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LEGAL TREATMENT OF COMMERCIAL CONTRACTS, CIVIL CONTRACTS AND COMMERCIAL TRANSACTIONS IN THE REPUBLIC OF MACEDONIA

A. Jashari, A. Aliu

Abstract

The legal contractual obligations in comparative law have been regulated in various demeanours. A unified regulation system prevails, upon which both, commercial contracts and civil contracts are regulated by a unified normative legal act. This concept prevails in modern legislation due to the increasing dynamics of movement of goods and services, and it has allowed for the infiltration of numerous civil law rules into the commercial law therein. Contracts, being specific agreements provide for movement of goods and provision of services. Such movements may be however realised, both, in cases when commercial entities appear as contracting parties, and in cases when non-commercial entities appear as non-commercial parties. Nevertheless, depending on the participating parties, the contractual objective shall come into light. If natural persons appear as contracting parties or in one hand we have a natural person and a legal entity on the other, the purpose shall not be to exercise commercial activity, but it shall rather be the movement for consumption purposes, then we are dealing with civil contracts. If the contract is concluded between subjects of commercial law, and the purpose within the contract is the exercise of commercial activity, so as to parties wishing to attain certain profit at each stage of movement, then we are dealing with a commercial contract. In these contracts, the participation alone of commercial entities shall determine the nature and purpose of such contracts. Otherwise, all contracts concluded by commercial entities cannot be treated as commercial, if their purpose is not the exercise of the activity of the contracting party. Contracts concluded between business entities are also deemed commercial contracts, even though their priority is not the exercise of a certain business activity, but it rather has an indirect impact on the business activity of the contracting parties. Few instances of such contracts may be: a Lease Contract for leasing out objects for warehousing purposes or a Lease Contract for various transportation means, an Insurance Contract for insuring the property of the business entities, etc. In all the cases above there are commercial access contracts. Such variations in the Macedonian legislation are defined by the Law on Obligations. This law, in terms of legal regulation regulates in a unified fashion civil contracts and commercial contracts, keeping the civil contracts in its main focus. In principle, the law provides for commercial contracts. Based on this definition, in legal theories other distinctions are made in the perspective of enhancing the conclusion of contracts, the form of conclusion of contracts, enactment of various legal institutes, statutory deadlines, and alike. Commercial contracts defined by the Law on Obligations do not extend to public sector entities. Hence, all these put forward the dilemma onto considering contracts concluded between business entities and a public sector entity. This relationship is, in principle, not regulated by the Law on Obligations in the same fashion as the European Union addresses it through its Directive 2011/7. The adoption of this Directive has been a result of unsettlement of payments, in particular when participants in the role of a debtor were public entities, against private sector entities. This Directive seeks to harmonise the rights of Member States, although in terms of its incorporation into legal systems, the Member States themselves have to decide upon the incorporation trend. This implies that Member States have alternatives to, either amend their general normative acts regulating legal contractual obligations, or adopt particular acts. The Directive does not use the term “commercial contract”; it uses the term “commercial transaction” instead. This term entails a transaction between enterprises, or between enterprises and public entities, based on which movement of goods or provision of services is exercised at a certain rate. The Republic of Macedonia as a country aspiring for Euro-Atlantic integrations has incorporated the Directive 2011/7 within the Macedonian legal system by adopting a particular law, i.e. the Law on Financial Discipline. The adoption of this law was a result of the scarcity of provisions on the legal treatment of legal contractual obligations between private and public entities. The Law on Obligations addresses the general aspects of obligations between legal entities, by not addressing the contract nature when concluded between private sector entities and public sector entities. All these have triggered the necessity of adopting the new Law on Financial Discipline. The Law on Financial Discipline endeavours to harmonise the national legal content with that of the EU Directive, thereby focusing on the relations between private sector economic operators and the relations between private sector entities and public sector entities respectively. Pursuant to this law, ”commercial transaction” entails transactions conducted between private sector economic operators, or more precisely, the transaction between public sector entities and private sector economic operators, which relates to delivery of goods and provision of services, as well as exercise of operations involving specific costs. Public sector entities include bodies of state administration and local government units, funds, agencies, directorates, public enterprises and business companies established by the state and municipal authorities, etc. Economic operators in the private sector include individual merchants and business companies founded under the Law on Business Companies established by natural persons or private legal entities. This Law, despite the use of the term "commercial transaction" in many of its provisions, depending on the issue it regulates, does not abandon the term “commercial contract”. Hence, by discussing the term of payment of monetary liabilities determined in commercial transactions among private sector economic operators or transactions between public sector entities and private sector operators, discussions are being made of the term of payment of monetary liabilities in cases where the contracts themselves contain void provisions. From this provision, the legislator is not making a clear distinction between the terms “transaction” and “contract”. What I would like to emphasise here is that the terminology difference between the terms “commercial contract” and “commercial transaction” is enormous. Commercial transactions may be also conducted based on both, the contracts and the legal provisions. The breakdown of the bankruptcy assets of bankruptcy creditors is always done resting on legal provisions, by not needing conclusion of a contract. In principle, the contract itself entails legal basis in the absence of which the commercial transaction cannot be conducted.

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