CODE OF COMMERCE OF SPAIN
Title VI
BUSINESS MANDATE
§ 1. Definitions and classifications
Article 233.
The trade mandate is a contract whereby a person responsible for the
execution of a lawful business or trade to another who undertakes to
administer free or for a fee and to report their performance.
Article 234. There are three species of commercial mandate:
The commission,
The mandate of the factors and young men or clerks,
The brokerage, that has already been addressed in Title III of Book I.
Article 235. The command takes the name of trade commission when one deals with commercial transactions or individually determined.
Article 236. The person who plays a fee called commission.
There are four classes of committees:
Brokers to buy,
Brokers to sell
Freight forwarders by land, lakes, rivers or waterways,
Brokers to perform banking operations.
This last class is on the contract title and bills of exchange.
Article 237.
Factor is the manager of a business or industrial or commercial
establishment, or part of it, directs or manages by prudence on behalf
of his client.
Denomínanse
employees or dependent youths junior trader has at his side for you
help in various operations of their business, working under his
immediate direction.
The client takes the name of principal with respect to their factors or dependents.
§ 2. General rules concerning the commission
Article 238.
The commission may be granted by another person, and in this case the
effects it produces only affect the third party and the commission.
Article 239. The commission is employed by nature.
Article 240. The commission does not end by the death of the client: their rights and obligations pass to their heirs.
Article 241. The principal can not revoke at will the commission accepted or the execution of interest to the commission or third parties.
Article 242.
The resignation does not end the commission whenever the principal
cause irreparable harm, either because they can provide for itself to
the needs of the business role, either by the difficulty of providing a
substitute for the commission.
§ 3. Provisions common to all types of commission
Article 243.
The commission may accept or reject at will the charge that he does,
but by refusing to be bound under the responsibility of damages:
1. ° to notify the client of its rejection on first down;
2.
° to take, until they get the notice to the principal, the conservative
measures that the nature of business required, as are conducive to
preventing the loss or damage to goods entered, the expiration of a
title, a prescription or any other imminent harm.
Article 244.
If after the client advised of the rejection shall not choose within a
reasonable time, considering the distance, person subrogated the
commission may ask the court this trade, the deposit of the merchandise
consigned and sale of those considered sufficient for reimbursement of
amounts it has advanced.
Article 245.
Expressly or impliedly accepted the commission, the commission shall
execute and finish it, and do so without legal cause, will respond to
the principal of the damages that sobrevinieren.
Article 246.
The commission is responsible for the custody of the goods on which the
commission versa, whatever the purpose for which it has released.
Article 247. In no case may the commission to alter the brand effects without explicit authorization from the principal.
Article 248.
The deterioration or loss of goods held by the existing commission is
not your responsibility, if should occur by accident or by inherent vice
of the same goods.
Damage or loss occurring because of the commission shall indemnify it fully to his principal for all damages that occurring.
This
same liability shall be submitted by the commission, when the damage or
loss caused by accident or by a defect in the thing be a consequence of
their guilt.
Article 249.
It is the duty of the commission in a legal way to record the
impairment or loss of consigned goods and give notice to his principal
without delay.
Article 250.
The commission must promptly inform the interested all the news about
the negotiations which are being commissioned that could lead to his
principal to confirm, revoke or modify its instructions.
Article 251.
The broker who, having received funding for an order to evacuate, the
distracted for use in a business, pay the client the legal interest from
the day they have entered their power such funds and shall also
indemnify against loss resulting from the failure to comply with the
order.
Also incur the penalties of breach of trust, and bankruptcy will be treated as fraudulent bankrupt.
Article 252. Commission is prohibited from pledging its own obligations goods that hath anything on consignment.
If
contrary to this prohibition deliver them to your creditor, the
customer may not claim them but by paying the secured debt to the amount
concurrent value of the goods, unless the creditor proves that, on
arrival, was informed that the commission did not belong.
The
mere fact that the constitution of the pledge by the commission commits
a breach of trust, and punishable under the Criminal Code.
Article 253.
They are charged to the loan broker, leads and sales on credit, if that
will do without the authorization of his principal, in which case it
may require to be delivered in cash the amounts loaned, advanced or
credit, leaving the broker's account contracts.
Article 254. The commission can act on its own behalf or on behalf of his constituents.
Article 255.
The broker who works in his own name is obliged to personally and
exclusively for people who hire him, even if the customer is present at
the conclusion of the contract becomes known as interested in the
business, that is common ground that this has been executed for your
account.
Section 256. Can the Commission reserves the right to declare later on behalf of which person enters into the contract.
