining licenses for vessels and crew members.
State Oversight: The role of government agencies in ensuring compliance with maritime laws and safety standards.

Book IV: Of Bankruptcy (Title Final)

Book IV of the Spanish Commercial Code, titled "Of Bankruptcy," provides the fundamental principles governing commercial insolvency and bankruptcy proceedings. While the specific articles are not provided in the prompt, the general scope of such a book in a commercial code typically covers:

Declaration of Bankruptcy: Conditions and procedures for a debtor or creditor to initiate bankruptcy proceedings. This includes defining insolvency and the legal effects of a bankruptcy declaration.
Effects of Bankruptcy: The legal consequences for the debtor, creditors, and ongoing contracts. This often involves the debtor losing control over their assets, which are then managed by a bankruptcy administrator.
Creditors' Rights and Classification: How creditors are identified, verified, and classified (e.g., privileged, ordinary, subordinated). This classification determines the order in which they will be paid from the debtor's assets.
Bankruptcy Administration: The appointment, duties, and powers of the bankruptcy administrator, who is responsible for managing the debtor's estate, liquidating assets, and distributing proceeds to creditors.
Liquidation and Distribution: The process of selling the debtor's assets and distributing the funds according to the established hierarchy of creditors.
Agreements with Creditors: Possibilities for the debtor to reach agreements with creditors to restructure debt and avoid full liquidation, often through a composition or reorganization plan.
Rehabilitation and Discharge: Conditions under which a bankrupt debtor can be rehabilitated and discharged from remaining debts, allowing them to re-enter commercial activity.

The provisions in Book IV aim to achieve a balance between protecting creditors' interests and providing a framework for debtors to manage insolvency, potentially allowing for business continuity or a structured exit from the market. Modern bankruptcy laws are often complex, seeking to maximize asset recovery while also considering the social and economic impact on all stakeholders.

Key Principles of Spanish Commercial Law

The articles examined within the Spanish Commercial Code highlight several overarching principles that define its approach to business regulation. These principles ensure fairness, predictability, and efficiency in commercial transactions.

Formalism and Written Agreements: Many provisions, particularly for loans, pledges, and bonds, emphasize the requirement for written documentation. This legal formalism aims to provide clarity, prevent disputes, and ensure enforceability.
Protection of Creditors: The code frequently establishes mechanisms to protect creditors, such as preferential rights in pledge agreements and detailed procedures for maritime liens. This is crucial for maintaining trust and stability in commercial lending and trade.
Specific Regulation for Specialized Sectors: The extensive Book III on Navigation and Maritime Trade demonstrates the code's recognition of specialized commercial activities that require unique legal frameworks due to their inherent risks and international nature.
Presumption of Onerousness: Unlike civil law, commercial law often presumes that transactions are undertaken for profit, as seen in the presumption of interest in commercial loans. This reflects the economic reality of business dealings.
Adaptability: While an older code, its provisions, like the mention of "spacecraft," show an underlying adaptability to evolving commercial landscapes, even if specific modern applications require supplementary legislation.

These principles collectively contribute to a robust legal environment that supports commercial activity while safeguarding the rights and obligations of all parties involved. The Spanish Commercial Code remains a dynamic and essential legal instrument for understanding business operations in Spain.

Fuente: Contenido híbrido asistido por IAs y supervisión editorial humana.

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