The legal concept of trading companies, according to the new civil code. the notion of professionals.

THE LEGAL CONCEPT OF TRADING COMPANIES, ACCORDING TO THE NEW CIVIL CODE. THE NOTION OF PROFESSIONALS.

Abstract

The unification of private law according to the monist theory which is the fundament of the new civil code adopted by Law 287/2009, refers to the legal concept of trading companies, having as starting point the provisions of article 3, where the legislator defines a new legal concept - the professionals. According to the above mentioned article, as envisaged to be amended by the draft laws for implementing the new civil code, one of the important categories of professionals are the trading companies. 

In the spirit of unifying the private law and producing a new civil code to represent the common law applicable to trading companies, the legislator, in art. 1888, presents the forms of trading companies, the five (5) forms of trading companies regulated in art. 2 of Law no. 31/1990 on trading companies as republished and amended. Besides the five forms of trading companies (general partnership, limited partnership, joint stock company, limited partnership by shares, limited liability company), the new civil code regulates as forms of company, the simple company and the participation company, the cooperative companies and, in a very general wording, "other type of company especially regulated by law".

Therefore, the new civil code represents only the common law for all professionals, including the trading companies, the latter being regulated by a special legislation, primarily by Law 31/1990 on trading companies as republished and amended.

Keywords: new civil code; trading companies; professionals; monist theory; unification of private law.

1. Introduction

The unification of private law according to the monist theory which is the fundament of the new civil code adopted by Law 287/2009, refers to the legal concept of trading companies, having as starting point the provisions of article 3, where the legislator defines a new legal concept - the professionals.

According to the above mentioned article, as envisaged to be amended by the draft law for implementing the new civil code, one of the important categories of professionals is the trading companies. In the spirit of unifying the private law and producing a new civil code to represent the common law applicable to trading companies, the legislator, in art. 1888, presents the forms of trading companies, the five (5) forms of trading companies regulated in art. 2 of Law no. 31/1990 on trading companies as republished and amended. Besides the five forms of trading companies (general partnership, limited partnership, joint stock company, limited partnership by shares, limited liability company), the new civil code regulates as forms of company, the simple company and the participation company, the cooperative companies and, in a very general wording, "other type of company especially regulated by law".

Therefore, the new civil code represents only the common law for all professionals, including the trading companies, the latter being regulated by a special legislation, primarily by Law 31/1990 on trading companies as republished and amended.

2. The legal concept of professionals

One of the newest provisions comprised by the new civil code is the introduction of the concept of professionals. The scope of the provisions of the new civil code concerns both the professionals and other subjects of civil law. Therefore, the first conclusion is that the professionals are one of the categories of civil law subjects that are involved in civil law relations (stricto sensu), as well as in relations of commercial law, administrative law, criminal law, financial law, etc.

The legislator defines the concept of professionals by using the concept of undertaking. Thus, according to article 3 paragraph 2, the professionals are those who develop an undertaking. The undertaking is defined by the legislator in article 3 paragraph 3, as being the systematic exercise by one or several persons of an organized activity which consists in producing, managing or selling goods or in service delivery, no matter if the goal is obtaining profit. This definition is amended by the legislator in article 6 paragraph 1 of the implementation draft law, where the concept of professionals includes the concepts of trader, undertaker, economic operator, as well as other persons authorized to carry out an activity with or without economic character. These legal texts show the concepts of professionals, undertakings, undertakers, traders, economic operators, very important for configuring the legal concept of trading companies.

Among all these concepts, only the concept of professionals appears for the first time in the national regulations, being genus proximus as compared to the concepts of undertaker, economic operator etc. Differentia specifica is determined by the particularities of each category which, generally come under the concept of professionals.

As far as the trader- natural person is concerned - the legal framework is represented by GEO no. 44/2008 on carrying out economic activities by authorized natural persons, individual and family undertakings[1] and, naturally, by article 7 and the following of the Commercial Code. By repealing the Commercial Code, the only normative act which regulates the activity of the trader- natural person is GEO no. 44/2008, but this piece of legislation does not define the trader.

