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Direito Empresarial, Societário, Títulos de Crédito e Contratos Empresariais AULA 3 QUARTA, PELA m
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Direito Empresarial, Societário, Títulos de Crédito e Contratos Empresariais AULA 3 QUARTA, PELA m

Introduction to the Course

Welcome and Introduction

  • The session begins with a welcome message on February 11, 2026, marking the third meeting of the course.
  • The professor inquires if there are any new participants, specifically welcoming Renata who is attending for the first time.

Instructor Background

  • Professor Dose Madrade introduces himself as an experienced instructor in business law at UNIFTC for over ten years.
  • He offers support to Renata regarding course materials and platform navigation, indicating his availability after class for assistance.

Course Overview

Recap of Previous Classes

  • The professor summarizes previous sessions, emphasizing their importance in connecting to current topics.
  • In the first class, they discussed the syllabus and program content divided into four main areas: business law concepts, corporate law, credit titles, and business contracts.

Historical Context

  • The second class focused on historical timelines related to commercial activities and early theories of business law.
  • The initial phase covered "corporation of trade," explaining its origins from collective professional groups like shoemakers and glassmakers.

Understanding Corporations

Definition and Functionality

  • Corporations were essential for individuals practicing specific trades; membership was necessary for legal operation within those professions.
  • Professionals outside these corporations faced sanctions or confiscation of tools if they attempted to operate independently.

Legal Framework

  • At this time, state regulations were minimal; social norms governed trade practices through informal rules established by trade corporations.
  • Membership in a corporation provided legal protection for commercial transactions among members.

Criteria of Protection

Subjective Criteria Explained

  • The concept of protection during this period was termed "subjective criteria," focusing on identifying individual subjects involved in commerce.
  • An illustrative example involves discussing preferences related to jewelry purchases with a participant named Marinade.

This structured approach provides clarity on key discussions while allowing easy navigation through timestamps linked directly to relevant sections.

Marineira and the Concept of Protection in Commerce

Understanding Marineira's Role

  • The marineira has a specific duration of around eight months, which is significant for their role in commerce.
  • If a marineira possesses skills related to gold handling, they could be classified as an oríves (goldsmith).
  • The subjective protection criterion requires identifying the individual’s affiliation with a trade corporation to determine legal visibility and commercial protection.

Dalzimar's Lack of Protection

  • In contrast, Dalzimar does not belong to any trade corporation, leading to his lack of legal protection.
  • This absence results in Dalzimar being metaphorically described as being "in a gutter," indicating vulnerability in commercial relations.

Transitioning to the Theory of Acts of Commerce

Introduction to New Theories

  • The discussion shifts towards the second phase or theory known as the "theory of acts of commerce."
  • It is crucial for examinations to recognize these theories by name and their sequence: first (corporation), second (acts of commerce), and third.

Shift from Subjectivist to Objectivist Criteria

  • The protective criterion transitions from subjective (focused on individuals like marineira and Dalzimar) to objectivist, emphasizing actions rather than identities.
  • Now, the focus is on what activities are being performed—if they qualify as acts of commerce, they gain legal visibility regardless of who performs them.

Implications for Commercial Activities

Broader Legal Recognition

  • Under this new paradigm, individuals' actions that constitute acts of commerce receive legal protection irrespective of personal characteristics.
  • This shift aims for inclusivity and fairness in recognizing economic contributions without bias based on personal attributes.

Evolution Driven by Economic Activity

  • Increased commercial activities such as fairs and navigations have driven this change in perspective regarding jurisdictional authority.

Jurisdictional Changes and State Involvement

Expansion of Jurisdiction Concepts

  • There was an expansion in jurisdiction concepts originating from Italy spreading across Europe; however, France became more prominent legally.

Emergence of Consular Courts

  • The rise in consular courts allowed broader participation beyond just merchants within specific groups, enhancing legal protections for various economic actors.

State's Role During Transition

State Activity Level

  • Initially, during the first phase or second theory period, state involvement was minimal—likened to a hibernating bear waiting for better conditions.

