Legal Structures: Individual vs Corporate Enterprise

• Corporate law addresses the rights of the company and, implicitly, labor law.
• Business law consists of rules applicable to economic activities as they exist today (businesses).
• An enterprise can be defined as an economic unit, a unit of organized production or distribution, permanently pooling human and material resources to seek profits.
• Infraction levels: contravention, offense, crime.

Legal Structures

• Law imposes a set of rules on a group of individuals living in the same territory.
• An individual enterprise merges the business and the entrepreneur.
• This case involves a single asset pool, even with a sole-member company.
• A corporate enterprise is a distinct legal entity from its members; the corporate contract creates the commercial legal entity.
• Whether an enterprise is individual or corporate, it operates in a competitive environment.
• A person has a legal personality is referred to as such, with the aptitude to hold rights and be subject to obligations (name, domicile, nationality, and assets are consequences).
• Assets = total property + debts + accounts receivable (or Assets + Liabilities).
• An individual enterprise lacks legal existence; the entrepreneur operates in their name and for their account.
• This activity is often commercial, conferring merchant status on the holder.

Legal Status of Traders

• The OHADA Uniform Act has been in effect since 1998.
• Article 2 of the Uniform Act on general commercial law states that merchants are those who perform commercial acts as their regular profession.
• A commercial act is exchanging with profit.
• Habit is characterized by the constant repetition of similar acts.
• A trader is defined by the nature of their acts, so occasional practice does not automatically confer trader status.
• To protect the interest a private or the public

Acts of Commerce

• Article 3 of the Uniform Act on general commercial law lists acts that necessarily generate commerciality.
• Acts of commerce are broken down into three groups: by nature, by form, and by accessory.
• Acts of Commerce by Nature include purchasing movable or immovable property for resale.
• Acts also include banking, exchange, stock market, transit, insurance, and brokerage operations.
• Also including industrial exploitation of mines, quarries, and natural resource deposits are part of commercial nature.
• The list includes movable property rental operations.
• It also covers manufacturing, transport, and telecommunications.
• Including operations by intermediaries (broker, commission agent, commercial agent) is part of the list.
• The sale or rental of a business, shares, or equity in commercial companies is considered an act of commerce by nature.
• Acts of Commerce by Form are defined in Article IV of the Uniform Act on general commercial law.
• Acts of commerce by form are defined in Article IV of the Uniform Act on general commercial law.
• They entail negotiable instruments used by merchants in their trading or commercial activities.
• Accessory Acts of Commerce include purely civil acts performed by traders during their commercial activities.

Accessing the Commercial Profession

• The law sets a principle for accessing the commercial profession.
• This is derived from the freedom of trade and industry principle.
• Anyone can declare themselves a trader or industrialist, without hindrance, and freely practice entrepreneurship, but this principle admits exceptions.
• Restrictions relate to individuals and to businesses.
• Restrictions relating to individuals are enacted to protect a private or public interest.
• They concern incapacities, prohibitions, and incompatibilities.

Incapacities

• These restrictions aim to protect individuals intending to pursue a commercial profession
• The OHADA Uniform Act states that individuals may not perform commercial acts as their regular profession unless legally competent.
• Including unemancipated minors, those with impaired judgment, adults not fully mentally competent, and those deemed unable to manage their affairs.

Prohibitions

• Prohibition is a deprivation of power, not legal capacity, concerning individuals guilty of economic or financial offenses.
• The goal is to eliminate individuals who do not offer sufficient moral guarantees from the world of commerce.

Incompatibilities

• Incompatibilities concern individuals whose profession is incompatible with engaging in commercial activity; incompatibilities must be legally specified.
• Incompatibility results from a specific status defined by national law or Article IX of the OHADA Uniform Act.
• This article targets civil servants, public employees, ministerial officers, and legal auxiliaries such as lawyers, bailiffs, accountants, notaries, auctioneers, legal advisors, and maritime experts.
• If these individuals disregard these incompatibilities, they will be suspended or removed from their duties.
• Restrictions on certain businesses are permitted in the general interest.
• Prohibitions concerns prohibited and administratively authorized businesses.
• Prohibited businesses include, for public safety reasons, the sale of narcotics or weapons.
• Administratively authorized businesses' restrictions enable state control over the country.
• Authorizations take the form of establishment permits or operating licenses, including transport licenses.
• Registration is done at the commercial court, where the trader provides data on their identity, marital status, and operations.
• A registration number is then given, which must appear on all paperwork.

