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which is not a procedure that is foreseen to cease commercial activities
of real persons. Unless the court authorizes otherwise, the assets that
constitute security for receivables of creditors may not be disposed of.
The underlying purpose of Art. 44 of the BEC that envisages the
protection of creditors is achieved through other mechanisms for joint
stock and limited liability companies under the TCC.
The declaration of property, and the inability to dispose of assets
for a period of two months from such declaration, is not in accordance
with the liquidation procedure of such companies. If this declaration is
made together with the initial inventory, the liquidator’s authority,
which it needs to use to protect the assets and rights of the company in
liquidation, will be limited by this prohibition. On the other hand, such
declaration cannot be made after the trade name is deleted from the
registry. The legal entity will cease to exist together with such deletion,
and unless a property item is overlooked, there will be no property to
declare. In fact, there will no longer be a legal entity that may be sub-
ject to any bankruptcy proceeding.
When the provisions of the BEC to cease commercial activities,
and the provisions of the TCC for liquidation are assessed, it could be
argued that the BEC provisions govern real person merchants only.
Jurisprudence
Based on the above explanations, one could easily argue that the
BEC framework to cease commercial activities, and the TCC frame-
work for liquidation are not in line with the other. When the main pur-
pose of these provisions are taken into consideration, it could be said
that Art. 44 and 337/a of the BEC should be applicable to real person
merchants only, and that legal entities fall outside of their scope. In
fact, in practice, the commercial registries do not list the declaration to
cease commercial activities and declaration of property among the
procedures that need to be complied within the scope of liquidation.
The registry representatives have also stated verbally that such decla-
rations shall be made by real person merchants, and not by legal enti-
ties in liquidation.
Nonetheless, the Supreme Court jurisprudence is established con-
trary to the arguments and opinion voiced, above. Three different rul-
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NEWSLETTER 2015