Commercial Contracts: Legal Theory and Key Features
Item 8: Commercial Contracts
General Theory of Commercial Contracts
Commercial contracts are a legal business, laying up, modifying, or extinguishing obligational legal relations of a civil patrimonial character. For a contract to be considered a commercial contract, it must involve a business or an entrepreneur in their trade, or it must fall within the scope of the commercial code. Contractual obligations are those arising from contracts. The biggest difference between civil and commercial matters is that the merchant is located in the circle of business. Both in civil and commercial matters, the principle of freedom of form prevails.
Features
a) Terms of Compliance: Courts are not to recognize terms fulfilling commercial obligations differently. They are forbidden to draw a different date or a date greater than that indicated by the parties or by law.
b) Enforceability of Pure Obligations: Obligations that do not have a fixed term set by the parties or by the provisions of the Commercial Code shall be due within ten days after being incurred if they only produce an ordinary share, and they carry the day away if enforceable.
c) Constitution of Mora (Default):
1) Requirements for Mora:
- Maturity and, therefore, enforceability of the obligation
- Breach
- Fault
2) Effects of Mora: Mora starts the day after the obligation expires without intimation from the creditor. Compensation for damages should not depend on the culpability of the defaulter but must be linked to the simple objective fact of the delay.
d) Other Possible Features:
- Typical: Refers to the uniformity and consistency, repetition with recurring obligations, equally beneficial or even in nature, as a result of mass recruitment.
- Solidarity: Only comes set for some occasional cases.
Perfection: In the framework of the contract, it is perfected as soon as the consent of the contracting parties is given.
Offer: A declaration of will towards the perfection of a contract, including an understanding of the essential elements thereof.
Acceptance: A unilateral declaration of will, which should be directed to the proponent of the contract and adhere to the terms of the offer. If substantive changes are introduced, we would have a counteroffer and not a real acceptance. The contract is perfected when the offeror receives the offeree’s acceptance. The problem arises when the parties are in different locations and communicate through letters, whereby the proponent does not immediately receive the acceptance.
Form: A concrete medium to externalize the contract. Commercial contracts will be valid and will produce obligations and actions in court, whatever the form and language used in their conclusion, as long as it is recorded by one of the means that the Commercial Code has established. There are two types of forms:
- Formal contracts (with a determined form)
- Non-formal contracts (with free form)
Proof: A means of demonstrating the existence of the contract. The relationship between form and proof is very narrow. As long as the law requires the written form, the contract shall have the dual status of evidence and form.
Interpretation: Contracts are to be interpreted in good faith. Doubts about accidental circumstances of the contract are settled in favor of the reduced transmission of rights and less reciprocity of interests. In the case of no bargaining power, it will be considered void.
Specific Problems of Commercial Contracts
a) Recruitment Through General Conditions: General conditions are terms imposed by one party, having been drafted to be incorporated into a plurality of contracts. Project clauses should be read together and not in isolation. When in doubt, special conditions prevail over general conditions.
b) Commercial Contracts and Consumer Protection: Its main objective is to state the principles, criteria, obligations, and rights that make up the defense of public authorities and consumers. Authorities must ensure accuracy in weight and measure of all goods and products, transparency of prices, and conditions of after-sales service for durable goods. It is about solving the inequality of the parties (company and consumer).