Commercial and Societies Law

Fundamental notions of Law

– Teaching methodology: theoretical-practical classes, embodying, namely, in an exhibition of
topics, answers to questions asked by students, observations about the subject by all
intervening in classes, solving practical cases and analyzing jurisprudential edges.

– This curricular unit does not foresee a maximum number of absences or minimum attendance to classroom classes.

a) Objectives:

– Mastering the fundamental concepts inherent to legal matters that relate to reality

business, as well as the respective legal regime.

– Know the main doctrinal and jurisprudential issues that arise in an economic and social area

in permanent transformation.

– Strictly distinguish the various legal institutes that as a whole make up this area of ​​Law,

giving special focus to commercial companies.

– Easily identify the legislation applicable to each specific situation in a highly dispersed context

normative.

b) Skills to be acquired:

The student must be able to identify which legal provision is applicable to each situation, and must know

correctly interpret the rule in question and resolve the specific situations that they encounter. Whenever the doctrine and jurisprudence are justified, they will be complementary realities to be attended to.

INTRODUCTION

1. Genesis and evolution of Commercial Law

2. Characterization of Commercial Law

2.1. Concept and autonomy of commercial law

2.2. of the acts of commerce

2.2.1. Objective acts of commerce and subjective acts of commerce

2.2.2. Autonomous Acts of Commerce and Ancillary Acts of Commerce

2.2.3. Bilateral Trade Acts and Unilateral Trade Acts

2.3. Autonomization of Commercial Disciplines

2.4. Some specifics of Commercial Law and inherent to the merchant status

2.4.1. Speed ​​in transactions, legal security and creditor protection
2.4.2. Solidarity rule in commercial obligations

2.4.3. Presumptive two-year prescription of merchants’ credits

2.4.4. Legal default interest regime
2.4.5. sale of other people’s goods
3. The sources of Commercial Law
4. Interpretation of commercial law and integration of gaps

PART I. THE MERCHANT
CHAPTER I. GENERAL ASPECTS
1. Introduction
2. Merchant status
2.1. Adoption of a name (Article 18 nº 1 CCom)
2.2. Have commercial bookkeeping (Article 18 nº 2 CCom)
2.3. Have the acts subject to it registered in the commercial register (Article 18 nº 3 CCom)
2.4. Balance and render accounts (Article 18 nº 4 CCom)
3. Capacity and incompatibilities

CHAPTER II. THE MERCHANT IN INDIVIDUAL
1. Requirements for the attribution of sole trader status
2. Debt liability regime
a) General remarks
b) Marriage and liability for commercial debts
c) The individual establishment of limited liability

