receive as his commission a fee equivalent to one-half of the ordinary one, if no fixed fee was stipulated. (Art. 264, Code of Commerce.)

SEPARATION OF GOODS BY MARKS

Article 254 of the Code of Commerce provides that the comisionista, in the absence of express authority to do so, may not alter the marks of the merchandise or goods which he may have bought or sold for the account of another. Article 265 of the Code of Commerce provides that a comisionista may not keep merchandise or goods of the same kind and which belong to different principals under the same mark, without distinguishing them by a countermark designating their respective ownership in order to avoid confusion. In a certain sense article 265 is an exception to article 254, and Malagarriga so holds. Under the provisions of article 266 of the same code, when the comisionista in one transaction includes goods which belong to different principals or goods which belong to himself, together with others belonging to some other principal, he is bound to make the corresponding distinction in the invoices which designate the source of each set of goods, as well as a proper notation in his books bearing out the different ownerships.

The soundness of these provisions are obvious, as their tendency is to avoid fraud and confusion. Furthermore, in case of the bankruptcy of the comisionista they will enable the principal to identify and recover his goods from the mass under the provisions of article 1505 of the Code of Commerce.

ADJUSTMENTS OF PAYMENTS RECEIVED

Situations exist where a comisionista may hold various credits against one particular debtor, which have arisen out of operations intrusted to him by several independent principals. Included amongst these credits there may be one or more belonging to him personally. When that is the case, and payments are made by this particular debtor, article 267 of the Code of Commerce imposes upon the comisionista the obligation of entering in his books the names of the persons for the account of whom any payment may have been received as well as in the receipts which he may give to the particular debtor. Article 268 of the Code of Commerce provides that when the comisionista fails to do so the proceeds of any payment received shall be apportioned pro rata among the different equally due credits, he being excluded from participating as a penalty for his omission. Siburu is of the opinion that the rule of article 268 should not prevent the showing that a particular payment was made to cover a particular credit. (Siburu, title IV, p. 182.)

HANDLING OF FUNDS AND REMITTANCES

A comisionista diverting funds from the uses authorized and ordered by his principal is bound to pay interest from the day in which such funds came into his possession, and is liable for any damages resulting from his failure to comply with the order, outside of the criminal liability which may be incurred in case of fraud. (Art. 269, Code of Commerce.) The rate of interest which applies is the legal rate established by article 565 of the Code of Commerce, dis

cussed elsewhere in this work. The criminal liability which may be incurred is that established by subdivision 6 of article 203 of the Penal Code.

In the absence of express stipulation, the comisionista is liable to the principal for the loss of funds in his possession, even though such loss is caused through an act of God or force majeure, except in cases arising out of special circumstances and which in the discretion of the courts are sufficient to relieve him from this liability. (Art. 270, Code of Commerce.)

The risks involved in the devolution of funds from the comisionista to the principal are for the account of the latter, unless the comisionista should have failed to observe the remittance instructions given by the principal, or, in the absence of these, should have failed to observe the usages of commerce of the place wherein the remittance was made governing such remittances. (Art. 271, Code of Commerce.)

INSURANCE

Under the provisions of article 273 of the Code of Commerce a comisionista who has received an order to procure insurance and has failed to do so when having sufficient funds from the principal to pay for it, or if he should not have had such funds, has failed to state in time to the principal the reasons why he has not procured such insurance, is liable for any damages resulting for not having effected the insurance in question. Furthermore, if while the risk still lasts the insurer should go into bankruptcy the comisionista is bound to renew such insurance, unless other instructions have been given to him.

COMMISSION FEE

A comisionista is entitled to receive a commission fee from the principal for his services. When this has not been fixed expressly by agreement it shall be determined according to the commercial usages of the place wherein the commission was discharged. (Art. 274, Code of Commerce.) If the commission was fully discharged, the comisionista is entitled to receive the full corresponding fee; if partly discharged, owing to his death or resignation, such part of it only as proportionately pays for what was done under the commission shall be owed. However, when the principal revokes the commission and the comisionista is not at fault, the latter is entitled to receive not less than one-half of the full fee. (Art. 275, Code of Commerce.)

