Commercial Partnership Contracts: Types and Legal Aspects

Posted on Dec 20, 2024 in Law & Jurisprudence

Partnership Contracts

7.1 External Collaboration with Business and Commercial Leases, Service, and Work: Distinctive Features

We distinguish several concepts:

  • Leasing of Service: A contract whereby one party, the lessor, undertakes to provide a particular service, and the other party, the tenant, agrees to pay the stipulated price. It is an activity contract because the landlord is entitled to develop its activities with due diligence.
  • Leasing of Work: A contract whereby one party, the lessor, undertakes to perform a particular work by obtaining an agreed outcome, and the other part, the tenant, is obligated to pay the stated price, provided that the landlord achieves the result.
  • Contract of Collaboration: A contract by which one party, the employee, undertakes to perform a particular commercial transaction, and the other party, the employer, undertakes to pay the stipulated price. These contracts stipulate when employers need your company will reach a certain complexity. They are similar to leases with service and work, but results are usually contracts so that only charged if the employee reaches the agreed outcome. They differ from other leases in commercial contracts that are regulated by the commercial code or special commercial laws, often because the two parties to the contract are businesses. Finally, the collaborative may, in some cases, have a subordinate relationship with the employer, which forces him to follow his instructions, but without any subordination or dependency large enough to become a formal contract.

7.2 Special Reference to Some Forms of Partnership Contracts

1. The Contract Committee

Legal: Articles 244-280 of the Commercial Code.

It is a contract whereby one party, called the commission, agrees to make a commercial transaction on behalf of the other contract party, called the principal. The principal is obliged to pay the agreed price.

Distinguishing Features:

  • The commission is mandated commercially. An order that the principal makes the agent.
  • The contract has to be a commercial transaction.
  • At least one of the parties to the contract has to be an entrepreneur (often they are both parties).
  • It is a consensual, bilateral, and onerous contract.
  • It’s a short-duration contract since it is designed for a specific operation.

Obligations of the Parties:

  • Obligations of the Commission:
    • Fulfill the order personally because the principal is fixed at a specific person, with more specific qualities to get what he wants.
    • The commission receives instructions from the principal to fulfill the request.
    • We distinguish 3 types of commission:
      • Imperative Commission: The customer specifies in detail all you have to do in commission. You cannot deviate from these instructions if you do not want to incur liability.
      • Stated Commission: The principal gives certain instructions, but the commission has a certain freedom to organize the implementation of the order.
      • Voluntary Commission: The commission has broad discretion to organize the implementation of the order.
    • In all types of commission, the commission must act in good faith and take care of business as their own.
    • Report frequently to the principal of efforts to be made to comply with the order and also immediately inform the competent when you signed the contract that constitutes the object of the commission.
    • The completion and settlement of accounts: After completing the task, the agent must settle the remaining principal in full if the principal will forward an excess amount.
  • Obligations of the Client:
    • Provide funds to the commission.
    • Pay the prescribed fee.
    • Reimburse the commission would have paid the expenses out of pocket.
    • The client has to assume the effects of the contract which the commission has stipulated with the third party because the commission is always acting as an employee.

Termination of Employment:

The most frequent causes are:

  • The course of the period specified.
  • To reach the result (that is, a buyer).
  • Supplementally apply the grounds for terminating the contract of commission.

2. The Commercial Agency Agreement

Legal: This contract is governed by a specific law, Law 12-1992 of May 27 on agency contracts. It is not regulated in the Commercial Code, although it has specific rules that are still very important covenants of the parties to the contract, especially in areas such as:

  • Concerning the actions of the agent, if such action will be exclusive or not.
  • The remuneration of the staff.
  • The compensation to which the agent is entitled in the event of termination of the contract.

Commercial Agency Contract: A contract whereby one party (agent) undertakes to promote or encourage acts of trade and complete account of the other part of the contract owner is the employer business.

Characteristic Features:

  1. The agent is a freelancer, so you can organize their activities according to their own criteria and has no subordination to the employer’s principal business owner. This is about the figure of the corridor. But according to the commission rate or bring him to stay away from the figure of the commission.
  2. The agent is an entrepreneur, which does not find a contract in which both parties are always entrepreneurs. Features which are not given or the commission or brokerage.

