Commercial Law_Course 2_Subjects of Commercial

Law
OCT - 21 - 2012

Course 2_Subjects of Commercial law_Commercial Law_2_Subjects vers 2

The Professionals
Legal basis: art. 3 Civil code :
1) The provisions of the Code apply to both relations between professional and those between
professionals and other subjects of civil law
2) Are considered professionals all those managing an enterprise.
The new civil code has erased the term merchant and it has introduced a new one: professional
which includes all persons licensed to perform economic activities.
Art. 8 from law no. 71/2011 (the law issued for the entering into force of the Civil code) stipulates
the professional includes all types of merchants, enterprises, commercial agents and any other
persons authorized to exercise economic or professional activities.
The new Civil code presents the professional as the one managing an enterprise, the activity of this
enterprise being an systematic exercise for producing, administrating or selling goods, services.
Classification of professionals
For the moment, the doctrine hasnt presented a clear classification of professionals, but, the
provisions of the Civil code and the law no 71/2011 help us issue one:
a)

Merchants:

commercial

companies,

individual

merchants,

co-operative

organizations,

economic interests groups, state institutions, etc

b)

Liberal professions: attorneys, doctors,

c)

Foundations, Associations, Unions

d)

Public institutions

The Merchants
Conditions:
a)The legal capacity
Can be defined as being the natural persons abstract and general ability to have rights and
obligations and to exercise their rights and to assume their obligations by concluding juridical acts
on their own name.
The legal capacity deals with two issues:

a) The abstract capacity the persons ability to have rights and obligations (granted to each
human being from the moment of birth or, by exception, from the moment of his conception)
b) The concrete capacity the persons capacity to exercise their rights or to assume their
obligations by concluding on their own name juridical acts (granted at the age of 18 years old and
a restrained capacity from 14 or 16 years old)
Incapacities
Do not have legal capacity:
- underage persons
Full capacity from 18 years old and special cases:
a)

married person after 16 years old (art. 39 Civil code)

b)

by court decision (art. 40 Civil code)

c)

member of family enterprise (art. 8 oug 44/2008)

Incompatibilities
The commercial activity is incompatible, because its speculative character, with certain positions
and professions like: deputies, senators, public persecutors, judges, officers, public servants /
attorneys, doctors;
Declines
The commercial system has to respect the legal provisions regarding the public order.
According to Law nr.12/1990, Criminal Code, Law nr.26/1990 and Law nr. 31/1990, a person who
was convicted of a criminal act incompatible with the commercial activity (like: theft;
taking/offering bribe), cannot be a merchant.
Interdictions
In order to protect general interests, economical, social or moral ones, some activities cannot be
done by private persons, but only by the state (for example: fabrication and commercialization of
guns, drugs, narcotics with other purpose than medicine)
Interdictions (legal or conventional)
Are due to legal interdictions or the parties will
- Legal incapacities related to public monopoly domains (e.g. mine exploitation) or to public order
requests (existence of a labor permit e.g. foreigners)

- Conventional incapacities (general/special):

- continuation of trade in case of selling the stock trade (good will)
- exclusive distributor
- franchisee position
b) Name and risk
Name = firm (according to Law no.26/1990)
Exception = permanent commercial agent is merchant according to art.1 par.5 Law no.509/2002.
Permanent commercial agent is a natural or legal person who acts as independent intermediary
and is entitled constantly
- to negotiate business for other natural or legal person
- to conclude business operations on the name and on behalf of the principal
Note: It carries on its intermediation acts as principal or accessory acts in exchange of a
remuneration => he carries on trade activity as a profession
Auxiliary of trade are not merchants (perform commercial acts/facts on the name of their
employer):
pre-posed agent (prepus)
shop vendor (vnztor)
delegate
commercial traveler (comis-voiajor)
Risk = unlimited liability => debtor of all its commercial obligations > commercial creditors (as
simple creditors) have as warranty the merchants entire present or future fortune (patrimony)
The merchant has to reduce the risk which is objective => clauses for modification /adaptation of
parties obligations
c) Profitability of merchants activity
Finis mercatorum est lucrum = the activity has to be completed with a certain gain necessary to
cover the needs of his own existence and of his family, the activity has a speculative character =>
non-profit activities are excluded
Important is the intention to obtain profit and not the obtainment itself
It has no relevance if the activity is his only source of revenue or not

d) merchants authorization and registration

The authorization and registration in Register of Trade is imposed by art.1 of law 26/1990 for:
1.
2.
3.
4.
5.
6.
7.
8.
9.