ACCOUNTS BETWEEN PRINCIPAL AND COMISIONISTA

In the absence of express stipulation, the principal is bound to pay in cash for all the expenses incurred and disbursements made in the discharge of the commission with interest for the time intervening between the outlay and the actual payment. (Art. 276, Code of Commerce.) On the other hand, the comisionista is bound. on the discharge of the commission to submit to the principal a complete accounting, substantiated with the corresponding vouchers, of all operations as well as of all sums received or paid, remitting to the principal by the means which the latter may have indicated any balance resulting in his favor. (Art. 277, Code of Commerce.)

PRIVILEGES OF THE COMISIONISTA-BANKRUPTCY OF PRINCIPAL

The comisionista has the right of retention under which he may not be compelled by the principal to return goods received on consignment or goods which he has acquired for the account of the principal, when the latter has not previously paid to the comisionista any sum due him for commission fees, interests, advances made, as well as for all other legitimate expenses incurred in connection with the particular consignment or commission to buy, such as transportation and preservation expenses, etc. Furthermore, upon the bankruptcy of the principal, the comisionista is a preferred or privileged creditor with respect to the particular goods concerned, and out of the proceeds of their sale he has the right to be paid first. (Arts. 279 and 1508, subdivision 8, Code of Commerce.)

It should be specially noted that in order that the comisionista may avail himself of the above-discussed right of retention as well as of the privilege to be regarded as a preferred or privileged creditor in the bankruptcy of the principal with respect to the particular goods concerned, it is essential that these goods be either in his actual or constructive possession or at his disposal. He will not lose the latter privilege by having shipped the goods to the principal when these are still in transit and if their shipment took place before the date of the declaration in bankruptcy, which fact must appear from the invoices or bills of lading. (Art. 280, Code of Commerce.)

Article 281 of the Code of Commerce excepts from what has been said above, advances made by a comisionista on a consignment which came to him from a principal of his own domicile. In such a case these advances will be regarded as mere loans.

Siburu holds that the right and privilege under consideration, which he says are different aspects of one right, may be exercised by the comisionista only with respect to the particular goods which were subject to the commission out of which his credits arose, but not with respect to other goods subject to a different commission in connection with which he has no claim, even though the latter may belong to the same principal. (Siburu, title IV, p. 210.) Obarrio would seem to take the same view. (Obarrio, Mercantile Law, title I, pp. 254-256.) Malagarriga is silent on the point.

BANKRUPTCY OF COMISIONISTA

Goods in the possession of a comisionista who has gone into bankruptcy and which belong to the principal may be recovered from the mass by the latter upon their being identified and upon payment of whatever legitimate charges are owed on them. If the principal recovers his goods he will not be permitted to file a general claim against the mass for any damages arising from a breach of the contract of commission the subject matter of which was the goods recovered. (Arts. 1515 and 1522, Code of Commerce; Malagarriga, title IX, p. 335.)

If the comisionista sold goods, the principal may recover their price from the mass, if this was paid after the bankruptcy and provided that it was not credited to the comisionista on a current account, whether the commission be del credere or not. (Art. 1487, Code of Commerce.)

A principal who contemplates making a consignment of goods to a comisionista should stipulate clearly in the agreement with the latter that the ownership of or title in the goods shall remain in him until they have been properly sold according to instructions. Particular care should be taken to refer to the ownership of or title in the goods as of the principal in all correspondence as well as in all documents pertaining to their shipment. Although the law imposes upon the comisionista the duty to keep the goods separated and marked, it is of practical importance and value that the principal should insist that this be done, and a stipulation to that effect should be included in the contract. These steps will no doubt facilitate the proof that ordinarily is necessary in order that the principal may obtain the release of his goods from the mass in case of bankruptcy of the comisionista. In practice, the best protection is afforded by the wise selection of a thoroughly reliable comisionista, in the absence of ample insurance covering the risks or if the comisionista should not be willing to put up sufficient bond as a guaranty for his faithful performance.

TERMINATION OF THE COMMISSION

The commission terminates:

(1) By the conclusion of the mercantile operation or transaction which constituted its object. (Art. 1994 (1960), Civil Code.)