Termination of Employment:

  • On the course of the deadline.
  • By agreement of the parties to the contract.
  • For the fulfillment of the obligations of the parties to the contract.
  • By the death of the agent because usually a contract which the employer chooses according to the personal characteristics of the agent.
  • The declaration of bankruptcy of any party to the contract.
  • The compensation paid by the employer as provided by law after termination of the contract agency regulates two types:
    1. Compensation for customers: The agent is entitled to financial compensation for new customers who have contributed to the main contractor.
    2. Compensation for actual damages suffered by the agent when the principal employer unilaterally resolves the contract without a valid reason.

3. Concession Contract or Commercial Distribution

Legal Regime: A contract is not governed by Spanish law but governed by Community law by a 1983 regulation directly applicable to Spain. This contract is completed in addition to its legal system, for the many court judgments have a supreme legal framework defining.

Commercial Distribution Agreement: A contract whereby one party, the dealer or distributor, is obligated to resell the products provided by the licensor. Therefore the first distributor to the grantor buys products and resells second profiting from the difference. The dealer will also resell products that are covered by a prestigious brand.

Characteristic Features:

  1. The employer is integrated into a product distribution network created by the grantor.
  2. Is a contract of indefinite duration, which assimilates the agency agreement and the difference of the contract of commission.
  3. The parties to contracts often include covenants that are usually reciprocal exclusivity. The grantor agrees to sell only to that dealership.
  4. The dealer always acts on their own. Therefore becomes the owner of the products they resell. This characteristic distinguishes it from the contract committee and the agency contract because, in the latter two, the partner always acts as an employee.
  5. The dealer takes all the economic consequences of the operations carried out which comes from reselling products of their property.

Method of Distribution:

  • Exclusive Distribution: The grantor greatly limits the number of distributions so that a given geographical area is divided into several sub-areas and places a dealer in each.

    Benefits:

    1. Ensures a greater interest from the dealer’s time to sell.
    2. Ensures that the dealer has a better understanding of the products they resell.
  • Selective Distribution: The grantor selects potential concessionaires, allowing a greater number of distributions when exclusive but does not open the doors to all those entrepreneurs who want to resell their products.
  • Intensive Distribution: The grantor contracts with many dealers as possible.

Obligations of the Parties:

  1. Obligations of the Licensee:
    • Agree to have a stock of particular products.
    • Are forced to buy the products at the price fixed by the grantor and not necessarily obliged to respect the prices recommended by the grantor.
    • You agree to respect the exclusivity agreements where they exist.
  2. Obligations of the Grantor:
    • You have to supply the products to the dealer.
    • You must ensure the products it sells to the dealer.
    • You have to respect the exclusivity agreements, if any.

Termination of Employment:

  • By the deadline during the term of the contract.
  • By agreement of both parties.
  • Where either or both parties fulfill their obligations.

Allowances by the Grantor after the Termination of the Contract:

  • Rewarding products dealer could not resell.
  • Is obliged to compensate the damages caused to the dealer resolution.

Franchising:

A form of distribution agreement is that by which one party, called the franchisor, named franchisee, has the right to operate its own system of marketing products and services. Also required to assign their distinctive and give the necessary technical assistance.

The legal system is represented by Article 62 of Law 7/1996 of January 15, retail management. Furthermore, this paper has been developed by Royal Decree 2485/1998 of November 13, which has regulated the types of franchise and also the registration of franchise companies. The decree has been developed in turn by the Royal Decree 419/2006 of April 7.

Article 62 states that it is the franchisor must provide the franchisee with a notice at least 20 days of signing the contract, a comprehensive information about the company.

Obligations of the Parties:

The Franchisor:

  • Give the operation of the franchise.
  • Maintains a minimum level of promotion and advertising of the product or service.
  • Is obliged to respect the exclusivity agreements.
  • Must verify that the franchisee complies with marketing techniques that respect the uniformity and quality.

The Franchisee:

  • Pay the agreed salary.
  • Applying marketing techniques of the franchisor.
  • To respect the image the franchisor.
  • Comply with the instructions of the franchisor, in particular those relating to prices.
  • To respect the exclusivity agreements.

The extinction of the agreement can be in the course of the term of the contract, the agreement between the parties, or for breach of the obligations agreed.

4. The Factoring Agreement

Legal: It is an atypical contract, so will have to attend first to what the parties have agreed the contract in the light conditions that normally are. In the absence of the covenants, will have to go the rules of the commission contract.

Factoring Contract: A party to the contract which is called a factoring company is forced to face the fact it is the employer, to manage the collection of claims that the latter has its customers. Sometimes the factoring company plays a funding role for the employer, as it ensures the insolvency of the debtor, and he anticipates the amount of the receivables with a corresponding discount. Sometimes the factoring company also agrees to provide other services such as market research, customer selection of an employer, or their accounts.

