French buisness law - Notes de cours FBL S1 PDF

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French business Law: -) general notions of French business law Commercant: merchant / trader (buys assets to resale them) -) general can applies to more jobs. Introduction: French business law was first created by 4 merchants. It was called commercial law not business law because it was made for merchants. For a long time there where only specific rules for merchants. The other independent pro came under civil war. Since 1807 there is a commercial code which was dropped 3 years after the civil code (1804). This commercial code was very criticized because it was badly written and not complete (did not contain lots of rules about commercial transaction). There where a few articles concerning companies (40) -) companies are important in the economic world, these articles are not enough. These articles show that the legislator thought that business law was equal to commercial law. The specific rules for merchants remained for long. After the commercial code the legislator focused on commercial companies. 1867: act that only concerned commercial companies and more precisely companies with shares. In 1925 there was another act that concerned another commercial company (the SARL – société a responsibilité limité / limited liable company). In the 2Oth century the legislator adopted specific rules for what we call “un fond de commerce” – going concern. In 1909 there was an act made to rule the going concern -) for merchants. Commercial leases (rent prices to exercise their commercial act) there was a rule to recognise these lees (1926). -) now all in the commercial code. Even before commercial law there were special courts for disputes between merchants (tribunaux de commerce). When a Professional cannot pay his debt, he can benefit of specific rules called insolvency law. These laws only apply to merchants (not for artisans…) What we call today business law was for a long time just commercial law -) the law for the merchants which is why we have a commercial code a not a business code. But things have changes at least to a certain extent. Indeed, there is less and less differences between the rules that apply to merchants and the ones that apply to independent professionals. Why? -Because some of the rules that previously only applied to merchants were extended to other professionals. -Some of the rules have been extended to everybody -) became a general rule in the civil code. *Before 2008 the prescription (laps of time are to which you cannot use anymore one of your rights) Ex: if you wait to much after you suffered a loss you cannot sue the responsible person anymore. The prescription law was either 10 or 30 years and in commercial law it was 5 years. After 2008 the prescription was modified and now it’s also five years =) no more differences. At the beginning the insolvency law was only made for merchants but gradually these rules were extended to other independent professionals. Some rules were created since the beginning not only for merchants but all the independent pro =) two reasons why there are less differences This evolution led to a change of expression. Today we talk about commercial but also business law. Many articles of the commercial code apply to merchants and all kinds of businesses. Plan: Seminars 1,2 and 3: identification of the different pro in business law and presentation of the specific assets they may own

4,5 and 6: Company law 7 and 8: Competition law 9 and 10: Distribution law 11 and 12: Insolvency law Title 1: identification of the different professionals 4 kinds of pro that we distinguish in French law: *Merchants (commerçants) *Craftsmen or artisans (artisans) *Liberal pro (pro libérales) *Farmers (agrik) Chapter 1: Merchants Section 1: Who are the merchants Art. L.121-1 of the commercial code: (L means adopted by the parliament – general rules vs R -) adopted by the government – practical rules) merchants are those who carry out commercial acts and make it their usual profession. It is implied that they have to act for themselves/ be independent. This article says that business must be the usual profession of the merchant -) you must earn you’re living with your commercial act. If it’s time to time you are not a merchant. You have to carry out commercial act (activities) that you can find in the first article of the commercial code (L.110-1). You can also find commercial acts that do not correspond to commercial activities. The first one is trade -) buy something that your resale for a higher price -) benefit. You can also find bank activities, lease activities but only if they are movable, production/supply act. Merchants – commercial act that he uses for living Section 2: specific rules applying to merchants Do these rules apply to merchant or ppl that make commercial transactions time to time? Most of the time rules only apply to merchants Ex: rules of proof -) In the civil rule you need to prove the existence/content of a contract with a written agreement. There are exceptions for the agreements of less than 1500 euros. In commercial law you can use all means of prof even the ones that are not written. Présenption de solidarité “joint engagement is presumed”-) when two persons are engaged by the same debt you have to pay back together. It’s opposed to the civil rule - article 1310 of the civil code “joint engagement is not presumed”. The creditors can ask one of the merchants to pay the entire debt -) joint engagement is a security rule for creditors. Another rule: the commercial courts: another specify that applies to merchants -) disputes btw merchants are resolved in a special court (tribunal de commerce) (Art.L.721-3 commercial code). Disputes related to commercial companies and commercial act disputes are also resolved in these courts. The Judges in commercial court are not pro, they are craftsmen/ director of commercial companies. Merchants are judged by their peals. These judges are not paid, receive indemnities. However, this situation is going to change bcs commercial courts will also have to deal with disputes btw craftsmen, craftsmen and merchants. Another rule: arbitration (act of interesting a private person with the task of settling a dispute) -) private justice, meaning you do not go in front of a court. It is related in the articles of the Civil Procedure code (art 1442) which regulate this matter of obligation. Arbitration means an

