Commercial Law in Romania [629177]

Commercial Law in Romania

TRADE ACTS AND FACTS. SUBJECTS OF THE COMMERCIAL
LAW REPORT. THE FUND OF TRADE. COMMERCIAL
SOCIETIES. BANKRUPTCY .

Subject : Commercial Law
Student: [anonimizat]301379
Professor: Lia Esteves Borges de Ar aujo
Semester II, 2018 -2019, Polytechnic Institute of Bragança

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INDEX

CHAPTER I – INTRODUCTORY THRESHOLDS ON COMMERCIAL LAW _ _ _ _ _ _ _ _ _ _ _ 4
1. General notions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 4
2. Object of Commercial Law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 4
3. Historical Evolution of Commercial Law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 4
4. Evolution of Commercial Law in Romania _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 4
5. Autonomy of commercial law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5
6. Sources of Commercial Law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 5
7. Current Trends in Commercial Law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 6
CHAPTER II – TRADE ACTS AND FACTS _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 7
1. Introductory notions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 7
2. Definition and characteristics of trade documents _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 8
3. Classification of trading facts _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 8
CHAPTER III – SUBJECTS OF THE COMMERCIAL LAW REPORT _ _ _ _ _ _ _ _ _ _ _ _ _ _ 13
1. General notions about traders _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 13
2. Determination and proof of trader quality _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 14
3. Termination of Merchant Quality _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 15
4. Traders' Organization _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 15
CHAPTER IV – PHYSICAL PERSON AL TRADER _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16
1. Free access to trade professions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16
2. Limitations on this to commercial professions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16
3. Legal Status of Foreign Traders _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 16
CHAPTER V – COLLECTIVE SUBJECTS OF THE COMMERCIAL LAW REPORT _ _ _ _ _ _ 17
1. Commercial Company -Collective Issue of Right _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _17
2. Particularities of companies _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 17
3. The Company Contract _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 17
4. Types of collective organization _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 19
5. Business groupings _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 20
6. Collective issues of commercial law _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 21
CHAPTER VI TRADE AUXILIARIES _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 22
1. General notions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 22
2. Representation or commercial representa tion_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 22
3. Effects of Representation _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _23
4. Representation Type _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 24
5. Termination of Representation _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 24
6. Dependent auxiliaries _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 24
7. Independent auxiliaries _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 25
CHAPTER VII – TRADE FUND _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 27
1. About Commercial Heritage _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 27
2. About Social Capital _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 27
3. General notions about the fund _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 27
4. Legal nature of the fund _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 27
5. Elements of the Fund of Trade _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 28
6. Sale of the trading fund_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 29
7. Placement and pledge of the trading fund_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 30
CHAPTER VIII COMMERCIAL SOCIETY _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _30
1. Generalities _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 30
2. Establishment of commercial companie s_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 30
3. Operation of commercial companies _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 31
4. Merger of trading companies _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 31
5. Dissolution of commercial companies _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 31
6. Liquidation of commercial companies _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 32

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CHAPTER I X – PROCEDURE FOR JUDICIAL REOR GANIZATION AND
BANKRUPTCY _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 32
1. General notions _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _32
2. Reorganization procedure _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 32
3. Bankruptcy _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 33
4. Closure of the procedure _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 34
CONCLUSION_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _35
BIBLIOGRAPHY_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 35

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CHAPTER I – INTRODUCTORY QUESTIONS AB OUT COMMERCIAL LAW

1. General notions
The development of the market economy has marked a new approach to commercial
reality as a reality social, in the sense of perfecting the entire economic and legal mechanism
that governs trade in its complexity and d ynamics.
The name of commercial law , as a branch of law and as a legal discipline of study,
puts in evidences the fact that it is a legal regulation of a specific character, more precisely an
ensemble rules and legal institutions dealing with trade. Such a definition is, to a large extent,
correct, requiring clarification of the meaning of the concept of trade.

2. Object of Commercial Law
Concluding to the foregoing, commercial law can be defined as a whole
of legal rules of private law that apply to leg al relationships arising from acts
operations considered by law to be trade deeds and legal relationships in which they
participate traders and companies .

3. Historical evolution of commercial law
The analysis of the genesis and evolution of trade and, in particular, of commercial
law throughout history, which do not have the same age, allows to highlight its features that
have been nowadays.
The history of commercial law is closely related to the history of commerce and,
implicitly, to the development of a of human society itself.
The first manifestations of " exchange " occurred with the birth of the idea of
ownership in one primitive form and habits, respectively.
To meet the needs of their existence, people began to change products
made by their work or agonized from the environment, and the word given and the gathering
of the hand seem to be the oldest m eans of guaranteeing commercial obligations1.

4. Evolution of Commercial Law in Romania
On the territory of our country, as everywhere, commerce was originally governed by
some common customs rules ( custom of the land) or foreign origin, as a res ult of ties with
foreign merchants. Greek merchants from Miletus and Heracleea have founded the fortresses
of Histria, Tomis and Calatis on the shores of the Black Sea, developing a flourishing trade
with Dacians2.
The First Written Laws, Pravila of Vasile Lupu -1646 in Walachia and the Law of
Matthew Basarab – 1652 in Moldova, did not contain special rules for trade because there
were provisions civil law. The first rules of commercial law appear, after the Byzantine
Empire laws "for the first time, Code Andronache Donici, 1814, applicable in Muntenia,
which refers to ,, affair commercial " and" iconomic ".
The Caragea code appeared in Moldova in 1817, written in Greek, contained
regulations in commercial sales, bills of exchange, companies, bankruptcy, and so on.

1 Al. Boroi, G h. Nistoreanu – Commercial Law. Part 4, All Beck Publishing, Bucharest, 2004, p. 2
2 Oancea – Criminal Law Treaty. General, Ed. All, Bucharest, 1994, p. 7 M. Zolyneak – Criminal Law. General part,
"Alexandru Ioan Cuza" University, Iasi, vol. I, 1993, p. 6

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In 1840, the French Commercial Code was implemented in Muntenia, and in Moldova
it was applied from 1864. In 1887 the current Romanian Commercial Code was
adopted (for which it was used as a inspirational Italian Commercial Code of 1882, and
Germ an and Belgian legislation).
The Romanian Commercial Code has been consistently implemented until 1948,
when, in the super -centralized planned economy, the Romanian Commercial Code remained
applicable only in the legal relations of foreign trade, but here with numerous restrictions3.

5. Autonomy of commercial law
Regardin g the autonomy of the commercial law, there were two doctrinal directions,
materialized in two theses, as follows:
The thesis of unity of private law is based on arguments derived from t he need to
protect non -traders to whom commercial law would apply, although it would be adopted in
the interests of a professional categories – traders. This without talking about the difficulties
of interpretation and of litigation.
Acknowledgments of th is thesis, some countries like Switzerland and England do not
have a commercial right autonomous, thus simplifying legal relationships between
individuals.
Those who support the thesis of the autonomy of commercial law , on the
contrary, come up with argu ments which emphasize the need for the legal relationship to be
uniformly regulated, which is why the law commercial relationship should also be applied to
relationships between traders and non -traders. It is underlined that only the legal relationship
is subject to commercial law, not the legal status of the non -trader. Civil and commercial
relations are not homogeneous in terms of nature and purpose. evolution economic and social
situation did not lead to the uniformity of traders and non -traders' activit ies, so
these activities could not be subject to the same legal rules.

6. Sources of Commercial Law
The notion of source of law means all forms of expression of legal norms
commercial ones that are determined by the state of editing or sanctioni ng.
The provisions of art. 1 C. com.roman states that " The law applies heretofore the
Civil Code is applicable. " According to this provision, the main formal sources of the of
commercial law are the Commercial Code and the Civil Code, without minimizing the
existence of other categories of sources with which commercial law interferes.4
Commercial law has as its main sources the formal sources: the Romanian
Constitution Commercial Code, special commercial laws, Civil Code, special civil laws.
The correla tion between the Commercial Code, special trade laws and the Civil Code,
applies the general principle of specialty generalibus derogant. In other words, special trade
laws are priority application, but when they are not regulated certain legal situations are used
the rules and principles enshrined in the Commercial Code that constitute the common law in
the matter. All thus, when the Commercial Code does not contain rules for some legal
situations, they become applicable the provisions of the Civil Code (a s expressly provided for
in Article 1 of C. com.) which represent the right common in terms of regulation of
patrimonial relations in general.

3 V. Dogoro z – Commercial Law, 1939, p. 28, V. Dobrinoiu et al. – Commercial Law, Genera l Part, Ed. Europa Nova,
Bucharest, 1999, p. 8
4 C. Bulai – Op. cit. , p.17

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The Commercial Code and special trade laws contain, in principle,
suppressive rules, which means that they appl y only if the parties have not otherwise agreed.
However, there are imperative rules, from which the parties can not derogate as it
appears from the disp Civil Code. Romanian, which refers to public order and good
morals . They aim, as a rule, protecting general interests.
Referring to the formal sources of commercial law, it is important to consider not only
the actual rules contained in the Commercial Code and the special trade laws, but also the
principles which are relies on them. The commercial legal doctrine recognizes the
principles that have become classical as they are; of example, the following: in trade, free is
not presumed; in trade, always, the money is fructifieri; in case of doubt the rule favoring
circulation is applied; in trade, the cont ract in favor the third is common and others.
Another source of commercial law, this time informal, is the custom (its custom
norma), which is a rule of conduct born out of social practice, used for a while long-lasting,
therefore having a verifiable reli ability in practice and which, therefore, applies and is
respected as a mandatory legal norm. They even acquire a formalized character at that time
when they are legally enshrined.
In our commercial law, the customs are not legally consecrated by art. from the Code
commercial law being governed only by the Commercial Code and the Civil Code as a source
of commercial law. But the doctrine recognizes the conventional (conventional) uses of the
will presumed of the parties, being intended to clarify the meani ng and the limits of this
will. Such usages have have been inferred from certain provisions of the Civil Code that are
also applicable in commercial law. So, according to art. 970 C. civ., The conventions must be
executed in good faith, forcing not only to what is expressly provided for in them, but also to
all the consequences that equity, habit or law implies by nature . As such, taking into account
these provisions of the Civil Code, which enshrine one the principle of performance of
contractual obligati ons, and obligations in commercial contracts must well done with the
diligence of a good trader (commercial contracts obligations which, even if not expressly
provided, result from the customs of commercial activity). Another text of the Civil Code,
art. 980 provides that the doubtful provisions are interpreted according to the custom of the
place where the contract was concluded . So if a commercial contract contains clauses that
are doubtful or echivoce, in order to determine their content or meaning, mus t resort to
existing habits to the place of conclusion of the contract; of course, being habits in the field of
commercial activity .
As regards judicial and arbitration practice or legal doctrine in commercial matters,
although they are powerful factors i n the interpretation of the law and the progress of law, are
not a source of in general, and therefore not of commercial law, in particular5.

