The Facts of Commerce

Regulation
The commercial facts are regulated by art. 3, 4 and 56 from Commercial Code.
Art. 3 - presents a list of legal operations, qualified as commercial facts.
Art.4 the list is completed with all the other acts of a merchant, under the
condition that they are not of civil nature or the contrary does not result from the
act itself.
Art. 56 the commercial facts area enlarges with the juridical operations
concluded between a merchant and a non-merchant.

The notion of commercial facts
The facts of commerce represents the ensemble of commercial facts and
acts consisting of producing goods; execution of works; intermediating in goods
circulation and services, with the purpose of obtaining profit.

The Classification of Commercial Facts
The commercial law does not establish a real classification of commercial
acts/facts and only the commercial code, as general law, has different provisions
regarding the commercial acts as in articles: 3, 4, 5, 6, 35 and 56.
This is why, for a better understanding of these legal provisions, the
commercial legal doctrine, on the ground of commercial code, tried to present its
own classification, but a unique view could not be found in order to classify the
commercial facts.
Apart from that approach, we have the presentation of commercial facts
made by the commercial code itself. Thus, the commercial facts should be
classified into:
a) objective commercial facts art. 3
b) subjective commercial facts art. 4
c) unilateral or mixed commercial facts art. 56

1. The Objective Commercial Facts
These facts are expressly provided by article 3 from Commercial Code,
which presents 20 activities as being commercial facts: These are commercial
facts:... It means that, without any doubt, those activities are enforced by law
as being commercial facts and consequently any person, merchant or non-
merchant, who performs them is part of a juridical relationship regulated by
commercial law provisions.
The enumeration is mostly based on an economical criterion rather than
on a juridical one, taking into account the object and the economical function of
these operations.
Therefore, the objective commercial facts could be divided into:
a) operations of interposition on exchange or circulation of goods
b) operations which accomplish the organization and performance of
production activities enterprises
c) other juridical acts and connected operations accessory facts. In this
case, some activities become commercial facts because their relation with other
commercial facts or operations which have been already considered as such by
Commercial Code.
a) Operations of interposition on exchange or circulation of goods
Some commercial facts presented by article 3 Commercial Code
materialized the activity of interposition on exchange or circulation of goods.
There are included in that category the commercial selling and purchasing
activities and the banking and exchange operations.





Commercial Selling and Purchasing
This activity is regulated by article 3, point 1 and 2 from Commercial Code.
Thus, according to these:
Law considers as commercial facts:
1. Purchasing of products or goods for re-selling, either in kind, or after
they have been elaborated or put in progress, or only for letting; also, purchasing
for re-selling of state bonds or other debt titles circulated on trade;
2. Selling of products, selling and renting of merchandise, in kind or
elaborated and of state bonds or other debt titles circulated on trade, where they
have been bought with a view to re-sell or to rent
From this provisions we should understand that, as far as the content of
selling and purchasing activities is concerned, it is similar to that regulated
by the civil law. Indeed, either the civil or commercial selling/purchasing
materialized the transfer of the ownership right on a specific good for a
certain price.
But, although the civil and commercial selling/purchasing have a similar
content, they are different because:
- the economic function of the commercial selling/purchasing is a
interposition on exchange of goods which allows only their circulation from
producer to consumer (meaning the trade is stricto sensu). On the other hand,
the civil selling/purchasing allows only the direct transfer of goods from the
owner to another person.
- the main feature of the commercial selling and purchasing is the
intention of re-selling that the persons involved in this activity form the moment
when this contract is concluded. In other words, selling/purchasing is a
commercial activity only if it is done with the view of re-selling the purchased
goods or the selling regards merchandise which have been bought with the
intention of re-selling.
The intention of re-selling has to be expressed by the buyer and
acknowledged by the seller, otherwise the act will not commercial. The re-
selling intention could result from the clear declaration of the buyer, from the
content of the contract or from different elements, like the quantity of purchase.
Whenever the act is pretended to be commercial the evidence must be
proved, or the act will be considered civil, because the provisions of article 3
points 1 and 2 from Commercial Code derogate from the civil law rules.
Examples:
*The purchase of goods for personal, family use is nor commercial, even if
the buyer sells them after;
* Purchasing of bags in order to transport in them some goods, subject of
a future sell, because the intention of re-selling refers only to the goods;
*On the other hand, when we have an intention of re-selling, but the
goods, products are not sold, the activity is still commercial.
- Only movable goods, as produces, products, debt titles, can be object
of commercial selling and purchasing, so immovable goods are civil acts.
Produces =all natural produces obtained by culture or direct exploitation
of land, such as: cereals, wood, vegetables as well as animal products: milk,
eggs, wool etc
Products =produces obtained through a productive activity and intended
to be sold, such as: cars, furniture, clothes etc.
Debt titles =documents which incorporate a specific right (rights) and
consequently entitle their owner or holder to exercise it (them).
- another important difference between civil and commercial selling and
purchasing refers to the fact that article 3 does not request that the bought goods
are re-sold in the same form, they can be also sold after they have been
elaborated or put in progress.
As far as the transformation of goods concerning, there can be a question
whether this activity is more expensive than the value of the purchased goods?
Example: handicraft where, most of the times, the work is more
important than the material itself.
On this subject, the commercial law doctrine makes the following
differences:
a) if the handicraftsmen use raw material purchased by their clients, their activity
is a civil operation which departs from the interposition on circulation of goods
and it is so-called lease or letting of services
b) if the handicraftsmen purchase the necessary raw materials, process them
and sell after that, their activity will be commercial.