According to the provisions of the new civil code, of the implementing draft law, of article 6 paragraph 2, the wording which once represented the substance of defining the trader, respectively trading acts or trading deeds is replaced by the wording production, trading or service delivery activities. By abandoning the concepts of trading acts and trading deeds, the objective criteria of defining the trader disappears, no matter if it concerns a natural person or a legal person - trading companies[2].

At the same time, the content of this draft disposes that article 1 of law no. 26/1990 on the trading registry, as further amended and republished[3], is to be amended. This article defines the traders as being the natural persons authorized to carry out economic activities, the undertakings, the individual or family undertakings, the national companies and enterprises, the autonomous companies, the economic interest groups, the European economic interest groups and the cooperative organizations. Therefore, these legal entities may be included in the concept of professionals.

As far as the commercial undertaking is concerned, the specialized literature[4] identified its particularities. Therefore, the economic activity deployed by a commercial undertaking is carried out by one or several persons as professionals, these professionals having the quality of a trader. At the same time, there were points of view in the direction that the object of the economic activity is represented by the production and movement of goods, works and service delivery and the goal of the activity is obtaining a profit.

In the context of unifying the private law, the commercial undertaking may represent a criterion for establishing the commercial law matter, as well as the trader quality[5].

3. The legal concept of trading companies

As it results from the above mentioned provisions, the trading companies are included in the professionals' category because they develop an undertaking in the sense of art. 3 paragraphs 2 and 3 of the new civil code. At the same time, taking into consideration article 8 paragraph 1 of the implementing draft law, which proposes that article 1 of Law 31/1990 on the trading companies is amended, in order to carry out production, trade or service delivery activities, the natural persons and the legal persons may assemble and establish trading companies.

Therefore, the trading companies are characterized by: they represent a category of professionals, they develop an undertaking which carry out production, trade or service delivery activities; they are traders; they are regulated mainly by special law (Law 31/1990 on the trading companies, as republished and amended), provisions which complete themselves with those of the civil code.

In our opinion, the legal concept of the trading companies can only be that of a professional - trader that carry out the activities provided by the law in order to make a profit.

4. Aspects on trading companies according to the new civil code.

4.1. Forms of companies. In the context of unifying the private law and producing a new civil code to represent the common law applicable to trading companies, the legislator, in art. 1888, presents the forms of trading companies, the five (5) forms of trading companies regulated in art. 2 of Law no. 31/1990 on trading companies as republished and amended. Besides the five forms of trading companies (general partnership, limited partnership, joint stock company, limited partnership by shares, limited liability company), the new civil code regulates as forms of company, the simple company and the participation company, the cooperative companies and, in a very general wording, "other type of company especially regulated by law".

Having in mind the wording of the legislator, it is easy to see the inconsistency of the terminology used in the text. So, even if in art. 1888 the title refers to the forms of companies, at the end of the text, the legislator abandons the wording "forms of companies" and refers to "other type of company", using, probably with the same meaning, the concept of "type". Or, in our opinion, the content of the word "type" is larger than that of "form". In fact, in the specialised literature[6], there are two types of trading companies, at least in respect of their form: partnerships and business corporations. There is an intermediary form of company, the limited liability company, which borrows features from the two already stated above.

At the same time, each form of company may comprise different types of companies, like in the case of cooperative companies which are craftsmanship cooperative companies, consumption cooperative companies, housing cooperative companies, transportation cooperative companies, etc.

4.2. Trading companies. Contractual conception. The contractual conception, determined by the development of the theory of contracts the last century, explains the existence of trading companies starting from the validity conditions necessary for any contract and from the contractual techniques which determine the legal relationships in the framework of the company. The disadvantages of this theory are determined by the specific aspects of a trading company, aspects impossible to be explained only from the point of view of contractual mechanisms. Also, such a concept cannot explain the existence of single persons' companies because in this case, the agreement, essential for any contract, is missing.

