EXAMEN DERECHO MERCANTIL 28 DE MAYO

1. Which are the effects of the registration in the Commercial Register of the acts
of a trader?
The effects are those included in art.20 and 21 of the Commercial Code.
1. Legitimation, the content of the Mercantile Register is assumed to be accurate and
valid, and its entries are safeguarded by the Courts and are legally effective.
2. Declaratory value, the registrations of the acts and contracts have a declaratory
value, in general. That means that acts have been performed and executed outside the
MR, but the registration does not corroborate their existence or validity.
3. Authority to attest documents, a declaration of inaccuracy or nullity will not affect the
rights of good faith, third parties legally acquired under a valid act or contract
registered.
4. Effects, acts that are subject to registration only have effects to third parties acting in
good faith from the date of their publication in the ‘’Official Journal of the Mercantile
Register’’. However, if the transactions are carried out within the following fifteen days,
the acts will not affect third parties who prove that they could not have been aware of
them.

2. Rights and duties of mercantile factors

A factor is an agent appointed by the trade with general authority to engage in business
in his name and on his account. He is the director or manager of the business, and his
authority includes a wide range of actions, as if he were the owner. He is authorized to
manage, direct and enter into contracts concerning its business.

Directors or mercantile factors have the authority to act in the name of the principal.
This authority can be consent of the trader in a written or oral way, or even by a
ratification.

The factor shall negotiate and enter into contracts on behalf of their principals, in all
documents they can sign in that capacity, they shall state that they are doing so with
powers or on behalf of the person or company they represent. (Art. 284)

Factor may not deal on their own behalf. If they negotiate without that authorization the
profit from the negotiation shall be for the principal, and the losses shall be assumed by
the factor.
3. Explain which are the unfair practices in competitive law. Mention different of
them.

Spanish Unfair Competition Law established that any conduct contrary to good faith is
deemed to be unfair.
The law distinguishes between 2 types of unfair conduct:
1. ‘’Acts of unfair competition’’, include most of the unfair conduct, affect companies
and professionals as well as consumer.
- Imitation
- Aggressive acts
- Acts of confusion

2. ‘’Commercial practices with consumers and users’’

- Pyramid sale practices
- Aggressive practices in relation to minors

4. Formalities of incorporation of an SA or SRL

The Corporation Law established a strict procedure with which corporations have to
comply before they can operate legally.

First an agreement by and between 2 or more parties. A corporation shall be created by

a Notarial Deed (including the name of the founders, the contribution of each of them
and the bylaws) signed by all the founding partners or shareholders and registered in
the Mercantile Register.

5. Name 3 basic rights that every shareholder and partner have in a capital
company. Explain each one.

- Right to take part in the distribution of corporate earnings. (= right to a dividend.)

Shareholders may receive dividends if the company declares them, becoming creditors
when declared.
- Distribution of assets in case of liquidation. In the liquidation of the company,
shareholders receive a proportional share of the assets after paying debts.
- Preferential right to acquire new stakes or subscribe new shares or convertible bonds.
Shareholders have preference to acquire new shares in proportion to their existing
holdings during capital increase, being able to transfer these rights.

6. The transfer of stakes in SRL

The transfer of stakes must be recorded in a public document and is restricted to

partners or close relatives, with certain exceptions.
Stake are freely transferable to other partners, ascendants, descendants of companies
of the same group.
Voluntary transfers must follow the rules of the bylaws, with prohibitions on free or
absolutely prohibited transfers.
Transfer mortise causa allow the heir to become a partner.
7. Differences between share and certification units (or stakes).

SHARE CERTIFICATION UNITS

LEGAL NATURE The capital is divided into
shares in SA.
Constitute the aliquot, are
indivisible and cumulative
parts of the capital.
TRANSFERABILITY They are easily transferable
DOCUMENTATION Shares may be issued
physically as certificates or
recorded by a book-entry
system held in electronic
files.
LEGAL REGULATION Restrictions on free
transferability are only
admitted for registered
shares
(STAKES)
The capital is divided into
stakes in SRL.
They also constitute the
aliquot, are indivisible and
cumulative part of capital.
Transfer is more restricted.
The consent of other partners
or the company is required
Stakes may not be
represented by certificates or
book entries.
LSC establishes the
obligation for the company to
keep a stakeholders’ ledger.
Not regulated in the bylaws.

8. The Board of Directors in capital companies

Art. 210 reads that where company’s management if entrusted jointly to more than 2
persons, they shall constitute a Board of Directors.

The bylaws establish the exact or a minimum and maximum number of members. In
this case, the general meeting shall determine the exact number.
As for the maximum number of members in SA there is none, in SRL the board shall
not have more than 12 members.

It is a collegiate body, that means that for the adoption of resolutions the members
have to act jointly and adopt resolutions by majority. None of the members has
separate powers.

The Board may delegate its functions to one or more managing directors or to an
executive committee.

The discussions and resolutions of the Board shall be kept in a minute book, which
shall be signed by the chairman and secretary.

9.Explain the different ways for the termination of the insolvency process

The Act (ley concursal) sets out two alternatives to end the insolvency proceedings:
- A Composition Agreement (convenio) with creditors, which aim is to reach an
agreement between the debtor and the creditors for the payment of the credits,
- Liquidation, which aim is to liquidate the active bankruptcy estate in order to pay the
debts. The liquidation stage will be initiated if no agreement is reached or in case of
non-compliance by the debtor with the agreement.