REECE V.

ARIELA
REQUEST OF CERTIORARI to review a SENTENCE of Angel González
Roman, J. (Mayagüez), that declared that in certain demand to receive a money not
it proved the capacity of the manager of a corporation to accept in dación in payment one
merchandise that would replace the owed money. Revoked.
Jose M. Biaggi Junquera, lawyer of the petitioner; Manuel E. Miranda, lawyer of
resorted.
The JUDGE ASSOCIATE MR. ALONSO ALONSO expressed the opinion of the Court.
We expressed ourselves on the nature of a mercantile contract, on inherent faculties
of the regional managers of a corporation and on the dación in payment of the due thing.
§I
The 5 of December of 1985 Reece Corporation, in ahead Reece, were in the Court
of District, Room of Mayagüez, one demands in collection of money against Ariela, Inc.,
in
it advanced to Ariela, protesting to him the amount of $4.037,01 by concept of debts
arisen
by slow canons of machinery renting.
The demand-recurrent one, Ariela, answered the demand and denied the existence of the
debt,
alleging that the amount of $3.157,48 had paid by means of “dación in payment” in
merchandise and the owed balance of $879,53 in check.
Page: 274
The Court of District concluded then that the demanded one did not have anything to the
plaintiff ,
it had happened a dación in payment. The Court, found proven that the plaintiff -
who on sale dedicates and renting of machines of seam and pieces of
spare part reorganized its corporative function in the 1980. As a result of that process of
reorganization, Reece notified the demanded part to him, that could not rent to him in
subsequent the machines to sew, but that were at readiness to sell them to it if she
thus it interested it.
The demanded one - who is dedicated to the business of manufacture of clothes informed
to him to Mr. Kemp
House, Regional Manager of Reece in Puerto Rico, that was not On guard of being able
to buy the machines to him to sew and that would come to give back them to it. It
indicated to him in addition, that
it would give back all those pieces that had acquired like replacements or spare parts.
These pieces were in possession of Ariela, since by virtue of the contract of
renting, she came forced to give maintenance to the machines and to use
mentioned pieces to conserve the machinery in good state.
The Court of District concluded in addition, that according to an agreement obtained
between Ariela
and the regional manager of Reece, Ariela sent to Reece all the pieces to him that were in
its power, whose value ascended to $3.157,48, to settle with it part of the debt.
Jointly, and in fulfillment in the agreement, the demanded corporation sent
check by the amount of $879,33 with which it settled the totality of the debt.
The Court of District concluded that Reece did not honor the agreement or commitment
that Mr.
Kemp House had carried out with Ariela. Also it concluded that Reece accepted
originally the payment agreement, but that later revoked it of unilateral form
and without explaining the reasons it stops
Page: 275
to have taken that determination. In view of those facts, the Court declared without place
demand.
The Superior Court, to which the opinion of the Court of District was appealed, revoked
determination of District, to understand that the demand-recurrent one had to prove that
Sr.Kemp House like Regional Manager of Reece, had the faculty to accept in
dación in payment the pieces given back instead of the suitable money. In Opinion of the
Court
Superior test over the capacity of Mr. had not gone Kemp House to force a
the corporation and for that reason could not be concluded that the plaintiff had accepted
like
dación in payment the value of the totality of the pieces.
It does not conform, Ariela resorts before us by means of resource of Certiorari.
The 18 of November of 1987 we ordered the plaintiff who showed cause by which
we did not have to revoke Sentencia of the Superior Court of Puerto Rico, to consider
that Mr. Kemp House was authorized because of position that occupied and by the form
in which it had carried out it, to force to the corporation in taken transaction a
end.
The plaintiff-resorted one has appeared. In its writing it raises to us that of to have existed
some contract between the parts, he himself must tipificar itself like mercantile, in whose
case, the declaration of witnesses would not be sufficient by itself to prove the existence
of
contract. Article 82 of the Code of Commerce of Puerto Rico, 10 L.P.R.A. 1302 ;[Note:
1] Vilá & Hnos.,
[Note to wears]
[Note: 1. “They will be valid and produce obligation and action in judgment the
contracts
mercantile, nobodies that are the form and the language in which they are celebrated,
class a
that the amount corresponds and that they intend, provided its existence consists
by some of the means that the civil right has established. Nevertheless,
declaration of witnesses will not be by itself enough to prove the existence of
contract, whose quantity exceeds three hundred dollars, not to concur with some other
test . . . “(replaced emphasis) [Aim notices]
Page: 276
Inc. v. Owens Illinois, 86 JTS 83, opinion of 21 of November of 1986. It indicates in
addition
resorted corporation, that corresponded to him to the recurrent part to demonstrate that
Reece
it had accepted the dación in payment, propose by Ariela.