7. Current Trends in Commercial Law
From the first forms of manifestation of commercial law, from the nineteenth century
to the end today, this important branch of law has not ceased to develop and improve. Early
on, there have been trends that have grown and become more and more obvious as a result of
the great technical and scientific achievements.
Development, di versification and specialization of economic activity in general and
trade , in in particular, have led to trends in the development and extension of the scope of the
law commercial.
Commercial law now includes, in its sphere, all the productive activities of
circulation and distribution of goods, banking, foreign exchange and insurance, etc.

5 R. Merle, A. Vitu – Traite de droit criminel, Ed. Cujas, Paris, 1967, p.96

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Commercial law was born and developed during the nineteenth century under the
banner freedom of trade and industry. But the negative phenomena that accompanied this
development (which a culminating in the great economic crisis of 1929 -1933) determined the
state to leave the doctrine of liberalism to intervene in economic activity (the New Deal
Program implemented by the US during 1933 -1936 during the Roosevelt administ ration is
considered the first manifestation
significant state intervention in the economy).
Measures of economic conduction of a social character could not be echoed on the
right -commercially, with a state control of the trader's activity, related activi ties supply and
sale, pricing, compliance with tax and financial rules, and protecti on consumers, competition,
etc.
The nineteenth century is characterized by the tendency to codify trade law, each
country tending to enshrine, through national regulation, rules of commerce according to their
interests economic.
The modern age, which is also characterized by a development of trade between
different countries, both at regional and continental level, has determined the objective need
to strengthen the the le gal security of trade relations, which has imposed a tendency towards
international harmonization of commercial laws. Thus, under the auspices of the League of
Nations, the Geneva Conventions were adopted (1930 and 1931) on uniform laws on bill of
exchange , promissory
note and check, on the basis of which the signatory states have adopted their own domestic
laws on these securities.
The actions to unify trade laws continued under the aegis of the UN and the
institutions which included UNCITRAL's important role. The Hamburg Rules were adopted
(1978) and the Convention on the International Sale of Goods (Vienna, 1980).
A special place in the process of harmonizing trade laws is the Treaty of Rome
which states that, at the end of a transitional period, between the EEC countries, circulation
goods, services, capital and labor to become free. It is what has been decided by
The Treaty of Maastricht.
In order to improve the regulation of the economic activity and legal relations on
which this implies, another tend ency in the direction has begun to manifest in Western
doctrine the recognition of originality and, implicitly, the autonomy of economic law, but
without a point yet united view on the definition of this future branch of law.
He also expressed the view th at trade law itself must change its title to
better corresponds to the current conditions of development of productive economic activities
and commercial, to be called " business law " (it will include not only legal elements
privately, traditionally admit ted, but also elements of public law related to state intervention
in the economy, law tax, labor law, etc.). Designed as a business law, it would be more of a
character more multidisciplinary than commercial law .

CHAPTER II – TRADE ACTS AND FACTS

1. Int roductory notions
Commercial Code does not define " business deeds " but just limits it to enumerate
certain categories of operations that are considered by law trade deeds, and by disp.art.5
C.com. Romanian excludes a series of3 legal acts that can not b e classified as trade deeds.
First, it is necessary to distinguish between " legal acts " and " legal deeds " with
civil character and juridical acts and deeds of commercial character, because the Romanian
Commercial Code contains provisions that may crea te confusion.
The civil legal act is a manifestation of the will of one or more natural persons or

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legal acts committed in order to create, modify, transform or terminate civil legal
relationships.
Civil legal acts are events and actions of an objective nature, committed without intent
produce legal effects but produce legal effects.
The Romanian Commercial Code establishes certain acts and legal operations with a
voluntary status on who qualify them as " deeds of commerce ," through which they are born,
altered, transformed or quit commercial legal relationships and governed by commercial
laws.
"Business facts " are set out in Article 3 of the Commercial Code and are as follows:
– buying goods or merchandise to resell, either in nature or after they wi ll be
worked or put into work, or only to rent; also buying to resell State obligations or other credit
spreads in trade;
– contract reports on government bonds or other commercially traded debt securities;
– purchases or sales of shares or shares of com panies;
– any supply undertakings;
– public performance companies;
– commissions, agencies and business offices;
– construction enterprises;
– factories, manufacturing and printing enterprises;
– publishers, bookstores and works of art other than the author or artist;
– bank and exchange operations;
– intercession (samsarie) operations in commercial affairs;
– undertakings for the transport of persons or goods on water or on land;
– bills and orders in goods or commodities;
– the construction, pu rchase of the sale and resale of all kinds of vessels for navigation
interior and exterior and everything concerning the equipment, reinforcement or
supply of a vessel;
– Maritime expeditions, rentals, maritime loans and all related contracts
to trade at sea and to navigation;
– land, even mutual insurance, against damages and life;
– insurance, even mutual, against the risks of navigation;
– deposits for a trade -off;
– warehouses in docks and warehouses, as well as all operations on deposit receipts
(warrants) and pledge letters issued by them.
By art. 4 of the Romanian Commercial Code also stipulates that trade deeds are
considered , and ''Other contracts and obligations of a trader if they are not of a civilian
nature or if the contrary does not re sult from the act itself. "

2. Definition and characteristics of trade documents
A level using trade can be defined as the act that is performed in an organized manner
interference with the movement of goods, services and values, with the intent to obtai n
benefits (advantage).

3. Classification of trading facts
Due to the heterogeneous nature of the deeds regulated by the law, it is not possible to
be used classification criteria .
In classical doctrine , trade deeds have been classified into two broad c ategories:
trade deeds objectives and deeds of subjective trade . The objectives are determined and
produce effects under of the law, regardless of the quality of the person (trader or non -trader)

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who performs them, and the ones subjective are those facts that acquire commercial character
because of their being committed by a person who is a trader6.
In the modern doctrine, more pronounce d opinions were expressed, some
subcategories were established or they had new categories of trade have been added.
With respect to objective trade facts, some authors have made a distinction between
trade facts by their nature (facts declared commercial if they meet certain conditions) and
trade after their form (trade conditions without conditions).
In the category of bu siness facts, the legal acts were also included
considered as such because of their connection with acts and operations considered by law
trade deeds (Auxiliary Commerce or Accessory Commitments facilitates the bringing and
procurement of goods on market. These are, for example, operations related to water
navigation and intercession operations in commercial transactions).
In our legal literature we proposed a classification of trading facts into three
categories: objective, subjective and mixed .
As far a s the objective trade facts were concerned , it was shown that, as a majority,
business deeds are economic operations, ie economic activities, and less legal acts, they do
not can be classified only on the basis of economic criteria, which are based on the object and
the economic function of the respective operations, being objective facts of trade.
Taking into account these (economic) criteria, objective bus iness facts can be divided
into three subgroups:
a) interchange in exchange or circulation ;
b) operations relating to the organization and conduct of the production activity ( ie
activity enterprises) ;
c) related operations or accessories (that is, the facts which, due to their
connection with the operations on which The Commercial Code considers th e deeds of
commerce also to be considered acts of commerce) .
Each of these subcategories requires some explanation to avoid confusion.
a) In respect of interchange or circulation interchange in this subgroup includes:
buying and selling and bank operatio ns.
Buying and selling is similar , in terms of its structure, to sale-purchase in the field of
civil law (Article 1295 C. civ.).
What distinguishes them is the economic function of the contract. The characteristic
feature a sale-purchase is the intention of resa le or rental. This intention of resale or lease
must exist at the date of purchase, it must be known co – contractor and look at the purchased
asset7.
As stated in Art. 5 of the Commercial Code "can not be considered as trade
the purchase of goods o r merchandise that would be made for the b uyer's use or consumption,
or a his family; also reselling things and sell ing the products that its owner the cultivator has
it after his own land or cultivated by him. "
The law does not require the purchased ite m to be resold in the form in which it was
acquired, but it can be resold after having undergone some transformation. But, the
transformation of the good bought through certain means and procedures, raises the question
whether this activity is n ot more imp ortant than the good because the purchased material
(paper, cloth, marble blocks, o ther raw materials, etc.) has a insignificant value for the sold
work being sold. The proble m is solved by disputes. art. 3 paragraph 9 of the Commercial
Code, which states that it is trade and factor y activity. It was put together in the case of the
craftsman who processes the material to obtain a particular product. And this situation

6 C. Bulai – Op. cit., p.21
7 M. Basarab – Drept comercial. Partea generală, vol. I , Ed. Fundației “Chemarea”, Iași, 1992, p.12

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is solved by the same law mentioned above, which refers not only to activities in factorie s,
but also to manufactures.
Bank operations and exchanges are trade deeds, provided by disputes. art. 3 point
11 of the Business Code (bank operations being deposit, payment, grant, credits, etc., and
exchange operations on the currency regime or bank ti ckets, etc.).
For interbanking operations in circulation, bank and exchange operations are
governed by principles applicable to the movement of goods and goods.
b) The second subgroup is constituted, as we have seen, from the operations that
concern orga nization and conduct of production activity , ie business activity.
The Commercial Code enumerates activities in enterprises that constitute trade
(supplies, public performances, commissions, agencies and business offices, construction,
factories and manu facturing, printer, publisher, etc.) without, however, defining the enterprise
in commercial law, sought to be complimented by legal literature.
Taking into account that the definition of the enterprise can not be given only on the
basis of a single crite rion, another approach has been proposed, taking into account the
economic meaning of the concept of enterprise, but also some legal elements, in this respect,
the enterprise would could be defined as a systematic organization of an activity, with the
help of production factors (resources of nature, capital and labor), by the entrepreneur and at
his own risk, for the purpose of producing goods and services for exchange, in order to obtain
profits. This definition concerns only the undertakings covered by th e Commercial Code. If
the enterprise has the features retained in the definition, the legal acts and deeds involved in
organizing the activity, as well as acts committed during the course of business will be
considered to be acts of commerce.
Considering their object, the companies listed by disp. art. 3 of the Commercial Code
can be classified into two categories: manufacturing (industrial) and supply undertakings
services.
c) The third subgroup of objective trade facts is related operations or
accessor ies, which are classified as acts of commerce due to their close connection with
certain acts or operations considered by the Commercial Code to be acts of commerce.
This subgroup includes : contract reports on state obligations or others
commercially avai lable credit titles; purchases or sales of shares or shares of
companies; mandate and commission contracts; consignment contracts; operations of
intercession in commercial affairs; bills or orders in goods or commodities; operations with
regard to navigati on; deposits for trade -related purposes; current account and check; pledge
and fidejusion8.
Contract of Report on State Obligations or Other Credit Certificates Circulating
in commerce consists in buying money for commercially traded and resold credit
simu ltaneously and with a fixed price to the same person of titles of the same species
(Article 74 of the Commercial Code). So the report is a complex legal act involving a double
sale: the first is executed immediately (both in terms of titles and price) and the second is a
sale at a fixed price, under this contract, a person (reporter) holding a securities (shares,
bonds, etc.), which does not want to perman ently alienate them, reports ( temporarily sells
these securities to another person (the reporter) for a price that is paid immediate. At the same
time, the parties agree that the reporter should resell the redeemed securities at a certain time
credit of the same species, receiving, for this, what he paid plus a premium (constituting the
price the service h e provided, that is, the reporter).
Purchases and sales of shares or shares of companies are facts