The Awakening of the State

The Transition from Dormancy to Activity

  • The state is described as having transitioned from a dormant phase to an active one, indicating a newfound awareness and engagement in societal matters.
  • This awakening signifies that the state recognizes its role and responsibilities, moving away from passivity towards proactive governance.

Interconnection of Political and Economic Power

  • There is a close relationship between political power and economic influence; those with significant economic power often impact political decisions, and vice versa.
  • The state acknowledges that losing control over the economy diminishes its autonomy and societal role, prompting it to become more involved in economic affairs.

Evolution of Legal Normativity

  • The shift in the state's role also alters legal norms; previously based on social customs, these norms are now established by the state itself.
  • Social norms were historically shaped by collective values and traditions passed down through generations, forming a basis for what was considered just or ethical at that time.

From Customary Law to State-Centric Norms

  • With the state's awakening, it assumes responsibility for creating legal standards rather than allowing guild corporations to dictate them. This marks a significant change in normative authority.
  • The new legal framework emphasizes verticality: laws created by the state are imposed on society below, establishing mandatory compliance among citizens.

Centralization of Legal Authority

  • As part of this centralization process, all judicial powers related to commerce are consolidated under state jurisdiction, eliminating previous corporate influences over law-making.
  • This shift leads to greater inclusivity within society; individuals are recognized not for their personal backgrounds but for their contributions to economic activities, fostering a sense of belonging and security within legal frameworks.

Legal Evolution in Commerce and Civil Law

The Impact of New Environments on Creativity

  • The emergence of new artistic and commercial environments stimulated individuals to engage in creative activities, leading to a better flow of ideas as people felt more protected under legal frameworks.

Key Legal Milestones in France

  • France played a pivotal role during this period by publishing significant legal codes that shaped commerce and civil law.
  • The French Civil Code (Code Civil) was established in 1804, followed by the Commercial Code (Code de Commerce) in 1808, marking important milestones in legal history.

Distinction Between Civil and Commercial Law

  • This era is often referred to as the Napoleonic or French theory due to its clear separation between civil law and commercial law, emphasizing their autonomy.
  • A bipartition occurred where civil law became distinct from commercial law, moving away from the corporativist criteria that previously governed these areas.

Transition from Corporativism to State Law

  • The shift from corporativist systems—where guild members had exclusive rights—to state-regulated laws marked a significant change towards inclusivity and fairness within commerce.
  • This transition led to a unified codification process under the Napoleonic Codes, clearly delineating civil rights from commercial rights.

Influence of Social Classes on Legal Development

  • The creation of the Civil Code was influenced by landowning nobility focused on property protection, while the Commercial Code reflected the interests of the burgeoning industrial bourgeoisie.

Historical Context of Property Rights

  • Property rights have deep historical roots dating back to Ancient Rome, influencing modern concepts related to ownership, inheritance, and legal security surrounding assets.

Understanding Acts of Commerce

  • Defining what constitutes an act of commerce is crucial for understanding its visibility within commercial law.
  • Two scholars emerged during this period aiming to clarify definitions around acts of commerce which were essential for establishing legal protections for economic activities.

Shift Towards Codified Normative Framework

  • The transition from customary norms based on guild practices to formalized state laws represented a paradigm shift towards structured legal protections for economic activities.
  • Initially governed by social norms created by guild members, this evolution led to state-imposed mandatory regulations that all societal actors must adhere to.

This markdown file encapsulates key discussions regarding the evolution of civil and commercial law primarily through French legislative developments. Each point is linked with timestamps for easy reference.

Commercial Law in Brazil: Historical Perspectives

The Evolution of Commercial Law in Brazil

  • The Brazilian commercial code has undergone significant changes, with much of it being repealed over time. Today, the essence of commercial law is integrated within civil law.
  • French influence on Brazilian commercial law is notable, particularly regarding property protection and the representation of commerce through the French commercial code, reflecting the spirit of industrial bourgeoisie during that era.

