Mexican Legal Framework of Business Insolvency - White & Case

The above court precedent has two flaws that make it unusable for purposes of the
Insolvency Law: (1) it fails to distinguish the subject (the entrepreneur:“…any entity
that exercises…”) from the subject matter (the enterprise); and (2) it is stated as
applicable to antitrust matters, which has a naturally broader scope of application than
the one needed for commercial purposes, since antitrust regulation deals with any
economic activity, whether commercial or otherwise.
However, there is abundant literature on the concept, 15 which allows us to construct a
more technically correct concept of enterprise and, from there, derive the concept of
entrepreneurial activity. In the author’s view, Mantilla (1992) provides one of the most
concise and straightforward definitions of enterprise:
[Enterprise is] the sum of tangible and intangible goods combined to obtain
goods or services, or to offer them to the public, systematically and with a profitable intent.
Therefore, an entrepreneurial activity could be defined as a set of operations or tasks
of a person or entity pertaining to the sum of tangible and intangible goods combined
to obtain goods or services, or to offer them to the public, systematically and with a
profitable intent.
So, the estate of a trust will be subject to the provisions of the Insolvency Law if such
trust is engaged in a set of operations or tasks pertaining to the sum of tangible and
intangible goods combined to obtain goods or services, or to offer them to the public,
systematically and with a profitable intent. Needless to say, this is still an abstract
concept which requires individual case-by-case analysis to determine applicability
of the Insolvency Law.
15
See, e.g., Barrera (1958) with a series of references to classic treatises on the subject.
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