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Seminario Derecho Mercantil IV (GED75229)

General information

Type:

OP

Curs:

4

Period:

S semester

ECTS Credits:

0 ECTS

Teaching Staff:

Group Teacher Department Language
Javier Fontcuberta Llanes Derecho ESP
Antonio Delgado Planas Derecho ESP

Prerequisites

None

Previous Knowledge

Students need to have acquired the knowledge and successfully passed the Mercantile Law I, II and III courses.

Course Learning Objectives

The objectives of this course are to provide students with the theoretical/practical knowledge they require to be able to face the typical, complex situations associated to negotiable instruments and mercantile contracting, i.e., collaborative contracts between businesspeople, basic banking contracts, and those for insurance and transport. In addition, students will become familiar with the different international conflict resolution systems provided for in Mercantile Law.

CONTENT

1. Syllabus

I. NEGOTIABLE INSTRUMENTS
TOPIC 1. NEGOTIABLE INSTRUMENTS: GENERAL THEORY. Their economic and legal function. Typical bills of exchange and their purpose. Legalisation of bills of exchange. Legitimation due to possession. Classification of bills of exchange. Revocation: substitution of negotiable instruments by accounting entries. Registered marketable securities.
TOPIC 2. BILL OF EXCHANGE: ISSUANCE. Bills of exchange as a model security. Their function in Spanish Law. History. The origin of bills of exchange: its issuance. Capacity. Representation. Type of bill of exchange: scope. Facultative clause. Substitution cases. Blank bills of exchange. The economic cause of the bill of exchange: the provision of funds. Provision of funds: concept and role. Exchange irrelevance. Types of provisions. Imaginary provision and payees.
TOPIC 3. BILL OF EXCHANGE CIRCULATION, ACCEPTANCE AND GUARANTEE. The bill of exchange as a circulating instrument. Endorsement: concept and types. Full or translative endorsement. Effects: transfer of the bill; legitimation; security; non-opposition to exceptions. People to whom the bill can be endorsed. Type of endorsement. Blank endorsement and for the bearer. Transmission of the bill without endorsement. Acceptance. Concept and function. Requirements. Form. Unconditional acceptance. Presentation of the bill upon acceptance: archaism within the Law. Equivalent declaration. Guarantees: exchange guarantee. Types of guarantees. Limited and conditioned guarantees. Guarantee structure. Guarantee effects. Guarantee independence: non-opposition to exceptions. Guarantee as a separate act.
TOPIC 4. BILL OF EXCHANGE MATURITY AND PAYMENT; UNMET BILLS OF EXCHANGE. Bill of exchange maturity. Forms and terms of maturity and its calculation. Presentation of the bill upon payment. The Spanish National Electronic Compensation System. The future of electronic payment methods. Payment as the standard objective. Legitimation. Currency of payment. Advance and partial payments. Effects of payment. Unmet bills of exchange: actions and exceptions. Executive and ordinary action. Direct action. Returns: concept and types. Impaired bills. Clause without expenses. Exchange exceptions. Actions beyond mere exchange: lawsuits. Act of enrichment. Expiration date and prescription.
TOPIC 5. PROMISSORY NOTES AND CHEQUES. Promissory note: concept. Legal nature. Relation with bills of exchange. Legal regime. Form. Subjects. Cheques. Concepts and requirements: formal and funds. Legal nature. Subjects. Cheque payment and unmet cheques. Post-dated cheques. Actions by holders of unmet cheques. False and falsified cheques. Prescriptions. Special cheques: signed and dated cheques, deposit-only cheques and certified cheques. Penal protection.