That's why, the theories tried to define the trading company from the institutional point of view, starting from the fact that the legal institution is an ensemble of rules that organizes, in a mandatory and long-lasting manner, a group of persons having a well established goal.

4.3. Legal framework. At present, the new civil code defines "the company" using the contractual theory applicable to trading companies, except for the"de facto" limitations of single person companies.

Therefore, according to art. 1881 of the new civil code, "through the company contract, two or more persons are binding each other to cooperate in order to carry on an activity and to contribute to this activity in cash, goods, in specific knowledge or prestations, with the aim of sharing the benefits or to use the economy that may result form this activity".

The definition is compatible with the specificities of trading companies, even if the special legislation provides, taking into consideration the form of the trading company, the sorts of the contributions to the social capital or to the company's assets.

The element which differentiates the trading company in all its forms from the "simple company" or from the "participation company" is its institutional dimension - of legal person, meaning that in all cases, the trading companies have legal personality while, in the other cases, this is possible only if the partners have decided this way.

"If, according to the partners' will, the company is to acquire legal personality, no matter of the object of activity, it may be set up only in the forms and conditions described by the special law which gives it legal personality" (art. 1889 para. 2).

Therefore, the first observation in relation to trading companies, in the context of the new provisions of the civil code, is that the special provisions that obviously add-on to those of the civil code, continue to exist.

The meaning of "contract" of the trading company is important, especially in respect of the conditions of validity.

4.4. Legal status of the contributions in common assets. The newest provision applicable to trading companies refers to the legal capacity of the spouse to become or not partner in a trading company, if there are common assets to be contributed to the company. So, according to art. 1882 second paragraph, "a spouse cannot become partner by contributing with common assets without the consent of the other spouse", the provisions of art. 349 being applicable accordingly. From this point of view, the regulation in the new civil code regarding the legal status of the contribution in company of common assets is salutary.

So, according to art. 348 "The common assets may be subject to contribution in companies, associations and foundations, according to the law, the provisions of art. 346 and 347 being applicable accordingly". Therefore, these provisions have to be corroborated with those in art. 1882 second paragraph, which establishes the necessity of the agreement of the other spouse.

Thus, under the sanction of a voidable contract provided for in art. 347, none of the spouses can, without the consent of the other, dispose of the common assets as contribution to a company (including a trading company) or acquire participating shares or, shares, according to the case (art. 349 first paragraph).

According to art. 349 second paragraph, "In the cases of trading companies whose shares are admitted to trading on a regulated market, the spouse who consented to using the common assets can only ask for damages from the other spouse, without affecting the rights of third parties".

The participation shares or shares are common assets but the spouse who became partner is the one exercising the rights determined by this quality on his own.

Another important provision representing common law for trading companies, even for the companies enjoying legal personality, relates to the liability of partners for social debts.

The contractual theory regulating companies in general determines the partners' liability as well, which usually is unlimited and jointly, with a subsidiary character, which means that the third party creditors of the company will follow first the liable company for their debts and only in subsidiary, the partners who, according to art. 1889 para 1, are liable jointly and unlimitedly. This provision has exceptions provided expressly by the special legislation, in this case, the law of trading companies.

The simple company. According to art. 1892 para 1, the simple company doesn't enjoy legal personality. Even so, if the partners wish that the company acquires legal personality, in the modification act of the company contract, they shall expressly indicate the legal form, adapting the content of the company contract according to the provisions in the special legislation which regulates that particular form of company.

Acquiring legal personality is carried out by transforming the simple company in another form of company, a trading company for example. In this case, the provisions of art. 1892 para 3 second paragraph are applicable. According to this article, the partners and the newly formed company are jointly and indivisibly liable for all debts of the company set up before the acquisition of legal personality.