8 I. Oancea – Op. cit., p.76

11
trade objectives by themselves without being conditioned by the existence of resale intention
(as provides disp.art. 3 of the Commercial Code for purchases and sales of mobile
goods). This thing is explicable because these operations are inextricably linked to trade
deeds, as is the company contract. So, the purchase and sale of shares and shares of co –
Merchants are related trade or accessories.
Mandate and commission contracts are of a commercial nature if they concern the
treatment of commercial business.
Mandate is the contract whereby a person (the trustee) undertakes to conclude legal
acts in the name and on behalf of another person (the mandate), from whom he is
empowered. He is considered as a trade deed only to the extent that the legal acts that the
trustee concludes are acts of commerce for the agent (Article 374 C. com.), for example,
empowering the trustee to buy a quantity of cargo to be resold b y the principal.
The commission contract is the one contract by which a person (the commissioner)
undertakes, from the assignment of another person (the principal) to conclude certain legal
acts on his behalf, but on the account the principal in return fo r a fee (commission). As with
the mandate, the contract commission is considered an act of commerce only to the extent
that the legal acts it concludes the commissioner with the third party is commerce for the
principal (Article 405 C. com).
The consignme nt contract is the contract by which one of the parties (the consignee)
entrust to another person (consignor) certain goods or movable goods to sell them in
own name, but on behalf of the consignor (art. 1 of the Law for the regulation of the contract
Cons ignment of July 30, 1934). It is a variety of the commission contract and, as such, is
subject to it the same legal regime, including the provisions of art. 405 C. com. (Related to
commission).
Being essentially a commission, the consignment contract is a matter of commerce
and in where it is used in a consignment undertaking (Article 3 (7)), as well as in where it is
used in the trade of one of the parties (Article 4 of the CC).
Intercessing operations in commercial affairs consist of mediation between
two individuals (physical or legal) in order to facilitate the conclusion of a legal act for which
they are interested.
The mediator is not a representative of the parties, not acting on the basis of a
mandate.
From the acceptance by the interested party of the mediator's steps, followed by the
conclusion the legal act with the other party, results in the conclusion of a mediation contract
under which the intermediary is entitled to receive a remuneration for the service rendered
(he sees the interest to persons for the conclusion of a certain legal act, takes steps to bring
them into contact, thus facilitating the conclusion of the act in question).
The intercession contract therefore appears as a service contract (lease).
Commodities or orders in produ cts or commodities are objective commercial facts
provided by art. 3 point 14 of the Commercial Code.
Bridging is a credit card by which a person (shooter) gives another person (trasfer)
to pay an amount of money at maturity to a third person (beneficiary ) or on its order.
Promissory note is a credit card by which a person (issuer) undertakes to pay a
amount of money, at maturity, to another person (beneficiary) or on its order.
In the sense of the Romanian Commercial Code, the notion of billboard design ates
both the bill of exchange as well as the promissory note, both titles being acts of commerce.
The bill of lading and the promissory note are considered acts of commerce
independent of the nature of the report from which they spring; irrespective of t he legal act to
which they are linked (for example, a sale-purchase, which may also be a civil contract or
commercial act).

12
The order in commodities or commodities is in fact a bill whose particularity lies in
the fact that the obligation relates to a cer tain quantity of goods or commodities (this type of
bill of exchange has not known practical application).
Navigation operations (ship, crew, transport, credits, etc.) are presented as a wide
range of trade, such as buying and selling or renting vessels; provision of vessels; the supply
of vessels; shipping expeditions; maritime loans; mortgage and so on .
These operations are of a commercial nature, irrespective of the fact that they are
carried out within a businesses, are or are not made for speculative purpose s.
Both commercial navigation and sea navigation operations are commercially viable or
inland rivers.
Deposits for trade -related matters, referred to in art. 3, 19 and 20 of the Commercial
Codeare those warehouses of goods that are made in docks , warehouses, etc., are trade deeds
only if are carried out within an enterprise. If the deposit has an isolated character or is done
elsewhere than those mentioned above, it is considered to be an act of commerce only if it has
a 'commercial cause' (as re ferred to in Article 3 (19) CBC.), either for a depositor or a
depositary, or for both parts (eg stored goods were bought for resale, in this case the
warehouse is a deed of commerce or accessory because of its connection to an operation
considered by law as a deed of commerce).
The current account and the check (Article 3 paragraph 2 C.com) are also objective
trade actions. The account current is a contract by which the parties agree that instead of
liquidating their receivables separately and immediatel yreciprocal, stemming from the
benefits they have made to each other, the liquidation should be term (legal or conventional),
by paying the balance by the party to be debited.
Under the Romanian Commercial Code, the current account constitutes trade in a ll
cases when it is used by a merchant. It can become an act of objective trade when used by a
noncompetitive if he has a commercial cause (art. 9 Com.), that is, it is related to an operation
considered as a trade deed (for example, the current account co ntract concluded by the
parties, which is intended mutual benefits in a commercial sale / purchase).
The check is a negotiable title by which a person (shooter) gives an order to a bank
with aavailable (fired) to pay a sum of money to a person (beneficia ry) or to his account (Law
no. 59/1934 on the check).
Pledge and fidejussion , having also a related or ancillary character of a trade deed,by
this, character of trade deeds9.
The pledge contract is the contract under which the borrower submits a good to his
lendermobile to guarantee its obligation, the creditor having the right to be paid with
preference to others creditors (disp.art.478 -480 C.com and disp.art 29, Title VI of Law no.99 –
1999 on acceleration economic reform) .
The fiduciary contract is the contract by which a person (fidejusor) binds himself
tothe creditor of another person to execute the debtor's obligation if he does not execute it
(Article 1652 -1684 C. civ.).
Both the pledge contract and the fiduciary contract will be trade -related onl y to the
extent that the principal obligation to be guaranteed is a commercial obligation.
The second major category of commercial facts is the subjective trade facts.
Therefore, in addition to objective trade facts (whose tradability is independent by the
quality of the person who commits them), the Romanian Commercial Code is committed as
trade deeds and those acts that acquire a commercial character due to the trader's quality of
the person who has them (it is the category of subjective trade facts).

9 Al. Boroi, Gh. Nistoreanu – Op. cit., p.28

13
The regulation of subjective trade facts derives from the need to encompass the sphere
the commercial law of all acts and operations committed by a trader in that capacity.
Therefore, because of the certainty as to the nature and legal regime applicabl e to
them acts, the protection of both the trader and the persons entering into legal relations is
ensured with it, indeed, through art. 4 of the Commercial Code is established the commercial
presumption forall obligations of the trader (with the exception s expressly provided for in
Article 4 of the CC), irrespective of the source their.
The presumption of trade established by art. 4 of the Commercial Code may be
overturned by the contrary, but only under the conditions provided by art. 4 C. horn, that i s,
by proving the character civil liability or non -commercial character resulting from the actual
act of the trader.
The third category of commercial deeds are acts of unilateral or mixed trade . Acts
of commerce (objective or subjective) may be bilateral (when the act or operation has the
character of trade for both parties involved in the legal relationship) or unilateral or
mixed (when the act or operation has the character of a trade deed only for one of the parties,
for the other may be a civil act; for example, a contract between a trader and a trader
a farmer to buy a quantity of vegetables).
Due to the circumstance that the facts of unilateral trade can be included in the sphere
of trade objective or subjective, it is sometimes considered not to be a distinct category of
trade.
Article 56 of the Commercial Code provides, in this regard, that " if an act is
commercial only for one party, all contractors are subject to commercial law in respect of
these acts . "The solution is
justifies the fact that , since it is a single legal act, it can not be subjected to two regulations:
commercial and civil.
But, art. 56 of the Commercial Code furthermore provides, besides that of unilateral
trade deeds and the addition of "… except in cases where the law oth erwise requires "
indeed, in certain cases (expressly provided by law, thus strict interpretation) is removed
applying commercial law in favor of civil law. Thus, for example, art. 42 C. com., After
setting the rule that, in commercial obligations, the whi stleblowers are held jointly , it states
that this assumption of solidarity does not apply to non – traders for operations which, for
their part, are not facts trade. So the law excludes the application of the presumption of
solidarity when the whistleblow ers are non -traders, and their obligation is the source of an
operation which, in their view, is not a deed of commerce.

Chapter III – SUBJECTS OF THE COMMERCIAL LAW REPORT

1. General notions about traders
Art. 7 of the Romanian Communist Party states t hat "there are traders who do the
deeds of trade with trade as a regular profession as well as commercial companies. "
The trade profession as defined by the trade law is defined by two (possibly three)
parameters: committing objective trade deeds, as an ordinary profession (and by name
own).
In the legal literature there have been discussions whether certain categories of
persons, such as associations businessmen, craftsmen, farmers have the status of trader or not.
The autonomous governments are organi zed in the strategic branches of the national
economy, being legal entities operating on the basis of economic management and financial
autonomy (Articles 2 and 3 of Law no. 15/1990 on the reorganization of state units as
autonomous regies and commercial c ompanies with state capital). They are the property of

14
their property, and through their work must cover its expenses on income and " obtain
profit ".
On the other hand, art. l align. 2 of the Law no. 26/1990 on the Trade Register
provides in a way expres sly that autonomous regies have the quality of traders.
Co-operative organizations also have the status of a trader, this being provided in a
way expressly in art. l align. 2 of the Law no. 26/1990 .
Cooperating organizations being traders are subject to the traders' obligations. They
acquire the status of trader from the date of their establishment under the law.
Associations and foundations that are set up and operate on the basis of the
Government Ordinance 26/2000 do not have the status of trader sin ce the purpose of their
establishment is to carry on an activity disinterested, not getting a profit. But, they can do
some trade, as it turns out from disp. art. 46 paragraph 1 letter b of the Government Gazette
26/2000 that associations and foundations o btain income from activities direct economic
policies. For example, an association organizes a closed -circuit restaurant for members
or publish a publication that spreads the ideas and activities it carries out.
State, county and commune, as provided by a rt. 8 of C. com., Can not have the
quality of trader. These provisions of the Commercial Code are no longer, under the current
conditions, because at present, the activity of the state and of its administrative -territorial
units is no longer relevant as it was in the past, only public services. The state actively
intervenes in the economy, especially in the fields strategic (such as energy, transport, mail,
telephone, telegraph) and even monopolizes the exploitation of resources or industries. So,
the state does, besides the acts of authority, necessary for the functioning of public services,
and private acts, which is why, in the legal literature was considered to be the subject of
commercial relations in this position that the state (and its territorial un its) do not have the
status of trader. As a result, only his deeds of trade is covered by trade laws.
The act of commerce by the State and its territorial units concerns only services
private public administration, ie public industrial and commercia l serv ices private public
administration, ie public industrial and commercial services10.

