Compiled February 1998
by Foreign Tax Law, Inc.
PO Box 2189
Ormond Beach, Florida 32175-2189 USA
tel. (904) 253-5785
fax (904) 257-3003
e-mail: ftlp@foreignlaw.com
Website: http://www.foreignlaw.com
DISCLAIMER: Though every effort has been made to present the legal texts and information accurately, due to the nature and scope of the material, we cannot be liable for errors, omissions or other problems in the texts. The material offered herein is not a substitute for competent legal assistance by a licensed attorney of the jurisdiction in question.
Published in "Diario Oficial" of Jan. 22, 1979.
REGISTER OF COMMERCE REGULATION
FIRST TITLE. THE ORGANIZATION AND FUNCTIONING OF THE REGISTRY
CHAPTER I. GENERAL PROVISIONS
CHAPTER II. THOSE IN CHARGE OF THE REGISTRY AND THEIR FUNCTIONS
SECOND TITLE. PROCEDURES
CHAPTER I. THE SYSTEM
CHAPTER II. DOCUMENTS SUBJECT TO REGISTRATION
CHAPTER III. INDEXES
CHAPTER IV. CONDITIONS REQUIRED FOR MAKING REGISTRATIONS
CHAPTER V. CORRECTION OF ENTRIES
CHAPTER VI. PUBLICITY
CHAPTER VII. REGISTRAL APPEAL
TRANSITORY ARTICLES
FIRST TITLE. THE ORGANIZATION AND FUNCTIONING
OF THE REGISTRY
CHAPTER I. GENERAL PROVISIONS
ARTICLE 1.
The Public Registry of Commerce is the institution by which the State shall
publicize juridical acts or related acts which mercantile enterprises realize,
fulfilling the requirement to make such acts effective against third parties.
ARTICLE 2.
The establishment of the Mercantile Registries in all the territory of the Republic
shall be at the disposition of Article 18 of the Commercial Code in force. Notwithstanding,
for the purposes of this Regulation and in the absence of an express provision,
the rules of common law of the federated entity in which such registries are
located shall be applicable.
CHAPTER II. THOSE IN CHARGE OF THE REGISTRY AND
THEIR FUNCTIONS
ARTICLE 3.
By ministry of the Law, the direction of each Commercial Registry shall be assumed
by the person with the directive function of the Public Registry of Property,
in accordance with the locality.
ARTICLE 4.
In places where the Commercial Registry exists and, for purposes of organic
order, it does not administratively exist at the level of management, the officer
shall have the designation which the respective appointment shall confer upon
him.
ARTICLE 5.
In those localities in which the mercantile register is of little significance,
the person in charge of it shall organize its activities observing, in all applicable
cases, the provisions of this regulation.
ARTICLE 6.
When necessities of service so demand, and in the case where the Commercial
Registry is in the charge of a director, the latter may be helped by administrative
organs under his control as DIrector of the Property Registry, as long as such
help is compatible with the activities of those organs.
ARTICLE 7.
The director may also be helped by one or more Registrars and by administrative
personnel deemed necessary, in order to render specific services of the Commercial
Registry.
ARTICLE 8.
When there are several registrars, the Director may designate one of them to
assume the management of the rest of the personnel and to maintain under his
direct supervision the labors of the Registry, reporting to the Director each
time it becomes necessary or whenever required.
ARTICLE 9.
In the case referred to in the preceding article, the Chief Registrar shall
also have the following duties:
1. To control, by means of dispositions provided for the case, the flow of documents which must be opportunely processed, proceeding immediately to the distribution of the work and watching that the respective rules are exactly complied with during the whole sequence of procedure;
2. To establish coherence between the different sections or branches of the Property Registry and those of the Commercial Registry;
3. To remit to the Director or to the official designated by him, the documents objected to by the Registrars, in order that he might revise and resolve the justification or non- justification of the suspension or refusal of service; and
4. To attend to the prompt return of the documents which have been completely processed.
ARTICLE 10.
The following duties shall belong to the Registrars of the Commercial Registry:
1. To keep in mind the qualifications of the documents presented for registration, that they should retain the attributions and limitations set forth in this Regulation and in other legislative provisions and regulations applicable to the matter;
2. If the Registration is to proceed, to determine the net amount in cash of the duties to be covered;
3. To correct or, if such is the case, to order and audit the correction of the respective entries, authorizing them with their signature.
ARTICLE 11.
The qualification which the Registrars shall make of the legality of the titles,
shall be understood to be limited for the purpose of suspending, refusing or
admitting the registration, without prejudice to the contradictory action that
may be brought on the nullity of the title or the decision of the Registrar.
ARTICLE 12.
