TOPICS LAW PDF

TOPIC 2. INDUSTRIAL PROPERTY: PATENTS AND TRADEMARKS 1. Overview of Industrial Property 1.1. Intellectual Property: The crea(ons of the mind. Includes: a) Copyright: literary, ar(s(c works, performances, and broadcasts b) Industrial Property: patents, trademarks, industrial designs, and geographical indica(ons. (1) This rights reward the crea(vity that fuels economic progress encouraging innova(on, s(mula(ng economic growth and crea(ng new jobs and industries. 2. Dis;nguishing marks: Protected by (tles granted by the State which confer on their owner the exclusive right to use them in the course of trade and to prevent others from using it. 2.1. Trademarks 2.1.1. DEF. Any sign capable of being represented graphically, used to iden;fy and dis;nguish goods/ services from compe(tors, providing protec;on against unauthorized use by others for similar goods a) Types: Words, images, symbols, 3D shapes, or even sounds. 2.1.2. Obtaining a Trademark: a) Objec(ve requirements (1) The right of ownership + trade name shall be acquired by valid registra;on to the Spanish Patent and Trademark Oﬃce. (a) Yet, Spanish trademark law recognises and protects trademarks which, although not registered with the Spanish Patent and Trademark Oﬃce, are "well known" in Spain (2) The mark must be dis;nc;ve. (3) Trademarks may be granted to both natural and legal persons. b) What cannot be trademarked: (1) Generic terms (e.g., using "chocolate" for chocolates). (2) Descrip(ve terms (e.g., “Edición selecta”). (3) Misleading marks. (4) Marks contrary to law, public order, or morality. 2.1.3. Classiﬁca;on: word-based, graphic, mixed (words + graphics), or three-dimensional (packaging, product shape) 2.1.4. Trademark Rights: Provide the exclusive right of use, preven(ng others from using similar signs for 10 years (can be renewed) 2.1.5. Trademark Ac;ons: Owners can seek to stop and prevent infringing ac(ons, claim compensa(on for damages, and request removal or destruc(on of infringing products. 2.1.6. Transmission a) A trademark may be owned pro indiviso ("jointly owned") by 2+ persons. b) The transfer of an undertaking shall entail the transfer of the undertaking's trademarks, unless otherwise agreed. c) Licenses can be exclusive or non-exclusive. d) Transfers & Licences must be in wri;ng and registered with the Spanish Patent and Trademark Oﬃce 2.1.7. Invalida;on and revoca;on a) A trade mark shall be revoked when: (1) has not been renewed (2) has been withdrawn by its owner; (3) has not been used in accordance with Ar(cle 39 of this Law; (4) the trade mark is liable to mislead the public b) Sanc;on: Lapsed trade marks shall cease to have legal eﬀect from the (me when the events or omissions giving rise to the lapse occurred. 2.2. Trade Names: 2.2.1. DEF. Any sign capable of being represented graphically, used to iden;fy and dis;nguish an business en;ty from others engaged in iden(cal or similar ac(vi(es in the market 2.2.2. Name of the business or company in the marketplace 2.2.3. Examples: a) names of legal persons; b) imaginary names; c) names that allude to the subject of corporate ac(vity; d) anagrams and logos; e) images, ﬁgures and drawings; 2.2.4. Governed by Spanish trademark law. a) The rules rela(ng to trademarks are applicable to trade names b) Trade names can be registered at the Spanish Patent and Trademark Oﬃce. c) The use of a trade name to the detriment of an earlier trade mark may be considered an infringement of the exclusive trade mark right or an act of unfair compe((on. 2.2.5. The Commercial Register (corporate name: SL, SA...) doesn't have to coincide with the trade name. a) Movistar (tradename) vs "Telefónica Móviles de España SA" (commercial register) 2.2.6. Diﬀerence between Trade name and trademark Trade Mark Trade Name used to iden;fy and dis;nguish an enterprise's goods/services used to iden;fy and dis;nguish an enterprise Can be registered in diﬀerent countries, providing interna;onal Can only be registered on a country-by-country basis, protec;on as an interna(onal trademark or the European/ following the rules of each state. Interna(onal registra(on is Community trademark. not possible unless registered in each country individually. Apple’s iPod Apple Zara Inditex 2.3. Logos: Graphical representa(ons to iden(fy products/services 3. Inven;ons 3.1. Patent 3.1.1. DEF: Exclusive rights for an inven;on (product or process) that oﬀers a new solu;on or improvement 3.1.2. Dura;on: 20 years from the date on which its grant is published. 