2. Determination and proof of trader quality
In the case of litigation, the person who invokes or denies the status of trade r of a
natural person or person legal entities have to administer proof to this effect (probatio
incapacitated actors).
Proof of trader quality can be proved by any means of proof admitted by the law
commercial.
In the case of individuals, since the quality of a trader is acquired through the
commiss ion objective commercial acts of a professional nature, this qua lity can be proven
only through the submission of evidence to show that the person concerned act ually did one
or more acts of trade provided by art. 3 C.com. as a (ordinary) profession and in their own
name.
So, as far as traders -individuals are concerned, the quality of trader is not considered
proven by evidence of the existence of an administrative authorization to trade, a
registration in the trade register, the trade name used in certain documents, the acquisition
a trade fund, the payment of taxes on profits, etc. These are only presumptions against
which the opposite may be done (relative assumptions). Therefore, they should be used with
others means of proof from which the actual exerci se of the trade will result, under the
provisions of art. 7 of Commercial Code (Exercise o f Business, as a Habitual Job).

10 C. Bulai – Op. cit., p.61

15
In the case of commercial companies, autonomous regies and cooperative
organizations, the qualit y of the trader shall be proved by th e instrument of constitution,
respectively by the act of their establishment, u nder the conditions required by law. This is
because the purpose of companies is preci sely the conduct of an activity commercial, and
thus acquire the status of trader at the ti me of their establishment or establishment.

3. Termination of Merchant Quality
Cessation of trader quality is closely related to how that quality was
acquired. As such:
– in the case of a natural person, because the quality of a trader is acquired by do ing
objective commercial acts of a professional character, termination of the qual ity of the
merchant, naturally, occurs when no more trade is done as an ordinary profession. But must
to take into account that the cessation of the act of commerce must be effective and result
from it the intention to renounce the status of trader; for example, d eletion from its trade
registry the withdrawal of the administrative authorization must be accomp anied by the
cessation of trade with professional character.
As rega rds the legal effects of the trader's quality, it can also occur after the cessation
of this quality, in which, according to art. 707 C. horn, the retired merchant may be
declared bankrupt for debts contracted before withdrawal.
– in the case of commercia l companies, since the acquisition of the quality of trader
is linked to their constitution as a legal person, this quality is lost when the company ceases
to exist as a legal person.
According to art. 222 of the Law no. 31/1990, the company ceases to exi st through
dissolution, which can take place: by passing the deadline set for the company's
stealing; unable the realization of the object of the company or its realization; the decision of
the general meeting; bankruptcy etc.
The dissolution of the compa ny does not automatically entail the loss of legal
personality; society no longer can do new operations, but can do the necessary liquidatio n
operations (legal personality The residual). In practice, the legal personality of the company
ceases with the las t operation liquidation11.

4. Traders' Organizations
The transition to the market economy requires the removal of the pyramid command
structures administrative: the ministries and industrial plants to which enterprises were
subordinated and through which they received the fact sheets, the distributions of material
and financial resources, were providing means of transport, etc. These structures also
constituted the channels through which flows flowed downward and upward information
(horizontal ones being a lmost totally excluded).
Abandonment of economic leadership and demolition of pyramid structures through
which it is realized administrative activity in the economy, redimensioning of economic units
and their transformation into independent (autonomous) economic cells, their functional
modulation (but also managed), brought into the economic landscape a variety of
organizational forms (in the production and movement of goods and services) of great
mobility and adaptability to market requirements. But thes e new entities of production,
circulation, transport, construction, financial -banking, etc

11 Some authors, including V.Dongoroz and T.Pop, refer to four aspects of law enforcement: time, space, people
and acts.

16
Chapter IV – THE TRADER – THE PHYSICAL PERSON

1. Free access to trade professions
From another perspective, through art. 38 of the Romanian Constitution provides that
the choice of profession and a the workplace is free, and the right to work can not be
restricted . As a general rule, so with regard to freedom of choice by art. Article 49 of the
Constitution states that "The exercise of certain rights and freedoms may be restricted only by
law and only if necessary, for the protection of safety national, public order, health or
morals, citizens' rights and freedoms … ".
In the light of these legal provisions, we will continue to examine under what
conditions it i s possible exercise a commercial profession by individuals (because of the
conditions required by law to acquire, by the same individuals, the quality of trader we have
covered in the chapter precedent, generally dedicated to subjects – natural and legal – of legal
relationships commercial12).

2. Restrictions on access to trade professions
As a matter of principle, access to commercial professions is free, which means that
any person is free to pursue a commercial profession (see also the provisions of Arti cle 7 of
the Civil Code as a trader, one of the requisite conditions being that the deeds of commerce
are to be committed with professional character).
a) Incapacity. To speak of incapacity, a distinction must first be made between
the ability of the indi vidual to do isolated business acts and the ability required to be trader.
b) Incompatibilities. By definition, commercial activity is profitable, ie through it is
intended to make a profit. For this reason, it can not be exercised by those who have certa in
positions or exercises certain professions which concern the general interests of society, since
there is an incompatibility of interests. That is why the law prohibits persons having such
functions or professions to practice trade with a professional c haracter.
The Constitution of Romania provides, in this respect, that the position of judge
(including Court Constitutional) and prosecutor are incompatible with any other public or
private office, with the exception of higher education didactic functions (Articles 123, 131
and 142). As such, his or her judges prosecutors may not act as a trader.
c) Defects. One thing needs to be emphasized, namely that since the sanction of the
withdrawal from the right to pursuing a trader's profession constitutes a dro p in the rights of a
person, she can intervene only in the cases and under the conditions provided by the law
(Article 49 of the Romanian Constitution).
d) Prohibitions and authorizations in certain cases are subject to the exercise of
commercial activity prohibitions or require the existence of an authorization.
For the protection of general interests of society (economic, social or moral)
by law it was stated that certain activities can not be exercised on the basis of free
initiative. These activities are listed in Annex no. l to the Government Decision
no. 201/1990 given in the application of the Decree -Law no. 54/1990 on organizing and
carrying out economic activities on the basis of free initiative.

3. Legal Status of Foreign Traders
The legal sta tus of the foreign trader is similar to that of the Romanian trader, of
course, with some particularities.

12 A. Boroi, Gh. Nistoreanu – Op. cit., p. 74

17
The significant legal provisions in this respect are found in GEO no. 31/1997 and the
OUG no. 92/1997.
The law also provides guarantees and facilit ies designed to attract foreign investments
in Romania and to ensure advantageous conditions for the conduct of trading deeds by
foreign investors. They refers to the treatment of profits, tax exemptions and reductions,
financial -currency operations, etc.

CHAPTER V – THE COLLECTIVE SUBJECTS OF THE COMMERCIAL
LAW REPORT

1. Commercial Company – Collective Issue of Rights
I have seen that the subjects of the commercial law report can be both individuals and
legal entities. However, it should be emphasized t hat not all companies have legal
personality, and there are also companies without own subjectivity (in this category entering
the companies governed by the provisions of art. 251-263 remained in force from
Commercial Code and, some associations set up und er Decree -Law no. 54/1990, if they meet
the conditions of trade).

2. Particularities of companies
Definition of din art. 1491 C. civic agrees only to commercial companies without
legal personality, but omitting the most important (economically) ones that they acquire
the quality of an autonomous subject of law and which includes another additional feature –
personality legal.

3. The Company Contract
Both the Romanian Commercial Chamber and Law no. 31/1990 on commercial
companies do not define the compan y contract, but merely limits the conditions of form and
substance, by disputes. art. 1491 Civil Code. Romanian, the company contract can be defined
as the will of two or more many people consented to constitute, by means of individual
contributions, a com mon fund for an activity lucrative, carried out together by performing
trade acts in order to share the benefits achieved . It follows from this definition that the
company contract has the following characteristics: it has a consensual, patrimonial, onero us,
commutative and commercial character13.
The contract is consensual, which means that it is formed by a simple agreement of
will of the parties (partners).
At the foundation of the trading company stands, at the time of its establishment, the
principle of freedom of will, but consensualism should not be absolutized. Parties concluding
the contract for setting up the company trade benefit from free will under certain conditions
established by legal provisions imperative, relating in particular to the obje ct of activity of the
collective entity. This, for the sake of protection interests of general interest. The scope of
consensus includes, in particular, determination by associates the organizational structure, the
delineation of the specificity of the pla nned activity, the contribution rates of the associates,
the composition of the assets that will form the asset, the indication of the duration and mode
of operation of the company, the establishment of management and management bodies, the
adoption of cri teria for the distribution of benefits .
The onerous nature of the commercial company contract derives from the fact that
each associate understands to become a member of the commercial company with the aim of

13 N. Popa – The General Theory of Commericla Law, Ed All Beck, Bucharest, 2002, pp. 276 -277

18
– patrimonial exploitation – to obtain "the benefits what could " derive " from the work done.
"Article 1491 C. civ., uses the notion of" benefits "whic h is synonymous with the "benefits "
(which is defined as a positive patrimonial element, a monetary or other gain, but also
material ).
The commercia l company contract is part of commute contracts,
because the extent of the obligations assumed by each of the associates is certain and
determined from the date when the company's instruments of incorporation were
concluded. The fact that the economic resu lts of the activity jointly carried out can lead to
possible losses, not only with benefits, they do not transform
the company contract in a random operation. The element of uncertainty consisting of the risk
of deficit is irrelevant to the characterizatio n of the company contract in this respect.
As far as the constituent elements of the commercial company contract are concerned
are general (common to all contracts): ability, consent, object and cause , provided by
art. 948-968 C. civ. (With some adaptati ons), but also some specific ones such as the
obligation partners to contribute by contributing to the formation of the social patrimony,
joint exercise of statutory statutory activity and participation in benefits and losses.
Regarding the capacity of th e parties, it is to be emphasized that as the association
implies by definition, the establishment of a social patrimony, distinct from that of the
Contracting Parties, this fund jointly realized by subscriptions, the completion of the
company contract req uires the full exercise capacity of the individual, and, as far as legal
persons are concerned, the abilities
statutory status.
Consent, another constituent element of the contract of society implies specific will
the association of two or more people in order to jointly accomplish the activity of nature (the
intent of the parties implicitly implies affectio societatis).
As in any civil contract, the will of the associates must be conscious and free, that is,
not be affected by error, two or violence. The legal status of the error differs a ccording to the
type of society14.
The existence of the cause of nullity, which must be found by a court order, may
attracts the retroactive cancellation of the company contract, but if the participants are the
legal reg ime suffers from a series of attenuations, derogations from the common law, in order
to avoid the obvious consequences more serious than in the usual contracts (indeed, while in
a convention bilateral effects of cancellation only affect the two parties inv olved in the
plurila – the affected interests are much more numerous). As such, there was a need for
restraint
the effects of nullity, which was achieved by sealing the sanction in the sphere of the vicious
legal relationship. This one solution was regulate d by art. 189 par. l C. com, according to
which "the exclusion of the associate does not attract, by itself, the dissolution of
society . " But since Article 189 of the CC was abrogated, in such cases, it is possible to
resort to the provisions of Law no. 31/1990 which refers to the survival of people or
companies with limited liability even in the extreme case of reducing the number of
associates to the minimum limit.
The object of the contract, another constituent element of the commercial company
contra ct has peculiarities that serve to delimit commercial and civil societies.
According to art. 1492 C. civic by object of the company contract is the ensemble of
operations it is about to perform in order to achieve benefits by
associations concerned. It mu st be determined or determinable (if the input consists of a
good) or possibly and personally (if the contribution consists of a fact or activity of an