Made
the statement, the commission shall cease all involvement, and the
person appointed will be replaced retroactively to all rights and
obligations under the contract.
Article 257.
The customer has no direct action against third parties with whom the
Commission has engaged in its own name, but may compel him to yield it
has acquired the shares.
Section 258.
The client can claim the third parties have contracted with the
commission that the contract you own and takes upon himself compliance.
The
statement in this case, leaving surviving the relations between the
commission and others, constitute the principal guarantor of the
contracts he has concluded his own name.
Article 259. If in doubt it is presumed that the commission has retained its name.
Article 260. Acting on behalf of the commission from his principal, it shall be obligated only for the third I will try with it.
The commission, however, retain the principal and third parties regarding the rights and obligations of commercial agent.
Article 261.
The commission must play by the commission itself, and can not be
delegated without express or implied permission of his principal.
Article 262. The foregoing prohibition does not cover the execution of those acts junior custom of the trade as are entrusted to dependents.
Article 263. Explicitly authorized to delegate, the commission must do so in the person who has appointed the principal.
If
the designated person to enjoy while the replacement of the concept of
fairness and solvency had at the time of designation, and the business
be not pressing, you must give notice to his principal to provide what
more shall agree to their interests.
If the business is urgent, make the replacement in another person's designee.
Article 264.
It is understood that the commission has implied authority to delegate,
when disqualified to act for itself and there is danger in delay.
Having not, prevented the commission shall give prompt notice of the impediment and wait for orders from his principal.
Article 265.
The delegating its functions under explicit or implicit consent, not
having the person designated by the principal, is liable for damages
sobrevinieren to it, if the delegate were a person well capable and
solvent, or to verify substitution altered in any way any form of
commission.
Article 266. The delegation executed on behalf of the client terminates the commission on the commission.
Verified
the delegation on behalf of the commission, the commission remains with
all legal purposes, and is a new between the delegator and delegate.
Section 267. In all cases where the Commission will delegate commission shall give notice to his principal delegation and the delegate.
Article 268.
The commission should adhere strictly to the performance of the
commission orders or instructions received by him from his principal.
But
if you believe that those doing them to the letter must be serious
injury to his principal, it is their duty to stay the execution and give
notice at first opportunity.
In no case may act against the express and clear his principal.
Article 269.
In all cases not covered by the principal, the commission must consult
and suspend the execution of his office while receiving new
instructions.
If
the emergency state of the business and does not result in any delay,
or if we were authorized to act at its discretion, the commission may do
as he dictates his prudence and be more in line with the practices and
procedures of the traders understood and diligent.
Article 270. Only the client can claim the violation of any orders or instructions communicated to the commission.
Neither
the commission nor the third parties who have contracted with them, may
in no case avail himself of the infringement as a means of
nullification.
Article 271.
It prohibits the commission, except for formal approval, make contracts
on behalf of two principals or self and others, always have to
celebrate that represent conflicting interests.
This may not:
1. ° buy or sell on behalf of a client you have to sell goods or is charged with buying on behalf of another client;
2. ° buy themselves goods to their constituents, or purchase for them effects belonging.
Article 272.
When the commission requires funding, and the client not been verified
in sufficient quantity, the commission may withdraw your order at any
time or suspend its execution, unless there is bound to anticipate the
amounts necessary to the performance of the commission a particular form
of reimbursement.
Article 273. It may also give the commission whenever the alleged value of the goods have not attained to cover transportation and receipt.
In this case the commission shall give prompt notice to his principal and ask for the legal deposit of the goods.
Article 274.
The commission may require you to pay cash anticipations, current
interest and costs, even if they have evacuated the business dutifully
committed.
To use this right must submit your documents with supporting material.
Article 275. The commission is entitled to remuneration for her services competently.
If
the parties have not determined the share of compensation, the
commission may require that is in general use in the square where the
commission played there, and failing that, used in the immediate term.
Not
going well established usual fee, the trade court shall fix the amount
to be paid to the commission, calculated on the value of the
transaction, including expenses.
Article 276.
Running any of the contracts mentioned in Article 271 with permission
from his principal, the commission will receive only half the regular
commission in the absence of express agreement.
Article 277.
Commission revoked before evacuating the order, the customer will pay
the broker a fee in proportion to the extent that it had executed the
order received.
The remuneration may only charge the commission for work performed before reaching their knowledge of revocation.
Article 278. Out of his wages the broker can not receive any profit from the negotiation which he was entrusted.
Consequently, they must pay to his principal any direct or indirect benefit that obtains in the performance of its mandate.
Article 279. Evacuated negotiation functions, the commission is obliged:
1. ° to give immediate notice to his principal;
2.
