COMMERCIAL LAW

Presentation title 2

COMMERCIAL LAW
Commercial law can is defined as a branch of private law that encompasses the
legal operations carried out by traders, either with their customers or among
themselves. All operations related to the exercise of commerce are referred to as
commercial acts.

Commercial law in Tunisia is mainly governed by:

-The code of commerce of 1959
-The code of commercial companies of 2000
 Presentation title 3

The Tunisian Commercial Code, was first introduced in 1959 and

has undergone several revisions since then. The code provides a
comprehensive framework for conducting business activities in
Tunisia and regulates various aspects of commercial transactions
including, Commercial Acts, Traders and The goodwill (fonds de
commerce).
Presentation title 4

The Code of Commercial Companies (CCC)

The Code of Commercial Companies in Tunisia is a legal framework
that governs the establishment, operation, and dissolution of
commercial companies in the country. It outlines the various types of
commercial companies, including partnerships, limited liability
companies, joint stock companies, and others. The code also regulates
the responsibilities of company directors, shareholders, and auditors.
 5

COMMERCIAL ACTS
The purpose of this section is to understand how to determine
whether an act is commercial or civil.
The Reason: It is important to distinguish between civil and
commercial acts because of the legal consequences in terms of
jurisdictions, enforcement and applicable laws.
Presentation title 6

COMMERCIAL ACTS
Commercial acts can be classified under three categories:
- Commercial acts in nature
- Commercial acts in form
- Ancellary Commercial acts (by accessory)
I. COMMERCIAL ACTS IN
NATURE
Presentation title 8

Commercial acts in nature are a category of acts to which the

legislator gave a commercial qualification (listed by the law as
commercial acts). Therefore, the act is commercial whether is
carried out by a trader or not.
 PARAGRAPH1
ACTIVITIES RECOGNIZED AS
COMMERCIAL
 ARTICLE 2. OF THE TUNISIAN
COMMERCIAL CODE STIPULATES:
“Is trader, whosever, professionally, conducts acts of production (textile
manufacturing), circulation (communication, transportation), speculation (resale,
reselling) and intermediary (brokerage), with regard to the exceptions provided by
law.
In particular, is a trader, who, in a professional capacity, makes:
• extraction of raw materials;
• the manufacture and processing of manufactured products;
• the purchase and sale or lease of goods of any kind;
•warehouse operations or general stores management (storehouse,
repository);
•land transport (terrestrial, maritime shipping, and air transport) sea and
air transport of goods and people;
 IN TUNISIAN COMMERCIALCODE, IS
COMMERCIAL ANY ACTIVITY THAT CAN BE
CLASSIFIED AMONG THESE CATEGORIES:
PRODUCTION/CIRCULATION/
SPECULATION/ INTERMEDIARY.
 PRODUCTION
It is the extraction or the creation of materials to be commercialized
after that. Examples :

*Extraction of raw material

*Manufacture and processing of manufactured products: it is the transformation

of raw material into intermediate goods and manufactured goods. It creates new
values in use for man’s needs, whether as consumption goods or capital goods.
Manufacturing does not imply that the manufacturer has to purchase the raw
material or the intermediate goods in order to consider his activity as a trade
profession.
 CIRCULATION

Any act relating to transporting goods for persons for commercial profit.
Example:

*The supplying of goods and services : regular delivery of goods

or services. It is a trade act when it is practiced as an enterprise.
 INTERMEDIAR
Y
is a trade act based on mediation between two parties in order
to assure or facilitate a trade act or transaction.
Examples:

*The brokerage is an agreement under which the broker is

charged to indicate to a person a contracting party with the view to conclude a
specific contract and to mediate in its formation.

*The commercial proxy is mediation in the formation of contracts for the

requirements of trader’s activities. That proxy bears on trade transactions.
 SPECULATION

Buying and selling movible (goods) and immovable (properties) objects

regularly and professionally to
make a profit.

Example:
*sale of goods
*cars and houses
PARAGRAPH 2
EXCEPTIONS
 AGRICULTURAL-ACTIVITY

Agriculture is classified as a civil activity.

