لخّصلي

Commercial Works

In this discourse, we explore the criteria for distinguishing between civil works and

commercial works, and then we draw conclusions to discover the outcomes of this

distinction.The first topic: Criteria for differentiating between civil

works and commercial works

There are conflicting jurisprudential opinions, making it challenging to establish a unified

standard to define the scope of commercial law and its relationship to various provisions

applicable to civil actions.Section I: Craft Theory

French jurist George Rial was the first to advocate this theory, asserting that commercial

work is characterized by the repetition of a craft by an individual to achieve profit.Legislation has thus introduced several criteria, some subjective

and others objective, each representing an aspect of jurisprudence.Let's delve into the

content of each:

First: Subjective theory (personality)

This theory posits that commercial law is subjective, determined by subjective criteria such

as the craft theory and the entrepreneurial theory (project).However,

criticisms have been raised against this theory, primarily due to difficulties in defining

commercial craft and the lack of a reliable control standard.These theories focus on

distinguishing civil works from commercial works based on the individual undertaking the

activity.

Commercial Works

In this discourse, we explore the criteria for distinguishing between civil works and

commercial works, and then we draw conclusions to discover the outcomes of this

distinction.

The first topic: Criteria for differentiating between civil

works and commercial works

There are conflicting jurisprudential opinions, making it challenging to establish a unified

standard to define the scope of commercial law and its relationship to various provisions

applicable to civil actions. Legislation has thus introduced several criteria, some subjective

and others objective, each representing an aspect of jurisprudence. Let's delve into the

content of each:

First: Subjective theory (personality)

This theory posits that commercial law is subjective, determined by subjective criteria such

as the craft theory and the entrepreneurial theory (project). These theories focus on

distinguishing civil works from commercial works based on the individual undertaking the

activity.

Section I: Craft Theory

French jurist George Rial was the first to advocate this theory, asserting that commercial

work is characterized by the repetition of a craft by an individual to achieve profit. However,

criticisms have been raised against this theory, primarily due to difficulties in defining

commercial craft and the lack of a reliable control standard.

Section II: Entrepreneurial Theory (Project)

Proponents of this theory, including "John Escara" and "Italian Leventi," define

entrepreneurship as the organization of material and human capabilities with the repetition

of business. This theory emphasizes that when two conditions, repetition, and organization,

are met, the work is considered commercial, and the individual undertaking it gains the

status of a merchant. However, this theory has faced criticism for excluding unique

businesses and activities subject to civil law.

Second: Objective theory (material)

This theory views commercial law as governing commercial activity, irrespective of the status

of the individual performing it. It encompasses the theories of speculation and circulation.

Section I: The theory of speculation

According to this theory, commercial work involves activities aimed at profit-making. And a

prime example of that would be buying with the intention of reselling, as the individual here

is aiming to make financial profit.

However, this criterion has its limitations, as some profit-generating activities are considered

civil works rather than commercial. Such has freelancing professions (Lawyering and

medicine.. etc).

Section II: Circulation Theory

This theory asserts that the criterion for distinguishing between civil and commercial works

lies in circulation. Commercial activities involve the movement of wealth from one person to

another, while civil works lack this element of circulation. Starting from the product where

goods and commodities are traded little by little, until they reach the consumer. It is either a

business subject to commercial law or other agricultural operations, for example. As for

consumer operations, they are governed by civil law because the element of circulation is

not visible here.

However, criticisms have been raised against this theory, particularly regarding businesses

like brokerage that do not involve the transfer of goods.

Third: The position of the Algerian legislator

Articles 1 to 4 of the Algerian Commercial Code reveal that the Algerian legislator has

adopted a dual approach, incorporating both subjective and objective theories to define the

scope of commercial law. In the text of the first article of the Commercial Code, it is stated:

"Every natural or legal person who engages in a commercial business and takes it as a usual

profession is considered a merchant, unless the law provides otherwise," as stipulated in

Articles 2, 3, and 4 thereof dealing with the types of commercial businesses according to

their subject matter (Article 02 of the Algerian Commercial Code), commercial businesses

according to their form (Article 03 of the Algerian Commercial Code), and commercial

businesses by extension (Article 4 of the Algerian Commercial Code).