4.6. The de facto company. The previous legislation, the Civil code, the Commercial code, Law no. 31/1990 - the law of trading companies, didn't regulate the de facto company. The only situation regulated by the law was and still is the "irregularly set up company". The specialized literature analyzed the Italian law and concluded that the Romanian-Italian law provides only for regularly set up companies and for illegally or irregularly set up companies[7].

For the first time in the new civil code, the legislator introduces the de facto companies, providing in art. 1893 that "the companies which have to undergo the procedure of registration according to the law and which remain unregistered, as well as the de facto companies, are assimilated to simple companies".

The importance of this provision for trading companies is obvious, as long as these companies are subject to registration in order to acquire legal personality. Studying the wording of the text, we conclude that unregistered trading companies aren't de facto companies as these ones are, according to the legislator, separate from the unregistered companies, which means that the opinion of the specialized literature is confirmed[8]. According to the specialized literature, "the Romanian law provides only for irregularly set up companies and not for de facto companies".

Both companies subject to registration according to the law that remain unregistered and the de facto companies are assimilated to simple companies.

4.7. The legal of the contributions of partners. The provisions of the new civil code are common law for the contributions of partners in companies, in general. Because they are common law, there are, obviously, rules and principles. Therefore, art. 1883 provides for the regime of the contributions, the legislator separating the companies enjoying legal personality from the companies without legal personality. For the first ones, the contributions˛ made to the company's assets and in the second, they become joint ownership of partners, except for the case when the partners have expressly decided that the contributions become common use.

Formally, the legislator pointed out that, if among the assets contributed to the company there is real estate; the company's contract shall be authenticated, for the transfer of property to the company as well as in the case of other real rights. The transfer is subject to publicity formalities required by the law.

As far as the sorts of contributions are concerned, the legislator provides in the new civil code all sorts of contributions: contribution in cash, contribution in intangible assets and contributions in prestations or in specific knowledge. It is very important that, according to the legislator, the sum of these contributions generates the social capital. The general text is art. 1894 entitled "Formation of the social capital". Here, the legislator, in paragraph 1, provides that "The partners contribute to the formation of the social capital of the company with contributions in cash or in assets, according to the case". Therefore, the legislator takes into account only liquidities and other assets in order to form the social capital.  Paragraph 3 of the same article mentions that "the partners may contribute with prestations or specific knowledge, as contributions in company.

Thus, even if all sorts of contributions are provided in the title "Formation of the social capital", in paragraph 3 of art. 1894, the legislator does no longer speak about contribution to the capital but about company contribution, which is correct because, at least for trading companies, the contributions in prestations or specific knowledge cannot be brought in the social capital but, only in some cases, in the company's assets.

In our opinion, it would have been more appropriate that the legislator differentiates between "company assets" and "social capital". It is true that the social capital is part of the company's assets, but not all assets may represent contribution to capital, but on the other hand, it is possible that, according to the law, they represent contribution to company's assets, as correctly is provided by the legislator, as "company contribution".

For the contribution in cash, the provision in art. 1892 partially resembles to the rule provided in art. 62 para 2 of Law on trading companies no. 31/1990 as amended. The common point of the two provisions is the liability of the partner who is late in fulfilling the obligation to deliver the registered contribution to the social capital. According to the two texts, the partner is held liable towards the company for the subscribed sum of money and for the legal interest at the moment of deadline and for any other damages brought to the company. The only difference is that the new civil code refers to the non-execution of the obligation by the partner - debtor. On the other hand, in art. 65 para 2 of Law 31/1990, the legislator takes into account the simple "delay" in fulfilling the obligation. In the two situations, the debtor is de jure noticed just by reaching the deadline, only, in the case of trading companies, the rule "dies inerpellat pro homine" provided by art. 43 of the Commercial code is applied.

