Merchant

1. Merchant

2. Definition • Art no 10 of the new commercial code defines the merchant as: exercises regularly commercial transactions in own name, and for his own account. • 2- "Every company which takes one of the forms stipulated in the company law for whichever purpose it is establish • From that we can understand that the law recognizes two kinds of merchants : A person who acts by his own name and for his a commercial act and takes this act as a profession. And, a company that takes the form of commercial company if this company is engaged in civil acts (e.g. law firms)

3. Professionalism=Regular basis • That is to say a merchant is one who operates at least one of the acts presented by law to be commercial in • nature such as buying for the purpose to sell or lease, etc. • Should any one carries a commercial transaction for once, he cannot be considered a merchant. A man purchase an aircraft or establishes a company the act is commercial but he is not a merchant unless he makes this act regularly and takes it as a profession. • It was decided that persons who are.- being prevented from practicing trade such as judges or lawyers are deemed merchants if they practice these acts on a regular basis in spite of this prohibition.

4. Professionalism=Regular basis • Art. 17 of the new code which stipulates. "If any person exercises commerce whom is fo,-bidden from trading by laws, regulations and/or a special system will be considered as a merchant, and the provisions of commercial law are applicable to him. • A profession means that the person involved must carry on this business regularly as an occupation he follows for making livelihood. Should a mere employee has a taxi which he sometimes uses to improve his income he is not a trader because he does not depend upon such commercial act for living.

5. On the merchant's own name, and for his own ac-count • It is submitted that exercising of the commercial acts must be on the merchant's own name, and for his own ac-count: Thus an employee or sales representative will not be qualified as merchant but his master is. On the contrary a commercial agent can be considered a merchant when he acts independently even for the principal account or by the principal naive. Such as brokers, commission agents and commercial agents. • In the case of agents the issue will de­pend upon the control and supervision practiced by the prin­cipal and the kind of independence he has in performing the job.

6. On the merchant's own name, and for his own ac-count • The question is raised where a man practicing trade behind the name of somebody else. According to Art 18 of the code the character of a merchant shall be proved to any-one who exercises commerce professionally by a false name, or who is concealed behind another person, besides proving the said characteristic to the ostensible person. • Professionalism is not presumed but must be proved. The burden of proving such thing lies upon the person who relays upon the charac­ter of the merchant. (e.g. man wants claim bankruptcy of his debtor). However, it could be proved by the fact that the al­leged person has an office and employees of special skill or by the fact that the person is registered in the commercial Registry. It is also for the court to deduce the characteristic of a merchant for someone

7. On the merchant's own name, and for his own ac-count • According to art no. 14 of the new code a man as­sumes the character of merchant by advertising it through journals, circulars radio, television, or any other means, will be presumed as a merchant. This assumption can be dis­proved by proving that he did not in fact exercise commerce. • Anyway the state and other organs associations and departments of public law shall not have the character of a merchant although commercial law rules will apply to com­mercial operations done by them. (art 20 of the code).

8. Legal capacity • (1) Anyone reaches the age of twenty one has the right of exercising commerce in Egypt. The rule will include any Egyptian woman and also any foreigner even if the law of his country deems him a minor in such age (21 years)' • (2)- Egyptians minor, completed 18 years old male or female can exercise. commerce, subject to the obtaining of special permission from the competent court.' Such a person must be express clear and limited. A court permit may be conditional by restricting certain transactions or limited to certain fund. • .A minor who is authorized to practice tirade has full capacity to carry out all legal operations which his trade re-quires. He has to fulfill the legal obligations of a `merchants and can. declared bankrupt. • (3) For aliens the matter need more details: alt must be noted that aliens even adults are prevented from practicing some kinds of business (e.g. importing, agency).

9. Merchant’s obligation

10. Importance of the Merchants Books • According to the new code any merchant of a capital exceeds LE 20000 must keep commercial books of accounts. Such books are of great value in matters of taxation and evidence of transactions and business. • First of all they are important for the trader himself to know where he is standing and so can take business deci­sions. It is also important to avoid the-arbitrary decisions of the taxes department. In bankruptcy it may prove that the merchant was acting in good faith and it is not a bankruptcy by deception. Finally the books played an important role in evidence to commercial transactions.

11. Kinds of commercial books • Any merchant must keep at least two books the general journal (Day book) and the inventory books (art-21 of the trade code). • (I) The general journal: • It is a book in which all trade transactions done by a merchant are recorded in form of entries including his per­sonal withdrawing. These entries must be recorded daily regularly and in details, in this book there are two kinds of transactions to be recorded. • (A) All commercial acts done by the merchant such as selling and baying goods, lending and borrowing, receiving and payment accounts. • (8) All the merchant personal withdrawals such as his per­sonal expenditures over himself and his family and over his on activities.

12. Kinds of commercial books • (2) Inventory Book • It is a book in which a merchant records all the information about the goods and assets durable or not in full details at the end of each year. • There are other books which a merchant should hold according to nature of his business. As an example the ledger book, the commercial papers book, the cashier book and storehouse book.

13. Commercial books as evidence in lawsuits: • According to article 17 of-the Evidence Act no.. 25 of 1968 "Commercial books have probative force against mer­chants" and they shall not be taken as proof against persons who are not traders in principle. How commercial books may be taken by a judge as a proof in lawsuits needs more expla­nation. • The litigation may include two merchants everyone is depending upon his own accounts or one of them is asking the other merchant to introduce his books to the court. Or the litigation may be between a trader and non-trader. The trader depends upon his account while the non trader may ask him to present his books.

14. A merchant can lean on his books.. • Contrary to the principles of civil evidence rules, in a litigation involving two merchants anyone of them can intro-duce his own books .as evidence before the court. Three conditions are provided (1) the case between two (or more) merchants (2) a trade business is the object of the litigations (3) the books which the trader holds must be accredited, organized and regularly kept. The court may ask the other party to the case to introduce his own books and make cross ex­amination to the books presented. The trade code made cer­tain rules in this case. • (1) If .the books of both opponents are regular and the cross examination results of obvious contradiction between them the courts has to demand evidence. • (2) If the opponent has no books or has one which is not fit with the legal requirements, then the first books should prevail.