Scholarly record

LEGAL STATUS OF PROFESSIONALS UNDER THE SWAY OF THE NEW ROMANIAN CIVIL CODE

L. B. Sauleanu, S. Sauleanu

Abstract

Entry into force on October 1st, 2011, of Law no. 287/2009 on the Civil Code has brought up again into attention the problem of the commercial law autonomy [1], in fact an old topic in legal literature [2]. An analysis of the points of view stated lately in various studies or public conferences leads to the observation that the dominant note is the scepticism to the new configuration of the commercial matter. We have not the aim to identify the advantages or disadvantages of one system or another, although I fundamentally join the opinions stated [3] in the sense of recognising the commercial law as a distinct branch of private law, despite the unity achieved by the New Civil Code. Regarding the autonomy of the commercial law, we must distinguish between the legislative autonomy and scientific autonomy. Even if a unit of private law has been normatively done, the science of commercial law is required, having reasons of own existence. Conversely, by regulating in the New Civil Code some profoundly commercial legal institutions, we may state a commercialisation of civil law has occurred [4]. Such a remark is valid both statistically, the number of legal relations wherein the parties are professionals being much higher than that where we find only non-professionals, and on the other had, by many regulated legal institutions. Thus, the commercial provisions that justified their specificity compared to the civil ones precisely because of the nature of commercial relations, not only they disappeared, but they have been extended to all private law relations. This conclusion may be easily observed from the way in which the derogatory rules of commercial obligations have been taken by the new Civil Code from the Commercial Code in 1887. Among the institutions taken into the New Civil Code, we list as example: the professionals and the enterprise (art. 3), joint venture (art. 1.949-1954), the commission contract (art. 2.043-2.053), the consignment contract (art. 2.054-2.063), the shipment contract (art. 2.064-2.071), the agency contract (art. 2.072-2.095), the intermediation contract (art. 2.096-2.102), banking contracts [5] of the current account type (art. 2.171-2.183), the current bank account (art. 2.184-2.190), the bank deposit (art. 2.191-2.192), credit facility (art. 2.193-2.195), rental of safe deposit boxes (2.196-2.198), autonomous guarantees such as the letter of guarantee and letter of comfort (art. 2321-2322), securities (art. 2630-2631). In matters relating to obligations, the provisions of the New Civil Code outline many and substantial changes. In this context, we aim to determine to what extent the rules derogatory in this matter, as they were governed by the Commercial Code (art. 40/-45, art. 59) have been taken into the new regulation. We take into account those rules that determine the derogatory nature of commercial obligations against civil obligations, namely: solidarity of co-debtors; the actual flow of interests, interdiction to grant the grace period, the court not allowing the disputed withdrawal, place of performance of commercial obligations, determining the price. The autonomy of commercial law and that of company law is of very high practical importance; the theory of unity of private law has had replications in the legal doctrine written in the lasT century, the groundwork of which was the objective view on commercial law presented by professor Caesare Vivante in his work ” Un code unique des obligations” (1937). The theory of unity of private law is present in the New Civil Code by the incorporation of all the regulations regarding persons, family relations, as well as commercial relations. Art. 3 establishing a general application in all legal relations between professionals, as well as in all legal relations between professionals and any other person that is a subject of civil law. Art. 3 (2) introduces the new term of ”professional”, referring to all those that exploit a commercial undertaking. Art. 3 (3) defines the ”exploitation of a commercial undertaking” as the systematic exercise by one or many persons of an organized activity that consists in producing, administration or alienation of goods or service providing, regardless if it has a lucrative purpose or not. Art. 8 of Law no. 71/2011 on implementation of the New Civil Code establishes that the term of ”professional” covers the notions of ”trader”, ”entrepreneur”, ”economic operator”, etc.

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DOI resolver: doi.org/10.5593/sgemsocial2014/B21/S5.088

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