14 A. Boroi, Gh. Nistoreanu – Op. cit., p. 80

19
associate). Also, the object must be legal. Article 1513 of the Civil Code, which is also
applicable in commercial relations, sideline as the unlawful contract by which an associate
either attributes all its gains through the clause
leonine, or declines to be exempt from the obligation to participate in the loss.
The legitimate cause, as a constituent eleme nt of the company contract, is the
purpose of a constitute a common social fund and affect the exercise of certain trade acts in
view to obtain benefits to be distributed among the associates in the agreed manner.
Of particular interest is the specific el ements of the company contract: the
contribution associates, joint exercise of statutory activity and participation in benefits and
losses.
With regard to the contribution of the associates this is the patrimonial value of any
associate agrees (by the con stitutive act and by subsequent subscriptions) to contribute to the
composition or increase of the share capital, under the conditions and within the stipulated
terms. Input is a specific condition because it is not encountered in the work of
individuals. Specificity results from quality society as a subject of collective law distinct from
the personality of each associate.
The notion of social contribution, as with any other patrimonial legal act, has two
distinct sides: the manifestation of will, through which the associate undertakes to contribute
to the constitution of the social capital, and a legal fact, consisting in the surrender (on the
agreed date) of the subscribed asset .15

4. Types of associative organization
According to paragraph 2 of Law no. 31/1990 on companies are five types of
associative organization: collective company; the limited partnership; the society in share
capital; joint stock company and limited liability company.
The Collective Company is the oldest type of known trading com panyregulated in
the provisions of art.3 -7 of Law no. 31/1990, together with the limited partnership. It was
matching the needs of traditional trade and bringing together the traders who knew and who
sought to give maximum guarantees to their creditors. An d, indeed, this kind of society has
enjoyed a maximum credit. This, as social capital is an important guarantee for creditors
social, excluding the personal creditors of the associates, in addition, each of the associates
fully and completely answers joint ly and severally, with all its personal patrimony, for the
debts of society. Thus, the creditors of the company, which will be paid mainly from social
goods, will have, inter alia, a right of pledge over everyone's fortune associate, regardless of
whether each of the assets of the associates come to the contest and your own creditors them.
The credit of the company being linked to that of each associate, any change in
relation to their person changes the balance of society.
The limited partnership consist s of 2 categories: members and partners.
Commanders are exactly in the same situation as collective collectives. So they
answer unlimited and jointly for the entire liability. Commanders, on the contrary, are not
traders, they are the capitalists who only associate with one limited amount. The trader
provides a capital, which will be part of the share capital, and at the level which also limits its
risks.
The joint stock company was born as a result of the need for large capital
accumulationnecessary for the achievement of modern large industrial enterprises, but also of
banks and other organizations financial and other large -scale organizations. to this end, a
broad audience is called upon which can bring them considerable and sustainable resources.

15 C. Mitrache, Cr. Mitrache – Op. cit., p. 62

20
But t he public wants, at the same time, to can conserve the opportunity to quickly recover
funds invested by negotiating the credit they have possess the organized financial markets.
In this type of society, all associates have the position of shareholders.
Not all joint -stock companies correspond to large companies with thousands of
shareholders, and neither all are not quoted in the stock market, in fact, many limited
companies only have a limited number associate and preserve something of the spirit of
societies in collective name. Only a few companies of this Types of listed shares are, of
course, the most important.
The interest of this type of society for medium -sized enterprises, where associations
are known and are few in number, is that they are su bject to the tax regime of of the capital
companies which, in most countries, are more favorable. Also facilitating the transmission of
shares to the bearer saves time and money, the disposal of shares without the need for any
legal act.
Joint Stock Comp any is a variety of joint -stock companies within whichthere are a
number of buyers as merchants, who are therefore responsible for social debts, while the rest
are only shareholders. This type of society is preferred by people of business of the sec. XIX,
but nowadays they have only an exceptional character.
The limited liability company is in part a company of persons, in that the
partiessocial are not represented by negotiable titles and they can not be given to new
associations unless are most liked by most others. But it is also a capital society, in that the
associate, like and the shareholder or shareholder only brings a certain amount of money into
the company, compared to which limits their risk (hence the term "limited liability
company"). L imited liability will be held for the debts of the company only to the extent of
the subscribed capital .

5. Business groupings
Businesses can group together, forming assemblies of companies that keep them
independence from a legal point of view, but which are united by links on the basis of which
some can acquire a dominant position exerting a definite influence, sometimes even having
direction and control group, thus making their will prevail in making the overall decision.
What is the common feature of thes e groups of societies is the whole, with degree
greater or lesser coherence, under the influence or leadership of a parent company which
ensures the unity of the group's will.
The group of companies is actually a reality, and it has no legal personality. However,
its unity is built on the common interests of the members of the group that constitutes one
true "affectio societatis" (affecting goods and activities to achieve a common goal).It is,
therefore, worth noting the unity of a contradiction between t he legal situation of the group's
constituents (legal independence) and the factual situation of the group that involves the
convergence of objectives and, in a good measure, the centralization of decision -making
power, imposed by the community of strategi es and behaviors.
The configuration of the components of the group of companies (its structure) is
determined by the links of the respective commercial companies that may be of different
types: radial, pyramidal and circular.
Within the radial structure are units of the same kind. But who are dispersed in
territory, and controlled by the parent company. Such a composition is dictated by the interest
in acquiring one dominant positions in a market segment (for example, the sale of knitwear or
sports utens ils, services in the field of pharmacy, etc.).
In the circular structure are constituted companies that have participated in each other
as such that the last company in the chain participates in the capital of the first company.

21
Groups of companies may a lso be present in other forms: transnational societies,
holdings, etc.

6. Other collective issues of commercial law
Although the field of interest is wide, we will exclusively and selectively handle only
two categories economic agents, other than comme rcial companies: autonomous regies and
cooperatives.
a) Autonomous Regies are genuine public enterprises that are organized and
operatingin the strategic branches of the national economy – weapons, energy, mining and
natural gas, post and rail transport – as well as in some areas belonging to some branches
established by the Government (Article 2 of Law no. 15/1990 on the reorganization of state
units as kings autonomous and state -owned companies).
Autonomous Regimes are legal entities operating on an e conomic and financial basis
financial autonomy (Article 3 paragraph 1 of the Law no.15 / 1990 on the reorganization of
state units as regies autonomous and state -owned companies).
By the act of setting up the autonomous administration is established the object of
activity, the patrimony, name and principal place of business.
Autonomous governments can set up within their structure: factories, workshops,
services, branches and other such subunits necessary to achieve the object of activity. The
ways of setting up these subunits and relations within the autonomous administration and
with third parties are established by the organizational regulation and operation of the
autonomous administration.
The Autonomous Registry is the owner of the assets in its patrimony, and, as such, in
the exercise of the right to property, the autonomous direction possesses, uses and disposes
autonomously of the goods he has in the patrimony, or he gathers the fruits, in order to
achieve the purpose for which he has was esta blished. However, the alienation of immovable
property belonging to the autonomous administration or the conclusion of the transactions in
litigations with a value above a certain ceiling are subject to the approval of the competent
ministry (Article 5 of the Law no.15 / 1990 on the reorganization of state units as
autonomous regies and societies commercial state -owned).
Regarding the management of the patrimony belonging to it, the autonomous director
has, as well is provided in art. 2 of the Law no.15 / 1990 on the reorganization of the state
units as autonomous administrations an commercial companies with state capital, financial
autonomy. This means she must cover the income from the activity it carries out, all
expenses, including interest, depreciati on of investments and repayment of credits and profit.
b) Cooperatives have a status that has been and has long been discussed by lawyers,
normallyshould be considered as variable capital companies, which usually implies the
admission of exit cooperating cooperatives. But cooperatives are distinguished by
commercial companies through their traits particularly marked ones. So, the question was
asked what is a cooperative? It was considered to be and at the same time it would not be a
trading company in the sense that it does not achieve "benefits" but seeks to operate,
beneficial rations. But these advantages do not take advantage of society itself, but only
improve the results of the work that the cooperators provide through them.
Cooperatives are of two types: cooperatives and consumer cooperatives.
Production cooperatives group the producers of certain goods or services,to enable
them, thanks to this group, to negotiate them (goods and services) for the better conditions.
Consumer cooperatives group c onsumers on a particular category of goods
orservices to enable them, thanks to this group, to acquire them in better conditions.
These are producers and consumers in the broad sense, who are interested in both
services and services and goods. A credit c o-operative is a consumer cooperative, as it

22
provides its members the opportunity to acquire capitals on advantageous terms. Agricultural
cooperatives can either be consumer cooperatives, in particular those which have as their
object the production of see ds or fertilizers, or to be used jointly for agricultural machinery or
for the purchase of bank loans, either production cooperatives, through which the milk, the
wine is negotiated in the best conditions or the fruits of its members.
The activity of cra fts and consumer and credit cooperatives is in line with its own law
and regulations, according to economic, financial and social -cultural programs approved by
the bodies provided for in their statutes (Article 1 paragraph 3 and Article 2 paragraph 3 of
Decree-Law no. 66/1990 and art. 3 of Decree -Law no. 67/1990 ).

CHAPTER – VI COMMERCIAL AUXILIARIES

I. General notions
Traders cooperate or are often helped by other people who, either represent their
interests, or give them the opportunity to do business . The first category is made up of service
or employment service providers in business relationships with entrepreneurs paid by them.
These civil servants, procurators or other agents serve trader's physical and intellectual
faculties. They do not have the quality of traders and settle with traders subordinate
relationships, depend on them, being called addictive auxiliaries. From thatcategory include
prepaid, commission and trade commissions.

