Asuntos políticos, legales y regulatorios que afectan a las entidades de negocio (political, legal and regulatory issues affecting business entities)
1. Fundamentación del tema
This topic is part of the Business Communication Learning Unit (UDA, for its acronym in Spanish), which belongs to the sixth semester of the Licenciatura en Contador Público (Bachelor’s Degree in Public Accounting). Businesses as entities are involved in and affected by political, legal, and regulatory events, from the moment of their incorporation. This includes the acts that they perform according to their line of business, the legal and other regulations applicable to them as an entity or the acts that lead them to perform economic activities.
As an accountant, you must be aware of these issues affecting the entity that you advise or provide a service to, as they not only affect the entity, but may also influence the financial information you provide.
2. Objetivo didáctico
Identify the business perspective from the legal point of view, as well as the terms surrounding the acts performed by business organizations in the development of their activities.
3. Contenido didáctico
Welcome back, dear student! In this lesson we will talk about the legal perspective of business and the context of its activities.
With that in mind, we will introduce a definition of business from the perspective of law, followed by the types and elements of business as a legal act, as well as the rights and obligations of each party.
Let’s get down to work!
Desarrollo del tema
1. What is business from a law perspective?
Businesses and companies have effects on human relationships and are linked, in turn, to the State. We will define business from a legal point of view according to the words of some expert lawyers:
- “Acto integrado de una o más declaraciones de voluntad privada, encaminadas a la producción de determinados efectos jurídicos y que la ley determinada reconoce como base una vez cumplidos los requisitos y dentro de los límites establecidos por el reglamento”.
- “El acto por el cual el individuo regula sus propios intereses en las relaciones con los demás, y al que la Ley vincula los efectos que más se ajustan a la función socioeconómica que caracteriza a su tipo”
Based on the previous definitions, we can determine our own definition of business as the act of one or more declarations of will with an interest which want to produce certain legal effects whose regulation is determined by law. Expressing this concept of business is a legal act because it requires the will of the holder and others. Thus, there are unilateral businesses in which there is only the will of one person, but there may also be bilateral if there are two wills in the same act or plurilateral if there are multiple wills in this act. Therefore, a business may be possible even if there is only one declaration of will to have effects of law.
2.1 Types of businesses
This is one of the most common classification of businesses:
- Unilateral, bilateral and plurilateral: Unilateral business, as we mentioned, is when the declaration of business will or the material behavior that gives life to the business at issue is the work of one single person, e.g. donation, endowment, waiver of rights. On the other hand, bilateral business refers to the joint work of two persons who regulate their reciprocal relationships with regard to certain goods or rights, e.g. trading and lease contracts. Finally, in plurilateral businesses there are more than two parties, e.g. civic and commercial societies.
- Disposition and administration business: Disposition businesses are those that alienate or dispose of rights or assets in order to make use of them. Meanwhile, the purpose of administration is to grant powers over the use of those rights or assets or to manage them in accordance with the expectations of the business owner. An example of the first type is the mortgage which, if the given conditions are not fulfilled, will be given to alienate a real property. An example of the second type is the use of rights or assets such as business management where the use of the business for its improvement is allowed to another person whose powers can be limited.
- Other types of business applied to contracts: Sources of obligations in contracts or agreements can be distinguished by their legal nature, classifying them between gratuitous, aleatory and commutative, real or consensual, formal or consensual, instantaneous or of successive tract, principal or accessory; or by their specific purpose which classifies them as preparatory, transfer of ownership, transfer of use, guarantee, provision of services, common purpose, legal verification or aleatory.
- Onerous contracts are those in which both parties to the contract have obligations and economic burdens, while in free or gratuitous contracts only one of the parties has economic burdens..
- Aleatory contracts are those in which the exact charges that the contract represents are not known, e.g. some farming contracts. On the other hand, in commutative contracts it is clearly known that the economic value it represents is real and is expressed in money from before the beginning of the contract.
- Contracts are called real when the delivery of the thing is required and the will is not enough for it to take effect, e.g. pledge. Consensual contracts are those in which it is enough that the parties agree for the contract to take effect.
- Formal contracts are those in which certain acts are required for them to take effect; e.g. in the case of real estate, a public deed and a notary are required for them to take effect. On the other hand, in consensual contracts it is enough that the parties agree, for example, in a sale of a product.
- Those contracts that take effect immediately will be instantaneous and those of successive tract need a certain period of time for their effects to be fully complied with.
- Main contracts do not require another person to originate them, while preparatory contracts do.
By their specific purpose they are classified into:
- Preparatory: those contracts in which the parties agree to carry out a future contract, e.g. a promise of sale.
- Transfer of ownership: those contracts in which the ownership is transferred. It is divided into:
- Sale: the ownership of an asset or right is transferred in exchange for money.
- Donation: the ownership is transferred free of charge.
- Swap: the ownership is transferred in exchange for some good or right.
- Mutual: the ownership of a fungible asset is transferred with the purpose of being restored by something of the same kind and quality.
- Transfer of use: those contracts in which the use of a good is transferred.
- Loan: the use of an asset is transferred without receiving anything in exchange.
- Leasing: the use of an asset is transferred for an economic benefit.
- Contracts for the provision of services: those in which the provision of a service is transferred, whether professional or of any other type that may be used, is assigned. Examples may be the provision of accounting, legal, transportation services.
- Common-purpose contracts: these are contracts that, when executed, give rise to a legal entity, also called juridical person. They are divided into two groups:
- Civil society: its purpose is of an economic nature.
- Civil association: its purpose is to perform certain activities without economic purposes.
- Legal verification contracts: those in which the purpose is to determine with certainty the scope of certain controversial rights that may be disputed.
- Guarantee contracts; accessory contracts that are signed to ensure compliance with the original contract. Within these we find:
- Mortgage: the fulfillment of the contract is guaranteed with real estate.