§ II
We will begin discussing if the purchase constitutes a contract of mercantile transaction
by part of Ariela, pieces of spare part for the maintenance of the machines to sew
rented by the plaintiff, and, of being it thus if the agreement of acceptance of the supply
of
dación in payment obtained between Mr. Kemp House and Ariela became one of
mercantile nature.
[1] the Art. 243 of the Code of Commerce of Puerto Rico arrange the following thing:
“The transaction of movable things Will be mercantile to resell them, well in the same
one
it forms in which they were bought or in another different one, with spirit to profit in
reventa. “ 10 L.P.R.A. 1701 . (replaced emphasis).
[2] Also Article 244 (1) arranges that:
They will not be reputed mercantile: (1) the purchases of effects destined to the
consumption of
buyer or of the person whose order is acquired. “ 10 L.P.R.A. 1702 (emphasis
replaced).
[3-4] the comercialidad element that distinguishes to the mercantile transaction of the
civilian,
it is recognized mainly by the intention of the buyer. In the mercantile transaction
the buyer is moved by the double intention to resell the things later
bought and to obtain
Page: 277
profit. Needing that intention or intention the transaction lacks the mercantile character
that it distinguishes it of those of the civil traffic. Rodrigo Uría, Mercantile Right, 1975,
p. 474;
Garrigues Joaquin, Treaty of Mercantile Right, Bowl. II, p. 70. For that reason the
purchase of
machinery or of pieces to make the production of an industry, is of civil nature,
then the object is not destined to reventa, but to the consumption or use by the purchaser.
The Spanish jurisprudence has been consisting of concluding the previous thing in its
interpretation
of analogous dispositions to ours. See JTS 27-1-1945, Rep. Ar. 120/1945; JTS
I-VII-1947, Rep. Ar. 927/1947. JTS 7-SAW, Rep. Ar. 3285/1969; JTS 14-V-1979,
Rep. Ar 1828/1979; JTS-12-XII-1981, Rep. Ar. 5280/1981. Thus, when analyzing a
contract
celebrated between retailers and in who one of the parts bought machinery for
olive oil extraction, the Supreme Court of Spain indicated:
“… [L] to essential characteristic of the purchase mercantile sale is the intentionality of
buyer, that is to be the one to thus resell the things with profit spirit and being it and
referred the contract debated to the transaction of machinery for the molturación of
olive, without spirit to resell the mill, neither its machinery, nor its pieces to obtain
profit in reventa, the contract must be reputed like transaction civil and submissive
rules of the Civil Code. “JTS 7-SAW; Peace-Plow, Innocent, an Economic Theory
On the Mercantilidad de Compraventa, Yearbook of Civil Right, 36 Us. 3 (1983),
p. 976.
The pieces that to him Ariela to Reece bought would use for the consumption and use of
the own one
company and does not stop
Page: 278
reventa with profit spirit. It is for that reason that we cannot describe this transaction
carried out between the parts like one of mercantile character. We cannot either describe
as
mercantile the agreement obtained between Mr. Kemp House and Ariela to accept pieces
like dación in payment, since that agreement has its génesis and is sequel of a contract
of civil nature.
[5] On the other hand, the fact that the contracting parts in cars are both
retailers, do not turn the renting of machinery and the sale of pieces acts
mercantile. Let us see:
[6] In today, Pacheco v. National Western Life Ins., opinion of 30 of June of
1988, 88 JTS 93, __DPR__, 1988) we expressed that to define what constitutes an act
of commerce they have been developed to objective theories, subjective and the theory of
the accessory, that
it attributes “to mercantile character to the calls transactions commercial by relation”. See
yourself,
Bergamo Llabrés, Alexander, Institutions of Mercantile Right, T.I., Ed. Reus, Madrid,
1951, págs. 55-56; Martinez Val, Jose Maria, Mercantile Right, 1979, pág.24.