Defining Acts of Commerce

  • Two key thinkers emerged to define acts of commerce: Taylor and Alfredo Rocco. Taylor emphasized that an act must involve wealth circulation for it to qualify as a commercial act.
  • In contrast, Rocco proposed a broader definition where any act facilitating exchange qualifies as an act of commerce, thus gaining prominence for his more inclusive approach.

Shifts in Legal Paradigms

  • The shift from materialistic views in mercantilism to recognizing actions that facilitate wealth circulation marks a significant change in legal perspectives on commerce. This transition reflects evolving societal needs and economic activities beyond mere goods exchange.
  • Rocco's theory emphasizes that any intermediary action leading to trade should be legally recognized and protected, moving away from focusing solely on tangible assets or specific individuals involved in trade activities.

State Influence and Equality Principles

  • A paradigm shift occurred where state interests began to dominate over individual interests within corporate guilds, indicating a move towards protecting broader public interests rather than just those of specific groups.
  • This evolution also aligns with principles of equality, allowing more individuals access to engage in commerce while ensuring legal protections are available for their transactions regardless of personal characteristics or backgrounds.

Modernization and New Economic Activities

  • As new economic activities emerge—such as service provision without direct merchandise—the need for modernizing legal definitions surrounding acts of commerce becomes evident to accommodate these developments effectively.
  • Brazil's adoption of its own commercial code in 1850 was influenced by earlier theories but faced challenges due to subsequent revisions and repeals by later civil codes, notably the 2002 Civil Code which revoked many previous provisions related to commerce.

Current Framework: Theory of Business

  • The contemporary framework governing business activities in Brazil is referred to as the "Theory of Business," which reflects ongoing adaptations within legal structures amidst historical contexts like World War II and influences from Italian law systems post-Napoleonic codes.

The Italian Theory of the Company

Historical Context and Influence

  • The theory of the company is referred to as the "Italian theory," contrasting with the French or Napoleonic theory, influenced by Mussolini's fascism, which introduced new legal possibilities for agrarian activities.
  • Italy's historical context during this period shaped its legal framework, particularly in relation to agricultural business formalization. The choice of structure lies with the individual entrepreneur based on their agricultural model (family farming vs. commercial agriculture).

Financial Activities and Economic Maximization

  • Banking activities are crucial within financial institutions that focus on capital generation and wealth creation. This highlights the importance of financial expertise in economic growth.
  • Insurance activities fall under securities law, where individuals seek coverage against significant losses or damages to vital assets, emphasizing risk management in business operations.
  • Industrial activities aim for profit maximization and cost reduction, reflecting a broader economic performance strategy supported by state harmonization efforts during evolving social classes.

Corporate Identity and Employee Engagement

  • Ricardo Negrão discusses a polyhedral theory of companies that includes both objective and subjective elements related to corporate identity and employee engagement levels. The ideal scenario is employees acting as if they are owners of the company.
  • The concept of "wearing the company's shirt" symbolizes an ideal employee mindset where staff fully engage with corporate goals; however, real-world dynamics often complicate this vision due to varying personal motivations and workplace conditions.

Challenges in Achieving Corporate Ideals

  • Factors such as salary conditions, job security, well-being, and work environment significantly influence employee attitudes towards their roles within a company; these aspects create diverse realities among employees regarding their commitment levels.
  • While theoretically desirable for all employees to act like owners ("wearing the shirt"), practical challenges arise from organizational climate and individual aspirations that may not align with corporate objectives.

Evolution of Legal Framework in Brazil

  • Before Brazil established its own commercial code in 1850, it relied on Portuguese laws (Philippine ordinances), which were later replaced by Brazilian legislation influenced by trade activity theories leading up to modern interpretations of business law today.
  • The transition marked a shift towards adopting Italian theories concerning companies within Brazilian law; this change redefined mercantile relationships allowing for broader economic activity beyond traditional commerce practices like buying/selling goods or services across various sectors including logistics.

