Understanding the Tourist Entrepreneur in Commercial Law

Posted on Feb 10, 2025 in Law

Tourist Entrepreneur in Commercial Law

1. General Concept of Entrepreneur in Commercial Law

Commercial entrepreneur:

  • Economic approach: Any person who runs a business, makes the main decisions concerning that economic organization, and, with the hope of profit, takes on financial risks associated with the activity.
  • Legal approach:
    • Natural (sole trader) or legal (companies) person
    • Who, acting on his own behalf, develops a professional activity (organization and regularity).

Natural (Sole Trader) or Legal (Organizations) Person

  • Natural person (sole trader):
    • Legal capacity:
      • Majority of age (Article 315 Civil Code sets it at 18 years old).
      • Free disposition of goods (Article 322 Civil Code, not incapacitated).
      • Articles 4-5 Code of Commerce.
    • Prohibitions and incompatibilities:
      • For the nature of the protected underlying interest (public or private nature): i.e., judges and magistrates (public) and partners in a partnership (private).
      • For the scope of the prohibited activity (absolute or relative): i.e., absolute for judges, relative for civil servants in relation to activities connected to his/her Department’s competence.
    • Inability: i.e., in insolvency cases (Article 172 Insolvency Law).
    • Unlimited responsibility (Articles 1911, 1101, and 1902 Civil Code). However, Spanish Law enables one-person companies to be set up.
  • Legal person (organizations): Artificial constructions resulting from endowing certain social realities beyond the individual with personifying attributes.
    • Groups of persons such as families or co-owners do not have separate personality. However, certain associations and companies enjoy legal personality, separate and distinct from their members.
    • Legal personality has proved to operate as a useful technical device promoting and facilitating the performance of activities of public and private interest through complex organizations.
    • There are different classes of profit-making organizations:
      • Sociedades capitalistas: Legal personality is fully attributed so as to entail the distinct separation between members’ and company’s patrimonial spheres.
      • Sociedades personalistas: Legal personality manifests to a more limited extent insofar as members are also personally and unlimitedly liable for social debts on a subsidiary basis.
    • Legal personality may be described by the following features:
      • Technique to attribute individuality to a group of members which shall be deemed for legal purposes to be a social entrepreneur.
      • Organizations with separate legal personality are empowered to act and enter into contract on their own behalf with third parties and their own members.
      • These organizations have a separate patrimony.
      • Obligations deriving from professional status are imposed on organizations as collective entities.
    • Entities with legal personality (in general): Associations, corporations, and foundations (Article 35 Civil Code).

Acting on His Own Behalf

They assume the risk/benefit.

  • If he is a sole trader:
    • Agents or factors might accordingly be also deemed sole traders, even if acting on the principal’s account.
  • If it is a company:
    • Represented by a natural person.

Develops a Professional Activity (Regularity)

Organizes people and things. Regularity:

  • If he is a sole trader:
    • Article 3 Commercial Code presumes a regular practicing of commerce when the person attempting to become a sole trader advertises to the public by any means an establishment intended for running a business.
  • If it is a company:
    • Registering in purely constitutive-effect registries is a prerequisite for acquiring legal personality.

Entrepreneurs engaged in certain agricultural activities or small craftsmen have been deemed to be civil entrepreneurs.