[7] the subjective theory agrees with the established thing by the Code of German
Commerce that
in its Art. 343 define transactions commercial like “all the made ones by a retailer,
that they belong to the operation of its mercantile industry ". Within this system
straight mercantile it is the right of a class of people: The retailers. But they are
excluded from he himself the acts made by a retailer outside such sphere
professional. Martinez Val, Jose Maria ob. cit., p. 24. Fish market Pink, Inc. v. Lozada,
116 D.P.R. 474 (1982).
[8] In objective theory the mercantile right rather happens to be the own right of one
class of acts, the acts of
Page: 279
commerce, which are not solely the made ones by the retailers in their character
like such. It lowered to east system the attention is transferred of the person to the act and
it is broken contact
the act of the person of the retailer. Inc. Pink fish market v. Lozada, supra: Garrigues
Joaquin, Treaty of Mercantile Right, Volume I, Bowl. I, p. 177.
Uría as far as the doctrinal definition of the mercantile act comments, that the Code of
Commerce Spanish-of which it comes ours-responds to an objective conception of
straight mercantile. This it is mainly centered in the nature of the acts or contracts
in order to attribute to them or to not qualification it of mercantile, independently of the
people
that they were in them.
[9-12] Interpreting article 2 of the Code of Commerce of Puerto Rico, we have
outstanding that he himself rejects the enumeration and the doctrinal definition like
criteria
in order to establish what constitutes a transaction commercial and opens a wide field to
evolution of the concept according to the changes that happen in the economic reality.
Fish market Pink v. Lozada, supra. “This article, alludes by force to two types of acts:
regulated exclusively by the Code of Commerce and the regulated ones as much by
this one like by the Civil Code. This second group, to which pertenec [and]…
transaction [,]… emphasizes with particular rigor the difficulties in the identification of
the act
mercantile. Their analysis demonstrates that the differentiation criterion is in effect
multiple….
[By it l] you distinctive factors of the nature, commercial or civil, of a transaction
they vary of case to case…. Outside the particular requirements to different businesses it
exists, no
, a wire, a common element between diverse mercantile acts; his
purpose, its connection with the mercantile traffic, its habitualidad, his
Page: 280
attention to the exchangeable value of the things. “Fish market v. Lozada, supra, p. 4798
(replaced emphasis).
[13] the fundamental criterion that it must be had presents/displays, is that the mercantile
right is
straight own of a class of acts. Still in the subjective system of nature but,
it must start off of the act to know who are the retailers. Of there, that cannot
to exist a transaction commercial merely because it makes a retailer. Garrigues, ob.
cit. págs. 177-178.
In the case that occupies an evaluation to us of the transactions made between the parts,
it demonstrates to us that in cars he is not present none of contracts tipificados in
Code of Commerce like mercantile contracts. Therefore we cannot
to assign mercantile character to him to the transactions made between the recurrent one
and resorted
by the single fact that both are retailers. It would entail that we adopted one
norm under which we would describe like mercantile to all act in which, with
independence of their substantiva nature, took part two retailers.
[14] we do not have Either to ignore the norm adopted by this Court in terms
of which that part that invokes the applicability of the Code of Commerce to the
controversy
it has the weight of the test on its applicability. Fish market Pink, Inc. v. Lozada, supra.
The plaintiff-resorted one of cars has not fulfilled this requirement. It arises in addition to
the cars, that went in the appeal to the Superior Court when it raised by first time
applicability of the Code of Commerce to the controversy and the supposed mercantile
nature
of the transactions they will make between the parts.
Page: 281
§ III
The plaintiff argues secondly, who the Regional Manager of Reece, Mr. Kemp
House, did not have authority to force to the corporation by means of the agreement
obtained between
the parts, and that own Mr. House was conditional the return of the pieces like
credit, to the acceptance of the same ones by Mr. Clark Blair, who was Regional Director
of Reece.
Soon of it unites careful examination of the presented/displayed documentary evidence in
cars, As well as
of the same transcription of the Vista of the case celebrated before the Court of District of
Port Rico, who had before himself the Superior Court, we concluded that Mr. House like
Regional manager of Reece and Ariela, reached an agreement in which Reece would
accept
like dación in payment the pieces that Ariela had given back, and that the owed amount
rest would be paid in check. Once it was obtained east agreement is that Reece
it revokes of unilateral form, without disclosing the right that it was for it.