3.1.3. Patentability: Requires novelty and industrial applica(on (can be manufactured/used) a) Non-patentable inven(ons: discoveries, scien(ﬁc theories, aesthe(c crea(ons, some biological processes. 3.1.4. En(tlement to a patent: The right to a patent belongs to the inventor. a) When an inven(on has been created jointly by several people, the right belongs to them jointly. b) When several persons have created the same inven(on independently, the right to the patent belongs to the person whose applica(on is ﬁrst registered in Spain. c) Employee Inven;ons: Rights to inven(ons made by an employee during the term of his contract, belong to the employer when the inven(on is related to their professional ac;vity or was created using the means and knowledge provided by the company (1) The employer can claim ownership of the inven(on and the employee is en(tled to ﬁnancial remunera(on based on the importance of the inven9on and the value of the means/knowledge provided by the company 3.1.5. Patent Registra;on: a) Veriﬁca;on that the formal requirements have been met, b) Assignment of a ﬁling date c) Prepara(on of the report and the gran(ng of the patent 3.1.6. Ac;ons on Infringement: Patent holders can request cessa;on, compensa(on of damages, and seizure of infringing goods to prevent further infringement of the patent 3.1.7. Transmission: Both patent applica(ons and patents can be transferred a) Can be used as security for personal loans, if no(ﬁed to the Spanish Patent and Trademark Oﬃce b) Both may be subject to licences (exclusive or non-exclusive) covering all or part of the element cons(tu(ng the exclusive right for all or part of the Spanish territory.. 3.2. U;lity models 3.2.1. Oﬀer protec(on for func;onal inven;ons that involve a new shape, structure, or cons;tu;on of an object, which although minor, result in a signiﬁcant improvement in its use or manufacturing PATENT UTILITY MODEL Complex innova(ons, processes, and technical advancements Func;onal inven(ons: Devices/products with prac;cal u;lity Higher level of inven;veness: novel, non-obvious, and involve Lower level of inven;veness: minor inven(on or just a a signiﬁcant inven(ve step. signiﬁcant improvement Protec(on up to 20 years Protec(on up to 6-10 years Rigurous examina;on Faster and simpler, no need for a substan(ve examina(on TOPIC 4. 1. INTRODUCTION: 1.1. Act 3/2009 on Structural Changes in Commercial Companies (LME) addresses the need for speciﬁc legal provisions due to the increasing internaLonalizaLon of economic actors and the complexity of structural changes such as merger, transforma4on, divestment, and total assignment of assets and liabili4es. 2. TRANSFORMATION Total Assignment SegregaLon or Aspect TransformaLon Merger Divestment of Assets & separaLon LiabiliLes Adop4on of a CombinaLon of 2+ Transfer all equity Division of equity Transfer of parts of diﬀerent corporate companies into 1, with to new/exisLng ﬁrms equity (as dis4nct units) Deﬁni4on status while transfer of rights and to partners or third under universal to 1+ companies, under conserving legal obligaLons under universal parLes under succession. universal succession personality succession universal succession Total: ParLal: By creaLon By absorpLon of EnLre Parts of Types of a new 1+ ﬁrms by an equity equity company. exisLng one. divided transferred General meeLng approval required Approval No change in Complete Process shareholders Exchange ra4o based on real ProporLonal shares for compensa4on to holding unless all equity value original shareholders. partners if consent dissolu4on Upon registra4on in Upon complete the Commercial Upon compleLon of necessary legal and publicaLon Eﬀec4veness transfer and receipt Registry requirements of compensaLon. (aprox. 3 months) Shares in the recipient They receive shares/stakes in Shareholder companies on a pro rata the new or acquiring Rights basis (total) or company on a pro rata basis. proporLonally (parLal) TOPIC 5. 