COMMERCIAL CODE

QUESTIONNAIRE

I. THE COMMERCIAL CODE OF 1902

The Peruvian Commercial Code was enacted on February 15.

from 1902 and came into effect on July 1 of the same year.

In this code there were 3 modifications: The bill of exchange was taken by

of Italian legislation which considers the bill of exchange as a

credit instrument, while in the Spanish Code of 1885,
A bill of exchange is an expression of the swap contract trajectory.

The commercial current account for auctioneers and bidders was

taken from the Argentine code, and that is why it is said that it was practically

copy of the Spanish Commercial Code of 1885.

CONSEQUENCE

The constant of all these backgrounds is that the

commercial regulation has fundamentally been Spanish, in the
next order and without in any case expressing the derogatory
total of the previous regulations: Ordinances of Burgos, Seville, and Bilbao,
Commercial Code of 1853 based on the Spanish Code of 1829 and
Code of 1902 based on the Spanish of 1885. It must be recognized
similarly the partial influence of Italian legislation, Argentina and
German, regarding the Code of 1902 on the subjects already mentioned.

THE REVOLUTION OF FACTS

Both the first and the second Commercial Code remained

outdated shortly after they were enacted. This fact
It is due to the fact that the economic and social changes of our time have
they were so fast that even the projects developed by various
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commissions aimed at modernizing the Code remained
outdated before becoming laws.

All of this led us to do the same as in other countries, which

the legislator chose to undertake the reform of the Commercial Code
through substitute laws only in certain chapters or sections
of the Code.

Faced with the demands of economic life, there was no other remedy.
to undertake a disorganized and confusing yet essential reform.

The main facts that have been presented with particular force
in contrast to the traditional concepts of codified Commercial Law,
have been the following:

The business phenomenon.

2. The Unification of civil and commercial contracts and obligations.
3. The institutionalization of society.
4. The dematerialization of securities.
5. The 'breakdown of the breakdown'.

These events have given rise to a new real 'Commercial Code' and
compiled by private editors or by lawyers, which uses
parallel to the formal Commercial Code of 1902.

In this new and actual Commercial Code, the people, the things and
relationships vary. People become institutionalized, things become
they dematerialize and the activity tends to protect new subjects: the
consumer and the worker.

a) The Company

In the Code of 1902, the center is the merchant, a natural person.

buys and sells items without altering their form. It is the beginning and the end
of the Code since all institutions must revolve around it.
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Its objective and action are not based solely on economic terms, but
that involves society (including corporations), its
community and its own environment.

The Code is designed for a society of small and

medium traders who act personally.

The term "company" used before refers to a

"activity" and today it refers to an "institution", because the
the trader stopped acting individually to do so in
small groups mostly forming limited liability companies.

b) The Unification of Contracts and Obligations

Merchant

Commercial Law appeared in the world when it differentiated

of Civil Law, particularly in the area of contracts and of the
obligations.

This issue led to a controversy between the two Codes: the Civil and the
of trade. But later the mutual influence of both led to
progressively to the unification of obligations and contracts
in a process that mercantilists have called 'mercantilization'
of Civil Law and civil lawyers, the "civilization" of Commercial Law.

In the case of Peru, the "marketing" has occurred in

many rules. For example, sales contracts,
exchange, mortgage, deposit, and guarantee within that codification,
suppressing the relevant part of the Commercial Code.

In general, the new principles imply a position

protectionist for trade and for the creditor, whose objective is
achieve speed in economic activities in general. But
they would constitute a great excess if they had not been established
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parallel balance rules for the parties, in particular for the
debtor. This moderation is established by the new Code
fundamentally through three control rules that are the
following:

Control of excessive onerousness: in this case it can be

to approach the judge to request a fair regulation for having been
produced extraordinary and unpredictable situations; (Art. 1440
of the C.C.).
Injury control: involves going to the judge to
set a price adjustment when the difference from the value
real is greater than 40% and always exists simultaneously
exploitation of the other’s urgent need
part (Art. 1447 and following of the Civil Code)
Control of mass hiring. Mass hiring.
it is possible through adhesion contracts and contracts
concluded through general terms of contracting and
the state intervenes directly in its approval. (Arts.
1393, 1398 and following of the C.C.)
c) The Institutionalization of Society.