Distinguishing Features: This is a commercial contract because mixed features of different contracts converge. It is a consensual, bilateral, onerous, and long-lasting contract. And that has to be necessarily a limited company.

Obligations of the Parties:

Factoring Company:

  • Comply with the order received.
  • Make other complementary services.

Employer:

  • Assign its receivables during the contract.
  • Pay the agreed remuneration (commission).
  • The factoring company performs exercises financing will have to pay interest.

Termination of Employment:

  • By the deadline during the term of the contract.
  • By agreement of both parties.
  • Where either or both parties fulfill their obligations.

Obligations and Commercial Contracts: Expertise of Your System

1. Specialties Contained in Articles 50 to 63 Codes of Commerce

Commercial law has a different theory of obligations and contracts but the seizure of civil law. What is it? It implies that the concept of obligation and the concept of contract is not in the commercial code but in the civil code. An obligation is a legal bond that links a creditor and a debtor to the creditor, allowing the debtor to claim compliance. What is a contract? A contract is a legal business obligation that arises for the contracting parties. The contract also can be defined as the meeting of minds of a bidder and a bidder. How can I make a civil contract of a commercial contract? Commercial contracts are governed by the Commercial Code and special trade laws. It also serves as criteria to distinguish the fact that one of the parties is an entrepreneur. They are also usually commercial, contracts of adhesion, that is, those whose content is fixed contracts only one of the contracting parties. Commercial law and contract obligations have some peculiarities. What are these peculiarities?

  1. The Legal System: Commercial contracts are governed primarily by commercial standards, that is, the commercial code and special trade laws. Secondly, they are governed by commercial usage, which is the same as usual civil, and in third place, they are governed by the rules of civil law, primarily the civil code and, if necessary, special civil laws.
  2. The Way Commercial Contracts: Commercial law is the general rule of freedom of form, a rule laid down in Article 51 of the Commercial Code and which is also the general rule in civil law. When we say that a contract requires a particular form, we are referring to the willingness of the parties to the contract have to act out a particular way, in a certain way. Formal contracts are only those in which the form is required as a prerequisite for the validity of the contract. What are the prerequisites for the validity of a contract? Consent, purpose, and cause. In commercial law, contracts are more frequent formal civil law.

    Example:

    • Commercial Surety Bond (Guarantee): Must necessarily take place in writing (Code 440 Trade).
    • Contract Marine Insurance: You always have to be in writing to be valid. (Code 737 trade).

  3. Evidence in Commercial Contracts: The test is a means to prove the existence of a contract. The evidence is regulated primarily in the Code of Civil Procedure (LEC), but also find plenty of rules in the civil code and some in the commercial code. What are the evidence codes that regulate trade? It is a means to prove the existence of a contract. The evidence is mainly regulated Code of Civil Procedure but also find plenty of rules in C. civil and some in the Code. Trade. The evidence that regulates the Code. Commerce are:

    • Books for entrepreneurs. (Books of account, of shares, the partnership register, …)
    • The testimony of witnesses, for which the cc said to have an over probative value.
    • The telegraphic.
    • The documents seized by notaries (has enormous probative value).
    • The account book of the master is used to resolve disputes between the captain and crew.
    • The bill of lading is the document used in shipping and signing the captain of the ship and ship loader.
    • There is a widely used form of evidence in practice, but that is either regulated by cc is the bill, so you can try something must necessarily be signed by the 2 parties to the contract.

  4. The Interpretation of Contracts: The rules governing the interpretation of contracts apply especially when the wording of the contract raises questions of interpretation.

    Example: Seller agrees to deliver a machine within 180 days. But where? When does the 180 days count?

    Interpretations of the Basic Rules:

    In the commercial sphere, the basic rules of interpretation are found in Articles 57 and 59 of the Commercial Code. Article 57 says first contracts have to be interpreted assuming good faith of the parties contract, assuming the good and interpretation of the parties to the contract. Secondly, Article 57 says that when the terms of the contract are clear, it should be interpreted literally. In third place, when a contract includes a clause that has multiple meanings, words have to interpret more appropriate for the meaning. Fourth, can not restrict the natural effects of the contract, that is, a contract requires that it is agreed expressly, and something not expressly stipulated result of good faith and use the law if despite all these rules of Article 57 are still doubts in the interpretation of the contract. I have to apply Article 59 of the Commercial Code, which sets these rules: First, try to resolve the uncertainty with the provisions of Article 57. Secondly, if it is inadequate if one of the parties to the contract is liable to the other or is a “consumer,” we must interpret the contract in the most favorable for the debtor or consumer. In third place will go if is to use the trade and fourth place if the above rules will remain insufficient to apply the rules of the civil code that is found in Articles 1281 to 1289.