Banking and exchange operations
According to art. 3 point 11 from Commercial Code, money and credit can
be object to circulation of goods and thus commercial activities. The commercial
character of these operations is given by the fact of interposition on circulation or
exchange of money, titles that they suppose. On the other hand, money itself is a
merchandise and, as such, object to commercial facts. Consequently, the
operations regarding money or credit should be submitted to the same principles
of circulation of goods.
The exchange operations are those related to the exchange of different
national currencies. These operations can be performed by banking companies
authorized to participate on the currency market or exchange houses.


b) The Enterprises
The enterprise is systematic organized activity which combines factors like
capital, labor and nature with the purpose of producing goods and services and,
by that, obtain a profit.
In order to be an enterprise, we need some conditions fulfilled:
- the object of activity has to be producing goods, execution of works or services,
and the purpose must be to obtain profit;
- the existence of an organized activity;
- the risk and control of the activity taken by the entrepreneur.



Classification;
1)Supply enterprises art. 3 point 5 - is a organized activity through which
the enterpriser, for a pre-established price, supplies goods/services. In order
to be considered a supply enterprise, it has to fulfill the following conditions:
- the existence of an organization of factors in order to perform commercial facts
- the performance has to be done successively
- the price has to be pre-established between parties.
2) Public shows enterprises art. 3 point 6 the object of activity might be
any activity of shows like: theatre, circus, concerts, movies. All the facts made to
fulfill the final goal: renting a room, location, contracts with artists, advertising
have a commercial character. There can be some shows that do not have a
commercial character those organized with social purpose.
3) Enterprises of commission agencies and business offices art.3 par. 7
where commission agencies are based on the commission contract (transport)
and business offices on intermediating operation between merchants and their
clients(obtaining information, attracting clients)
4) Construction enterprises art. 3 par. 8 the object of the construction
enterprise must be the construction of new buildings or transformation
operations, arrangement operations and others. The construction enterprise is
commercial in both cases when the materials are bought by the enterpriser or by
the customer.
5) Enterprises of factories, manufacture and printing works art. 3 par. 9
the object of activity is to transform, to process, raw material in industrial
products (factories) and dry goods (manufacture) or to duplicate literary, artistic
works (printing works)
6) Enterprises of publishing house, book shops and art objects selling
art.3 par. 10 the main condition is that the seller must not be the author, but a
merchant that has as object of activity this kind of commercial acts, otherwise this
operation is a intellectual property right one, so of civil nature.
7) Transport enterprises transportation is an operation of material
moving of persons or goods from one place to another, fulfilled under different
conditions and in many ways. The code is old, so we do not have presented the
transportation by air, but we can deduce that.
8) Insurance enterprises art 3. par 17 land insurance, mutual included,
for damages and life and par. 18 insurance, mutual included, for navigations
risks. It is a commercial act because is done by organized and specialized
companies.
9) Storehouses in docks or warehouses art. 3 par. 20 are commercial
because they store merchandise for a certain price

c) Accessory facts
They are juridical facts and acts that by nature are civil, but they become
commercial because we have a relation with a commercial operation.
1) Carry-forward (report) contracts on state bond or other debt titles
circulated on trade art3. par. 3
2) Purchasing or selling of parts/shares of commercial companies art3.
par 4 the relation with commercial area consists in the subject of trade.
3) Operations of intermediate for business art. 3 par. 12
4) Bills of exchange and payment orders art. 3 par. 14
5) operations related to navigation art. 3. par. 15 and par. 16
6) deposits for trade cause art. 3 par. 19 are commercial facts
because the deposit is made with the intention of re-selling.

2. The Subjective Commercial Facts
Conditions:
1) The facts are not of civil nature
2) The commerciality does not result from the act itself
Examples:
- Acts done for the personal use of a merchant

3. The Mixed Commercial Facts
The acts done between a merchant and a non-merchant