CHAPTER III. COMMERCIAL COMPANIES
1. Picture framing
1.1. Origin and evolution
1.2. The legal concept of a commercial company
1.2.1. Plurality of people: the founding partners
1.2.2. Obligation to contribute goods or services
1.2.3. Immediate objective: exercise in common of a certain economic activity, which is not of mere enjoyment
1.2.4. Mediate objective: obtaining and sharing profits
1.2.5. business object
1.2.6. commercial form
2. The social types provided for by the commercial legislator. Specific attention to debt liability
2.1. The typology contained in the Commercial Companies Code
2.1.1. Collective partnership
2.1.2. private limited company
2.1.3. Anonymous society
2.1.4. Limited partnership
2.2. The cooperative: association or society?
2.3. related figures
2.3.1. membership in participation
2.3.2. quota membership
2.3.3. Consortium (joint venture)
2.3.4. Complementary grouping of companies
2.3.5. European Economic Interest Grouping
2.3.6. Social Participation Management Companies (SGPS)
2.3.7. Associated Companies and Groups of Companies
2.4. Commercial companies in foreign legal systems
2.4.1. Spain
2.4.2. Italy
2.4.3. Germany
2.4.4. England
2.4.5. USA
3. Constitution of commercial companies
3.1. Form and formalities: distinction
3.2. Form
3.3. Formalities: traditional mode, immediate incorporation of companies and online incorporation of companies
3.4. Licensing
3.5. Apparent societies
3.6. Irregular societies
3.7. Foreign commercial companies operating in Portugal
3.7.1. Initial assessments
3.7.2. The problems that transnational trade raises
3.7.3. Positive Law Analysis
3.7.3.1. The question
3.7.3.2. Article 4 nº 1 of the CSC
a) The protection of third parties
b) The representation of the foreign commercial company
c) Permanent representation
d) The concept of “activity”
e) Obligation to register permanent representation
f) Branches and branches
3.7.3.3. Failure to comply with legal obligations. debt liability
3.7.3.4. Failure to comply with legal obligations: Cessation of activity in Portugal and liquidation of assets
3.7.3.5. The European Union and Freedom of Movement
a) General analysis
b) The freedom to provide services and establishment and paragraph 4 of article 4 of the Commercial Companies Code.
Reflection on your interpretation
3.8. Partnership Promise Agreement
4. Effects of incorporation of the commercial company
4.1. Acquisition of legal personality
4.2. patrimonial autonomy
4.3. ability to enjoy
5. Development of social activities
5.1. General rights and duties of partners
5.1.1. entry duties
5.1.2. Ancillary services
5.1.3. Supplementary Payments
5.1.4. Supply contract
5.2. Acquisition and distribution of profits
5.3. Social losses.
5.4. Heritage and social capital
5.4.1. Distinction of concepts
5.4.2. Minimum share capital. Analysis of your current interest
5.4.3. Conservation of social capital
5.5. The reserves
5.6. The governing bodies.
5.6.1. Generalities
5.6.2. Deliberative body: the general meeting of partners
5.6.2.1. Competence
5.6.2.2. Dispute of social deliberations
5.6.2.3. Call notice and functioning of the general meeting
5.6.2.4. Minutes of general meetings
5.6.2.5. commercial company secretary
5.6.2.6. Shareholder Agreements
5.6.3. Management and representation body
5.6.3.1. Fundamental duties of managers and administrators. Characterization and distinctive elements
a) Duties of care
b) Duties of loyalty
5.6.3.2. Civil and tax liability of managers and administrators
5.6.3.3. Competence of management within the scope of private limited companies
5.6.3.4. Powers of the board of directors, the executive board of directors and the sole director within the scope of public limited companies
5.6.4. supervisory body
6. Amendment to the articles of association. Analysis in particular of the increase and reduction of share capital
7. Merger of commercial companies
8. Spin-off of commercial companies
9. Transformation of commercial companies
10. Termination of the commercial company
10.1. Dissolution
10.2. Sale off

PART II. OF THE COMMERCIAL ESTABLISHMENT
1. Initial notes
2. The trespass
2.1. Introduction
2.2. Goodwill regime for leased property
2.3. Goodwill regime regarding employment contracts
2.4. Goodwill regime for debts
2.5. Goodwill regime regarding the implicit non-compete obligation
3. Lease of commercial establishment
3.1. Introduction
3.2. Commercial establishment leasing regime regarding the leased property
3.3. Commercial establishment leasing regime regarding employment contracts
3.4. Commercial establishment leasing regime regarding debts
3.5. Commercial establishment leasing regime regarding the implicit non-compete obligation
4. The defense of competition
5. Unfair competition
6. Industrial Property
6.1. Generalities
6.2. inventions
6.3. utility models
6.4. Semiconductor product topographies
6.5. drawings or models
6.6. brands
6.7. Rewards
6.8. Logos
6.9. Designations of origin and geographical indications
6.10. Protection of Trade Secrets
7. Insolvency
7.1. Introduction
7.2. insolvency situation
7.3. Statement of insolvency situation
7.4. Credits on insolvency and credits on the estate
7.5. Intervening in the process 185
7.6. Effects of the declaration of insolvency 187
7.7. Claim of credits 187
7.8. Administration and liquidation of the insolvent estate 188
7.9. Insolvency Qualifying Incidents 189
7.10. Closing the process 189
7.11. Disclaimer of Remaining Liabilities or Fresh Start 189
7.12. Special Revitalization Process and Extrajudicial Company Recovery Agreements