2. Representation or commercial representation
It is a legal operation whereby a person named representative enters into legal acts
with third parties inthe name and on behalf of another person called " represented ", with the
consequence that the effects of legal actsconcluded – rights and bonds – are produced in the
person of the representative.
Representation, which is a derogation from the rule of relativity, is a form abnormal
contracting where the beneficiary of the convention (the representative) does not intervene at
its conclusion, but entrusts another pe rson (the representative) to manifest the will for
himself, the effects of the legal act producing in the patrimony of the representative.
By representation, the legal relationship is linked between the representative and the
third person rather than the third party person and represented16. Representation can be born
either from a public law report or from a private law, in terms of public law, representation
can be national, county, or cityor communal, we are interested in the representation in private
law that can be conventional and necessary or legal. The necessary representation is the
representation that comes from the law, as is the caseguardian or curator. Representation may
also result from the law and the company contract in the case of the compa ny in a collective
name, unless a contrary provision is made, all the associates are presumed that they represent
the common will of others.
Voluntary representation is the legal institution by virtue of which a person
empowersanother person to conclude l egal acts in his name and on his account. However,
forms of representation in civil law have nothing in common, apart from a similarity
designation, with voluntary commercial representation that has specific rules of commercial
law. The main effect of com mercial representation would be to "transport" the act concluded
by the representative in the person of the representative, although he did not take part in his
elaboration. Representation is explained by the power of attorney that the beneficiary of the
declared will – the representative gives it to the person who provides itwill – the

16 C. Bulai, Commercial Law Handbook, General, p. 268, p. 404

23
representative. The representative, as long as he acts within the limits of his powers
conferred, does not commit himself, b ut his principal , represented.
Representation should not be confused with mandate or commission, though between
them there are some similarities. Mandate, as defined by art. 1532 C. civ. And art. 374 C.
com., Is o distinct notion as it may be the source of the power of representation, but it is
possi ble that the mandate may exist without being accompanied by the power of
representation. The commercial mandate has as its object the " treatment" ofcommercial
business, on the account of the principal. The mandate contract evokes in the first place the
existence of a convention between the man and the trustee. Not the same can be said of
commercial representation, which is not subject to a pre -existing agreement of will
representative and represented. The commissioner receives from the commissioner
empower ing to conclude legal acts with third parties on behalf of the principal, but legal acts
are concluded commissioner in his own name, as opposed to a representative who concludes
legal acts on behalf of and on behalf of the representative, in relation to th ese particularities,
the following conclusions are taken:
a). the representative can only be the person who has both the capacity to deliberate,
to treat in the name of the representative, a legal act, and to conclude that legal act. The
trustee can not, in according to disp. art. 374 C. com, than to " treat " legal acts.
b). the mandate is in principle a legal act without representation, in the sense of
being engaged the effects of the act for the mandant must have a special mandate for that
purpose.
Therefore, the idea of representation can be related to the mandate, because on the
way the principal may authorize the agent to work not only on his behalf, as is the case
commission, but also in his name as representation. Representation, therefore, ac companies
the mandate but is the nature and not the essence of the mandate.
The representative is a legal representative of the representative who puts him in the
service his / her free, free and judicious skills, and not an intermediary, a person who ta kes a
decision from a another person. Cooperation takes place on the basis of a presumption. If the
representative considers that the conclusion of a legal act would be useful for the
representative, he will conclude it.

3. Effects of Representation
Representation produces certain effects in relation to the represented and to third
parties.
1. The effects in relations between the represented and the third party . The
essential effect of the representation lies inthat the legal acts concluded by the repr esentative
produce legal or active legal effects only in the representative's patrimony, therefore, only the
representative must have the ability to contract; he must have free will and unwillingness,
since only he is the holder of rights and bonds. The re presentative must have only
discernment, but theoretically he could have one limited legal capacity.
The quality of the trader and the commercial nature of the operation are analyzed with
reference to representative. The legal act concluded by the repres entative obliges him to
represent him only if he was concluded within the limits of the mandate.
2. The effects on the representative . The concluded legal act has no effect on the
representative,Instead, the representative owes compensation to the third party for possible
damage caused by the bad faith, by overthrowing or violating. The representative can
substitute another person provided that such substitution has not been banned and that the act
in relation to which it operates substitution to be part of those acts in respect of which
practice permits such an operation.

24
4. Representation Types
1. In relation to the springs of power of representation it is distinguished: the legal
representation, when it has ca the law comes into being and the convent ional representation,
when it comes to the will.
2. There is also a distinction between: optional representation equivalent to
representationvoluntary, since there is an act of the representative's will and legal
representation, representation judiciary, business management, etc.
3. According to its object, representation may be: "special" , when referring to an
isolated act and"General" when it comes to a category of acts or even all acts of the
representative .
4. There are two types of representatio n in the trade: exclusive representation and
representation collective.

5. Termination of Representation
Representation has the character "intuituu personae" and consequently ceases
whenever there are situations that affect this character, the causes of cessation are considered:
the revocation empowerment, prohibition, waiver, insolvency, death, judicial liquidation.
Revocation of the power of attorney may occur at any time as a cause of
termination representation.
Waiver of empowerment may result in termination of representation, but only if
thisthe waiver is notified to the representative for avoiding damage.
The personal character of representation renders representation stopping at
anyone's interventionfor the following reasons: death, prohibitio n, insolvency, judicial
liquidation for the representative or represented17.

6. Dependent auxiliaries
There are people through whom traders enter into legal and commercial legal acts are
in working relationships or subordinated to traders, usually being t heir employees in this
category includes prepaos, commerce committees, and commerce trades commissions.
Prepares are people in charge of trade instead of their patron; either where they
areeither in another place (Article 392 C. Com.). From this definitio n it follows that for a
person to be commercially available must meet 2 conditions:
– the person concerned be " responsible for the trade of his employer" , that is, be
empoweredto lead the entire commercial activity and to represent the owner in all
commercial acts;
– empowerment to " commercial activity " at the place where the trader operates trade
(where it has its headquarters or a specific place) (for example at a branch).
1). Prepus, therefore, differs from any representative through: the sphere stretched by
activity and the place where they operate. He is not called to conclude an operation, an act
isolated on behalf of the trader, but concludes all acts relating to the trade of his
representative or a a distinct branch of its trade.
2). Prepa res are different from other representatives and where they work and namely
at the trader's premises or at a branch, while other representatives may exercise empowerment
anywhere. The cookie is the substitute of a merchant at the place of the trade.
Prepared quality ceases by:
1. Revocation of the power of attorney ;

17 I. Oancea, Criminal Law. General, Teaching and Pedagogical Ed., Bucharest 1971, p.191.

25
2. Renouncing the prepus ;
3. Death, prohibition, insolvency and liquidation (bankruptcy) of the trader the
servant .
Committees for trade , as shown by disp.art. 404 C. com., Are pioneer s for the sale
of the goods in detail , and in the legal literature it is distinguished that although the law calls
thembut they do not have this quality in the sense stated in art. 392 et seq. From the
Romanian Com .
Commerce commissions are employees of the merchant who helps him inside in the
course of its work and under its supervision. They are employees assigned to enter legal
relationships with clients.
This category also includes other people who perform operations specific to how are:
the hotel r eceptionist, the taxi driver, the employees who provide services at the customers'
home.
Commuters for commerce , also known as voyagers or merchants, are
auxiliariesself -employed, trader's employees with a fixed salary or a commission for each
business e nded. Their status derives from the provisions of Art. 402 -403 C. com.
The voyage committees are of two kinds: voyjours comrades with representation and
voyagers without representation. If the travel commissions have the power to conclude
contracts that bind the patron, they arerepresentatives; if voyage commissions only aim to
collect offers or orders for patrons, which are then to be approved by the trader and
eventually marketed in contrac – they have no power to represent the patron; are committed
voya gers without representation.
Committees of voyagers with powers of representation conclude legal acts just like
the props. rulesfor preputed persons are also valid for this category of auxiliaries (Article 403
C. com.).
At the conclusion of legal acts, travel committees for commerce need to make known
to third parties their quality as representatives of traders. They can not sign the " proxy "
statement,but only to show the name of their patron. otherwise, they personally commit
themselves to third part ies.
Summarizing, we note that the main characteristic features of these auxiliaries are: a)
they are with the employer in a legal employment relationship, being paid with a fixed salary
or a commission for every business ended; they do not have the qual ity of trader; b) have
fieldwork for search customers; c) the extent of the prerogatives committed by the voyager is
set by the employer; d) in all operations commerce, the voyager has to show his status as a
representative of the employer18.

7. Independen t auxiliaries
Independent auxiliaries are those people who, in a professional way, cooperate and
help them traders in their work. This category includes middlemen, stockbrokers and
agencies trade.
Intercourse is the activity by which a person called in tercessor follows 2 peopleto
conclude a business and thanks to his diligence and his specific work to make them conclude
the contract kept in sight. .
Legal characterization . The mediator referred to in art. 3 point 12 Commercial Code
secharacterized in that:
a). he is not the representative of any of the parts of the trade act he commits; he is it
ends to put the parties in touch and take steps to get them to conclude the act.

18 18 Gh. Alecu, op.cit., pp.447 -449

26
b). the facilitator is an independent aide, with him and his stakeholders staying one
lease of services.
c). the professional intermediary is considered to be a trader if he commits business
acts and not acts of civil law (Article 7 Commercial Code), in which all the professional
obligations of the trader.
d). the intermedia ry has the right to a commission from the moment of the act of trade
between the parties interested parties, regardless of the subsequent fate of this act
(termination, non -execution, etc.).
Stock exchanges , both commodity and stock, also fall into the c ategoryMediator.
The stock broker is defined as the natural or legal person who, on behalf of and
under the responsibilitycustomers against a commission engages in the activity of requesting
and accepting orders transactions19.
The agent must meet the fol lowing basic conditions: act on the client 's behalf and is
subject to its control, has no right over the values of the client's property, is owed to strictly
observe the order of the client is authorized by the National Securities Commission if
performs the intermediation of such values or attested by another competent body
(Committee the market surveillance aut hority in other cases).
The official exchange trader is therefore a person authorized by the relevant Stock
Exchange CommitteeThe National Securities Commission to perform the role of intermediary
at the conclusion of the transactions within the Stock Exc hange.
The merchant is an independent assistant who performs intermediation
withprofessional character. He is called a sales agent, the natural or legal person whose
business he / she is engaged in independent, professional and lasting nature consists of
dealing and concluding commercial business, which what distinguishes them from agents in
the name and on behalf of a trader (trader) to whom they are not is in a subordinate
relationship. The sales agent acting as a self -employed professional places the p roducts of
one or more merchants in a certain area or meet for them commercial transactions, provides
information on market conditions, collects orders to them communicates to the principal,
deals with and concludes commercial business.
Characteristic fo r the merchant is 3 elements: stability, territorial exclusivity and
acting as agent or representative. From the definition and characteristics shown can be
distinguished the following 5 distinctive features:
1) They represent one or more traders, are in dependent and as a general rule they are
not linked to a contract of employment, but by a mandate contract by virtue of which he treats
on behalf of and on the merchant's account.
2). They are distinguished from the commissioners who deal in their own na me but on
the account of others and the courts who do not deal directly with and who are not the
contractors but are limited to approaching them.
3). Often the distinction between different categories of agents is difficult, the same
word covering differ ent professions. This is the case for insurance agents other than insurance
couriers who are prudent agentsand are entitled to an indemnity or compensation in the event
of abusive termination of the contract, while is recognized as a trader to general or l ocal
agents, to import or export agents.
4). Trade agents generally differ from prepaid because they do not have the power to
guides operations and mediators for dealing with only certain traders and in certain areas, and
not for any traders, as mediator s do. They are entitled to a commission not only for the
business concluded personally, but also for the business concluded directly by the trader over
time what the intermediary has a right to a provision on both sides.