The gradual disappearance of the merchant has not been due only to
the emergence of the company, but that it has also been replaced.

The merchant has had two reorientations, such as

the owner has joined a company and as a representative has
went on to integrate into the company's technocracy.

From personal activity, one moved to prefer the contract in

participatory association. From there to the collective society. From this to the

limited partnership by shares and finally to the corporation. Still the

individual trader's activity has a strong tendency towards its
institutionalization through the Commercial Company of Limited Liability
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Limited (of a family nature) and the Individual Company of
Limited Liability E.I.R.L. The process has been oriented
progressively towards the typical capitalist society, the S.A., where the
capital is the undisputed leader of the company. It develops according to
at the will of the capital contributors and is at their service.

Profits are the objective of society and their distribution is

It is made in proportion to the contribution.

The progressive emergence of these societies in the indicated order

both in Peru and abroad shows us the historical process of
affirmation of capital against the direct work of the trader. Even
in the E.I.R.L., the merchant's application is made in their capacity as
owner and not of worker.

d) The Dematerialization of Securities

At first, the fundamental merchandise in trade was the

handcrafted products and then industrial ones, being the securities
instruments to facilitate change.

Dematerialized titles are those values that lack

a physical document that supports them. And in its place, there is a
computer document, which is managed by entities
specialized in receiving securities, in order to manage them
through a highly secure computerized system. And thus eliminate the
risk involved in handling physical titles such as theft or loss.

e) The 'bankruptcy of bankruptcy'

Nowadays, it is expected that companies do not go bankrupt.

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Before, the protection core was the creditors, the trade and the
property, but today the new security core is the company, the
worker and the community.

This change is due to the emergence of the labor factor.

(previously it was despised) as a social value considered
superior and that society defends at all costs.

THE NEW AND REAL "PERUVIAN COMMERCIAL CODE"

Here we refer to a code in its true sense. We have insisted,

for example, in which the projects became outdated just with the passage
of their debate as the changes in the economic reality are very
fast.

Therefore, today it is recognized that the most changes

important events in history fundamentally occur in the presence of the
technological innovations and thus the machine gave rise to the appearance
From capitalism, today informatics is causing a profound change
in the field of Law.

The main regulations that have been complementing the Code of

Peruvian Trade of 1902 is as follows:

Banking Law.
2. Law of Securities.
General Law on Corporations.
4. Legislation on Stock Exchanges and the commercial market.
5. Legislation on bankrupt companies.
6. Law of the Individual Limited Liability Company.
7. General Law of Cooperatives.
8. Law on Public Companies.
Civil Code of 1984 (as legislation on obligations and contracts
civil and commercial.
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These provisions, although not the only ones that have affected the
Commercial Code, they can be considered as the fundamentals.

Obligations have contracts as their basic source, but

having been unified in the civil code, they must in reality,
only typically included in the Commercial Code contracts
merchants.

In terms of goods, it presents itself as a fundamental element to

the securities and perhaps the company if it continues to be legislated
as a good and not as it should be in quality also as a subject.

In summary, the new Peruvian Commercial Code is

saying that the lawyer has it on his own account), it can be rearranged from the
in the following way:

PERSONAS:

 The Sole Proprietor.

 The Individual Limited Liability Company.
 Commercial Companies.
 The Cooperatives.
 Public Companies.
 The Companies of Social Ownership.

OBLIGATIONS:

 Legal: From the business owner and the company.

 Corporate: From business associations.
 Negotiables: The market and competition. The Stock market.
Special contracts.

THINGS:

 The Securities.
 The Business Estate.
 The Intangible Property.
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As can be seen, the changes are fundamental not only in
the content, but even the very logic of the Code is modified.

II. EXPLAIN WHAT COMMERCIAL LAW IS AND WHAT IT IS

THEIR SOURCES

COMMERCIAL LAW.