° A place in the hands of it, as soon as possible, a detailed and
justified in his administration, returning titles and other parts that
the customer will have delivered, except letters letters;
3.
° to reimburse the client the remaining balance in favor of it, having
to fend for it means that it has appointed principal, or failing that,
any person who was commonly used in trade.
Article 280. Accounts that bringeth the commission shall be consistent with the seats of his books.
If not in agreement with them, the commission shall be punished as guilty of theft by false.
The
same penalty incurred by the commission in their accounts to alter
prices or conditions of contract, assume or exaggerate the costs he has
made.
Article 281.
The commission payable to his principal current interest, but not
precede questioning, if delinquent in paying your account or remit the
balance in the manner specified in Article 279.
Article 282.
The risks of remission of the balance are charged to the client,
provided that the commission's already been verified in the manner
indicated by the number 3. Of article 279.
Article 283.
Being delinquent on the surrender of his account, the broker may not
charge interest on their anticipations of the day on which he incurred
in default.
Article 284.
The commission is entitled to retain the goods consigned to the
preferred and actual payment for the advances, interest, costs and
wages, occurring in these circumstances:
1st That the goods have been referred from one place to another;
2nd they have been delivered to the commission real or virtual.
Article 285. To determine if issuing from one place to another, do not take into account the client's home, or the commission.
Article 286.
Actual delivery takes place when the goods are available to the
commission in its warehouse or outside in customs warehouses or any
other public or private.
There
are virtual delivery if before the goods are at the disposal of the
commission, certify that it MIGHT have been issued with a consignment
note or knowledge, nominative or order.
Article 287.
Also enjoys the commission to be paid in preference to other creditors
of the principal, the right to retain the proceeds of the goods
consigned, whatever form that exists at the time of the bankruptcy of
the principal.
Article 288.
The commission agent who receives goods shipped from one place to
another in pledge for a loan or advance, shall have the lien, provided
that the bill includes a statement of the amount paid or anticipated,
and the species and nature of the effects referred.
Article 289.
There being no issue of a square to another, the commission only enjoy
the right of pledge on the goods they have delivered it real or virtual.
Article 290.
The commission conferred by many principals collectively produce them
for joint obligations of the commission, just as the collective
acceptance of several commission produced several liability for the
principal.
§ 4. Of the brokers to buy
Article 291.
The commission in charge of buying must strictly observe the
instructions you have about the kind, quality, quantity, price and other
particulars of the goods that he ask his principal.
Article 292. Commission exceeding his instructions regarding the kind and quality of the goods, the customer is not obliged to receive them.
But if it be in excess amount, the customer shall accept the goods ordered, leaving the other by the commission.
Article 293.
The client can use the right under the first paragraph of the preceding
article, even if you paid for the carriage of the goods, provided that
in the act of opening the packages containing them, receiving no
protests for not being the same type or quality specified in the
instructions.
Article 294.
Purchased goods at lower prices than those given in uploaded the
instructions, the principal may accept them or leave them on behalf of
the commission.
Agreeing to perceive it only the price indicated, the principal shall be obliged to receive the goods.
Article 295.
The commission in charge of buy and transport goods for fixed prices,
it may not be offset excessive price of these operations with lower than
any obtained in the other.
Article 296.
Effects can not buy on behalf of his principal at higher prices if any,
in the square which has been asked, even though the client said it any
other higher price.
Contrary
to this prohibition, the commission paid to the principal difference
between the market price and the price of purchase.
Article 297.
Buying conditions more onerous than those governing the square, will
respond to his principal for the damage he will cause, without exception
will serve to have made purchases on their own on equal terms.
Article 298.
The dominance of the goods purchased and received by the commission
belongs to the client, without prejudice to the obligation on the first
section 246.
Article 299.
Shipped the goods, the responsibility of the commission ceases, and
they run from the risk of the client, unless it has otherwise agreed.
Article 300.
The Commission has the right of retention of Article 284 punishes, even
in respect of goods that I find in transit at the time of the
bankruptcy of his principal.
Article 301. Cesa the lien from the time the goods are actually delivered to the client.
§ 5. Of the brokers to sell
Article 302.
The commission that upon receiving notice that the effects are damaged
or to designate a different state than the bill of lading or knowledge,
must implement immediately the measures prescribed in Article 249.
Article 303.
Not stating the faults in terms of the aforementioned article, it is
presumed that the commission has received the goods in the same
condition that states the consignment note or knowledge, and answer them
to his principal, unless they have been justified damaged prior to its
receipt.
Article 304.
When the altered goods sale doeth so urgent that there is no time to
give notice to the principal, the commission will go to the Commercial
Court to authorize the sale in the manner deemed most suitable to the
interests of the owner.
