Commercial Law - PDF

COMMERCIAL LAW  Presentation title 2 COMMERCIAL LAW Commercial law can is defined as a branch of private law that encompasses the legal operations carried out by traders, either with their customers or among themselves. All operations related to the exe...

COMMERCIAL LAW  Presentation title 2 COMMERCIAL LAW Commercial law can is defined as a branch of private law that encompasses the legal operations carried out by traders, either with their customers or among themselves. All operations related to the exercise of commerce are referred to as commercial acts. Commercial law in Tunisia is mainly governed by: -The code of commerce of 1959 -The code of commercial companies of 2000  Presentation title 3 The Tunisian Commercial Code, was first introduced in 1959 and has undergone several revisions since then. The code provides a comprehensive framework for conducting business activities in Tunisia and regulates various aspects of commercial transactions including, Commercial Acts, Traders and The goodwill (fonds de commerce). Presentation title 4 The Code of Commercial Companies (CCC) The Code of Commercial Companies in Tunisia is a legal framework that governs the establishment, operation, and dissolution of commercial companies in the country. It outlines the various types of commercial companies, including partnerships, limited liability companies, joint stock companies, and others. The code also regulates the responsibilities of company directors, shareholders, and auditors.  5 COMMERCIAL ACTS The purpose of this section is to understand how to determine whether an act is commercial or civil. The Reason: It is important to distinguish between civil and commercial acts because of the legal consequences in terms of jurisdictions, enforcement and applicable laws. Presentation title 6 COMMERCIAL ACTS Commercial acts can be classified under three categories: - Commercial acts in nature - Commercial acts in form - Ancellary Commercial acts (by accessory) I. COMMERCIAL ACTS IN NATURE Presentation title 8 Commercial acts in nature are a category of acts to which the legislator gave a commercial qualification (listed by the law as commercial acts). Therefore, the act is commercial whether is carried out by a trader or not.  PARAGRAPH1 ACTIVITIES RECOGNIZED AS COMMERCIAL ARTICLE 2. OF THE TUNISIAN COMMERCIAL CODE STIPULATES: “Is trader, whosever, professionally, conducts acts of production (textile manufacturing), circulation (communication, transportation), speculation (resale, reselling) and intermediary (brokerage), with regard to the exceptions provided by law. In particular, is a trader, who, in a professional capacity, makes: extraction of raw materials; the manufacture and processing of manufactured products; the purchase and sale or lease of goods of any kind; warehouse operations or general stores management (storehouse, repository); land transport (terrestrial, maritime shipping, and air transport) sea and air transport of goods and people; IN TUNISIAN COMMERCIAL CODE,IS COMMERCIAL ANY ACTIVITY THAT CAN BE CLASSIFIED AMONG THESECATEGORIES: PRODUCTION/CIRCULATION/ SPECULATION/ INTERMEDIARY.  PRODUCTION It is the extraction or the creation of materials to be commercialized after that. Examples : *Extraction of raw material *Manufacture and processing of manufactured products: it is the transformation of raw material into intermediate goods and manufactured goods. It creates new values in use for man’s needs, whether as consumption goods or capital goods. Manufacturing does not imply that the manufacturer has to purchase the raw material or the intermediate goods in order to consider his activity as a trade profession.  CIRCULATION Any act relating to transporting goods for persons for commercial profit. Example: *The supplying of goods and services : regular delivery of goods or services. It is a trade act when it is practiced as an enterprise.  INTERMEDIARY is a trade act based on mediation between two partiesin order to assure or facilitate a trade act or transaction. Examples: *The brokerage is an agreement under which the broker is charged to indicate to a person a contracting party with the view to concludea specific contract and to mediate in its formation. *The commercial proxy is mediation in the formation of contracts for the requirements of trader’s activities. That proxy bears on trade transactions.  