Some as far as the fact that does not exist controversy Mr. Kemp House occupied
position of Regional Manager of Reece in Puerto Rico and that it had to his position
businesses of the corporation within Puerto Rico. (YOU p. 34). Mr. You accept, who
it carried out like President of Ariela at the time of being celebrated the transaction
controverted, it testified during the judgment that Mr. Kemp House was the representative
of
Reece in Puerto Rico. Also it indicated that all the businesses that his made
corporation with Reece, negotiated with Mr. House. (YOU p. 59).
Now well, had Mr. Kemp House like Regional Manager of Reece Corp.,
authority to make the different transactions obtained between and that they reported
place to the controversy of cars? We concluded that yes.
[15-16] In absence of corporative documents or another nature that they define with
precision the powers and the authority
Page: 282
of a general manager, it is understood that this one has like general norm, the authority
implicit to carry out those functions that are framed within the scope of
ordinary subjects of the corporation. Fletcher Cyclopedia of Corporations, Bowl. II A.
sec.
667, pág 239; Henn Alexander; Laws of Corporations, p. 599-600. Maple Island Farm
Inc. v. Bitterling, 209 F2d 867 (1954). The position entails the concession of that degree
of
appropriate authority for the accomplishment of the necessary acts for the suitable
direction
of the corporative businesses. Fletcher Cyclopedia of Corporations, ob. cit., Bowl. II To,
pág
239. In addition to the authority specifically delegated, the corporative managers can
to have an implicit authority, or by the nature of its positions or the way
in which the businesses of the corporation have been lead in the past. Hamilton,
Robert, The Law of Corporations, p. 185 (1983).
[17] Numerous corporations has designated general managers under the title of
general manager and regional manager. Henn, ob. cit., p. 587; Fletcher Cyclopedia of
Corporations, Bowl. II, Sec. 272, pág 32; Sun Printing & Publishing Assoc. v. Moore,
183
U.S. 642 (1902). In that sense it has been maintained that the term of regional manager
has
a connotation similar to the one of general manager. It is understood that the regional
manager is
that person who has the direction and the control of the corporative subjects in one
region and that has sufficient authority like jeopardizing to the corporation in
scope of the ordinary businesses of this one. Franklin Life Ins. Co. v. Hill, 220 SE2d 707
(1975). The basic difference between the general manager of a corporation and the
manager of
a district or region, resides in which the last one shows an authority that falls on one
part or specific section of the business, Fletcher, ob. cit., Bowl. II To, sec 666, pág 235.
Page: 283
[18-19] the corporation that entrusts to a manager the general supervision to him of one
division or section of its business, in absence of documentation in opposite, has a
this manager with those coexisting prerogatives of general management with the business
or operations that have trusted to him. For that reason, the corporation is forced by
contracts that this one did within the parameters of its authority. Fletcher, ob. cit., Bowl.
II To, sec. 670, p. 251. This way, the manager of division of a corporation
manufacturing, it has the implicit authority to make those contracts directed to
product sale, without the necessity to refer the orders of purchase to the central office
of the corporation, especially when in previous agreements or contracts between those
same ones
parts, never the ratification of the contract by the corporation was required. Fletcher,
ob.cit.,
Bowl II To, sec. 670; F. W.Stock & Sons v. Owens & Barber, 105 587 (1921).
[20] However, the authority of a corporative manager extends to those matters or
transactions that are incidental to the ordinary subjects of a corporation. Fletcher,
ob. cit., Bowl. II sec. 667, pág 840. At moment at which a general manager has before
himself
extraordinary subject, would need the authorization corporative organisms u
corresponding officials to jeopardize to this one. Of not having the manager that
authorization, would be acting outside the scope of its implicit authority. Porshin v.
Snider, 212 NE 2d 216 (1965).
When Mr. Kemp House rented to Ariela the machines to him to sew and she sold to him
spare part pieces, were carrying out ordinary transactions of the operation
corporative, METRIC TON Gilmore & Co. v. WB Samuels & Co., 123 SW 271, for
which never
it needed the authorization of the Meeting of Directors of the Corporation. For that
reason, it could
to receive the payment of the canons of rentings
Page: 284
and the value of the pieces bought by Ariela with no need of authorization of the Meeting
of
Directors, because one was also ordinary transactions.
§V
Intimately related to the previous thing it is if the receipt of pieces given back like
dación in payment, constituted an ordinary act of the corporative businesses that could
to make Mr. Kemp House. We concluded that yes.