Legislative Evidence Supporting Company Theory

  • Key legal instruments such as Brazil's Consumer Protection Code (1990) explicitly reference "entrepreneur," indicating an adoption of company theory principles into national legislation supporting entrepreneurial frameworks within society.
  • Subsequent laws like the 1991 leasing law further illustrate recognition of businesses' operational needs beyond residential purposes while reinforcing concepts surrounding enterprise registration essential for establishing legal personality in business activities.

Understanding the Constitutive Act in Business Registration

The Nature of the Constitutive Act

  • The constitutive act is essential for business formation, which can take the form of a social contract (public or private) or a corporate statute.
  • This act must be registered to ensure public awareness of ownership and business structure, including capital composition and share distribution.

Implications of Registration

  • Once registered, the details become public knowledge, allowing state authorities to enforce tax obligations and enhancing legal security for businesses seeking loans or financing.
  • The registration process falls under public commercial enterprise law, managed by state commercial boards (juntas comerciais), ensuring compliance with local regulations.

Legal Framework and Historical Context

  • Brazil has specific laws governing these processes, reflecting a structured approach to business regulation influenced by historical legal frameworks.
  • A review of foundational documents like the Federal Constitution and Commercial Code reveals significant shifts in legal paradigms over time.

Evolution of Brazilian Commercial Law

Historical Codes and Their Revisions

  • The Brazilian Commercial Code from 1850 incorporated theories on acts of commerce but has undergone substantial revisions since its inception.
  • Many articles from this code were explicitly revoked by Law 10406 in 2002, which introduced the current Civil Code.

Remaining Provisions Post-Reform

  • After revocation, only sections related to maritime commerce and bankruptcy remained relevant within the commercial framework.
  • The term "bankruptcy" reflects both legal terminology and colloquial usage, indicating financial insolvency as recognized in earlier codes.

The Role of Constitutional Law in Commerce

Constitutional Provisions Affecting Commerce

  • Article 22 of the 1988 Federal Constitution grants exclusive authority to the Union over civil rights, including commercial law matters.
  • This constitutional framework was established before the enactment of the Civil Code in 2002, highlighting its reliance on earlier commercial theories.

Overview of Brazilian Civil Code and Business Law

Historical Context of Brazilian Legislation

  • The discussion begins with the introduction of the Brazilian Civil Code in 2002, specifically law 10.406, which followed earlier legislation including the Commercial Code of 1850 and the Federal Constitution of 1988.
  • The speaker emphasizes that the Civil Code is one of the largest laws in Brazil, containing 246 articles, and notes its significance in legal history.

Revocation of Previous Laws

  • Article 2045 of the Civil Code explicitly revokes previous legislation, including the old Civil Code from 1916 and part of the Commercial Code from 1850.
  • This revocation marks a significant shift in legal frameworks as it transitions from older theories to newer interpretations within business law.

Conceptual Framework for Business Entities

  • The lecture introduces Article 966, which outlines criteria for defining who qualifies as a businessman under modern subjective theory.
  • It is noted that a businessman is defined as someone who actively engages in economic activities, emphasizing effective participation in economic operations.

Characteristics of Economic Activities

  • For an activity to be classified as entrepreneurial, it must be structured and organized for producing or circulating goods or services.
  • The importance of this definition is highlighted as foundational for understanding business law principles discussed in future classes.

Course Logistics and Student Engagement

  • The instructor informs students that presentation materials are available on Blackboard for easy access during lectures.
  • A reminder about upcoming class schedules indicates no class will occur on February 18 due to Carnival festivities; students are encouraged to enjoy their break responsibly.

Assessment Structure

  • Information regarding upcoming assessments (UAT), covering topics from both Unit One and Unit Two, is provided.
  • Students will have flexibility with assessment timing; they can complete tasks at their convenience without strict time limits imposed during online tests.

This structured overview captures key insights into Brazilian business law's evolution while providing logistical information relevant to student engagement.