SPECULATION Buying and selling movible (goods) and immovable (properties) objects regularly and professionally to make a profit. Example: *sale of goods *cars and houses PARAGRAPH 2 EXCEPTION S  AGRICULTURAL- ACTIVITY Agriculture is classified as a civil activity. Craft professions (artisanat) Hand made activities are considered as civil, activities. such as decorators, carpenters, hairdressers etc. The basic idea is that these persons drive their profit from their manual skills and their labor force Liberal professions (professions libérales) Liberal professions such as doctors, engenieers, lawyers, accountants, and other intellectual professions.. are considered as civil activities. In general, each activity has its own legislation and laws. II. COMMERCIAL ACTS IN FORM An act will be considered automatically commercial because of : 1.The form the act. Example: the use of an effect of commerce such as a bill of exchange ( l e t t r e d e c h a n g e ) causes the commerciality of the transaction 2.According to the form of the person involved in a transaction, the act will be considered as commercial. For example, if a liberal profession is organized under a commercial company form (une société SARL, SA..) it becomes a commercial activity.  III. COMMERCIAL ACTS BY ACCESSORY(=ANCILLARY) ACTS Accessory to commercial activity has the commercial character too. The Ancilliary legal rule suggests that the accessory activity follows the principal one. 1- If the principal activity is commercial and the accessory transaction is civil but carried out as a support for the principal one then the accessory act is also considered commercial. Example: a trader (principal activity is trading) pays a lawyer for a legal advice (accessory activity). In this case the accessory transcation is also commercial. 2- If the principal activity is civil and the accessory transaction is commercial but carried out as a support for the principal one then the accessory act is also considered as civil Example: a barber sells on an accessory basis beauty products. II. COMMERCIAL ACT ENFORCEMENT  PARAGRAPH 1. MEANS OF PROOF Civil law recognizes only the pre- constituted documentary proof (article 473 the code of obligations and contracts states that testimony is prohibited when the sum is equal or superior to 1000dinars ), whereas a commercial act may be proved by any means because in commercial transactions need to be carried out rapidly and with the minimum of formality. 598 CC « commercial engagements are proved by: 1.authentic act (a document written by a public officer (notary, civil status officer, bailiff). 2.Private deed (a written document between parties just signed by them). 3.A deposit slip of an exchange agent or a broker. 4.Correspondence 5.Commercial registers of parties 6.Testimony and presumption Article 478 COC « testimony is allowed between traders, in case laws don’t prescribe written proofs». In addition to the previously enumerated means of proof, since the law of 13 June 2000, the legislator added new means to the business field in relation with electronic transactions such as: microfilms, CD, E- mail, fax ). 3. GOODWILL Le fonds de commerce Goodwill is a marketplace advantage of loyal customer patronage developed with continuous business under the same name over a period of time of at least two years. It may be bought and sold in connection with a business, and anyone who maintains a competitive business that offers goods or services may acquire it and insist on its protection. Goodwill can be sold in a sale contract and will be governed by the ordinary rules of contract law. Where a contract transfers a business and its goodwill, the transferee may compete with the transferor's business unless a clause not to compete is expressly included in the contract. Goodwill is not tangible like equipments. It is an intangible asset valued according to the advantage or reputation a business has acquired (over and above its tangible assets). It becomes important when a business is sold, since there can be an allocation in the sales price for the value of the goodwill, which is always a subjective estimation. Included in goodwill upon sale may be the right to do business without competition by the seller in the area and/or for a specified period of time. The goodwill is conceived as a form of property in its own rights. The customers are fundamental to the goodwill. Accordingly, a goodwill does not exist until the business has commenced trading. Morespecifically, customers must be real and certain rather merely potential. According to its nature as a property, goodwill may be alienated. It is natural to raise the question of how an intangible thing can be transferred to another person. Goodwill may not be sold or transferred separately from the business with which it is associated or apart from trademarks, trade names, or other symbols that represent goodwill. A purchaser of goodwill obtains all of the privileges and benefits which the vendor had. Goodwill is characterized by all of the features that is typical of intangible property. As a result of its transfer, all privileges and benefits enjoyed by its alienator pass to the purchaser. Being made up of movable assets, the goodwill is itself regarded as a species of movable assets. However, although many of its components may be tangible assets, it is itself treated as intangible property. Any disputes arising from goodwill will be subject to the jurisdiction of the commercial courts.