Merchants
...e subject to commercial law provisions specific to merchants such as bankruptcy, registering in the commercial register and keeping commercial books. With this provision, the legislator sought on the hand to protect third parties dealing with these persons as merchants and not knowing that they prohibited from practicing commerce, and on the other not allowing them to escape from commercial law provisions characterized by their severity especially those related to bankruptcy. Although breaching this prohibition does not prevent those who do so from acquiring the quality of merchant in case they take commercial acts as profession, they face the disciplinary and administrative sanction provided from in the laws of their discharged for example lawyers will be disbarred and public officers discharged. Legitimacy of the commercial act & the quality of merchant: The legislator required to consider a person a merchant that he takes one of the commercial acts as a profession. Does that mean that the person automatically acquires the quality of merchant regardless of the legitimacy of this act, i.e. even if it goes against public order and morality? For example buying drugs in order to sell them again and realize profit, managing a prostitution house or gambling house without license. Large and small merchants: ‘’ Rules of commercial law are not applicable to owners of small businesses’’. Through this provision, the legislator distinguished between large and small merchants and exempted the latter from all rules of commercial law. They do not benefit from any rights and are no obliged by any obligations provided for in the commercial law. This makes sense since making small merchants respect obligation imposed by commercial law in general such as registering in the commercial register, and keeping commercial books will result in waste of time and large expenses that they cannot afford and that are not adequate to the profit they make. The legislator defined the owner of a small profession as being’’ any person practcing a profession with low expenses in order to get profit guaranteeing his daily bread’’. - Proof of Professionalism No doubt that taking commercial acts as a profession is a main condition to acquire the quality of merchant. Hence proving this point is very important for both the person practicing the act and his opponent. On the one hand, it might be in a person’s interest to prove that he takes commerce as a profession for instance if he wants to avoid bankruptcy by demanding preventive concord of bankruptcy. On the other hand proving the professional character might be in the interest of the opponent for the latter , after proving it , has the right to declare the merchant’s bankruptcy or to probe the litigation between them trough all means of evidence based on the presumption if the commercial quality of a merchant’s acts. The presumption of the quality of merchant: ‘’ Any one assumes the merchant characteristic, by advertising it through journals, circulars radio, television, or any other means, will be assumed as a merchant. This assumption can be disproved by proving that he did not in fact exercise commerce’’. Once it has been proven that the person takes the commercial act as a profession and once the acquires the quality of merchant, this quality remains his all through the profession person. Contrarily to the commercial quality of any act which is passed along from one to another the quality of merchant is terminated with the death of the person practicing the profession and is not passed along to his heirs for this quality is personal and specific to its holder. Mover ever the profession ends and the person loses the quality of merchant if he decides to retire from commerce and permanently stop his commercial activity. In this case the merchant’s intention retires from his commercial profession should be clearly demonstrated. Hence, a merchant keeps his quality even if he stopped practicing his commercial act, as long as it is temporary. For example if the merchant is sick or his commerce face difficulties. Finally retiring from commerce is proven through all means of evidence such as selling the commercial store or un-registering from the commercial register. Professionalism in the Name and for the Account of the Person Practicing it: A merchant is any person practicing a commercial act in the form of a profession in his name and for his account. Merchant should perform his commercial profession independently from any other person, because of the credit which is personal factor related to the person himself. The quality of merchant is not granted to worker employees hired by the merchant for they are not independent in their work. Quality of merchant is not granted to the manager of a company, since he is chose by owners of this company to perform commercial act as profession in the name of the commercial on the behalf of the owners. If one of the partners of partnership or limited partnership is at the same time the manager then he is granted the quality of merchant for doing his join in his name and for his account. Quality of merchant is not granted to the ordinary agent since the person makes the contract with the third party in the name and the behalf of the principle. Commission agency, commercial agency, and brokerage are granted the quality of the merchant as long as they perform this commission agency and brokerage for their account. They establish the commercial quality for the commission agency and brokerage. Hiding professionalism of the commercial act: Suppose according to the social situation of certain pers...