New Commercial Code in Spain: commercial obligations and contracts

Among the changes in the New Spanish Commercial Code are the general norms applied to obligations and contracts.

Generally, these norms have an efficiency purpose and will only be mandatory in the cases expressly provided for.

The norms are inspired by the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980, the Principles on International Commercial Contracts for the Unification of Private Law (UNIDROIT) and the works of the Landó Commission on European Contract Law.

The Commercial Code regulates the different phases of a contract’s life, from the pre-contractual phase to the contract’s extinction and incompletion, and goes over the perfection, modification, interpretation and compliance of each phase.

The regulation of electronic contracting concentrates on the principles of functional equivalence, technological neutrality, freedom of pact and good faith.

Additionally, the Code regulates contracting through public auctions and automatic machines as special forms of contracting.

The previsions regarding the General Conditions of Contract and the Confidentiality and Exclusivity Clauses are included as well.

A few changes in commercial contracts include the following:

  • The Code includes a vast number of commonly used commercial contracts in the economy in order to promote legal security through the establishment of a previously known legal regime. Financial or provision of computer services contracts are regulated for the first time at the legislative level.
  • The possibility of considering other contract types as commercial is maintained. General norms on obligations and commercial contracts will be applied to these atypical contracts.

The securities and payment and credit instruments

The regulation of securities as well as payment and credit instruments is included as a general legal category.

  • The rules included in the Exchange and Check Law are generalized to take into account the progressive substitution of paper support by IT support, which affects the legitimacy of possession of the document or the transmission of a specific right.
  • The text responds to a single concept of the securities regarding the economic function they fulfil, which is to ease and to protect circulation of documented right or rights. Regarding the circulation of securities, there is still a distinction between bearer securities, ordered securities and registered securities.

Accepted invoices, transferable securities and cards

Accepted invoices also incorporate the modernization occurring in the legal regime of checks, promissory notes and bills of exchange.

  • The Code abolishes the copies of the bill of exchange and the elimination of the intervention figure. It also provides a unique legal regime for the transmission, guarantee, payment and non-payment of these securities.
  • Two elements make up the transferable securities regime: the issuance of securities and the goal of the transferable security at attracting investment.
  • The regulation of cards, whether they are payment cards or short-term credit cards is included. The Codes stresses the obligations of the card issuer in order to establish the guarantees required by the fact that often one of the contracting parties is not a professional.

This article is not considered as legal advice

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