Taking into consideration that the new civil code unifies the private law, the general rule set out in art. 1898 regarding the de jure notice of the debtor-partner is also applicable to trading companies. Comparing the two texts of the new civil code and of the law on trading companies, we may see another difference. The liability for the damages brought to the company operates for the delay in execution of the contribution no matter of its nature.

In the new civil code, the liability for the "damages" brought to the company for delay in contribution is regulated separately for each category (sort) of contribution (art. 1897, art. 1899).

Each partner who is liable towards the company and towards the other partner has the obligation of contribution; the rights resulting from the partnership shares are suspended until the contribution to the social capital is made (art. 1895). As far as the trading companies are concerned, only for joint stock companies the law provides in an imperative manner the suspension of the respective rights; for the other forms of companies, this "measure" doesn't exist unless it was expressly provided in the constitutive act. It is interesting to see if, in the future, the law on trading companies will be "amended" in order to match some of the provisions of the new civil code, provisions regarding companies in general.

Another provision regards the contributions in prestations and in specific knowledge.

The obligations of the partner who employs himself to provide certain prestations or to bring certain specific knowledge to the company, as social contribution, are to provide the prestations or the specific knowledge in a continuous manner for the entire existence of the partner's quality and to bring in the company the income from the activities which are object of contribution.

The contributions in prestations or in specific knowledge are made by the partner who obliged himself to carry on certain actual activities and by providing to the companies certain pieces of information in order to fulfill its objective. The sanctions applicable to the partner who doesn't fulfill this obligation are the exclusion and, according to the case, payment of damages.

For the contribution in tangible assets, the legislator expressly regulates three categories of such assets: debts, shares or partnership shares or credit titles, the last having the legal status of the contributions in debts as far as the liability of partner is concerned. Thus, for the contribution in debts, the partner is liable for their existence at the moment of the contribution, as well as for cashing it at deadline. If the company doesn't cash in the debt, the partner who brought in the debt (as contribution) shall be liable for paying the respective amount, the legal interest and any other amount, as damages.

The opinion of the legislator regarding the shares and the partnership shares issued by other trading company is interesting, as they aren't considered debts but intangible assets in the general meaning. The contribution in shares or partnership shares is considered contribution in intangible assets, respectively ownership acts, as, according to art. 1897 para 2, "the partner who contributes in shares or partnership shares issued by other company is liable for the contribution just like a seller is liable towards the buyer".

The legal status of the contribution in tangible assets is different according to the nature of the right transferred to the company by contribution of that respective asset (art. 1896). Thus, if the ownership or other real right is contributed to the company, the partners is liable for the contribution just like the seller is liable towards the buyer (the company) and if the right of use is contributed in the company, the obligations of the partners resemble to the obligations of a lessor toward a lessee (company)."

If a fungible asset is contributed to the company, the company takes ownership over it, even if this isn't expressly provided in the contract.

In our opinion, the legal concept of the trading companies can only be that of a professional - trader that carry out the activities provided by the law in order to make a profit.

5. Conclusions

The new civil code represents only the common law for all professionals, including the trading companies, the latter being regulated by a special legislation, primarily by Law 31/1990 on trading companies as republished and amended. Thus, the provisions of the new civil code shall be the common law for trading companies, regulated by special laws which, in some cases, need to be "amended".

The professionals are one of the categories of civil law subjects that are involved in civil law relations (stricto sensu), as well as in relations of commercial law, administrative law, criminal law, financial law, etc.

As far as the commercial undertaking is concerned, the specialized literature identified its particularities. Therefore, the economic activity deployed by a commercial undertaking is carried out by one or several persons as professionals, these professionals having the quality of a trader. At the same time, there were points of view in the direction that the object of the economic activity is represented by the production and movement of goods, works and service delivery and the goal of the activity is obtaining a profit.

The trading companies are a category of professionals, they develop an undertaking which carry out production, trade or service delivery activities; they are traders; they are regulated mainly by special law (Law 31/1990 on the trading companies, as republished and amended), provisions which complete themselves with those of the civil code.

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