- Pledge: the performance of a movable asset is guaranteed.
- Bond: the fulfillment of an obligation is guaranteed in case the debtor has not fulfilled the contract
- Random or aleatory: contracts in which the purpose is based on chance or luck. Examples: bet, gambling, insurance (Bejarano, 2010).
2.2 Business elements from the contractual point of view:
Contractual businesses must comply with certain elements for its fulfillment. These elements are classified into the categories of existence and validity.
Within the elements of existence we have:
- Declaration of will: It means the manifestation of the will to perform. Consent is when both subjects of the contract agree with it.
The manifestation can be made expressly or tacitly. It is made expressly through unequivocal signs, e.g. signature, electronic signature, biometric fingerprints. On the contrary, tacitly, it is produced when through certain acts the will is manifested. For example, when we buy a product in the supermarket we do not require a signature to do so, it is enough to choose the object to affirm we want it.
Silence cannot be interpreted as a manifestation of will, since it is omitting the unequivocal means and not carrying out any action that manifests it.
- Object: The object is understood as the thing that the obligor has to give or the fact that the obligor must do or not do. With this, we understand that there are two types of objects: the objects of giving and the actions of doing or not doing.
The object must be legally and physically possible, in principle it must be found in nature, i.e. something that exists. It must be in the trade, i.e. it it must be capable of achieving its appropriation. It must be in accordance with the law, i.e. it cannot be something illegal.
- Solemnity: It refers to the elaboration of certain requirements so that it can be carried out and that, otherwise, it would not exist.
Among the elements of validity we recognize:
- Capacity: It is the faculty that the individual has to acquire rights and obligations. Therefore, there are different means to acquire capacity.
The capacity of enjoyment is the one we have for being subjects of rights.
The capacity to exercise is the power that we acquire by fulfilling certain requirements established by law, usually by the simple fact of being of legal age.
However, there is another way of acquiring capacity over another person, either by own right or by legal representation, or asor as an attorney-in-fact. By own right, capacity is conferred on the parties involved. By legal representation means expressly conferred by operation of law. The power of attorney is a voluntary representation, either through a power of attorney or a mandate. It will be a mandate when there is an agreement of wills between the parties; the power of attorney will be that unilateral declaration of will in which it is granted to another person the capacity to act in its name for certain acts.
The power of attorney can be general when it is granted for lawsuits and collections, to carry out acts of administration or acts of ownership. The power of attorney for lawsuits and collections refers to representation before courts, complaints, appeals, lawsuits, collections, family, labor, civil, and fiscal circumstances. The power of attorney for acts of administration refers to those used for negotiations where contracts can be signed by their representatives. The power of attorney for acts of ownership establishes the power to dispose of someone’s assets. The broad power of attorney confers all three powers. And the specific power of attorney is granted only for a legal action where certain characteristics and specifically indicated acts are fulfilled.
- Legality of the object: it refers to everything that goes to good customs or public order.
- Form: These are the characteristics required by law so that they can be carried out.
- Lack of vices of the will: there are four types of vices of the will: error, fraud and bad faith, injury, and violence.
- Error is a lack of perception of reality and can be a mistake of fact or law. Errors of fact are those that occur when an erroneous attitude or behavior is committed. In errors of law aspects of the law are misapplied.
- Fraud and bad faith: it is considered fraud when active attitudes and behaviors are used to mislead. it will be in bad faith when there is no active conduct but there was the passivity of one of the parties to to mislead the other party.
- Injury means a disproportion of the knowledge of the parties at the time of carrying it out, and it may be when ignorance is abused, extreme ignorance is abused, extreme misery is abused, or there is a disproportion in the clauses.
- There is violence when a conduct that generates physical or psychological damage is exercised (S. Arellano, comunicación personal, 2020).
Nullity and non-existence
The non-existence of contracts occurs when one of the elements of existence is not fulfilled, the non-existence of contracts is the legal nullity of their application.
The nullity of contracts is generated when some element of validity is not fulfilled or the vice of the will arises. Nullity is classified into two types: relative and absolute.
Relative nullity refers to a situation that can be repaired, to a legal action that can be consolidated again. The elements of validity that generate relative nullity are capacity, form and factual error. Relative nullity occurs when the contract cannot be repaired from its ineffectiveness. The elements of validity that generate absolute nullity are legality of the object, fraud and bad faith, injury, and violence.
(S. Arellano, comunicación personal, 2020).
Resumen e ideas relevantes
It is important that you keep in mind:
- Business is the act by which the individual regulates his own interests in relationships with others, and to which the law links the effects that are more in accordance with the socio-economic function that characterizes its type.
- Business can be divided into unilateral, bilateral and plurilateral, and into disposition and administration business.
- Contracts can be classified by their legal nature (onerous and free, aleatory and commutative, real or consensual, formal or consensual, instantaneous or of the successive tract, principal or accessory) or by their specific purpose (preparatory, transfer of ownership, transfer of use, guarantee, provision of services, common purpose, legal verification, random).
- From the contractual point of view, businesses have different elements of existence and validity.
- Elements of existence are:
a) Declaration of will
- Elements of validity are:
b) Legality of the object
d) Lack of vices of the will
Fuentes de consulta
- Bejarano, M. (2010). Obligaciones Civiles. México: Oxford.
- Betti, E. (2018). Teoría general del negocio jurídico. Santiago: Ediciones Olejnik.
- Castán Tobeñas, J. (2008). Derecho civil español, común y foral Tomo III: Derecho de obligaciones. La obligación y el contrato en general. Madrid: Editorial Reus.
- Rojina, R. (2001). COMPENDIO DE DERECHO CIVIL Tomo IV Contratos. México: Editorial Porrúa.