course 5 legal facts

8/12/2019 Course 5 Legal Facts

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The Facts of Commerce

Regulation

The commercial facts are regulated by art. 3, 4 and 56 from Commercial Code.

Art. 3 - presents a list of legal operations, qualified as commercial facts.

Art.4 the list is completed with all the other acts of a merchant, under the

condition that they are not of civil nature or the contrary does not result from the

act itself.

Art. 56 the commercial facts area enlarges with the juridical operations

concluded between a merchant and a non-merchant.

The notion of commercial facts

The facts of commerce represents the ensemble of commercial facts and

acts consisting of producing goods; execution of works; intermediating in goods

circulation and services, with the purpose of obtaining profit.

The Classification of Commercial Facts

The commercial law does not establish a real classification of commercial

acts/facts and only the commercial code, as general law, has different provisions

regarding the commercial acts as in articles: 3, 4, 5, 6, 35 and 56.

This is why, for a better understanding of these legal provisions, the

commercial legal doctrine, on the ground of commercial code, tried to present its

own classification, but a unique view could not be found in order to classify the

commercial facts.

Apart from that approach, we have the presentation of commercial facts

made by the commercial code itself. Thus, the commercial facts should be

classified into:

a) objective commercial facts art. 3


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b) subjective commercial facts art. 4

c) unilateral or mixed commercial facts art. 56

1. The Object ive Commercial FactsThese facts are expressly provided by article 3 from Commercial Code,

which presents 20 activities as being commercial facts: These are commercial

facts:... It means that, without any doubt, those activities are enforced by law

as being commercial facts and consequently any person, merchant or non-

merchant, who performs them is part of a juridical relationship regulated by

commercial law provisions.

The enumeration is mostly based on an economical criterion rather than

on a juridical one, taking into account the object and the economical function of

these operations.

Therefore, the objective commercial facts could be divided into:

a) operations of interposition on exchange or circulation of goods

b) operations which accomplish the organization and performance of

production activities enterprises

c) other juridical acts and connected operations accessory facts. In this

case, some activities become commercial facts because their relation with other

commercial facts or operations which have been already considered as such by

Commercial Code.

a) Operations of interposit ion on exchange or circulation of goods

Some commercial facts presented by article 3 Commercial Code

materialized the activity of interposition on exchange or circulation of goods.

There are included in that category the commercial selling and purchasing

activities and the banking and exchange operations.


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Commercial Selling and Purchasing

This activity is regulated by article 3, point 1 and 2 from Commercial Code.

Thus, according to these:

Law considers as commercial facts:

1. Purchasing of products or goods for re-selling, either in kind, or after

they have been elaborated or put in progress, or only for letting; also, purchasing

for re-selling of state bonds or other debt titles circulated on trade;

2. Selling of products, selling and renting of merchandise, in kind or

elaborated and of state bonds or other debt titles circulated on trade, where they

have been bought with a view to re-sell or to rent

From this provisions we should understand that, as far as the content of

selling and purchasing activities is concerned, it is similar to that regulated

by the civil law. Indeed, either the civil or commercial selling/purchasing

materialized the transfer of the ownership right on a specific good for a

certain price.

But, although the civil and commercial selling/purchasing have a similar

content, they are differentbecause:

- the economic function of the commercial selling/purchasing is a

interposition on exchange of goods which allows only their circulation from

producer to consumer (meaning the trade is stricto sensu). On the other hand,

the civil selling/purchasing allows only the direct transfer of goods from the

owner to another person.

- the main feature of the commercial selling and purchasing is the

intention of re-sellingthat the persons involved in this activity form the moment

when this contract is concluded. In other words, selling/purchasing is a

commercial activity only if it is done with the view of re-selling the purchased

goods or the selling regards merchandise which have been bought with the

intention of re-selling.

The intention of re-selling has to be expressed by the buyer and

acknowledged by the seller, otherwise the act will not commercial. The re-


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selling intention could result from the clear declaration of the buyer, from the

content of the contract or from different elements, like the quantity of purchase.

Whenever the act is pretended to be commercial the evidence must be

proved, or the act will be considered civil, because the provisions of article 3

points 1 and 2 from Commercial Code derogate from the civil law rules.

Examples:

*The purchase of goods for personal, family use is nor commercial, even if

the buyer sells them after;

* Purchasing of bags in order to transport in them some goods, subject of

a future sell, because the intention of re-selling refers only to the goods;

*On the other hand, when we have an intention of re-selling, but the

goods, products are not sold, the activity is still commercial.

- Only movable goods, as produces, products, debt titles, can be object

of commercial selling and purchasing, so immovablegoods are civil acts.

Produces= all natural produces obtained by culture or direct exploitation

of land, such as: cereals, wood, vegetables as well as animal products: milk,

eggs, wool etc

Products = produces obtained through a productive activity and intended

to be sold, such as: cars, furniture, clothes etc.