If the executory decision given in court results in the title having been wrongly
qualified, the Registrar shall either make the registration or cancel the registration
he had made, in accordance with the terms of the executory decision. In the
first case, the registration shall be considered as retroactive from the date
of presentation of the title that was the subject of the incident.
ARTICLE 13.
The Registrar shall suspend the registration when the defects or omissions of
the title are correctable.
The suspension shall not interrupt the priority of the title, if the defect or omission was correctable within a term of 10 working days following the day on which the interested party was notified of the determination of the Registrar.
ARTICLE 14.
The Registrar shall refuse to register public or private documents presented,
when the act or contract contained in them is not one which must be registered
or if any of the requirements for juridical efficiency are omitted; when such
is a manifest contradiction of the contents of pre- existing registered documents,
or when the document either does not express or does not express with sufficient
clarity, the circumstances which, by legal ruling, must be contained in the
registration.
Refusal of registration, if not opposed, or if confirmed by resolution of a competent authority, shall deprive the subject of presentation of its priority effects, which shall be cancelled.
ARTICLE 15.
The Registrars, and if such is the case, the employees in their charge, shall
be liable for damages and losses they incur, in the exercise of their functions,
through carelessness, negligence or non- compliance with the provisions contained
in this Regulation and other legal ordinances on the matter.
SECOND TITLE. PROCEDURES
CHAPTER I. THE SYSTEM
ARTICLE 16.
In accordance with the necessities imposed on each office and the correct adjustment
of registration functions, in its double aspects of real property and mercantile
acts, the registry of the acts of commerce may be effected by means of a system
of books or of a Mercantile Folio.
Each volume, in the case of books or each folio, in that case, shall be authorized by the official who, in accordance with the law and respective regulations, must authorize the books or folios of the Public Registry of Property.
ARTICLE 17.
In the first of the cases set forth in the preceding article, there shall be
three books and they shall be called; First Book, Second Book and Third Book.
Each book shall contain a certain kind of acts or operations, in accordance
with the provisions of Articles 31, 32 and 33 of this Regulation, and shall
be integrated with the number of volumes that are necessary to make room for
the respective entries.
There shall also be a Book of Presentations in which, for purposes of priority, all the documents entering the Commercial Registry shall be entered in rigorous chronological order and assigned the corresponding ordinal number.
ARTICLE 18.
Each page of the registry books shall contain a margin appropriate for entering
any notations which might be necessary; the central space shall contain the
registrations which shall be numerated progressively, related in marginal notes
relative to the same mercantile enterprise, boat or airplane.
ARTICLE 19.
If the system of folios is chosen, the relation of the documents which enter
the Registry, as well as the entries they originate, shall be made utilizing:
1. The Daily Folio of Entries and Procedure;
2. The Mercantile Folio;
3. The Auxiliary Folios which are deemed convenient in view of the necessities of the service and at the judgment of the Director.
ARTICLE 20.
For the purposes of this Regulation, by Folio shall be understood the page or
pages destined to contain the entries of presentation, and the page or pages
on which the inscriptions and notations relative to the mercantile acts or contracts
subject to registration and which refer to the same enterprise, boat or airplane,
considering each one of them as an entity registered with its own juridical
history.
ARTICLE 21.
The Daily Folio of Entries and Procedure, provided with the copy or copies which
shall be deemed necessary, shall have the double purpose of serving as an instrument
for evidencing the order of priority of the documents presented, and as a method
of control of the same, to those which it shall accompany in the different phases
of the procedure.
ARTICLE 22.
The Daily Folio of Entries and Procedure shall be formed by accumulating the
pages necessary to contain the relation of documents entering the Registry during
a work day, providing each page of ciphered squares which must contain the date,
entry number and other data necessary to establish the correct succession and
identification of the referred documents, as well as to reflect the incidents
that shall occur in the different steps of the procedure.
ARTICLE 23.
The first and last page of the Daily Folio of Entries and Procedure must contain
opening and closing sentences which the person encharged with the reception
of the documents shall make at the beginning and end of the day's work, by means
of which the number and sequence of the entering documents may be established.
ARTICLE 24.
Generally and without prejudice to the registral qualification, the priority
between the different documents entering the Registry shall be determined by
the priority of the date and ordinal number belonging to them in the Daily Folio
of entries and Procedure.
ARTICLE 25.
The Mercantile Folio is the instrument by which registration publicity shall
be materially realized, in relation to all those acts or contracts of a mercantile
nature which refer to the same boat, airplane or enterprise and which, along
with the formal requirements of validity, are required of registration, in accordance
with the law, for the purposes of their opposition before third parties.