3. GENERAL CONSIDERATIONS ON THE MODIFICATION OF COMPANIES 3.1. STRUCTURAL MODIFICATIONS: Decisions or restructuring opera4ons that substan4ally alter the company's asset or personnel organiza4on. 3.2. Legal Reference: Law 3/2009, which addresses transforma4on, merger, spin-oﬀ, global transfer of assets and liabili4es, and the interna4onal transfer of the registered oﬃce. 4. MERGERS OF LIMITED LIABILITY COMPANIES 4.1. Economic PerspecLve: Concentra4on of companies that allows them to combine ac4vi4es to achieve larger size and adapt to market demands. 4.2. Legal PerspecLve: Entails the exLncLon of all or some companies involved and the integraLon of their partners and assets into a single en4ty (either one of the aﬀected or a new one) 5. DEMERGER: Distribu4ng or disintegra4ng assets in corporate restructuring. Total Spin-oﬀ ParLal Spin-oﬀ SegregaLon Spun-oﬀ company is exLnguished Company survives Company survives ALL assets divided among Parts of its assets transferred to Parts of its assets and liabili4es transferred beneﬁciary companies beneﬁciary companies to beneﬁciary companies Shareholders are directly Shares are not necessarily passed directly to compensated with shares in the the original shareholders new en44es 6. Global Assignment of Assets and LiabiliLes: Transfer of ALL assets and liabili4es in a block by universal succession to 1+ shareholders or third parLes, in exchange for a considera4on (cash or other assets) 7. The DissoluLon of Capital Companies: 3 PHASES 7.1. DissoluLon: Company con4nues to exist with the same legal personality, but undergoes a change in its purpose to conservaLon and liquidaLon acLvity. 7.2. LiquidaLon: Dissolved company carries out necessary opera3ons for the sealement and liquidaLon of all legal rela3onships and the distribuLon of remaining assets. 7.3. ExLncLon: Legal disappearance of the company. 8. DeclaraLon of Insolvency 8.1. Types of Financial Distress: A) Suspension of Payments: Temporary insolvency with assets poten4ally exceeding debts. B) Bankruptcy: Permanent insolvency with assets less than debts. 9. TYPES OF FINANCIAL DISTRESS PROBLEM SOLUTION Aspect Suspension of Payments Bankruptcy Insolvency Proceedings Legal process to organize the company's assets to pay oﬀ Temporary insolvency Permanent insolvency debts when they are unable to DeﬁniLon (expects to recover) (recovery is impossible) Takes place when bankruptcy and suspension of with assets exceeding debts with debt exceeding assets payments Gain temporary relief from Provide structured means - Fairly distribute assets among creditors, debt payments while the ObjecLve for liquida4ng a company’s - Ensuring that operaLons can conLnue if possible company receives owed assets to pay oﬀ creditors payments from its creditors Legal Requires legal ﬁling, a more Ini4ated by debtor or creditors Ini4ated by debtor, creditors or other stakeholders RepresentaLon extensive legal process The debtor must: Extensive documentaLon: The debtor must - demonstrate poten4al The debtor must provide a - declare whether the insolvency is current or imminent DocumentaLon full account of liabili4es, - provide inventory of assets, annual accounts, reports solvency, and ObligaLons - asset valua4ons + a detailed propose a recovery plan, for the past 3 years + details about stakeholders, - provide ﬁnancial disclosures history of ﬁnancial decline. liquida4on/reorganiza4on plan and ﬁnancial history. 1. IniLaLon: DeclaraLon of insolvency A. Common Phase: Determina4on of assets and debts B. Second Phase: Could be se]lement, liquida4on, (and/or) early arragements 1. Early arragements: terms are nego4ated to sa4sfy debts Typically involves negoLaLon Involves legal proceedings 2. And/or Sealement Phase: Debtor and with creditors to arrange for that conclude with the PHASES creditors agree repayment/restructuring deferred payments and liquidaLon of the terms maintain opera4ons. company’s assets. 3. And/or LiquidaLon Phase: Sale of assets to pay creditors in a legally priori4zed order. 2. AdministraLon: Appointment of a court-approved insolvency administrator to oversee the process. 