[21] the dación in payment is the act by virtue of which the indebted one, voluntarily
makes a
payment title, a benefit different from the due one to the creditor, who allows in receiving
it
in substitution of that one. Castán Tobeñas, Spanish, Common and Leasehold Right Civil,
Volume
III, tenth edition, Madrid, 1967, pág.317. The execution of the new benefit
agreed it implies the extinction of the preexisting obligation. Puig Brutau, Foundations
of Civil Right, Volume I, Bowl. II, p. 324.
[22] the dación in payment has its foundation in the fact that nothing prevents that
creditor and the indebted one is agreed so that the payment can be verified by means of
a benefit different from the decree originally, Puig Brutau, op. cit., p. 320.
[23] This legal figure is distinguished of the cession of goods then in the dación is not
demanded
the intervention of plurality of creditors, nor needs to extend to all the goods of
indebted. One is not based either on the assumption of a situation of insolvency on the
part of
indebted, since it solely supposes an agreement that modifies the primitive obligation,
replacing its object, but being fulfilled voluntarily. J.M. Manresa and Navarro,
Commentaries to the Spanish Civil Code, 6ta ed. re., Madrid, Ed. Reus, 1967,
Page: 285
T. VIII, Bowl. I, p. 705; Castán Tobeñas, ob. cit., pág 383; Vélez Torres, Jose Ramon,
Course of Civil Right, Volume IV, Bowl. I p. 153.
[24] For being the dación in payment an act by virtue of which the indebted one, with the
consent
of creditor makes a payment different from the decided one originally, he himself
constitutes
agreement of ordinary nature.
If Mr. Kemp House was authorized to sell merchandise and to receive the payment by
her,
also it could accept given back pieces and a check like total payment, without
necessity of a previous authorization from the Meeting of Directors of the corporation
of as she was regional manager, particularly in this case in that the pieces or respuesto
for the machinery they were not going to have utility some, because this machinery not
him
it would rent more. The purchase of the spare part pieces was an incidental obligation to
main obligation of the renting. Without the last one, first it did not have justification.
Being the agreement obtained between the parts an act of ordinary nature, and having
itself
carried out in the past similar transactions, he himself forces the corporation. By
it, Mr. You accept (President of Ariela) had the right to be conceited that it was
contracting with a person who enjoyed the authority to force with her acts to
Reece corporation. Fletcher, ob. cit., Bowl. II, sec. 667, pág 239.
In the case of cars it pays to this presumption, the fact that the corporation never
it questioned the corporative performances made in the past by Mr. Kemp House, in
its quality of regional manager nor indicated when demanding it the limitations to him of
the activity
corporative of this one. Fletcher, ob. cit. Bowl. IIA, sec. 670.
§ I SAW
It reduces to us to consider the exposition of the plaintiff in the sense that him
it corresponded to prove
Page: 286
to the demanded corporation the intrinsic faculties of the position of regional manager,
thus
like the corporative capacity of Mr. House to accept the pieces given back in “dación
in payment ".
Before the Court of District the own representatives of the Reece corporation
they admitted that Mr. Kemp House evolved, for the time in which she was developed
transaction of cars, like Regional Manager of the corporation in Puerto Rico.
Plaintiff corresponded to him then to the part to prove that Mr. Kemp House was not
authorized to accept the dación in payment, and that either did not have the typical
faculties that
they are assigned to him to a corporative agent who shows the position of regional
manager, thing
that it did not do.
[25] we have maintained that the obligation to present/display evidence falls mainly
on the part that maintains the affirmation in the question in controversy.[Note: 2] Mere
allegations or theories do not constitute test. Authentic association v. Municipality of
Bayamón, 111 D.P.R. 527 (1981).
Reece was limited to present/display witnesses who did not have direct knowledge of
original negotiation between Reece and Ariela. It either did not present/display like
witness Mr. Kemp
House, to refute the agreement obtained with Ariela.
By the exposed foundations, the car is sent and the dictated sentence is revoked the 14 of
September of 1987 by the Superior Court, Room of Mayagüez in case CS-87-35 and
reinstala the one of the Court of District of date of 15 of December of 1986.
Judge Asociado Mr. Rebollo Lopez not intervino.RAFAEL ALONSO ALONSO, Judge
Associated
SENTENCE
By the foundations exposed in the previous opinion, the car is sent and it is revoked
it sentences dictated the 14 of September of 1987 by the Superior Court, Room of
Mayagüez in case CS-87-35 and reinstala Sentencia of the Court of District of
date 15 of December of 1986.
FISH MARKET PINK, INC., plaintiff and resorted, v. OSVALDO LOZADA
CREEK, demanded and recurrent.