Article 305.
As for the price, place, time, manner and other circumstances of sale
functions, the commission shall comply strictly with its instructions.
Article 306.
Uploaded by selling at lower prices than those designated in the
instructions, invoices or correspondence, the commission shall be paid
in full to his principal, unless a special agreement for the sale is
filed to the common good.
If sells at prices lower than those indicated, the commission shall be responsible for the difference.
Article 307. The commission may sell to the terms commonly used in the square, unless prohibited by the instructions.
Article 308. While the Commission are authorized to sell tacitly or explicitly-term, you can only check people notoriously solvents.
Article 309.
Selling term must be expressed in the accounts that bringeth forth the
names of purchasers, and not doing it, means that sales have been
verified in cash.
Even in that doeth this form must show the names of the buyers if the customer is so requires.
Article 310.
The Commission, taking command of selling in cash and a fixed price,
sells on credit to a more up, appropriate the difference, since the
client requested the payment in the manner prescribed in the
instructions.
Article 311.
Unable to sell at the prices and conditions that may have been noted,
the commission shall give notice and wait for the orders of his
principal.
In no event shall return the goods without an order from his principal.
Article 312.
The commission shall verify the collection of the credits of his
principal in times which shall be made enforceable, and not doing it,
liable for damages caused by himself omission.
Article 313.
When the commission receives goods from different principals should be
distinguished by a countermark to designate the respective property.
Article 314.
Understanding negotiation in the same goods from different
constituents, or of himself and some of its constituents, will be forced
to distinguish in the bills to their respective frames, and write in
their books that apply to each owner.
Article 315.
The commission that same person have against various amounts from
transactions executed on behalf of different principals, or on their own
and others, to enter on their books and receipts that give the name of
the applicant on whose behalf the debtor makes deliveries biased.
Article 316.
Missed the notation that prescribes the preceding article, the
allocation of payments are made according to the following rules:
1.a
If the credit should proceed in a single operation executed on behalf
of different people, deliveries made by the debtor will be distributed
by the commission among stakeholders in proportion to their respective
assets;
If
credit 2nd provinieren various operations performed by one person,
payment shall be charged to credit as designated by the debtor, provided
that none of them find what they are outdated or all at once;
3.a
If at the time of payment or some of the time thou art defeated and
overcome any others will apply exactly the amount that the debtor
deliver them to non-performing loans and excess, if any, will be
distributed salary battle between the credits up.
Article 317. The Commission to ensure the solvency of debtors corriere no risk, but is not entitled to payment of the fee simple.
So, you can not take guarantee fee, even if it was stipulated:
1. ° If the sales were made on condition of surrendering the price in the act of receiving the goods;
2. ° If the time to get sold-term effects, the buyer pay the discounted price.
§ 6. Of the commissioners of transportation by land, navigable rivers or canals
Article 318.
Transport commission is one that, on its own behalf but on behalf of
others, is driving with a carrier of goods from one place to another.
Article 319. Transportation commission is not that, having sold goods by mail, is responsible to the buyer.
But
acceptance of this assignment requires the seller agent's obligations,
and thus respond as such even the fault committed in the choice of
carrier.
Article 320.
Off the books which prescribes keeping Article 25, the commission shall
keep a special register in which a full copy waybills that suscribiere.
Article 321.
It is the duty of the commission ensure that remitiere goods for
others, keeping order and provision for it, or give prompt notice to his
principal if unable to carry insurance for the price and conditions
appointed unto him his instructions.
The
insurer going bankrupt, yet the risk of the goods, the commission shall
renew the insurance, even if you have special request to this effect.
Article 322.
The commission is responsible for the facts of the broker commission to
whom it entrusts the direction of the goods, unless this person has
been designated by the principal.
Article 323. The broker commission takes upon himself the fulfillment of the obligations which the principal broker for his principal.
However,
not liable for losses or damages caused by them having literally
fulfilled the instructions of the principal broker, even if they are
contrary to the principal.
Article 324.
The provisions contained in Title V of this book is mandatory to
freight forwarders and the contractors in a particular operation and
determined, even if not check for themselves the driving of goods.
§ 7. Provisions common to the factors and shop
Article 325.
When the dependent factors and hire you on behalf of their
constituents, expressed in the documents antefirma that accords signed
by proxy.
Article 326.
Acting in the manner indicated by the preceding article, and dependent
factors bind their principals to fulfill contracts entered into, without
getting them personally liable.
Article 327.
The violation of the instructions, the appropriation of the result of a
compromise or breach of trust on the part of the factors or dependents,
do not exempt their principals from the obligation to carry out those
contracts made in their name.