Debt titles = documents which incorporate a specific right (rights) and

consequently entitle their owner or holder to exercise it (them).

- another important difference between civil and commercial selling and

purchasing refers to the fact that article 3 does not request that the bought goods

are re-sold in the same form, they can be also sold after they have been

elaborated or put in progress.

As far as the transformation of goods concerning, there can be a question

whether this activity is more expensive than the value of the purchased goods?

Example: handicraft where, most of the times, the work is more

important than the material itself.

On this subject, the commercial law doctrine makes the following

differences:


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a)if the handicraftsmen use raw material purchased by their clients, their activity

is a civil operation which departs from the interposition on circulation of goods

and it is so-called lease or letting of services

b) if the handicraftsmen purchase the necessary raw materials, process them

and sell after that, their activity will be commercial.

Banking and exchange operations

According to art. 3 point 11 from Commercial Code, money and credit can

be object to circulation of goods and thus commercial activities. The commercial

character of these operations is given by the fact of interposition on circulation or

exchange of money, titles that they suppose. On the other hand, money itself is a

merchandise and, as such, object to commercial facts. Consequently, the

operations regarding money or credit should be submitted to the same principles

of circulation of goods.

The exchange operations are those related to the exchange of different

national currencies. These operations can be performed by banking companies

authorized to participate on the currency market or exchange houses.

b) The Enterprises

The enterprise is systematic organized activity which combines factors like

capital, labor and nature with the purpose of producing goods and services and,

by that, obtain a profit.

In order to be an enterprise, we need some conditions fulfilled:

- the object of activity has to be producing goods, execution of works or services,

and the purpose must be to obtain profit;

- the existence of an organized activity;

- the risk and control of the activity taken by the entrepreneur.


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Classification;

1)Supply enterprises art. 3 point 5 - is a organized activity through which

the enterpriser, for a pre-established price, supplies goods/services. In order

to be considered a supply enterprise, it has to fulfill the following conditions:

- the existence of an organization of factors in order to perform commercial facts

- the performance has to be done successively

- the price has to be pre-established between parties.

2) Public shows enterprises art. 3 point 6 the object of activity might be

any activity of shows like: theatre, circus, concerts, movies. All the facts made to

fulfill the final goal: renting a room, location, contracts with artists, advertising

have a commercial character. There can be some shows that do not have a

commercial character those organized with social purpose.

3) Enterprises of commission agencies and business offices art.3 par. 7

where commission agencies are based on the commission contract (transport)

and business offices on intermediating operation between merchants and their

clients(obtaining information, attracting clients)

4) Construction enterprises art. 3 par. 8 the object of the construction

enterprise must be the construction of new buildings or transformation

operations, arrangement operations and others. The construction enterprise is

commercial in both cases when the materials are bought by the enterpriser or by

the customer.

5) Enterprises of factories, manufacture and printing works art. 3 par. 9

the object of activity is to transform, to process, raw material in industrial

products (factories) and dry goods (manufacture) or to duplicate literary, artistic

works (printing works)

6) Enterprises of publishing house, book shops and art objects selling

art.3 par. 10 the main condition is that the seller must not be the author, but a

merchant that has as object of activity this kind of commercial acts, otherwise this

operation is a intellectual property right one, so of civil nature.

7) Transport enterprises transportation is an operation of material

moving of persons or goods from one place to another, fulfilled under different


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conditions and in many ways. The code is old, so we do not have presented the

transportation by air, but we can deduce that.

8) Insurance enterprises art 3. par 17 land insurance, mutual included,

for damages and life and par. 18 insurance, mutual included, for navigations

risks. It is a commercial act because is done by organized and specialized

companies.

9) Storehouses in docks or warehouses art. 3 par. 20 are commercial

because they store merchandise for a certain price

c) Accessory facts

They are juridical facts and acts that by nature are civil, but they become

commercial because we have a relation with a commercial operation.

1) Carry-forward (report) contracts on state bond or other debt titles

circulated on trade art3. par. 3

2) Purchasing or selling of parts/shares of commercial companies art3.

par 4 the relation with commercial area consists in the subject of trade.

3) Operations of intermediate for business art. 3 par. 12

4) Bills of exchange and payment orders art. 3 par. 14

5) operations related to navigation art. 3. par. 15 and par. 16

6) deposits for trade cause art. 3 par. 19 are commercial facts

because the deposit is made with the intention of re-selling.

2. The Subjective Commercial Facts

Conditions:

1) The facts are not of civil nature

2) The commerciality does not result from the act itself

Examples:

- Acts done for the personal use of a merchant

3. The Mixed Commercial Facts

The acts done between a merchant and a non-merchant

course 5 legal facts

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