Solved: 28 of June of 1985 -- Number: O-85-96
JUDGE PRESIDENT MR. TRIAS MONGE expressed the opinion of the Court.
Mr. Pink takings Quiñones sold the 3 to him of June of 1980 to Mr. Osvaldo Lozada
Creek a boat registered officially for the fishing. Mr. Rosas dedicated itself
mainly to the market of eatable from sea to by greater and retail. To the gentleman
Lozada was not known him like fisherman.
Page: 476
The record does not reveal the office of Mr. Lozada, unless a witness declared that that
one
it gave the boat to him to a captain so that it worked it and the captain sold to him
fish in two occasions to Mr. Rosas.
The 26 of 1980 July Mr. Rosas sold to him to Mr. combustible Lozada by value of
$854.70 and] and lent $2.530,18 for the repair of the sold boat. Mr. Lozada no
it satisfied no with the two amounts.
In 1981 the Pink company/signature Fish market, Inc. was gotten up and Mr. Rosas, his
president, him
it transferred to this organization the credit against Mr. Lozada. After requiring to him
unfruitfully
in December of 1983 to Mr. Lozada the payment of the debt, Fish market Pink, Inc.
it demanded in January of 1984 to obtain its collection. Mr. Lozada alleged that the debt
it was prescribed. The Court of District solved that the term of applicable prescription is
the one of fifteen years arranged by the Art. 1864 of the Civil Code, 31 L.P.R.A. sec.
5294 . A
equal conclusion arrived the Superior Court. Mr. Lozada resorted to this forum alleging
that one is a loan that must be reputed mercantile, in which case the action would be
prescribed. The 14 of March of 1985 we issued order to show cause by which it does not
have
to review the sentence. The resorted part has not appeared.
[1] the first question to examine is if the transactions between the parts must or no
to repute itself mercantile. (1) the transaction of the boat is not the one that protests
attention of this forum, the pertinent operations are those that generate the debt
alegadamente prescribed. Let us examine initially the loan of conducted money.
(1) This step is decisive to define the field of the mercantile right of
corresponding to the civil right. The mercantile right has been defined as the right
computer of the organization and the professional activity of the industralists, a right
regulator of transactions commercial, essentially contractual. R. Uría, Spite
Mercantile, 11ra ed., Madrid, Imp. Aguirre, 1976, págs. 6-7. (note aim to wears)
Page: 477
[2] the Art. 229 of the Code of Commerce, 10 L.P.R.A. sec. 1651 , it arranges:
The loan will be reputed mercantile, concurring the following circumstances:
(1) If some of the contractors will be retailer.
(2) If the lent things will be destined to transactions commercial.
This article is exact copy of the Art. 311 of the Code of Spanish Commerce of 1885. (2)
The conditions that east article enumerates must be interpreted in copulativa form. Of
to lack some of them the Code of Commerce is not applicable to the transaction. (3) S. of
10
of February of 1950, núm. 78, new series, 29 Civil Jurisprudence 711, 722-723; S. of 18
of April of 1896, núm. 164, 79 Civil Jurisprudence 726; J. M. González de Echávarri and
Vivanco, Commentaries to the Code of Commerce and Spanish jurisprudence, 3ra ed.,
Valladolid, Imp. House Martin, 1945, T. III, págs. 419-421; Franceschi v. Creek, 44
D.P.R. 664 (1933) Luengo v. Fernandez, 83 D.P.R. 636 (1961). (4)
[3] Given the state of the record, we assume that the first condition that imposes the Art.
229 occur in this case and that Mr. Rosas was a retailer. (5) the second condition
present
(2) the Art. 311 undergoes the influence of the Art. 387 of the Code of Spanish
Commerce of 1829.
This last disposition differs from the Art. 311 in which both parts had to be
retailers or at least the indebted one.
(3) Therefore it was pointed out specifically in the Art. 387 of the Code of Spanish
Commerce of
1829.
(4) a case ours, Coasts v. G. Llinás & Co., 66 D.P.R. 730 (1946), already affected by
Luengo v. Fernandez, 83 D.P.R. 636 (1961), opposite the norm exposed when assuming
erroneously that is enough whereupon it fulfills the first requirement so that the loan is
mercantile. Coasts v. G. Llinás & Co., supra, it is hereby revoked in which
it touches to the referred aspect.
