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As a result of the modification in LPCE by the Law numbered 4952, in
agreements of pledges on commercial enterprises in which one party is an
industrial enterprise, only the movable operation installment bought by the
related loan is put in the pledge. Nevertheless, the pledge may also include,
within the scope of freedom of agreement, other assets if these elements
are insufficient to satisfy the needs of the creditor.
Conclusion of Agreement
The parties to an agreement of pledge on a commercial enterprise are
the borrower merchant or craftsmen in one party and the creditor in the other.
In LPCE, the creditors are limited to (i) credit institutions, (ii)
institutions engaged in credit sales, and (iii) cooperatives. The objective
of this limitation is to ensure constitution of this exceptional pledge only
among certain persons.
The institutions engaged in credit sales are enterprises which sell
movables, and they may acquire pledge rights only on a movable operation
installment subject to the sale between the parties.
The pledge agreement on commercial enterprises must be in statutory
form notarized by the public notary in the registry district of the commercial
enterprise. This form is a requirement for the validity of the pledge. Also
the Court of Appeals considers this requirement as a mandatory rule and
deems null and void any agreements that do not respect that requirement.
In addition, a list indicating all the elements within the scope of the
pledge and their distinctive characteristics must be annexed to the pledge
agreement.
Registration and Effects of Pledge
For origination of the right of a pledge, the agreement of a pledge on
a commercial enterprise must be registered within 10 days following the
conclusion of the agreement. Registration is to be made with the Trade
Registry for commercial enterprises and with the Registry of Craftsmen
and Artisans for craftsmen enterprises. This registration is a validity
requirement and has a constitutive effect for the pledge. The legal term
for the registration is a controversial issue in the doctrine. According to
an opinion with which the Court of Appeals agrees, the rule is mandatory;
registration after 10 days is void, and it becomes necessary to renew the