II. MERCANTILE CONTRACTS
TOPIC 6. MERCANTILE CONTRACTS AND OBLIGATIONS. Mercantile obligations. Sources: Articles 2, 50 and 59 in the Commerce Code. Special principles: legal regime. Prohibition against using grace and courtesy periods. Enforceability of pure obligations. The essential term. Non-payment. Interest accrual and non-gratuitous nature of obligations. Presumption of solidarity. Unilateral declarations of will and purpose: public offer. Mercantile contracts: Civil and mercantile contracts: distinction criteria. Contract perfection: contract between absent parties. Perfection of electronic contracts. Structure of contracts. Test. Interpretation. General contracting conditions. Concept. Area of application. Necessary force. Interpretation rules. Actions. Registration of general contracting conditions. Intervention by consumers.
TOPIC 7. PURCHASE-SALE CONTRACTS. Concept and mercantile classification. Articles 325 and 326 in the Commerce Code: problem regarding resale. Particularities of the legal regime regarding civil purchases-sales. Seller¿s and purchaser¿s obligations. Transferral of risk. International purchase-sale of merchandise. Vienna Convention (April 11, 1980) and its validity in Spain: area of application. Incoterms for the international purchase-sale of goods. Purchase-sale of companies. Preliminary agreements and NDA (non-disclosure agreements). Due diligence. Letter of intent and purchase-sale pre-contract. Acquisition contract: asset deal vs. share deal. Transfer of company, cession of rights and acquisition of obligations.
TOPIC 8. COLLABORATION CONTRACTS. Contract for commissions. Concept and mercantile nature. Commission agent and the latter¿s actions. Contract content. Guarantee clause. Right to hold in lien. Prohibition for the commission agent to purchase directly. Termination. Mediation contract: concept and nature compared to a commission contract. Parties¿ obligations. Agency contract. Concept. Parties¿ obligations. Termination and compensation system. Distinction between similar figures. Distribution contract: concept. Parties¿ obligations: exclusivity clause. Particularities of non-fulfilment in jurisprudence. Termination and the different causes: contract termination without an agreed-on date or with an indetermined timeline. Termination due to non-fulfilment. Termination and compensation system. Concession and franchise contracts.
TOPIC 9. BANKING CONTRACTS. Concept and sources of banking contracts. Banking contract elements. Current accounts as support for banking contracts. Concept, nature and distinction between similar figures (commercial current account). Types of banking operations (assets, liabilities and neutral). Credit cards and safety deposit boxes. The loan of money and banking types. Credit lines. Function and nature. Types of bank discount. Discount content. Letters of credit. Sources, concept and function. Letters of credit rules. Types: depending on the credit or its revocability. Nature and content: relations between the purchaser, bank and seller. Confirmation by a new bank. Transfer and termination.
TOPIC 10. FINANCING AND GUARANTEE CONTRACTS. Financial leasing. Concept and nature. Legal system and sources. Contract structure and the Registry of Moveable Assets. Content: leaser¿s and user¿s obligations. Protection of the right of ownership. Contract cession and termination. Factoring contract. Confirming contract. Surety bond. Guarantors and mercantile guarantees. Bank guarantor. Comfort letters as a guarantee of obligations in international contracts: types and effects.
TOPIC 11. INSURANCE CONTRACT (I): GENERAL PART. Technical and economic foundations of insurance. Sources of Spanish Law regarding insurance: control legislations. Insurance contract concept. Types of insurance contracts: dualist and compensatory. Insurance contract notes and fine print. Personal elements. The insurer: structure and requirements. The insurance policyholder: contractual position. The insured party: characterisation and identification. Insurance on others¿ behalf: for-whom-it-may-concern insurance. Beneficiaries. Insurance agents. Insurance contract documentation. Consensual or formal nature. The policy and its concept. General conditions. Other contract documents: insurance proposal. Insurance contract content. The parties¿ obligations and responsibilities. Good faith. The duty to declare risk. Risk aggravation or reduction. Obligation to pay the premium: first premium, single premium and successive premiums. Presenting an insurance claim. Reduction of claim consequences. Insurer¿s obligations: payment. Insured party¿s delayed payment. Contract duration. Prescription.
TOPIC 12. INSURANCE CONTRACT (II): SPECIAL PART. Insurance against damage or interest. Concept of insurance for damage: interest and compensatory principle. Notion and need of interest. Settlement: relation between the value of the interest, damage and insured amount; over-insurance, underinsurance and full insurance; the so-called proportional rule. Multiple insurance and co-assurance. Risk. The claim: Adjustment and appraisal. Subrogation principle. Types of insurance for damage. Special consideration for fire, transport, income and civil liability insurance; so-called direct action. Reinsurance. Personal insurance. Personal insurance concept. Characteristics compared to insurance for damage. Group insurance. Mixed insurance. Scope of the non-subrogation principle. Life insurance. Concept and coverage. Types. Personal elements. Beneficiaries. Designation. Legal position of the beneficiary: autonomy. Special issues regarding premiums: non-coactive and rights over the mathematical reserves: reduction, rescue and advance payments. Accident insurance, for ailments and medical assistance.
TOPIC 13. OVERLAND TRANSPORT CONTRACT. General notions. Sources of law. Importance of Administrative Law. Transport contract concept and legal nature. Transport of things. General idea and delimitation. Personal elements. Real elements. Price. Bill of lading. Contract content. Transport of people. General idea and delimitation. Personal elements. The ticket. Contract content.
TOPIC 14. RESOLVING MERCANTILE CONTRACT CONFLICTS. Introduction to the issue. Problems with objective competency: the role of mercantile courts and courts of first instance to resolve Mercantile Law controversies. Arbitration as a means to resolve mercantile contract conflicts. Concept, nature and types of arbitration. The clause submitting parties to arbitration in case of conflict. Proceedings. The decision/award and its effects. Mediation as a means to resolve conflicts and differences with respect to arbitration. The role of the mediator. Types of mediation. Effects.