(5) the file does not allow the analysis of if conseja the condition of retailer to
to carry out acts different from which usually dedicates the actor. See yourself: E. Langle
and
Blonde, Manual of Spanish Mercantile Right, Barcelona, Ed. Bosch, 1959, T. I, págs.
308-310 and T. III, p. 312; L. Benito, Manual of Mercantile Right, 3ra ed., Madrid, V.
Suárez, 1924, T. 1, págs. 620-623; R. Gay de Montelli, Code of Spanish Commerce,
Barcelona, Ed. Bosch, 1936, T. I, págs. 62-63 and T. III, págs. 120-122. (note aim to
wear)
Page: 478
still greater problems. Destined to transactions commercial the lent money? It is
necessary
in consequence to examine the main forms to focus the concept of act of
commerce within our legal tradition.
Inside of the call subjective system the mercantile right is the right of a class of
people: the retailers. The German Code of 1897, for example, represents this
position and understands by “transactions commercial” the acts of a retailer that belong
to the operation of its mercantile company. (6) Within the objective system, the right
mercantile it rather happens to be the own right of a class of acts, the acts of
commerce, which are not solely the made ones by the retailers in their character
of such. The attention is transferred of the person to the act. The transaction is broken
contact commercial
of the person of the retailer. The codes French and Spanish are based supposedly
(1) in this second position.
[4] Within the objective system have been diverse forms to define the transaction
commercial .
The French code uses the system of specific enumeration. The Art. 2 of the Code of
Commerce Spanish, exactly equivalent to the Art. 2 of ours, 10 L.P.R.A. sec. 1002
, it uses a different method. This disposition provides:
The transactions commercial, are or retailers those that execute them, and are not or no
specified in this Code, they will be governed by the dispositions contained in a; and in his
defect, by the generally observed uses of the commerce in each seat; and for want of
both rules, by those of the common right.
(6) the Art. Is seen 343.
(7) Utilizamos the term “supposedly” because in dereho Spanish-it sees
own Art. 229, referring to loan-both systems are intermingled obvious.
Also see yourself: J. Garrigues, Course of Mercantile Right, 7ma ed., Madrid, Imp.
Aguirre, 1976, T. 1, págs. 137-159; Langle and Rubio, op. cit., T. I, págs. 31-33. (note
aim
to it wears)
Page: 479
The included/understood ones in this Code, and any others will be reputed transactions
commercial
of analogous nature.
[5-7] will notice that the mentioned article avoids the enumeration, as well as the
definition
doctrinal, like criteria to establish what constitutes a transaction commercial, and opens
wide field to the evolution of the concept according to the changes that happen in
economic reality. It must be also indicated that when talking about to the “transactions
commercial .
. . included/understood in this Code " the Art. 2 allude of by force to two types of acts:
exclusively regulated by the Code of Commerce and the regulated ones as much by this
one
like by the Civil Code. This second group, to which they belong the loan and
transaction-figures surrounded in this litigation-emphasize with particular rigor the
difficulties
in the identification of the mercantile act. Their analysis demonstrates that the criterion of
differentiation is in effect multiple, intermingling objective, subjective elements and
of another nature. Each situation must be object of separated examination. It does not
exist in ours
legal tradition a unitary concept of the transaction commercial. The distinctive factors of
the nature, commercial or civil, of a transaction varies of case to case. The nature of
loan, for example, is determined by own norms, expressed in the Code, no
necessarily applicable to other operations. Outside particular requirements a
different businesses exist, however, a wire, a common element between
diverse mercantile acts: its purpose, its connection with the mercantile traffic, his
habitualidad, its attention to the exchangeable value of the things. J. Garrigues, Course of
Straight Mercantile, 7ma ed., Madrid, Imp. Aguirre, 1976, Bowl. I, p. 137 ET seq. ; R.
Gay
of Montelli, Code of Spanish Commerce, Barcelona, Ed. Bosch, 1936, T. 1, p. 67 ET
seq. ; González de Echávarri and Vivanco, op. cit., T. I, p. 46 ET seq. ; L. Benito, Manual
of Mercantile Right, 3ra ed., Madrid, V. Suárez, 1924, T. 1, p. 551 ET seq. See yourself:
Rosaly v. Alvarado, 17 D.P.R. 109
Page: 480
(1911); Bank of P.R., Liquidator v. Rodriguez, 53 D.P.R. 451 , 455 (1938); Barceló &
Co., S. in C. v. Elm tree, 48 D.P.R. 247 , 249 (1935); Baryos v. Padial, 35 D.P.R. 258
(1926) Blondet v. Garáu, 47 D.P.R. 863 (1935) ; Good Vista Dairy, Inc. v. Aponte, 108
D.P.R. 657 (1979) ; J. Saint, Transaction commercial and dualismo in the Code of
Puerto Rican commerce, 7 Rev. Der. Puerto Rican 98 (1963); A. González of the Valley,
Economic-legal study of the transaction commercial, 28 Rev. Der. Puerto Rican 355
(1968).