3. Closure: order of conclusion by a specialized insolvency judge Special Doesn't result in liquida4on A. Ordinary proceedings for larger cases, Involves liquida4on CondiLons unless recovery fails B. Abbreviated to smaller/simpler cases 10. DIFFERENCES BETWEEN LIQUIDATION AND BANKRUPTCY Aspect LiquidaLon Bankruptcy Nature AdministraLve and internal process Judicial Court-supervised legal process Triggered by - company decisions of dissolu4on, Triggered by Triggers - inability to pay debts - expira4on of business term, - meet its ﬁnancial obliga4ons - loss of shareholders 1. ReorganizaLon of debt 1. Sealement and closure of all business obliga4ons 2. Structured liquida4on of assets ObjecLve 2. DistribuLon of remaining funds among shareholders 3. Protect stakeholders' interests. 4. A]empt business preserva4on. 1. IniLaLon: DeclaraLon of insolvency 1. IniLaLon: Decision to dissolve and Appointment of A. Common Phase: Determina4on of assets and debts liquidators. B. Second Phase: 1. Agreement Phase: Debtor and creditors agree 2. Asset and Liability Management: Compila4on of an repayment/restructuring terms ini4al inventory and balance sheet 2. LiquidaLon Phase: Sale of assets to pay PHASES creditors in a legally priori4zed order. 3. DistribuLon of remaining assets among shareholders according to their equity stake. 2. AdministraLon: Appointment of a court-approved insolvency administrator to oversee the process. 4. Closure 3. Closure Decision ini4ated voluntarily by the General Shareholders’ Decision made voluntarily by the debtor or forced ﬁling by IniLaLon Mee4ng or triggered by legal causes creditors, followed by a court declaraLon of insolvency. Court order upon full liquida4on, compliance with an Closure RegistraLon of ﬁrm's exLncLon in the Commercial Registry. agreement, or insuﬃcient assets to con4nue. Restructuring to conLnue operaLons or complete Outcome DissoluLon and complete cessaLon of business opera4ons. liquidaLon. Ley concursal: Current - Ensures creditor equality Structural ModiﬁcaLons of Commercial Companies (LME): Spanish - Emphasizes business conLnuity where possible. Covers liquidaLon in cases of structural changes. LegislaLon 11. AdverLsing the CompeLLon of Insolvency Proceedings 11.1. Must be widely publicized, no4fying the debtor and third par4es, A) The opening of insolvency proceedings must be published in the Oﬃcial State Gaze]e (BOE) and a widely circulated daily newspaper in the debtor’s province. B) The order of bankruptcy + the rest of bankruptcy resolu4ons in the Public Bankruptcy Register (both civil (for individuals) and commercial (for businesses) registries) 12. Eﬀects of Insolvency Proceedings on Creditors 12.1. All creditors are automa4cally integrated into the passive mass, irrespec4ve of their na4onality or domicile. 12.2. Creditors can s4ll ini4ate ac4ons against the insolvent en4ty but only in the competent court post- insolvency declara4on. 12.3. Civil judges are required to abstain from all cases except in administra4ve and criminal ma]ers. 12.4. Insolvency judges handle Labor-related cases 13. AcLve and Passive Mass in Insolvency 13.1. AcLve Mass: All assets owned by the ﬁrm at the insolvency declara4on date and those acquired post- applica4on. 13.2. Passive Mass: All debts and liabiliLes owed by the company. A) All creditors are automa4cally integrated into at the insolvency declara4on date 13.3. Special Credits: Legal costs, payments due to opera4onal con4nuity, etc. with preference over debts 14. ClassiﬁcaLon and Priority of Claims: Claims in the list of creditors must fall into 1 of these 3 categories 14.1. Privileged: Credits secured by assets (special privilege) or pertaining to salaries, taxes, and social security (general privilege). A) Privileged claim holders must explicitly agree to composiLon agreements 14.2. Ordinary: Claims neither privileged nor subordinated. 14.3. Subordinated: late-communicated claims, interests, ﬁnes, and claims by related persons. A) Subordinated claim holders are bound by ordinary claim agreements with longer wait 4mes. 15. SoluLons in Insolvency Proceedings: ComposiLon or liquidaLon 15.1. Decision by debtor and creditors A) Debtor can propose an early composi4on agreement or opt for liquida4on. B) Creditors can propose a composi4on in the last stages or before the creditors’ mee4ng if the debtor hasn’t chosen liquida4on. TOPIC 1. 