A reproduction shall be made of all the folios which shall be obtained by means of the system the Director shall set for the sole purpose of replacing losses and correcting deteriorations of the originals.
ARTICLE 26.
The Mercantile Folio shall consist of a page which, folded in three homologous
parts, shall result in adequate proportions and easy hand or mechanical management.
Each one of the parts making up the Folio shall be of a different color which
may not be replaced by another.
ARTICLE 27.
The page facing the first part of the Mercantile Folio shall contain spaces
separated by horizontal lines and squares appropriated for the following:
1. The heading, in accordance with the locality of the registration office;
2. The authorization, as provided in Article 16 of this Regulation;
3. The registration number, which shall be progressive and invariable;
4. The registration antecedents, if appropriate; and
5. The name of the enterprise and of its owner, in the case of an individual; the firm names, in the case of mercantile companies; the name or distinctive marks of boats or airplanes.
ARTICLE 28.
Each one of the parts composing the Mercantile Folio shall have a left margin
to briefly express the items of presentation; the space to the right is for
the inscriptions which must be followed by the signature of the Registrar.
CHAPTER II. DOCUMENTS SUBJECT TO REGISTRATION
ARTICLE 29.
Only the following shall be registered:
1. Testimonies of contracts, notarial acts, policies or other authentic documents;
2. Judicial resolutions and decisions legally certified; and
3. Private documents duly ratified in accordance with law.
ARTICLE 30.
For the purposes of the preceding article, all the material subject to registration
shall be distributed in three orders, each one of which shall group a determined
type of act or operation, in accordance with the following articles.
ARTICLE 31.
Items related to the following shall belong in the First Book, or to the first
part of the Mercantile Folio:
1. Registration of individual merchants;
2. The program to which Art. 92 of the General Law of Mercantile Companies refers;
3. Constitution, mergers, transformation, dissolution and liquidation of mercantile companies;
4. Appointment of persons to fulfill representative functions within the enterprises;
5. General powers for administrative acts and acts of dominion and for granting or subscribing credit titles;
6. Boats and airplanes expressing the characteristics set forth in Article 21, Part XVI of the Commercial Code and the applicable provisions from the Law of General Methods of Communication; and
7. Industrial property titles, as well as real property included in the assets of an enterprise, combining in this latter case, into one recording the data corresponding to the inscription which must have been previously made in the Property Registry.
ARTICLE 32.
Items related to the following shall belong in the Second Book or the second
part of the Mercantile Folio:
1. Bond issues;
2. Industrial mortgages;
3. Mortgages of boats or airplanes;
4. Credits of Authorization and Provision or Loans, in the terms of Article 326, Part IV of the General Law of Titles and Credit Operations;
5. Bonds and Indemnity bonds;
6. Mercantile commission contracts; and
7. Other acts or contracts subject to registration which do not belong in another book or part of the Mercantile Folio.
ARTICLE 33.
Items referring to the following shall belong in the Third Book or third part
of the Mercantile Folio:
1. Declarations of bankruptcy or of a state of suspension of payments; and
2. Attachments, judgments and judicial decisions.
ARTICLE 34.
If only one Folio is insufficient to contain the items destined for it, a second
Folio shall be added, joined to the preceding one by means of progressive numeration
and made up with the same data as set forth in Article 27 of this Regulation.
In the case in which only one of the three parts of the Folio is insufficient,
it shall be enough to add that part to the original Folio with its corresponding
color.
CHAPTER III. INDEXES
ARTICLE 35.
The registration number is the key for the ordering of the Folios and shall
be localized by means of an index of names, firm names or trade marks, in accordance
with whether individuals, legal entities, boats or airplanes are dealt with.
A similar method shall be followed if the Registry uses a system of books.
CHAPTER IV. CONDITIONS REQUIRED FOR MAKING REGISTRATIONS
ARTICLE 36.
The registration service is of public order and the respective instance shall
be understood as made with only the presentation of the document to register.
It shall be demandable by a written petition if such is the general rule of
the particular registration office, or when the request shall imply that acts
of formal publicity be made.
ARTICLE 37.
When a document is presented for process, its corresponding number shall be
noted on the first page and, if such is the case, on the respective request,
in the order of presentation; the same number shall appear on the receipt given
for evidence and which, stamped by the receiving employee, shall be delivered
to the interested parties. Withdrawal of the documents shall be made against
delivery of the respective receipt or, in its absence, against the signature
of the solicitor, who, upon identification and under oath shall testify that
the referred receipt was mislaid.
ARTICLE 38.
Titles shall be registered in the corresponding books, making the items continuous
without there being more space than necessary for the signature of the Registrar
between them.