PART III. COMMERCIAL CONTRACTS
CHAPTER I. GENERAL REMARKS
1. Sequence
2. Typical contracts and atypical contracts. mixed contracts
3. Named contracts and nameless contracts
4. Usual structure of commercial contracts: adhesion contracts and inclusion of general contractual clauses
CHAPTER II. THE COMMERCIAL PURCHASE AND SALE AGREEMENT
CHAPTER III. CREDIT SECURITIES AND SECURITIES
1. Generalities
2. Bill of exchange
3. Probation
4. Check
5. Actions
6. Obligations

CHAPTER IV. DISTRIBUTION CONTRACTS
1. Generalities
2. Agency contract
3. Commercial concession contract
4. Franchise agreement (franchising)

CHAPTER V. BANK CONTRACTS
1. Generalities
2. Account opening contract
3. Bank checking account
4. Bank Deposit Agreement
5. Bank overdraft and bank advance
6. Credit opening agreement
7. Documentary credit
8. Standalone bank guarantee
9. Comfort letters

CHAPTER VI. CREDIT AND FINANCING CONTRACTS

1. Generalities
2. Loan agreement
3. Consumer credit
3.1. Generalities
3.2. Approaching the concept of consumer credit
a) The concept of credit
b) The concepts of consumption and consumer
3.3. Origin and evolution of consumer credit
3.4. Legal regime
3.4.1. Previous question: enunciation of legal transactions subsumed in the legal concept of consumer credit
a) The purchase and sale agreement in installments
b) The loan agreement. Remission
c) The related credit agreement
d) The use of credit cards
e) The finance lease agreement
f) The long term rental contract
g) The renting or operating lease contract
3.4.2. Obligations arising from the application of the LCC
a) Advertising
b) Pre-contractual information
c) Duty of customer assistance
d) Duty to assess consumer creditworthiness
e) Written form and delivery of a copy of the contract
f) Reflection period
g) Early compliance
h) Indication of the APR
3.4.3. Credit intermediaries
3.4.4. Final dispositions
4. Finance lease or leasing contract
5. Renting or operating lease agreement
5.1. Concept
5.2. Origin and evolution
5.2.1. Justification
5.2.2. The end of the 19th century and the emergence of a new financing concept: the operating lease contract
5.2.3. The 60s and renting as an autonomous business
5.2.4. The 90’s and consumer renting
6. Long term rental contract
7. Factoring or financial assignment contract
8. Confirming contract
9. Exchange Agreement

CHAPTER VII. TRANSPORT CONTRACT
1. Generalities
2. Transport guide
3. Transport execution
4. Carrier’s Liability
5. Delivery and carrier warranties
6. Specific legal regimes
7. Forwarding activity

CHAPTER VIII. INSURANCE CONTRACT
1. Generalities
2. Concepts
3. Shape
4. Legal regime

NAO

Essential bibliography:

RAMIREZ, Paulo, Commercial Law, 3rd edition, Almedina, Coimbra, 2021.

Complementary bibliography:

ABREU, Jorge Manuel Coutinho de, On Entrepreneurship, Companies in Law, Theses Collection, Almedina, Coimbra, 1996.

ALBALADEJO, Manuel, Civil law, II, Law of obligaciones, 14th edition, Madrid, Edisofer, 2011.

ALMEIDA, António Pereira de, “Organizational Structure of Companies”, in Problems of Corporate Law, op. col., Almedina, Coimbra, 2003, p. 95 and ff.

BERCOVITZ RODRGUEZ-CANO, Alberto, Apuntes de Derecho Mercantil, 16th Ed., Aranzadi, 2015.

CUNHA, Paulo Olavo, Law of Commercial Companies, 7th edition, Almedina, Coimbra, 2019.