Trader Obligations

• Maintaining accounting records is a key obligation.
• Traders must keep a journal, ledger, and inventory, with a summary balance sheet.
• These documents must accurately reflect the company's assets, finances, and performance, adhering to SYCOHADA principles.
• Non-compliance results in tax and penal sanctions.
• Additional obligations include paying the license fee, income tax, and corporate tax; VAT is collected by the trader and paid by the client.
• Should a business fail, the court can review the accounting books to determine the causes, deciding on either a settlement or asset liquidation.

Fair Competition Rules

• Rules are set by Law No. 94-63 of August 22, 1994, on prices, competition, and economic disputes.
• The Law provides prerogatives for the trader and the right to use arbitration, which is an alternative dispute resolution method.
• A arbitration agreement is conditional to the practice that the clause provides in case of confilt of settle the dispute will be regulated using arbitration pathway

Arbitration

• Arbitration leads to an arbitral award, legally or equitably rendered, enforceable by a competent judge.
• Commercial arbitration is conducted under the auspices of the Common Court of Justice and Arbitration of OHADA.

Freedom of Evidence

• In commercial matters, evidence is established by any means, and differing means of evidence include written documents, the witness, the oath and admission.
• It can also include the presumptions and the public knowledge.
• Electronic evidence has been admissible in Senegalese law since 2008.
• Traders leasing business premises are legally protected against arbitrary evictions; lease termination requires a legitimate reason.

Business Goodwill (Fonds de Commerce)

• A trader's main asset is the goodwill, which includes multiple elements.
• Those elements taken alone or together, can be subject to specific legal transactions.
• Tangible elements are corporate or, consist of tangible property used for business operations, including fixtures, industrial equipment, and tools.
• This also includes merchandise, which are movable items for sale in their current state (strictly merchandise or finished goods) or after transformation (raw materials or semi-finished goods).
• Intangible elements are essential in determining the legal nature of movable intangible property.
• Trademark is defined as a business's customer base; the goodwill depends on attracting and retaining customers.

Clientele

• The customer base consists of all individuals in ongoing business relationship with a trader, being the main component of the goodwill.
• Alongside the customer base is the "achalandage", referring to occasional or transient customers.
• The trade name is the name under which a person conducts business, which can comprise a surname, a pseudonym, or a composite name.
• The sign is the symbol to distinct one entity
• Intellectual property rights include financial and moral rights.
• Industrial property rights encompass patents, designs, and trademarks.
• Literary and artistic property rights encompass the exclusive exploitation rights from transferring literary or artistic works to a trader.
• The holder of industrial property rights has exclusive rights to exploit an invention or discovery.
• Goodwill can be subject to legal and conventional protection, and there are three categories:
• Sale, pledge for credit, and lease management exist as operations affecting these
• Transfer of the fonds entails a change of business owner
• Leased Management involves third party management by the proprietor

Leasing and Real Security

• Leasing is for physical and moral entities
• Real security involves a negotiable contract by the debtor creating security on their share
• The company contract states for two or more people engaging in business for shared benefits or results in financial matters
• OHADA has put in place measures to ensure sole person contracts
• Company contracts act under general conditions whether it meets a specific criteria

Capital Contribution

• For a valid capital contract there must be capacity and concern for all parties
• All stakeholders should have the power to act or engage with the contract for legal matters
• All partners must consent in the desired effect and collaboration of capital

Contribution Classifications

• Capital contributions are valued in 3 categories
• Fixed capital with cash contributions is defined as hard currency or money
• Contribution should equal about or better than 1/4 of the total share
• Fixed property in
• Industry standards can be used if the capital is non transferable but does contribute what it is worth to revenue.
• The articles in the partnership have the highest share and say in the capital of the company
• All areas of focus and business need to be set out and in accordance with each other and not infringe on each other.
• To ensure benefits flow to the relevant parties one must create a system they can all agree on.
• The agreement has the capacity to limit the powers of the people involved however the board must vote to remove or implement powers and action the decision
• Organs of governance should contain founding members
• The founding members require the signature and or authentication of the document
• The documents must accurately provide the legal information and business name
• One must accurately report on the commercial registration and any debt
• All documents must present without error for the company to act
• OHADA has laws around groups or singular members action on behalf of larger groups
• Actions and or sanctions range due to legal errors
• OHADA stipulates specific rules of governance across all organisations.
• Les Organs are controlled by the commisaires aux comptes.
• Their essential mission is to supervise and control the accounts of the company.
• They have permanent rights to review the accounts.
• This must accurately be portrayed The commissaires aux comptes must convene and be readily available
• les rapports des commissaires aux comptes contribute à éclairer les décisions des associés lors des assemblées générales. The directors should act only on legitimate interests