individual merchants, individual enterprises, family enterprises,

commercial companies;
cooperative organizations;
cooperative companies
state companies and national companies
economic interest groups
european companies
european cooperative companies
european interest groups

Authorization is an administrative act issued by the Register of Trade

Professional knowledge or practice can be proved with the following documents:
college or university diploma or certificate of graduation, certificate of professional competences,
labor book that proves at least 2 years of work within the activity for which the authorization is
requested.
Art.1 para.1 of Law no.26/1990 modified and republished and art.16 of Law no 300/2004: the
merchants have the obligation to request the registration within the Register of Trade, before the
beginning of their activity or during it, or at the end of it, and to request the registration within the
same register of all mentions regarding acts or facts that are submitted to registration by law
The professional obligations of merchants
These professional obligations of merchants are provided by the law in order to protect the public
interests, as well as the interests of third parties and merchants themselves. Thus, the merchants
are obliged to accomplish certain formalities of publicity within the Register of Trade, to keep
specific books and to organize and manage their own accounting activity.
1. The obligation to keep specific books
It is provided by the Law no. 82/1991 on the accounting system, republished, amended and
completed. Thus, the merchant is bound to keep the following books:
- Journal ledger, where all economical and juridical operations of the merchant are recorded daily;
- Inventory ledger, where all movable and immovable goods of the merchant are recorded, on the
basis of a yearly inventory.
- General ledger, which serves as a summary of the journal ledger.
2. The obligation to organize and manage his own accounting activity which refers mainly to the
yearly financial statements, accounting books, inventories and so on.
3. The obligation of registration within the Register of Trade

The publicity within the Register of Trade is regulated by Law no. 26/1990 republished.
Thus, before starting their business, the merchants are bound to ask for the incorporation in the
Register of Trade. During the performance of their commercial activities, the merchants are also
obliged to ask for the registration in the same register of certain mentions concerning acts and
facts that are subject to publicity, as follows:
- juridical acts such as sale, donation concerning the goodwill;
- any act certifying changes to the records in the Register of Trade;
- information concerning the legal representative of the merchant;
- patents, trade marks, firm, emblem and other distinctive signs upon which the merchant has any
right;
- the insolvency procedure and so on.
The Register of Trade is kept by the Office of the Register of Trade organized in each county and in
Bucharest. The Central Register of Trade is kept by the National Office of the Register of Trade,
which is a public institution subordinated to the Ministry of Justice.
The Register of Trade is public and thus, any interested person may have access to all its records.
The Register of Trade consists of a register for recording individuals and family partnerships and
another one for recording legal persons.
The merchants must apply for incorporation to the Office of the Register of Trade organized in the
county where they have their headquarters.
The registration in the Register of Trade is done on the basis of a decision provided by the judge
delegate.
The incorporation and the mentions registered within the Register of Trade have a publicity
function, in order to be opposable to third parties. It means the law considers that all records in the
Register of Trade are known by third parties form the date of their registration.
The merchants must apply for the incorporation in the Register of Trade within 15 days:
- form the date of the authorization, in the case of individual merchants;
- form the date of conclusion of the constitutive act, in the case of commercial companies.

According to article 22 form the Law no. 26/1990 republished, the obligation of merchants to ask
for the registration of mentions in the Register of Trade is due within 15 days from the date of the
acts or facts that are subject to publicity.
As far as the merchant natural person is concerned, the incorporation in the Register of Trade does
not produce constitutive effects in order to obtain the quality of merchant.
However, concerning the commercial companies, by the incorporation in the Register of Trade they
get the legal personality, meaning they become legal persons.