19 Romul Petru Vonica, Commercial Law, General Part, Ed. Lumina Lex, Bucharest, 2000

27
5) The commercial agents have the capacity to trade according to art. 3 point 7
Commercial code with all the duties corresponding to this quality: registration in the Trade
Register, keeping some accounting registers, etc.
Broker is a commercial agent in Anglo -American law. He does not appear as part of
the contractnot having possession and the account of the goods he is negotiating. He works in
his name of the principal, being an intermediary between him and the third person interested
in the conclusion of a transaction. His activity is called brokerage, and the remuneration is
calculated on the value of the business completed inname and principal accoun t.

CHAPTER VII – THE FUND OF TRADE

1. About Commercial Heritage
By heritage means all the rights and obligations of a natural or le gal person -trader,
which have economic value (can be expressed in money).
More specifically, the patrimony is the material support of the trader – a natural
person or a company commercial – because the material and monetary means that make him
give him the opportunity participate in the economic circuit, conclude legal relations in
relation to its object and purpose.
In order to build on this notion, we refer to: A) economic means and B) economic
sources.
A. Economic means are composed of all the mat erial and monetary assets that
areserve the trader's business. These assets are; in the form of fixed assets and circulating
means.

2. About Social Capital
It would designate the total amount in the currency of the value of the goods brought
by the par ties to the constitution society; the patrimony includes more, namely: the ensemble
of rights and obligations with content economic, not only the value of the goods brought to
the company's constitution. The notion of patrimony has through consequently, a broader
sphere than the fund of commerce, since the latter does not include an d Mandatory
Obligations20.

3. General notions about the fund
Through the trading fund, we mean all tangible and intangible assets (rights)
and a the factual relationships with patrimonial value that the trader groups and affects trade
(enterprise), for the purpose of carrying out the specific (statutory) activity and obtaining a
profit in conditions of competitiveness.
In judicial practice it was also considered that the fund of commerce is a universality
of tangible and intangible assets, assets and liabilities that the trader brings together by his
will in the purpose of achieving a trade fact.

4. Legal nature of the fund
The Trade Fund is composed of heterogeneous eleme nts of a different nature, from
categories goods with distinct legal regimes, and in legal literature and judicial practice,
opinions on its legal nature was different.

20 G. Ripert, R. Roblot, Traite elementaire de droit commercial, L.G.D.J., 1991, Tomme I

28
5. Elements of the Fund of Trade
The trading fund comprises the necessary assets ( items) for the business to carry out
commercially envisaged by the trader. The value of the trade fund depends on these elements
which serve to group and retain customers. Elements of the trading fund whose number and
the importance varies, varies and vari es from case to case, depending on the specificity of
commercial activity and to the needs of trade, but must not prejudice the dominant element of
conservation customers.
Elements of material or body . The body element category comprises movable goods
to whichshall be added securities affiliated to a trading fund.
(a) Mobile commodities which are part of the commer – cial fund are those with a
certain degree of stability, andwhich are used for the exploitation of the trade fund such as:
the furniture in tended for trade, the stocks of fuels, commodities, raw materials, packaging,
machinery, plant, whether mobile or real estate by destination. Materials and tools sometimes
have a lot of importance, such as in transport where it is a fixed asset or fund.
Embedded Fundamentals of Trade . Trader identification and aits enterprise is made by:
domicile or registered office, commercial or firm name, emblem and nationality. From these
we will examine: the company and the emblem that are not only identifying elemen ts but also
components of the trading fund.
Business name . The company is the name under which a trader carries ou t co-and
under which they sign in matter of commercial principle, the principle is that the commercial
name corresponds to the civil name. T he company of a merchant, a natural person consists of:
the full or original name of the trader the law prohibits the addition of other elements that
might mislead its nature the extent of the trade or the situation of the trader.
Emblem . It is a separate legal concept of a firm that is protected by law.The emblem
or badge is defined by art. 27 par. (2) of the Law no.26/1990 as its " sign the name that
distinguishes one trader from another, of the same kind "and Article 27 (3) of the Law
establishesthe rul e that emblems will be written primarily in Romanian. The emblem usually
consists of one figure, figurative or non -figurative graphic representation
Industrial and commercial property rights or intellectual property rights. The
Trade Fund may include cert ain intellectual property rights in some creations new:
inventions, know -tiow, industrial designs, utility models and new signs: factory, trade and
service marks, designations of origin and indications of provenance.
New creations . The rights to an inve ntion are recognized by Law no. 64/1991 and
defended through the patent.
1. The patent is a title issued by the State through the State Office for Inventions and
Trademarks (OSIM) to the one who claims and proves to be the author of the invention. The
patent provides to its holder an exclusive exploitation right during its lifetime. Patent for
invention shall be granted to natural and legal persons.
It constitutes invention within the meaning of Law no. 64/1991 the scientific or
technical creation they present novelty has been patented and made public in the country or
abroad, is a technical solution and can be applied to solve problems in the economy, science,
health care, national defense or in any other area of economic and social life. He is the author
of an invented person who created it an invention.
New signs. Factory, trade and service marks. Identifying products,
services and merchandise is done with the help of the works, trade and service marks , the
Industrial designs can be part of the trade fund provided they present
news. The regime resembles that of the marks. According to art.l of Law no. 129/1992 on
protection industrial designs, the rights to such designs and designs are recognized
protected by a State Office for Inventions and Trademarks.

29
Other distinctive signs that are applied to goods and products. From this category
they do Party: collective marks and labels, national marks, quality certificates, accompanying
marks. And these signs are protected in some cases.
Designations of origin. Designations of origin and controlled names are indications
that indicate the place of manufacture of products, usually food, of special quality due to the
conditions natural soil, climate, etc. especially for wines, but can also be mineral waters, beer,
cheeses, cigarettes and so on . They are therefore quality titles and have become the exclusive
right in most jurisdictions or privative. These names are not confused with the marks.
The indications of origi n as the name indicates are distinctive signs that show
buyer country or town where the products come from but not to constitute an item
quality, not to mislead the consumer as to where these products come from, to comply with
certain rules of leanness in international trade and to prevent entry into country of foreign
goods by concealing their true origin.
Rewards obtained at exhibitions must be registered with OSIM for use again
when they are ceded, the mention must be made in the OSIM register.
Copyrig ht. The Fund may also include certain patrimonial rights
author resulting from scientific, literary or artistic creation. Fund holder as an author or a
acquirer of certain patrimonial rights of the author has the right to reproduction and the right
of broa dcasting by representation or use of the work and consequently to reap the appropriate
benefits. The valorization of the patrimonial rights of the author takes place under the
conditions provided by the Law no. 8/1996 regarding copyright21.
Customers and c ommercial vendors. By the clientele is meant the total of
individuals and legal entities who usually hired the same trader, that is to say, to his trading
fund for procurement of goods and services. Three categories of customers can be
distinguished :
1) Customers linked to the traders in question through supply contracts, often long
duration, with or without an exclusivity clause, forming captive clientele.
2) Other consumers are constantly addressing a determined trader because of their
confidence, inspires the products or services it offers on the market .
3) Finally, in the retail trade may also be the category of occasional
clientele consisting of random consumers, attracted by the location of the trade fund.
Debt and Debt Scheme. The trader's debts and debts are not part of the fund
because, as has been shown, this fund does not cover the entire legal patrimony, but only
some tangible and intangible assets, certain assets. Consequently, in the case of transmission
the fund, the receivables and the de bts are not transmitted to the acquirer. However, certain
rights and obligations arising from the employment contract, the fund's insurance contract
and the supply contract (gas, water, electricity, telephone, etc.) shall be communicated to the
Legal act s on the trading fund. The Trade Fund is part of the patrimony the trader
who has a property right over him to make transactions transmission: free of charge
(succession or donations), through the sharing of the property community or through for
considerat ion, by legal acts such as: sale, purchase, rental or pledge.

6. Sale of the trading fund
General rules of civil law in the matter of movable property that should normally be
Applying to the trading fund, which is a mobile good, does not give sufficient guarantee to
the seller and not it sufficiently protects its creditors. For this reason, the sale of the trading
fund is subject to a specific regulations that fix, determine and determine the effects for the
purpose of providing a triple protection.

21 Ion Turcu, Business Law, Chemarea Publishing House, Iasi, 19 92

30
Tran smitting the trading fund as a contribution to the trading company. The Trade
Fund can be the object of a contribution to the trading company at the constitution of which
the fund holder participates. holder may transfer the right of ownership or only the right to
use the fund. This one transmission differs from commercial sales.
Transmission of the trading fund to the trading company does not in this case involve the
receipt of a price, but the associate will receive shares or shares according to the legal form of
the company.

7. Housing and pledge of the trading fund
Placement of the trading fund. The Fund may be leased to a commercial lease,
under the lease, owner of the fund, in the quality of the lessor gives the lessee the use of the
fund on the trad e, in the absence of a clause conversely, the lease looks at all the elements of
the trading fund. As a result of the contract, the tenant has the right to continue the activity
under the previous trade name, mentioning quality in the firm of the successor , if the lessor
has expressly consented.

CHAPTER VIII – COMMERCIAL SOCIETIES

1. Generalities
The legal regime of commercial companies in Romania was regulated for the first
time b y disp.art.77 -220 of the Romanian Commercial Code adopted in 1887, provisi ons are
now repealed by Law no. 31/1990 on commercial companies, which through art. 2 of the law
enshrines in the system of national law five types of commercial companies, as follows: the
collective company; society in
simple chat; the joint stock company ; the joint st ock company and the responsible company
limited.

2. Establishment of commercial companies
The procedure for setting up commercial companies with legal personality (the
regulated ones by Law no. 31/1990), has three stages: a consensual stage , a judicial stage and
a stage publication, registration and registration.
The consensual stage has as its object the drawing up by the parties of the
constitutive acts. The conclusion and completion of the constitutive documents is done under
the conditi ons of the common law concerning the conclusion of contracts (by negotiation
between the parties).
The judicial stage is characterized by the legality control exercised by the territorial
court competent to authorize the proper functioning of the company.
The stage of advertising, registration and registration is the final stage of the
constitution of companies, within which it takes place: the fulfillment of the requirements for
the publicity of the documents constitutive in the Official Gazette, profess ional registration in
the Trade Register and registration tax..
The principle of freedom of association, in accordance with art. 37 of the Romanian
Constitution, the citizens can freely associate themselves in political parties, trade unions and
other for ms of association.
The contracting parties may be both natural persons and legal persons. Individuals,
whether they are merchants or non -traders, have the vocation to is associated with the
founding of a trading company, but this faculty is subject to so me different conditions
depending on the individual quality of the interested party or the type of company to
who is to participate.

31
Constituent documents. The basic legal act for setting up different types of
companies commercial is the "company contract " that can be defined as the will of consent,
through which two or more persons consents to constitute, by means of individual
contributions, a common fund intended a activity, carried out together, through the execution
of trade acts, in order to share th e benefits.
Publication in the Official Journal of the documents relating to the company
established is an obligation resulting from Law no. 31/1990.
Registration in the Trade Register shall take place, as provided by art. 6 of the Law
no. 26/1990 "On th e basis of the conclusion of the delegated judge or, as the case may be, of
a final court decision". The fulfillment of the registration obligation in the Trade Register
produces both statutory effects, as well and opposability.
Tax registration consists of the registration of the commercial company with the
financial administration in the constituency of which has established its seat, the tax
registration ensures the necessary conditions for income tax.