1. Main Laws Forming the Spanish Compe::on Legal Framework Describe their respec,ve objec,ves and general contents. a. Compe::on Act 15/2007 aims to protect and promote compe//on by prohibi/ng an/-compe//ve prac/ces such as agreements between undertakings, abuse of dominant posi/ons, and controlling economic concentra/ons. b. General contents include: 1. An:trust compe::on: a. Restricts compe''on b. Restricts Forbidden prac:ces i. Agreements between undertakings ii. Abuse of dominant posi:on b. Restricts economic concentra:ons, merger, acquisi/ons or joint ventures c. Monitors ma+ers of public or state aid. ★ Objec&ves of An'trust Law: 1. Reform the Spanish compe//on system by a. strengthening the exis/ng mechanisms b. providing it with instruments and the op/mum ins/tu/onal structure 2. Create a system that, without intervening unnecessarily in the free business decision-making (Art.38), allows for the adequate instruments to guarantee eﬀec/ve compe//on in the market. 2. Unfair compe::on ★ Objec&ves: Protec/ng compe//on by prohibi/ng unfair acts (conducts objec&vely contrary to good faith), including unlawful adver/sing 2. Legal Framework of European Compe::on Law a. It is regulated by 2 council regula/ons: 1. Council Regula:on (CE) No. 139/2004: Governs control of concentra/ons between undertakings. 2. Council Regula:on (CE) No. 1/2003: Implements rules, focusing on restric/ve compe//on conduct. 3. Eﬀec:ve Compe::on in the Markets What’s the “eﬀec,ve compe,,on in the markets” and why it is involved with the “freedom of enterprise” and the “planning economy by the public authori,es” in the Cons,tu,on economic legal framework? Why are they related with Compe,,on laws? a. The concept of “eﬀec/ve compe//on in the markets” is /ed to Ar:cle 38 of the Spanish Cons:tu:on, which guarantees the freedom of enterprise in the context of a market economy. b. The Cons/tu/on also assigns public authori/es the responsibility to plan the economy as needed while preserving market compe//on. c. This balance ensures businesses operate freely while preven/ng market distor/ons. d. Why are they related with Compe//on laws? Compe::on laws are essen/al to maintain this balance by prohibi/ng an/-compe//ve behavior that would hinder free enterprise or public authori/es to distort compe//on through excessive interven/on. 4. Main Issues Arising in An:trust Law a. Forbidden prac:ces: Agreements between undertakings, abuse of dominant posi/ons, and unfair acts that misrepresent free compe//on. b. Economic concentra:on: Mergers or acquisi/ons that might aﬀect market compe//on. c. State aid: Monitoring how public aid aﬀects compe//on in the market. 5. Forbidden Agreements in An:trust Law. Meaning of the “system of legal exemp,on” and the rule of the “the minimis” conduct as a means of exemp,ons of the forbidden agreements. a. The direct or indirect ﬁxing of prices or any other trading or service condi/ons. b. The limita/on/control of produc/on, distribu/on, technical development or investment. c. The applica/on, in trading or service rela/onships, of dissimilar/discriminatory condi/ons to equivalent transac/ons, placing some compe/tors at a disadvantage compared with others d. There is a system of legal exemp:on by which certain agreements are exempt if they contribute to economic progress or technical development. e. De minimis rule: Excludes agreements with a minor impact on compe//on from prohibi/on. 6. Abuse of Dominant Posi:on Deﬁne what should be deemed as “abuse of dominant posi,on”. Point out the diﬀerent conducts which that should be deemed as abuse. Deﬁne the case “misrepresenta,on of free compe,,on through unfair acts”. a. Occurs when a company uses its market power to impose unfair condi/ons or hinder compe/tors. 1. Ex. price imposi/on, limi/ng produc/on, and discriminatory trading condi/ons. b. “Misrepresenta/on of free compe//on through unfair acts”: Involves unfair acts that distort free compe//on and aﬀect public interest. 7. Economic Concentra:on When is it deemed to arise? a. Arises when there is a merger, the crea'on of a joint venture or acquisi/on of control over 1 or more previously independent companies, resul/ng in a signiﬁcant market power shi[s. 8. Func:ons of Na:onal Compe::on Commission Related to Public Aid a. The Commission can 1. analyze public aid from a compe::on standpoint 2. issue reports or recommenda:ons to the authori/es on maintaining market compe//on. 9. Na:onal Compe::on Commission and its Func:ons a. A public Law ins/tu/on with its own legal personality and full public and private capacity, aYached to the Ministry of Economy and Finance. b. Func:ons: Ensure the coherent applica'on