Craft professions (artisanat)
Hand made activities are considered as civil,
activities. such as decorators, carpenters,
hairdressers etc. The basic idea is that these
persons drive their profit from their manual skills
and their labor force
Liberal professions (professions libérales)
Liberal professions such as doctors, engenieers,
lawyers, accountants, and other intellectual
professions.. are considered as civil activities. In
general, each activity has its own legislation and
laws.
II. COMMERCIAL ACTS IN FORM
 An act will be considered automatically commercial because of :
1.The form the act. Example: the use of an effect of commerce such as a bill of
exchange causes the commerciality of the transaction

2.According to the form of the person involved in a transaction, the act will be
considered as commercial. For example, if a liberal profession is organized under a
commercial company form (une société SARL, SA..) it becomes a commercial activity.
 III. COMMERCIAL ACTS BY
ACCESSORY(=ANCILLARY) ACTS

Accessory to commercial activity has the

commercial character too.
The Ancilliary legal rule suggests that the
accessory activity follows the principal one.
1- If the principal activity is commercial and the accessory transaction is civil but
carried out as a support for the principal one then the accessory act is also considered
commercial. Example: a trader (principal activity is trading) pays a lawyer for a legal
advice (accessory activity). In this case the accessory transcation is also commercial.
2- If the principal activity is civil and the accessory transaction is commercial but
carried out as a support for the principal one then the accessory act is also considered
as civil
Example: a barber sells on an accessory basis beauty products.
II. COMMERCIAL ACT
ENFORCEMENT
 PARAGRAPH 1. MEANS OF
PROOF
Civil law recognizes only the pre- constituted
documentary proof (article 473 the code of obligations
and contracts states that testimony is prohibited when
the sum is equal or superior to 1000dinars ), whereas a
commercial act may be proved by any means because in
commercial transactions need to be carried out rapidly
and with the minimum of formality.
 598 CC « commercial engagements are proved by:
1.authentic act (a document written by a public officer (notary,
civil status officer, bailiff).
2.Private deed (a written document between parties just
signed by them).
3.A deposit slip of an exchange agent or a broker.
4. Correspondence
5. Commercial registers of parties
6. Testimony and presumption
Article 478 COC « testimony is allowed between
traders, in case laws don’t prescribe written
proofs». In addition to the previously enumerated
means of proof, since the law of 13 June 2000,
the legislator added new means to the business
field in relation with electronic transactions such
as: microfilms, CD, E-mail, fax ).
 3. GOODWILL

Le fonds de commerce
Goodwill is a marketplace advantage of loyal customer patronage
developed with continuous business under the same name over a period
of time of at least two years. It may be bought and sold in connection
with a business, and anyone who maintains a competitive business that
offers goods or services may acquire it and insist on its protection.
Goodwill can be sold in a sale contract and will be governed by the
ordinary rules of contract law. Where a contract transfers a business and
its goodwill, the transferee may compete with the transferor's business
unless a clause not to compete is expressly included in the contract.
Goodwill is not tangible like equipments. It is an intangible
asset valued according to the advantage or reputation a
business has acquired (over and above its tangible assets). It
becomes important when a business is sold, since there can be
an allocation in the sales price for the value of the goodwill,
which is always a subjective estimation. Included in goodwill
upon sale may be the right to do business without competition
by the seller in the area and/or for a specified period of time.
The goodwill is conceived as a form of property in
its own rights. The customers are fundamental to
the goodwill. Accordingly, a goodwill does not exist
until the business has commenced trading.
Morespecifically, customers must be real and
certain rather merely potential.
According to its nature as a property, goodwill may be
alienated. It is natural to raise the question of how an intangible
thing can be transferred to another person. Goodwill may not
be sold or transferred separately from the business with which
it is associated or apart from trademarks, trade names, or other
symbols that represent goodwill. A purchaser of goodwill
obtains all of the privileges and benefits which the vendor had.
Goodwill is characterized by all of the features that is typical of
intangible property. As a result of its transfer, all privileges and
benefits enjoyed by its alienator pass to the purchaser. Being
made up of movable assets, the goodwill is itself regarded as a
species of movable assets. However, although many of its
components may be tangible assets, it is itself treated as
intangible property. Any disputes arising from goodwill will be
subject to the jurisdiction of the commercial courts.