Different Areas of Decision

• An ordinary decision is not the direct action that will modify the company.
• Actions must be performed accurately, and should have the desired effect.
• Chromatic changes in the business nature decide the majority's decision on a direction to take
• SARL dictates its decision in first presence
• Stockholder shares must be present accurately.
• Actions by the members are defined as they are in the shares agreement
• Stocks are broken into action with cash or action with assets
• Cash has limits on the amount that is emitted within the business.
• Business's must ensure dividends are shared across the shares owned

Association of Rights

• Association of rights is defined as what the members agree on with social alignment
• Shareholders do have a right to their shares
• Each should accurately be registered
• A dividend is a benefit is made to all relevant shareholders
• Voting determines control of the company
• A vote can be influenced by many factors
• All communications should be documented so that those who control can verify their actions and intent

Business Dissolution

• Business dissolution is inevitable
• At any time a business could declare bankruptcy if it cant satisfy its financial obligations
• Following financial burden there may be court ordered actions
• In any situation the business has the possibility of seizure of company and or its assets, including personnel.

Rules Specific to Type of Company

• It involves studying the rules applicable to partnerships, to capital companies and finally to hybrid companies
• Partnerships are owned by individuals, SNC holds all shares
• Capital stock belongs to SA and the owners.
• The capital companies are all SAs and SAS
• Above 3 share holders, you have a PDG PCA or un DG

Hybrid Societies

• The Hybrid society is where the amount is agreed in capital and divided on .le capital est divisé en art sociaux dont la valeur nominal ne peut être inférieur 5mille franc . le décès.
• The partners all agree that death does end the contract term and the person is removed from the contract.
• The death requires immediate execution of the partner not continuing the obligation
• Subordination of the contract and laws surrounding apply and or provide guidance on the matter in law

Labor Law

• It holds many roles around the area of obligation to work.
• The source of any labour dispute should stem.
• The constitution is the document that is used.
• All should be derived from these sections
• Labour or social laws from private interest are generally upheld.
• The code of conduct is from the senate article 25

Work Contract

• Should provide specific information
• Courts are the entity to address any matters in the workplace
• In the matter that any instances go against the law it will fall into this category for retribution
• This is to address all bodies of conduct that is not allowed by the workplace
• Collective practices are derived from different agreements in 1933
• Work agreement requires formation of the contract, performance and finish.
• It is to cover both employee and contractor agreements.

Labor Agreements

• Is a form of contract based to work from another person
• There are 5 types of contract to refer to.
• M Aliou is an inspector of finances in the ministry of finance
• Mme Diora is a practicing medicine licenced herself M Abdoulaye is an accountant Papa leads a group of transport
• Each entity must have obligations to be a worker
• Each should have an employment and set parameters in their conduct.
• In labour law there is no exact agreement The 3 part should follow agreement.
• Remuneration under direction is part of the laws Remuneration is from their position and to allow actions to be performed.
• Should be executed with excellence to gain trust Employee subordination has direction and procedure
• Every job is paid under a salary and given on an arranged schedule to ensure trust of the employees
• Stage or pre stages are the next levels of the agreement
• Under certain stages the level of commitment is to improve or improve a process.
• Must have the agreement in writing or the contract is void and or not considered legitimate.
• Employment needs to provide safety for both individuals

Contracts Explained

• The employer needs to get the required education that is methodologically needed.
• The trainees ensure all laws and needs are performed
• No penalty should face the trainees unless to parties decide to engage
• Employment can cease anytime if and when wanted.
• Each individual understands that the other seeks understanding to fulfil and understand an agreement that is in affect

Stage Contract

• Must be written and not assumed so each is accountable in all matters.
• A business or learning provider needs to be certified and or accredited.
• No discrimination from both groups.
• All text must be translated.
• Must apply to both workers under agreement who apply

The Code of Conduct

• Each body in the conduct must adhere to the laws and all the rules that apply
• Every process is to be checked and approved for it to be effective Performance must also occur.
• In Senegal you can apply two actions in the same workplace.
• Employment permanent cannot be stopped from action.
• Employment comes at a cost.
• Any law passed to fix the time needs to be agreed with everyone
• No agreement needs to occur if the time frame is not fixed.
• Temporary action cant have a specific time applied to it

Time Limits

• Time limits are fixed
• Employee cant gain specific agreement
• Agreement needs a period of 2 years to set
• One time employment is all the is applied to actioned people
• Contract of employment is a form of law
• All terms need clarification
• Can be suspended for 6 weeks out, and 8 after.
• Hours are fixed but must still conform to industry standards
• Working to often must have consent
• Most contracts need a 2 year arrangement.

Explore the nuances of legal structures, focusing on individual versus corporate enterprises. Understand how law governs economic activities and the distinctions between infraction levels. Learn about the rights of a company and the impact of legal personality on business operations.