Methodology

The methodology used in this course consists of:

a) Lectures on the majority of topics.
b) Independent study and in-class debates on some of the topics, and
c) Completing case studies related to the course content.

Students are thus required to:

a) Study the material provided, using one of the recommended manuals for support and
b) Prepare for debates and case studies. Generally, the case studies have to be prepared, but students are not required to turn anything in. Contrarily, faculty will advise them ahead of time if they have to turn in the completed case studies. A single session will be dedicated to each case study and to resolve the questions raised. At the start of those sessions, faculty may ask students to answer a question about the case in writing. All completed case studies and these case study tests will be marked. Students will also be marked for their participation in these sessions.

Assessment criteria

Assessment for this course aims to encourage students to work constantly and to progressively assimilate the content addressed.

Assessment consists of two key components:

1. Tests on the case studies and completed case studies as well as student participation in those sessions and debates

2. A final exam.

Students¿ marks for the course are calculated as follows:

a) If students earn under a 4.5 out of 10 on the final exam, that failing mark will be their final mark for the course.

b) If their marks on the final exam are between a 4.5 and 6 (both included), their final marks for the course will be calculated as follows: (final exam mark x 0.5) + (average mark on tests and activities described in point 1 above x 0.5).

c) If they score above a 6 on the final exam, their final marks for the course will be whichever is highest: a) their mark on the final exam or b) (final exam mark x 0.5) + (average mark on tests and activities described in point 1 above x 0.5).

Bibliography

BROSETA PONT, MANUEL
Manual de Derecho Mercantil
Ed. Tecnos. Madrid 2013.

SÁNCHEZ CALERO, FERNANDO
Instituciones de Derecho Mercantil
Ed. Mc. Graw Hill, Madrid 2013 (2 vols.)

URÍA, RODRIGO
Derecho Mercantil
Ed. Marcial Pons, Madrid 2013

VICENT CHULIA, FRANCISCO
Introducción al Derecho Mercantil
Ed. Tirant lo Blanch, Valencia, 2013

Timetable and sections

Group Teacher Department
Javier Fontcuberta Llanes Derecho
Antonio Delgado Planas Derecho

Horari

From 2016/2/1 to 2016/2/19:
From Monday to Tuesday from 8:30 to 10:00. (Except: 2016/2/9 and 2016/2/16)
Each Friday from 10:30 to 12:00. (Except: 2016/2/5 and 2016/2/12)

From 2016/2/26 to 2016/3/18:
From Monday to Tuesday from 8:30 to 10:00. (Except: 2016/3/1, 2016/3/8 and 2016/3/14)
Each Friday from 10:30 to 12:00.

From 2016/4/1 to 2016/5/6:
Each Monday from 8:30 to 10:00. (Except: 2016/4/25)
Each Friday from 10:30 to 12:00.

Tuesday 2016/5/17 from 16:00 to 19:00.