Commercial law (or trade law) is the set of

regulations related to traders in the exercise of their profession, to the
acts of commerce legally qualified as such and to the relationships
legal issues arising from the execution of these; broadly speaking, it is the
branch of law that regulates the practice of commerce. One of its
the foundations are free trade.

In most legislation, a relationship is considered

commercial, and therefore subject to commercial law, if it is an act of
commerce Current commercial law refers to these acts, of which
they are intrinsically so, although in many cases the subject that them
it does not have the quality of a merchant (objective system); without
for this reason, there are legal arrangements in which the system is
subjective, based on the company, regulating both its legal status,
as the exercise of economic activity, in its relationships
contractual agreements that entrepreneurs maintain with each other and with third parties.

Commercial Law has two objects of regulation, called

Objective Criterion and Subjective Criterion. The Objective refers to the
commerce or acts of commerce, the Subjective refers to the
a person who possesses the qualities of a merchant.

II.1. Formal Sources

a) Constitution
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The Constitution of each country is the primary source of law that
prevails above all others. In terms of trade,
Refers to the person responsible for creating a legal framework related to everything.

the commercial activities in which the government of the country participates

some way.

b) The Law

All branches of commercial law are formed by a

battery of laws that unless there is a specific regulation will be
taken as a reference to resolve any type of inconsistency or
legal lagoon that needs to be analyzed. It is formed by the laws,
royal decrees as well as legislative and regulations of public entities
in charge of this subject.

International treaties

It is an agreement carried out between multiple countries in which

they establish laws and commercial standards common to all of them in order to

facilitate trade between those territories.

Commercial Code

The Commercial Code is a body of more than 900 articles and

it forms the main source of commercial legal law as it establishes
standards to all aspects of commerce, from the merchants, the
commerce.

II.2. Indirect Sources

a) Uses and Customs

The usual uses and customs are part of the law.

mercantile and commercial because they have been the most basic origin
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of everything that has since been formalized into mandatory laws.
Hello, customs in the absence of applicable law to the case will be taken.
as a legitimate source of commercial law.

b) Jurisprudence

It is not a source of law as such, but it is useful in what it pertains to.

to be a tool to rely on when interpreting

un texto legal basándose en decisiones tomadas por otros jueces con
precedence.

III. WHAT IS A TRADE ACT

a) Introduction

We use the term 'act of commerce' to distinguish those

legal acts regulated by commercial law, of the "civil acts"
What are those regulated by civil law.

Apparently, the act of commerce is synonymous with trade; without

embargo, the concept of trade is too broad to
to limit it exclusively to commercial law. Commerce is a
economic concept that can be defined as the exchange of goods
or services, as we explained, legally, the exchange of goods
or services can be carried out through a regulated legal act
by commercial law or by civil law, hence the problem that
it involves using the concept of trade as a synonym for the act of
trade.

For this reason, to define the act of commerce, it is necessary

use a material criterion. Based on a formal criterion, the act of
trade can be defined as the legal act qualified as
commercial by law.
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From the point of view of logic, this definition is circular, isn't it?
however, given the formal criterion that governs commercial law, this is the
best way to define the act of commerce.

It is worth noting that the problem of defining an act of

Commerce is not only present in our legal system but in all.
those systems whose private law has been divided into two branches:
civil law and commercial law.

b) Definition

To facilitate the understanding of the act of commerce, it is necessary

review certain concepts. In principle, the notion of act can make
reference to an action or a celebration. Commerce, on the other hand,
is linked to the activity that people perform with the aim of
to obtain certain goods that they cannot produce by themselves; to
It is necessary to interact with the respective producers and reach
an agreement (exchange of goods for money).

Finally, a merchant is any person who has the

ability to act as a mediator between various producers;
that mediation is their profession and they take on the responsibility in it that

builds the relationship with each of its clients. In this task, the
trader makes some profit.