of the Compe''on Law to preserve, guarantee and promote the existence eﬀec/ve compe//on in na/onal markets 10. Deﬁni:on of Unfair Compe::on and Scope of Applica:on Enumerate ac,ons against unfair prac,ces a. The law protects compe*ng freedom of enterprise, and its limits are marked by loyalty. b. Unfair acts are those decep:ve or wrongful business prac:ces that: 1. are contrary to good faith, loyalty and proﬀesional diligence 2. distort market compe//on and the economic behavior of the average consumer, impairing consumers' capacity to adopt an informed decision, causing them to make a decision which they wouldn't have made. c. Prac&ces: Misleading acts (acts of decep'on) and omissions. 1. Misleading prac/ces causing confusion among consumers 2. Bait adver/sing and misleading promo/onal prac/ces 3. Misleading prac/ces rela/ng to the nature and proper/es of goods or services 4. Covert commercial prac/ces 5. Aggressive prac:ces using: Coercion, Harassment, Minors 6. Pyramid sales prac:ces where each /me someone new joins, the people at the higher levels earn a commission or beneﬁt and those who join later oaen lose money 7. Confusion 8. Denigra/on 9. Comparison. 10. Imita/on. 11. Exploita/on of a third party’s reputa/on. 12. Viola/on of trade secrets. 13. Incitement to breach of contract 14. Infringement of laws 15. Discrimina/on and economic dependence d. Ac:ons against unfair prac:ces: 1. Judicial declara&on for bad faith 2. Injunc&on or prohibi&on of its con&nued prac&ce. Can also be used preventa/vely, to stop a prac/ce before it begins. 3. Counteract or undo the eﬀects caused 4. Rec/ﬁca/on of misleading, incorrect or false informa&on, ensuring the correct info is distributed. 5. Ac&on to compensate (ﬁnancial) damages like fraud or negligence 6. Ac&on against unjust enrichment, when the unfair prac/ce has led to the unjust enrichment of the oﬀending party at the expense of another’s legal posi/on. Compensa/on can be sought for the beneﬁts gained unfairly. TOPIC 3. 1. INTRODUCTION to the Sale-Purchase Agreement (SPA) 1.1. SPA = most important and most legally regulated commercial agreement, o6en used as the prototype of bilateral contracts in the absence of speciﬁc regula;on. 1.1.1. DeﬁniCon: Contract where the seller delivers an item to the buyer, who is obliged to pay a price. 1.2. Relevant Laws: Civil Code, Commercial Code and Protec;on of Consumers and Users Act 1.3. Requirements 1.3.1. Movable Item (merchandise or raw materials) 1.3.2. SpeculaCve Nature: Buyer purchases with intenCon to resell for proﬁt (same state or a6er transform) 1.3.3. Proﬁt-Making IntenCon 2. EFFECTS OF CONTRACT 2.1. Seller's obligaCon 2.1.1. Goods must be delivered at the loca;on and ;me agreed upon by both par;es. a) If no speciﬁc loca;on set, delivery occurs where goods were at the ;me of contract (within 24 hours) b) Freight Terms: If the seller and the buyer are located in diﬀerent places (1) Freight Collect: Buyer assumes transport costs, Seller's obliga;on is only fulﬁlled when the merchandise is handed to the transporter (2) Carriage-Paid Delivery: Seller covers transport costs and remains responsible for the goods un;l they reach the buyer. 2.1.2. The seller must deliver the exact quanCty and quality agreed upon. a) Speciﬁc Goods: The seller must deliver THAT precise item. b) Generic Goods: Seller must deliver the agreed type, quan;ty, and quality 2.1.3. CompleCon of Delivery: Goods are considered delivered when in the buyer’s possession. a) However, following a "ﬁc$onal and instrumental" tradi$on obliga;ons are met once goods are made available to the buyer, even without physical transfer. 2.1.4. WarranCes: a) Lawful Possession: The seller must ensure the buyer’s peaceful possession (1) Dispossession takes place when the purchaser is deprived of all or a part of the thing purchased b) Hidden Defects: The seller is responsible for addressing any hidden faults. The buyer must report: manifest defects (visible at delivery) hidden defects (not visible on delivery) immediately or within 4 days within 30 days buyer can request for : buyer can request for: - the termina;on of the contract - repairing/replacing of defec;ve good - claim of damages c) Warranty regimes: (1) The denouncement must be made in a judicial form (2) possibility of devolu;on without jusCfying the cause