Employer Liability and the Married Business Owner
Employer Liability
The employer exercises a particular economic activity in a series of acts which must respond. From an economic standpoint, the employer assumes the risk of their business; from a legal perspective, the assertion is that they assume responsibility.
First, that the property meets the entrepreneur; secondly, that made answers; and finally, how people respond.
- The employer is liable as any debtor, with all its present and future assets (art. 1911 CC). The liability of the individual entrepreneur includes not only goods that are affected by the exercise of entrepreneurship, but even those who are not. There is no distinction for these purposes between its commercial and civil assets, so that the remaining property, which are considered as family property, commercial or not, are shielded from claims of commercial creditors.
The entrepreneur who is a legal person also responds unlimitedly with all its assets. But in some cases, partners are also liable for the debts of the company, while in other cases the members do not meet compliance with the social (and in SA and SRL). There is now a general tendency to respond in some cases to the debts of the society who have the power of direction over the same or effective control over it abusively.
- The employer’s liability arises in contract and tort fields, either for breach of contracts with other persons or for damage caused outside the scope of the contract, according to the general rules contained in the CC or in accordance with specific rules (product liability or unfair competition). The regime of the so-called liability has been modified and expanded considerably, helped by the fact the spread of insurance covering the liability. To protect consumers and users, there has been a significant expansion of liability of employers, manufacturers, importers, and suppliers of products or services that cause damages, even if no contractual relationship exists between them and the consumer.
Regarding the responsibilities of employers, there are two special conditions not within our system:
- Which derives from the Law 44/2006, December 29 after being modified, which aims to protect consumers and users, recognizing their right to compensation for damages suffered from the consumption of goods and the use of products or services in which crops out in fault—sometimes even with reversal of the burden, while in other cases imposing strict liability—applies at both contractual and in tort.
- Of Law 22/1994 of 6 July, liability for damage caused by defective products, whose scope has been extended to cases where the injured is not a consumer, because it includes not only the loss of life and bodily injury to people, but even those who suffer the things, if not intended for private use or consumption.
- The employer is liable for damage caused by its servants in the exercise of their functions.
Commercial Activity of a Married Person
The CCOM 1885 required the authorization of the husband so his wife could pursue the course of trade. This was abolished by the Act of May 2, 1975, amending some articles of the CC and the CCOM to regulate the legal status of married women.
It should start from the idea that the individual entrepreneur, married or single, does not create a separating commercial property that meets only the debts resulting from the exercise of their activity. The employer is liable for those debts with all its present and future assets, even if they have any relationship. In the event that the individual entrepreneur is married, the problem of extending liability to other goods that are not exclusively their own arises, as are the other spouse’s and the common ones. The CCOM (which refers to art. 1365 of DC to regulate the regime of community of property, but the Court finds that the rules of CCOM also be applied when the regime governing the separation of property) is concerned essentially with goods which are bound to third parties for acts performed by the employer in the exercise of its business and established the following rules:
- For the course of trade by a married person (male or female), the results of the same property owned by the spouse who exercised it and those acquired as a result of this exercise will be bound. They may sell and mortgage the ones and others; it is not necessary to sue the other spouse’s property acquired as a result of the exercise of entrepreneurship.
- In order for other common goods outside the exercise of the owner of the business activity to be obliged, the consent of both spouses must be sought. Such consent may be express or implied. Art. 7 says granted consent shall be presumed to be obliged the commons when the business is carried on with knowledge and without express opposition of the spouse to be provided. Art. No. 8 also states that the consent given is presumed to respect art. 6, when the marriage shall be found one of the spouses engaged in commerce and the other will continue unopposed.
- Responsibility may be extended to property owned by the spouse of the employer if he gives express consent in each case. This seems to imply that consent can refer to a specific property of the spouse’s own employer or generically to these possessions.
- The spouse of the merchant can freely revoke the consent, express or implied. Revocation can be done at any time and must be entered in the Register if the consent had access to it. If such consent was not given access to the registry or was alleged, the revocation or opposition may be proved by other means, even when it seems appropriate to do so through public documents.
Regardless of other drawbacks of the budget of the distinction between own property and common property, and within these, the acquired within and outside the commercial activity. The origin of goods which in practice is often very difficult.