Article 328.
Factors or dependent act in his own name are personally obligated to
honor the contracts accorded, but was deemed to have complied on behalf
of their constituents in the following cases:
1. ° When this contract corresponds to the ordinary course of establishment under administration;
2. ° If there was held by order of the principal, even if it falls within the ordinary course of establishment;
3. O If the principal has ratified the contract expressly or implicitly, even when it has concluded without his order;
4. ° If the result of the negotiation any profit made from the principal.
Article 329.
In any case listed in the previous article, will hire a third factor or
dependent may, at its option, direct their actions against them or
their constituents, but not against both.
Article 330. In no case may the dependent factors or delegate the duties of his office without notice and consent of his principal.
Article 331.
It prohibits trafficking factors and dependent on their own and take an
interest in or someone else's behalf in negotiations of the same gender
that they do on behalf of his constituents, unless they were expressly
authorized to do so.
Because
they violate this prohibition shall apply to the principal benefits of
the negotiations that produce or dependent factor, being the loss of
sole charge of them.
Article 332.
It is not lawful or dependent factors or its main terminate without
legal cause which has entered into contracts with each other fixed term,
and would do so or gives rise to the termination shall indemnify the
other damages that sobrevinieren.
Article 333. They are only legal grounds for termination by the principal:
1st Any act of fraud or breach of trust to commit the factor or dependent;
2nd execution of some of the negotiations prohibited factor or dependent;
3.a
The insults or acts, in the opinion of the court of commerce,
compromise the personal security, honor or interests of the client.
Article 334. They are only legal grounds for termination by or dependent factors:
1.a The insults or acts of speaking the number 3. ° of the preceding article;
2nd mistreatment of the main and qualified enough for the court of commerce;
3rd retention of their salaries in two installments continuous.
Section 335. Not having time-bound commitment factors or its main subsidiaries, either may terminate it, let the other one month in advance.
The
main, if anything, can make effective, before expiry of the month, or
dependent factor farewell, paying the allowance accordingly.
Article 336. The factors and dependents are entitled:
1.
° When stipulated wage, even if by some accident blameless services
will not pay for two months continuously, except in the case, according
to agreement, I will pay for wages;
2. ° A compensation of losses and extraordinary expenses made, by direct consequence of the services supplied.
Article 337. Outside the modes that set the Civil Code, the terms of the factors and dependent lapses:
1. ° For your absolute disqualification for the service provided;
2. ° For the disposal of the establishment that serve them.
§ 8. Special rules regarding the factors
Article 338. Factor can be anyone with the free administration of their property.
However,
they may be the son of family, emancipated and married women who have
completed seventeen years, being expressly authorized by his parent,
guardian or husband to contract with the client and play the factory.
Article 339. Factors must be invested with a special power granted by the owner of the establishment whose management is entrusted to them.
Power will be recorded and published in the manner prescribed in paragraph 1, Title II, Book I.
Article 340.
Understand the factors are allowed for all acts that embraces the
administration of the establishment that they will trust, and can use
all the powers necessary to the proper discharge of their duties, unless
the client expressly restricted is the power to give them .
Article 341. The factors observed with the establishment to administer all prescribed accounting rules for traders in general.
§ 9. Special rules relating to clerks
Article 342. May be dependent on all factors that may be in accordance with Article 338.
Article 343.
Dependents can not force their constituents, unless they explicitly
give them the power to execute a certain name and certain transactions
relating to its business.
Article 344.
Permission to turn, accept or endorse bills of exchange signed
documents to load or unload, raise and receive money, the clerk will be
granted by deed, specifying the acts and negotiations to extend the
order.
Power will be recorded and published in the manner prescribed in paragraph 1, Title II, Book I.
Article 345.
Contracts entered the ward with people who will have his client
released by circular and authorized to perform some operations of its
traffic, the main force, provided that the contracts are restricted to
the negotiations entrusted to the clerk.
Will
also be the responsibility of the principal obligations contracted by
the clerk cards, provided it has been authorized to sign the letters of
the same principal, and has announced the authorization circular.
Article 346.
The clerks in charge of selling retail are deemed authorized to receive
the proceeds of sales wilt, but must provide the name of their
constituents to grant them the receipts.
Shall
have the same faculty dependents sell wholesale, if sales are made in
cash and payment is verified in the same store they manage.
If
sales may be made, on credit or if we had checked out of the store
payments, receipts necessarily be signed by the principal or person
authorized to collect.
Article 347. Seats dependent accounting charge made in the books of their constituents, they hurt themselves as if they had been verified.
Comentarios