Faptele (actele) de comerţ în condiţiile unificării dreptului privat. Necesitatea reconfigurării legislative a faptelor (actelor) de comerţ
The Deeds (Acts) of Trade Under the Conditions of Unification of Private Law. The Need for Legislative Reconfiguration of Deeds (Acts)

Summary/Abstract: The foundation of the Romanian Civil Code, adopted in 2009 , on the monist theory, determined the unification of the private law, of the Commercial Code of 1887 and, implicitly, the repeal of the legal concept of „deeds (acts) of trade” from in its content, a substantial part of the „commercial matter” .In the conception of the Romanian legislator, the unity of the private law meant, among others, the replacement of the expressions „facts”, „deeds” of commerce with activities of production, trade or service provision [art. 8 paragraph (2) of Law no. 71/2011 implementing the Civil Code].It is clear from the legislator's expression that these „deeds”, „acts” of commerce are not challenged, so there are also conditions for repealing the Commercial Code, only that, from a terminological point of view, „deeds” and „acts of commerce” no longer appear in the form provided by the Commercial Code. The replacement of the expressions „deeds”, „acts” of trade with „activities of production, trade or services provision” was also based on the fact that they were the main criterion for defining the trader and, at present, according to the will of the legislator, the elements that define the professionals traders would no longer represent the nature of their activity, respectively the trading activity, but the legal status, the legal regime that differentiates them from other professionals. The „deeds”, „acts” of commerce that were provided by the Commercial Code currently exist in the Civil Code, to which the modern special legislation is added .It is not enough for the deeds (acts) of commerce to be replaced with activities of production, trade, provision of services because, apparently, from a formal point of view they exist even under the conditions of the Civil Code (of unification of the private law). In addition, from this point of view most of the acts (acts) of commerce existing in the Civil Code, especially the contracts (sale, consignment, agent, commission, etc). What is missing from the Civil Code is the definition of the deeds (acts) of commerce, namely the expression „activity of production, trade, service provision” does not establish the particularities of deeds (acts) of commerce. There is a series of service provision activities that can be traded (for example, the intermediation contract, the mandate contract, etc.), but at the same time they can be civil (non commercial) activities if they are free or not concluded by professional traders.

• Details
• Contents