Merchant status, commercial activity, personal and independent action, jurisprudence, stock exchange speculation, poly activities, professional cards, employee status, legal criteria
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Abstract
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Abstract
Understanding the legal definition and criteria for being considered a merchant, including commercial activity, personal and independent action, and relevant jurisprudence.
Extract
[...] The different forms of companies > L210-1 lists 4 types of commercial companies by their own form, divided into 2 categories: - Society of persons: companies in which the quality of associate is very important (very strong intuitus personae Concluded in consideration of the person) - Society of capital: what matters is the money, regardless of who you are Between the two, there are SARLs which are a bit of both) societies of persons > Societies of persons : - SNC Société en nom collectif Example of bars and tobacco the associates are merchants (have social capacity), they are indefinitely and solidarily responsible for social debts (allowing credibility and assurance for suppliers) Advantage: no minimum capital, flexibility for management - Simple Limited Partnership The capital companies (or by shares) > The capital companies are divided into shares (but some are not listed, closed capital such as in a SAS) those who have shares are called shareholders (and not associates) Here, no personal intuition, what matters is the money we are going to invest - Société anonyme This is the perfect model of a capital company Shareholders do not have the quality of merchant (they only have civil capacity) Does one ever become a merchant solely because of one's shareholder quality? [...]
[...] These are the governing bodies of commercial companies They are not merchants (it is the company that is a merchant) BUT By exception, the managing partners of companies are always merchants, the same for the commandite partners And the jurisprudence tries to extend to company directors certain rules specific to merchants (for example in case of management fault, they can be condemned to full compensation The elements that are not sufficient to confer the quality of merchant to the person 1. [...]
[...] Courts qualify a private individual as a merchant who habitually speculates on the stock exchange (and derives securities) = commercial activity > Commercial activity does not need to be exclusive There can be cases of poly activities, and only one activity is commercial Example Mr. Dupont is a doctor and also the owner of a private clinic) > Commercial activity does not necessarily need to be the main source of income for the interested party. [...]
[...] Registration on the electoral rolls > Merchants are electors for the designation of judges, and members of the council of commerce and industry But it's not because you're registered that you're a merchant Here, simple presumption 4. Holding professional cards > This is not enough to be a merchant (real estate agent, merchant, etc?) Justifies only that one can exercise this activity 5. [...]
[...] The declarations > This is not because one declares being a merchant that one is necessarily a merchant A person can be on invoices or business cards presented as a merchant and not be one This is only a presumption of fact that can be challenged by any other evidence (inverse of irrebuttable presumption) > Merchants have obligations as well as rights and favorable regimes (commercial lease regime) So a person can declare themselves a merchant to benefit from it while not being one in reality 2. [...]