within the ﬁrst 14 days since it arrives (EU) d) Warranty Adjustments: Both par;es can nego;ate warranty terms: (1) extending repair/replacement ;meframes (2) limi;ng the seller’s responsibility 2.2. Buyer’s ObligaCons in Payment and Receipt 2.2.1. Payment Terms: a) The agreed price must be monetary and in a form recognized by the law. b) Payment is typically required in cash unless otherwise agreed, within 30 days of delivery c) Some SPAs allow for installment payments d) The seller's right to the payment is 15 years 2.2.2. Receipt of Goods: a) The buyer must facilitate the goods’ receipt, specifying a loca;on or transport method if necessary. b) If the buyer delays or refuses without due cause, the seller can judicially deposit the goods at the buyer’s expense, as per the Voluntary Jurisdic;on Act 15/2015. 3. RISK TRANSFER Before the contract is perfected the seller bears the risk 3.1. Risk AssumpCon Timing: A_er consummaCon the buyer does 3.1.1. If any of the par;es acts with negligence, they must assume the risk a) If the the buyer assumes the risk, he pays the price without receiving the good; b) If the seller does, he must deliver a new thing without receiving any kind of addi;onal price 3.2. Speciﬁc vs. Generic Goods: 3.2.1. Speciﬁc Goods: Risk transfers to buyer once goods are made available to them. 3.2.2. Generic Goods: Risk transfers when goods are speciﬁed (iden;ﬁed speciﬁcally for the buyer). 3.2.3. The risk will not be transferred un6l the goods are examined/have fulﬁlled the agreed condi6on 3.3. Legal Flexibility: These default rules can be altered through mutual agreement between the par;es 4. BREACH OF CONTRACT 4.1. Breach of the Seller’s Delivery ObligaCon 4.1.1. Buyer’s Remedies for Non-Delivery: a) Contract TerminaCon allows buyer to refuse the goods even if they are oﬀered a6er the deadline. b) Contract Fulﬁllment: buyer demands delivery even if it is delayed. c) In both cases, the buyer is en;tled to claim damages for any losses incurred due to the delay (fulﬁllment) or non-delivery (termina;on) 4.2. Breach of Quality or QuanCty ObligaCons 4.2.1. QuanCty Mismatch or ParCal Delivery: If the seller only delivers part of the goods, the buyer is not obligated to accept the par;al delivery. However, if the buyer accepts the par;al delivery, the contract is considered fulﬁlled for the goods received, while the buyer retains the right to demand the remainder, contract fulﬁllment, or contract termina;on. 4.2.2. Quality Deﬁciencies: a) If the delivered quality is diﬀerent from the arranged one, this will suppose a breach of contract, an “aliud pro alio” (something else instead of what was agreed) (1) The buyer can refuse the goods or demand delivery of the correct quality, with a claim for damages in either case. b) If the delivered goods correspond to the agreed quality but in a defecCve state, that would not be an “aliud pro alio”: the seller must provide a warranty for hidden defects 4.3. Breach of the Buyer’s Payment ObligaCon 4.3.1. Failure to Pay: The seller can terminate the contract, seek enforcement of payment or exercise the "excepCo non adimpleC contractus" (the right to withhold performance) and refuse to deliver the goods un;l payment is received. 4.3.2. Installment Payment: If the buyer fails to meet a payment a6er goods have already been delivered, the seller can s;ll pursue fulﬁllment or contract terminaCon. 4.3.3. Delayed Payment: the seller's en;tled to claim interest, either at the legal rate or an agreed-upon rate. If the buyer defaults on payment, they are considered in arrears (behind payment) and must pay the overdue amount + with interest. 4.4. Breach of the Buyer’s Receipt ObligaCon 4.4.1. Refusal or Delay in Receiving Goods (unjusCﬁably): the seller has the right to deposit the goods judicially, passing the storage costs to the buyer. a) In such cases, the seller may either demand contract fulﬁllment or contract terminaCon. (1) If the seller chooses contract termina;on, the buyer may be liable for any resul;ng damages. (2) If the seller opts for contract fulﬁllment and the goods are not deposited judicially, the seller is required to keep and preserve them, following the laws on deposit, and can s;ll claim damages for any losses incurred.

Document Details

Tags

Related

Summary

Full Transcript

Upgrade to continue