[8-9] In the case of cars consists an invoice sent to Mr. Lozada, of who
it gives off that the loan at issue was granted to repair the bought boat
by this one. Basta it stops to print to the transaction mercantile character to him and to
satisfy
second requirement of the Art. 229? The recurrent one, Mr. Lozada, argue that if on the
base
of the Art. 948 of the Code of Commerce, 10 L.P.R.A. sec. 1910 , equivalent to the 952
Spanish. The article arranges in the pertinent thing:
They will prescribe to the year:
(1) the actions born of services, (Works, provisions and provisions of effects or
money, to construct, to repair, to supply or to victual the ships or to maintain
crew. . . .
This article talks about clearly the second type of transactions commercial, the regulated
ones
or by the Code of Commerce or the Civil Code. The article is not applicable to
repair of all class of boats. The examination of the definition of the term
“ship” illustrates this asseveration. Although controversy on the individual, the term
exists
it includes to all sort of boats destined to commercial navigation. González
of Echávarri and Vivanco, op. cit., T. II, p. 121 ET seq. Compárese with: Benito, op. cit.,
T.
I, p. 284 ET seq. ; R. Uría, Mercantile Right, 11ra ed., Madrid, Imp. Aguirre, 1976,
p. 867 ET seq.
Page: 481
[10] For being able to invoke the Art. 948 mentioned in the case of a loan by an
organization no
banking (1) for the repair of a ship, it must consequently demonstrate that
it deals with a mercantile act, this is, that the ship has the legal condition of “ship” by
to destine itself to commercial navigation. From the file of cars it does not arise with
clarity
use for which the boat was acquired. The oral test of the demand-recurrent one, limited
to its own testimony, it was reduced to express that before 1979-la boat was bought
a year later-had been fishing instructor, that fished sporadically and that even
1980 had commanded a called boat “Antares”. The test of the plaintiff and
resorted, Mr. Rosas, consisted basically of indicating that a was usually not dedicated
to buy or to sell boats, that to Mr. Lozada were not known him like fisherman
profession and that the loan was a personal transaction between him and the demanded
one. Of
relation of the case is given off that in some moment-cuándo-el is ignored Mr. Lozada
it had given the boat to him to third “so that it worked it”.
[11] Before so weak test on the question of if the loan constitutes an act of
commerce, as much the Court of District as the Superior Court concluded that
nature of the loan was not mercantile, reason why the debt is not prescribed. No
we found base in the record to take part with this conclusion. Who invokes the Code
of Commerce it has the burden of proof on its applicability.
Respect to the transaction of the fuel is unnecessary in this case of entering to us in
analysis of the civil or mercantile nature of the figure. The Art. is seen 243 of the Code of
Commerce,
(8) On the bank loans, which have generated great controversy, not us
we are expressing in this occasion. See yourself: Langle and Rubio, op. cit., T. III, págs.
312-
315; S. of 9 of May of 1944, núm. 73, 2da series, I SAW Civil Jurisprudence 645; S. of
1ro
of February of 1980, núm. 529, Aranzadi, 47 Civil Jurisprudence 405; Against: Bank of
P.R., Liquidator, etc. v. Rodriguez, 53 D.P.R. 174 , 451 (1938). (note aim to wears)
Page: 482
10 L.P.R.A. sec. 1701 ; Good Vista Dairy, Inc. v. Aponte, supra. It is enough with
indicating that
they measured here the same difficulties, mentioned with respect to the loan, for
application of the Art. 948. It is considered by that the fuel provision to
ship is subject to the dispositions of this article-Gay of Montelld, op. cit., p. 510-
but it has not been proven here fehacientemente, like we have seen, that the ship in
question
it is legally a ship, which prevents to consider the transaction like of nature
mercantile.
The resorted sentence will trust.
Judge Asociado Mr. Hernandez Denton did not take part.