  5. The Penalty Clause: In commercial law, contracts are common with a penalty clause to which Article 56 of the Commercial Code and are those in which specifically dealt with the amount to be paid by the party in breach of the contract.

2. Recruiting Distance: Concept, Distinctive Features, and Patterns

Special reference to the regulation of e-procurement.

What are distance contracts? They are simply those in which the contracting parties (buyer and seller) are not physically in the same place simultaneously, but the offer and acceptance found through some of the techniques of distance communication.

What are these techniques? Examples: telephone, email, fax, newspaper advertising with a coupon, standard letters, etc.

What is the legal regime of distance contracts?

  • For distance sales for which you use the standard letter or fax. These sales at distances are governed by Article 54 of the first paragraph of the commercial code. The contract is perfected since making the offer known since the acceptance or acceptance having sent the buyer the seller cannot deny that knows it.

    Example: These contracts are concluded to understand the place that made the offer if the seller (supplier) is in Madrid there is understood to be held in Madrid.

  • Phone contracts are regulated in the second paragraph of Article 54 Commercial Code, which is to say that this means that consent is automatic, that is, there is no lapse of time between the offer and acceptance, and place where the contract is presumed to be where is the offeror.
  • Electronic contracts or online. The contract has a specific legal regime in the law 34/2002 of July 11, Law of services of information society and electronic commerce. In this law, articles of 23 to 19 contracts have telematic or electronic channels.

    Points to Note:

    1. In the case of a contract that requires a specific written, electronic means equivalent to the written form.
    2. As proof of the contract, the electronic device has the same value as other documentary evidence.
    3. Establishing special information requirements both before the conclusion of the contract and after treatment.
    4. Regarding the venue of the contract, there are 2 criteria:
      • When a party is a consumer, means the contract concluded at the home of this.
      • They are two sides are entrepreneurs; the contract is concluded in the home means the service provider. (The guy who offers the product.)

3. The Proportion of Customers in Commercial Traffic

Terms of the recruitment and protection of consumers and users.

Article 51 of the Spanish constitution. It is very general or article needs then to be developed or be concretized by other legislation. The article says that public authorities are obliged to ensure the protection of consumers, it must promote information and education of consumers and should encourage their organizations. This Article 51 has been developed by a series of subsequent laws, of which we highlight 2:

  • The Law 7/1998 of April 13 on general contractual conditions.
  • The royal decree of the general law for the protection of consumers and users, and other complementary laws.

TRLGDCV Aspects:

  1. The royal decree is issued to collect in one law, one set of rules that were previously issued as separate laws that were repealed by the revised text.
    • The law on consumer protection for contracts concluded away from business premises.
    • The law on liability for damage caused by defective products.
    • The law on package holidays.
  2. Items 3 and 4 of the revised text establish two important concepts of consumer or business user. The consumer or user is that natural or legal person acts in a field outside the business or professional entrepreneur who hires. The employer is the person or entity acting within the scope of their business or professional.
  3. Article 61 of the revised text provides the following standard: the addition to the content of advertising supply contract.
  4. Article 80 of the revised text defines terms not individually negotiated, that is, those that have been compiled in good faith and establishes a fair balance between consumer benefits and the employer.
  5. Article 82 of the consolidated text relating to unfair terms that are not individually negotiated those contrary to good faith and that harm the consumer because they establish a significant imbalance between the rights and obligations of the parties to the contract, of course, to the detriment of the consumer. These unfair terms are void of the right and are not worn.

Aspects of LCGC: (Law of General Conditions of the Condition):

  1. The purpose of the rule is to protect consumer interests against the employer who used to contract terms and conditions. What are these conditions? Clauses are drawn up by the entrepreneur who used repeatedly in all its contracts and that the consumer is limited to joining.
  2. The law defines unfair identically to recast the novelty of introducing a list of examples of unfair terms.

    Examples:

    • It is an unfair clause requiring the consumer to fulfill your benefit to pay even if the employer does not pay theirs.
    • It is an abusive clause allowing an employer to increase the final price without good reason.