(2) By revocation. This will be binding upon the comisionista only from the time that he knew or was in a position to know of it. (Arts. 1997, 1998 (1963, 1964), Civil Code.) It should be noted here that since the comisionista contracts in his own name and becomes directly and personally liable to the parties with whom he contracts for the account of the principal, the latter does not have to bring knowledge of the revocation of the commission to third parties as he has to do in the case of other types of agencies, such as those in which the agent is clothed with authority to contract in the name of and bind the principal directly to third parties. Another point to be remembered here is that when the principal revokes the commission and the comisionista is not at fault, the latter is entitled, under the provisions of article 275 of the Code of Commerce hereinbefore discussed, to receive not less than one-half of the full commission fee. (3) Upon the death of the principal or of the comisionista. (Art. 1997 (1963), Civil Code.) The death of the principal does not terminate the commission when the operation which constitutes its object is to be completed or continued after his death. The business must be continued if, having been begun, there is risk in delaying it. (Art. 2014 (1980), Civil Code.) However, the contract of commission will be resolved if the heirs of the principal are under age or subject to some other incapacity and are represented by their tutors or curators. (Art. 2015 (1981), Civil Code.)

(4) By the resignation of the comisionista. The principal must be duly notified of it. The resignation will take effect as of the time in which such notification is made. If such resignation causes damages to the principal, the comisionista is liable for them, unless it is shown that the discharge of the commission depended on certain provisions of funds which the principal failed to provide or that it was impossible for the comisionista to discharge the commission without

subjecting himself to a considerable hardship. (Art. 1997 (1963), Civil Code; 224, Code of Commerce.) A comisionista, even though he resigns for just cause, must continue to conduct the business, if not absolutely impossible for him to do so, until the principal can take the necessary steps to provide for his absence. (Art. 2013 (1979), Civil Code.)

(5) Upon the principal or comisionista becoming incapacitated. The incapacity of the principal or comisionista, which causes the termination of the commission, takes place whenever either of them loses, in whole or in part, the exercise of his rights. (Arts. 1997 (1963) and 2018 (1984), Civil Code.)

BROKERS (CORREDORES)

A broker under Argentine law is a person who makes a habitual business of rendering such services as ordinarily enable or lead two or more persons to the making of a contract.

Subdivision 3 of article 8 of the Code of Commerce declares that every brokerage operation is an act of commerce. This has been construed to mean that the participation of a broker enabling or leading two or more persons to the making of a contract is an act of commerce irrespective of the fact of whether the subject matter of this contract is or is not an act of commerce. Article 87 of the same code provides that brokers are subject to the provisions of the Code of Commerce with respect to their brokerage operations. Since a broker makes a habitual business of engaging in brokerage operations which, as said before, are acts of commerce, the natural and logical conclusion is that he is a merchant under article 1 of the code. Furthermore, the law of bankruptcy, which as a rule is only applicable to merchants, applies to brokers as well under the provisions of articles 112 and 1551 of the code, a fact which supports the abovestated conclusion. Siburu and Malagarriga are in accord; Obarrio is not. The better opinion would seem to be that which holds that under Argentine law the status of a broker is that of a merchant.

QUALIFICATIONS

Under the provisions of articles 88, 89, and 90 of the Code of Commerce a person in order to be a broker must fulfill the following qualifications: (a) Must necessarily have the capacity required of all merchants; (b) must have attained the age of 22 years; (c) must have established a residence of 1 year in the particular locality wherein the business is to be carried on; (d) must have been engaged personally in business for himself or as a partner or manager of a wholesale firm, or at least have been bookkeeper of such a firm with a good record. The foregoing facts must be set forth in a petition for registration in the commercial registry, which should be addressed to the proper commercial court which, on finding that the person is possessed of the above-stated qualifications, will order such registration. However, before the broker may engage in business as such he has to take an oath before the same court to the effect that he will faithfully discharge his duties. Besides being a merchant it may be said that a broker possesses also in a certain sense the status of a public officer which is not possessed by ordinary merchants.