agreement from both parties -) you need to agree (by writing – art 1443) to submit you’re dispute to go to arbitration. There is 2 type of arbitration agreement that depends on the moment you agree. 1rst you have the arbitration clause (clause compromissoire) = “agreement by which the parties to a contract promise in advance to submit to arbitration any disputes that may arise in connection with that contract” (art 1442 of the CPC). That means you sign a contract and agree and advance that if there is a dispute between you and the parties there will be arbitration. This is a dangerous clause because it doesn’t seem real at first and you provide something for the future. Only professionals can accept this kind of clause (art 2061 CC) the close will be valid if it’s between two independent professionals. =) this clause applies to all professionals and not only for merchants. 2nd you have the arbitration agreement (le compromise d’arbitrage) = agreement by which the parties to a dispute which has arisen submit it to arbitration. The difference with the 1 st one is that the dispute already occurred. They then decide to submit their dispute to arbitration. This type is less dangerous because it’s more real for these parties that they will go to arbitration for the dispute. Thus, it is valid between all kind of parties (art 2060 of the CC). The protection of the personal patrimony: patrimony: all the assets of somebody. Everybody has one patrimony but today things have changed in order to encourage the creation of Strat-ups, businesses. The legislator provided various means of protection of the personal patrimony. The latest mean to reach this goal was to offer the possibility to separate personal and professional patrimony (you can have several patrimonies). The legislator used to create a separation of the patrimony (special purpose patrimony = patrimoine d’affectation). These people are: the limited liability sole proprietorship (entrepreneur individuel a responsabilité limité). When you are an independent pro, you can choose to have this statue (EIRL) in which you should place some assets/rights/obligations which will be used in your pro activity. Professional patrimony must include all the property rights, obligations or securities necessary for the pro activity (assets that by their vary nature can only be used in the context of this activity: com. Code, art R.526-3-1). It may include as well property, rights, obligations or securities that can be useful for the exercise of the activity (not obliged to place it in pro patrimony). When you chose to be an EIRL you have two patrimonies’: professional one and personal patrimony. The professional creditors (claim depts) can only claim on the professional patrimony. Chapter 2: the other professionals: Section 1: Farmers Farmers are the persons who carries out an agricultural activity as an independent. (Art L.311-1 of the rural and maritime fishing code) – The first category says that animals must stay long enough in your farm in order to create a cycle (baby to adult animals). The second one says that we can include in agricultural activity activities involving the processing of agricultural product, it makes it possible to take into account all the activities (example: gites/tables d’hôtes). Commercial activities do now apply to other independent professionals such as farmers. Thus, they can also benefit from insolvency law, they can also create an agricultural found which looks like a going concern (spe asset that belongs to merchants). However, some differences still remain between farmers and merchants. For instance, the rules of proof are not the same (farmers do not have a joint and several engagement rule, also applies to craftsmen). Section 2: Craftsmen =

Differences btw and craftsmen and a merchant: Craftsmen do not fall into this code of commercial law To be a craftsman you need: *To do manual work (production/transformation/ provision of services) *Your work needs to be personal (he must work himself with his own hands) *The craftsman must not speculate on the other production factors of the business (not too many machines/employees (5 max or you become a merchant) / sub-contractors). Usually craftsman are butchers, locksmiths, plumbers/heaters, bakers, pastry cooks, garage owners, fishmongers, hairdressers =) if you do not meet all of these three conditions you are considered a merchant. Commercial law should not apply to craftsman (rules of prof/ joint engagement are not the same). But in 2022 the commercial courts will be competent for disputes btw craftsman/ commercials and craftsman. Like merchants, craftsman own a going concern. The rules applying to merchants and craftsman become more a more similar. Section 3: liberal professions: Definition: article 29 of the law of 22 march 2012 – these professions are manly intellectual. You have many kinds of professions applying to this definition: lawyers, doctors, attorneys, architects… Rules btw merchants and liberal professions are not the same but liberal pro are subject to insolvency law like merchants and case law has recognised to liberal professions the property of a clientele and a liberal going concern. The 7 November 2000 the (cour de cassation) says that it is now possible to transfer the civil clientele. Title 2: The specific assets that the merchants may own: Chapter 1: The going concern (fonds de commerce) Section 1: Notion of going concern It includes all the movable properties whether tangible or intangible properties used for the exercise of the commercial activity. You can’t find in the going concern immovable property. The going concern is in itself a property – intangible and movable property. A good which contains other goods is an universalité de faits “de facto universality”, if it contains other depts it’s an universalité de droit “de jure universality”. In the going concern there are no depts, only concerns. Since it’s an asset in itself this asset is an universalité de faits. Chapter 2:...