3. Operation of commercial companies
We will bri efly refer to two institutions that make up the vital motor of operation
companies: the general assembly and the management of the company .
The General Assembly is the supreme governing body of the trading company. She
can be "Ordinary" or "extraordinary" , the first meeting being held at least once a year, the
other meeting how many times it takes to make a decision on: extending the duration of
society, increasing it capital change, changing the subject of society, changing the form of
society, moving the headquarters, merging with other companies, any other modification of
the company's contract or status. For the validity of deliberations of the "general meeting" the
presence of the shareholders is necessary represents at least half of the share capital, and the
decisions are taken by the shareholders they hold the absolute majority of the share capital
represented in the meeting (unless in the company contract, statute or law does not provide
for a larger majority).
Company Administration. Unlike the ge neral meeting that appears in the relations
with third parties, as an abstract entity, also appears a representative pandant through
"administrators" who bears all the responsibility of the concrete leadership of society22.

4. Merger of trading companies
Absorption consists of the inclusion of two or more trading companies that cease
the existence giving rise to a new trading company. It is not a merger the incorporation by
another company of a branch of one companies (in this case, in fact, a transfer of t rading
fund).

5. Dissolution of commercial companies
The dissolution of commercial companies usually arises from cases that occur during
the course the operation of the company or the expiry of the agreed date (by way of
exception, the dissolution may al so take place anticipated).
From a procedural point of view, dissolution can be voluntary or judicial (when it is not
achieve the necessary agreement in the general assembly .
The voluntary dissolution procedure is the same as the modification of the
compa ny contract. Therefore, the decision of the general meeting that decided to dissolve is
authenticated notarially, it is verified by the the competent court authorizing the disbandment

22 “Romanian Commercial Law”, vol. II, I.L. Georgescu

32
and ordering subsequent posting of advertising in The Official Gazette, as well as the
registration in the Trade Register.
The judicial winding -up proceedings, in the absence of a general meeting decision
decide the dissolution (because there is no agreement in this regard), this absence will be
supplemented by the sentence t o be pronounced in this respect by the competent court.
The decision of the court that decided to dissolve is to be published in the Monitor
Officially registered with the Trade Register, within 15 days from the date of its final
the sanction of decay.

6. Liquidation of commercial companies
The liquidation of commercial companies is an operation that is a dissolution effect
them. It may be required by any of the associates (not the social creditors).
The liquidation procedure is established in favor of th e associates and the "rules established
by the the company contract, the statute and the law, in so far as they are not incompatible
with the liquidation.
During the liquidation, the legal personality of the commercial company is
maintained, with the obli gation, as in all the acts emanating from the society to show that it is
in liquidation. The company's liquidation operation goes through several phases: replacing
organs current administration; teaching management; payment of social creditors and
satisfac tion of rights associates (shareholders); drawing up the final balance sheet .

CHAPTER IX – PROCEDURE FOR JUDICIAL REORGANIZATION AND
BANKRUPTCY

1. General notions
By Law no. 64/1995, modified and completed by Government Emergency
Ordinance no. 58/1997 a nd by Law no. 99/199 9 established the procedure for
payment of the debtor's liability, on termination of payments, either by
reorganizing the enterprise and its business or by liquidating some of the assets
his wealth up to cover the passive, or through ba nkruptcy23.

2. Reorganization procedure
The entire reorganization process of the discontinuing business is centered
aroun d a reorganization plan that is part of a process whose components are
initiating the reorganization and bankruptcy procedure; developm ent and
implementation of the plan reorganization and termination of the reorganization
procedure.
a. Launching the reorganization and bankruptcy procedure
The procedure for reorganization and bankruptcy may be initiated by: the debtor
himself, his cred itors, or chamber of commerce and local industry .
b. Opening of the procedure
The syndic judge, having regard to the debtor's request, will issue an opening a
the procedure it will notify to all the creditors mentioned in the list submitted by the debtor ,
the debtor and of the trade registry office where the debtor is enrolled, to make the mention.

23 “Commercial enterprises ”, P.I. Demetrescu

33
If the creditors oppose the debtor's request within 15 days of issuance notification, the
syndic judge will summon them together with the debtor at a hearing, settling all oppositions
by a sentence .
c. Reorganization or liquidation plan
The plan will provide either for the reorganization and continuation of the debtor's
activity, or the liquidation of some goods from his property.
The plan will have to be pr oposed within 30 days of the opening of the procedure, he
being prolonged by the syndic judge for another 60 days.
Failure to comply with these deadlines results in the parties being deprived of the
right to submit a plan reorganization or liquidation. As a result, the tribunal will order the
bankruptcy procedure .
d. Reorganization
Once the plan is confirmed, the debtor will be required to meet the changes without
delay structure outlined in the plan. The syndic judge will be able to order the administr ator
to supervise the debtor's business until such a measure is taken.
If the debtor does not comply with the plan, the administrator or any of the creditors
may asks the syndic judge to approve the commencement of bankruptcy proceedings .

3. Bankruptcy
In the absence of a reorganization plan, the debtor, a creditor, the creditors' committee
or the trade and industry may apply to the syndic judge to raise the debtor's entitlement
to lead the business.
The claim is admittedly motivated, amongst which is the continuous loss of the
debtor's assets or the lack of probability of achieving a rational activity plan.
After the opening of proceedings, if the debtor declares its intention to liquidate, the
syndic judge will have the sealing of the assets that are part of the debtor's assets, and if the
debtor has goods in May many localities located in different counties, the syndic judge will
notify the tribunals of those counties, with a view to the sealing of the goods concerned.
They will be under seal: shops , warehouses, warehouses, offices, correspondence
trade, contracts, goods and any other movable property belonging to the debtor's assets.
The debtor's assets will then be inventoried by the liquidator, the inventory being
required to describe all the deb tor's assets, even those not under seal, and indicate their
approximate value at the time inventory at the request of the creditors' committee or the
liquidator, the syndic judge may call one an expert in this respect at the debtor's expense24.
The opening of the procedure must be notified by the sy ndic judge to the post offices,
the railway stations railways, contractors, port warehouses and other gas stations, and will
also be given provisions of all banks to which the debtor has available in the accounts do not
have these without one order of the syndic judge or the liquidator.
If the debtor has goods subject to transcription, inscription or registration, in the
real estate advertising, the syndic judge will send to the courts or authorities holding these
registers a a copy of the decision to open the proceedings to make the necessary mention.
Performing liquidation
Liquidation of assets from the debtor's assets will be carried out by the liquidator
under control the syndic judge.
Liquidation begins wi th the table showing the debtor's obligations. Goods will be sold
in bulk – as a whole or individually. In the first case of block sales, the syndic judge will
designate an expert (or a commission of experts) who will, within 30 days, have a report in

24 I.N Fințescu, Commercial Law Course, 3 vol., Bucharest, 1929 -1930

34
whic h they will be indicated, described and evaluate the goods to be sold together, specifying
the tasks they may be encumbered. Sales arrangements will also be proposed.
The syndic judge may have objections to the report, returning it for rehabilitation.
How ever, if it agrees, the report will be put to the vote of the creditors' meeting, which, if it
gives an opinion the syndic judge will make available to the liquidator, through a closing, to
carry out the acts and liquidation operations under the conditions proposed by the report.
The buildings will be sold directly, following the liquidator's proposal, approved by
the judge syndicate, but before being subjected to the syndic judge, the proposal will be
notified to the debtor and creditors with real guarant ees on the good, who will be able to
formulate the objections to be resolved, all at once, through a sentence by the syndic judge.
Revenue from the administration of buildings or other property of the debtor's
property will be deposited in the assets acc ount and will be divided into creditors at the same
time as the price obtained from the sale of these goods.
Securities will be sold under the terms of Law no. 52/1994 on securities and
securities stock exchanges. The liquidator will conclude sales and p urchase contracts, and the
proceeds from sales will be deposited in the account opened with a bank based on the order
of the syndic judge.
Closure of liquidation
A court liquidation procedure will be closed when the syndic judge approves the
report the final of the liquidator, when all the funds or assets of the debtor's assets have been
distributed and when the unreclaimed funds have been deposited with the bank. At the
request of the liquidator, the syndic judge will conclude, closing the procedure, w hich will be
communicated in writing to the debtor, to all creditors and to the Chamber of Commerce and
Industry territory.

4. Closure of the procedure
At any stage of the proceedings, the syndic judge may give a closure of the
proceedings, if it finds that the existing goods are not sufficient to cover the administrative
expenses nor a creditor does not offer to advance the corresponding amounts.
Also, the syndic judge will give a closure closure procedure just before the assets of
the debtor's asset s have been wholly liquidated if the claims have been covered by
distributions made. The closure of the procedure will be notified to the debtor, to all creditors
and the Chambers of Commerce and Industry territorial industry, so that those interested can
formulate objections, which will be solved by the syndic judge suddenly through a sentence.
By closing the procedure, the debtor will be discharged from the obligations he had
before its opening, subject however to not being found guilty of fraudulent ban kruptcy or
payments or fraudulent transfers, situations where the debtor will be unloaded only to the
extent that they will be were paid in the procedure.
The legal provisions regarding the debtor's discharge by closing the procedure do not
apply debtors who have been subjected to the procedure in the last 5 years and have been
unloaded. To these debtors, each creditor will retain the right to payment of the remainder of
his claims, according to the common la w.

35
CONCLUSION

In conclusion, we can say tha t Commercial law is the body of law that applies to the
rights, relationships and conduct of persons and businesses engaged in commerce,
merc handising, trade, and sales. It is often considered to be a branch of civil law and deals
with issues of both private law and public law.
Commercial law includes in its compass such titles as principal and agent; carriage by
land and sea; commercial shipping; guarantee; marine, fire , life, and accident insurance; bills
of exchange, negotiable instrumen ts, contracts and partnerships. Many of these categories fall
under the Financial Law, an aspects of Commercial Law specifically relating to finance and
financial markets. It can also b e understood to regulate corporate contracts, hiring practices,
and the production and sales of consumer goods. Many countries have adopted civil codes
that contain comprehensive statements of their commercial law.

BIBLIOGRAPHY

1. Book : “Commercial La w”, Lect. univ. drd. BOGDAN DAVID

2. https://en.wikipedia.org/wiki/Commercial_law

3. Book: “Romanian Commercial Law”, vol. II, I.L. Georgescu

4. Book : “Commercial enterprises ”, P.I. Demetrescu

5.Book: “ Business Law ”, Ion Turcu, Chemarea Publishing Hous e, Iasi 1992

6. https://www.allaboutlaw.co.uk/stage/areas -of-law/commercial -law

7. http://www.scritub.com/management/NOTIUNI -GENERALE -DE-DREPT –
COME13232.php