Entries in the Mercantile Folio shall be made in an identical manner; the signature of the Registrar shall show immediately the continuation of each entry.
ARTICLE 39.
All registrations shall clearly express the following: the nature of the act
or contract dealt with and its object; value, if shown, interest, periods, conditions;
names and surnames of the intervening parties and designation of the authorizing
officer or, if such is the case, of the ordained authority.
ARTICLE 40.
In order that a de officio registration of individual merchants shall proceed
in the terms of Article 19 of the Commercial Code, the following must be shown
in the document to be registered; personal data relative to the merchant, capital
turnover, respective licenses and, generally, all which Article 21 of the Commercial
Code refers to which is applicable to the case.
With the exception of documents to which the preceding paragraph refers and to constituting acts of mercantile companies, any other document subject to registration must contain the registration data of the enterprise in question.
ARTICLE 41.
In the case of enterprises owning real property, note shall be made of data
corresponding to the respective registration which must be made in the Property
Registry.
CHAPTER V. CORRECTION OF ENTRIES
ARTICLE 42.
Errors made in the entries in the books or folios of the Commercial Registry
shall be considered material or conceptual, in accordance with the rules of
common law; their correction must be in accordance with the procedural norms
regulating the Property Registry in analogous situations.
CHAPTER VI. PUBLICITY
ARTICLE 43.
The information contained in the books and folios of the Registry is of public
nature and any person who so requests shall have access to it directly or by
technical means.
ARTICLE 44.
The information to which the preceding article refers, shall only be given out
during office hours and under the vigilance of the person or persons designated
for that purpose.
ARTICLE 45.
Private parties who consult the books and folios of the Registry may take notes
from them which they deem convenient and, if such is the case, may request the
respective certificates.
ARTICLE 46.
The certifications may be literal or combined with determined contents of the
entries existing in the folios or books of the Registry. Also, certifications
shall be issued in the sense of existing or non- existing entries of any kind
or of a determined kind.
ARTICLE 47.
The requests must be presented in writing and contain, if such is the case,
the registral antecedents and other data necessary for locating the entries
on which the certification must be based; they must also express whether the
respective certificate must be literal or refer to concrete aspects of the entries.
ARTICLE 48.
The certifications shall refer to the entries of presentation, when the respective
request refers to documents not yet registered, but already entered into the
Registry.
ARTICLE 49.
If any entries included in the certification was corrected by another, both
shall be mentioned.
ARTICLE 50.
The certifications must be issued in the same office as that containing the
request, on additional pages if the space was insufficient, or by employing
any other adequate method by technical instrument.
CHAPTER VII. REGISTRAL APPEAL
ARTICLE 51.
Without prejudice to the provision in Article 32 of the Commercial Code, in
those cases in which the Registrars exercise qualifying functions by delegation,
for that purpose, by the head of the Registry, the latter shall be informed
of disagreements brought up in relation to the qualification of documents or
the assignment of respective rights, in the manner and terms provided by the
Regulation of the Property Registry, and shall resolve the proceeding.
If the resolution of the head of the Registry concurs with suspensive or negative determination of the Registrar, the corresponding entry of presentation must be cancelled and the respective document shall be placed at the disposal of the interested party who shall proceed to withdraw it. If the determination of the Registrar is revoked, the document shall be re- entered for procedure, without loss of the priority acquired by virtue of entry of presentation.
TRANSITORY ARTICLES
FIRST TRANSITORY ARTICLE.
This Regulation shall become effective 10 days after its publication in the
"Diario Oficial" of the Federation and shall repeal Decree of Sept.
15, 1885.
SECOND TRANSITORY ARTICLE.
In Registries continuing to operate by means of the system of books, the inscriptions
shall continue to be made in accordance with the provisions of the repealed
Regulation, until the corresponding books can be brought into agreement with
the present provisions.
THIRD TRANSITORY ARTICLE.
In registries where the system of Folios is adopted, the presentation of any
document subject to registration after the effective date of this Regulation,
shall give occasion to opening the corresponding folio, to which the entries
relative to the enterprise, boat or airplane dealt with must be transferred,
unless the act or contract is a first registration.
FOURTH TRANSITORY ARTICLE.
If there is no presentation of any document for registration, the opening of
the Mercantile Folio and the transference of entries to which the preceding
article refers, may be made by means of a written request of the registration
holders mentioned in the antecedents of the inscription.
FIFTH TRANSITORY ARTICLE.
If the situations set forth in the two preceding articles do not come about,
and for the purpose of maintaining uniformity of the system, the person in charge
of the Registry shall take the measures he deems pertinent, de officio, and
proceed to transfer the entries from the books into the respective folios.