Dicho esto podemos definir como acto de comercio, a algo

belonging to the legal field that refers to the acquisition that
is carried out through the completion of a payment, for a product or of the
rights over it, with the aim of obtaining a subsequent profit. This
profit can arise from the same state that the product had upon
moment of purchase or of some transformation that modified it
value.
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The legal use of the concept of commercial act applies to the
movable things, that is, those that can be moved without their
structure changed; its counterpart, the properties, are buildings or
lands.

The act of commerce, ultimately, is the legal act that distinguishes.

between cases that fall within the scope of commercial law and those
own to the civil branch. There are, in any case, mixed acts (with a
double character).

c) Diferentes Actos Comerciales

Many classifications can be established within the

commercial activities, they are carried out based on various
criteria, which can be:

Public or private: if we take into account the people who

they intervene in the act. If it is carried out with direct control of
The state will be public; otherwise, it will be private, which is not
It means that the State does not protect the rights of each one of the
parts, but has no interests in said operation.
Fluvial, land, marine, or air: according to the medium that the
merchant uses to transport the product and the type of
communication that exists between the parties.
Wholesale or retail: depending on the volume of the product.
For example: the merchant who has a retail business of
food purchases in large quantities from a supplier (wholesale
wholesale) and then sells in small quantities to individuals
(at retail).
Cash or credit: if we take into account the form of payment
with which the exchange is made. If the buyer pays with
cash or check is said to be paid in cash (the payment is made at
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(instant) and if done with a credit card or promissory note, it will be on credit

(payment will be made at the end of the month).

Lawful or unlawful: according to the degree of compliance with the laws
current commerce. If they are not respected, it is said to be illegal and if
If they do it, it will be a lawful commercial act.
Regarding the place of import or export:
product origin, whether from the national territory or from
foreigner.
Free or monopolistic: if we take into account how much of
there are offerers in the market. If there is only one supplier,
then we will be facing an act of monopoly; if there exist
many merchants offering the same product and
competing in the market is said to be a free commercial act.
IV. THE MERCHANT AND THE COMMERCIAL ASSISTANTS
a) The merchant
According to the commercial code in its art. 1 establishes who must be
to consider as a trader 'the law regards as a trader all the
individuals who having legal capacity to contract have registered
in the merchant registry and they act on their own account in acts of
trade making it their profession.
The first observation we can make, regarding the text of
Article 1 of commerce is that the definition refers to the
individuals and does not mention legal entities that also
they can develop a commercial activity. According to that wording,
legal entities could not be merchants because they are not
individuals.
However, the omission, both the individual traders and
Commercial companies are subject to the same professional statute.
Both have the same obligations and the same legal regime.
by virtue of the fact that the LSC considers all companies to be commercial in nature

they are regulated. Trade can be conducted by an individual or a

commercial society.
b) The auxiliaries of commerce.
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They are called the merchant's collaborators in their work.
habitual. They can be self-employed individuals who act on their own without
to receive a fixed salary, without taking orders from the merchant or fulfilling

pre-established schedules and charging fees or commissions for sales,

the subordinates who depend on the merchant for employment, obeying
under your orders and receiving a salary.
The Code classifies people who act in commerce into
two major categories: the merchant and the auxiliary agents of
trade. The first title is dedicated to the merchant and to the agents the
third.
This special emphasis on auxiliary agents is due to the
importance of the auxiliaries for commerce. The complexity
Trade has always forced merchants to resort to
specialized and especially trained personnel to assist you in the
task of managing a commercial establishment and I complemented it in the
exercise of commerce.
Comment:
The commercial code is very clear in providing a concept of how
he must be the merchant and what steps he should take to be one
formal trader, as explained to us in article 1 that they must
to have legal capacity to contract, they must also be registered
in the merchant's registration for which this commercial activity
they adopt it as a profession to achieve a goal.
By virtue of the fact that the commercial companies law considers
commercial to all the societies regulated therein. Trade can
to be exercised by an individual or a commercial society which is
protected by the commercial code.
To engage in commerce, many of these merchants need
support to fulfill this task, for this there is a series of
collaborators, whether volunteers or paid, to whom the code
we, the trade auxiliaries, believe that it has a special role
And one could say that it is a kind of right hand of the merchant.