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Q3: What is the Scope of Commercial Law (Subject matter of Commercial Law)?
1- Material Theory.
2- Personal Theory.
Material Theory
Q4: Explain the Material Theory as a scope of Commercial Law?
it was introduced by Latin Law jurists, including Arab, who distinguish between civil &
commercial & mixed transactions.
Commercial Law applies to commercial transactions whether
a) it was practiced by trader or non-trader.
b) professionally or practice incidentally for one time.
Criticism: it enlarges the scope of commercial law, because there are transactions
which should be practiced professionally to be considered as commercial.
Personal Theory
Q5: When Commercial Law is applied according the Personal Theory?
every activity: a) done by trader
b) who practices trade professionally is subject to commercial law
*Therefore, the law should identify the terms “trader” and “profession” to decide the
scope of commercial law.
it is separate from national law, but closely linked to it, because it improves the
progress of national commercial law in each member state.
Q12: What does International Convention mean? and when does it bind the member state?
a Convention is: set of agreed or generally accepted standards or criteria often taking
the form of a custom.
It is given the force of law (binding), when the member states:
a) ratifies the convention, and
b) incorporated in its domestic law.
but, if the convention allows member states to make reservation or declaration to
some of its provisions, and a state does so such provisions do not binds that
state.
Q19: which custom shall have the preference, private and local customs or general custom?
According to BLC, private and local custom shall have the preference over the general
custom.
Bahrain Law of Commerce was silent about commercial usage. However, for
its application it should not contradict with:
a- commercial legislations (whether BLC or other relevant statutory
law). b- the commercial contract (whether implicit or explicit terms).
c- an established custom.
Q22: What is Civil Law? and when it is applied?
it is a body of general rules that define individual private relations.
some commercial matters are dealt in both Commercial Legislation + Civil law, such
as sale contract, mortgage, agency, commission agency, but Civil Law is more
general than Commercial Legislation.
- it is applied in the absence of an applicable rule in: commercial legislation, contract,
custom.
Q23: What is the difference between the Latin and Anglo-Saxon system? Which system did
Bahraini law adopt?
a- Latin system: it is applied according to written law such as Civil & Commercial
legislation. b- Anglo – Saxon system: based on previous cases (precedents).
Bahraini law has adopted the Latin system.
Q25: What does Principles of Natural Law, and Rules of Equity mean?
Principles of Natural Law:
it is defined as “a body of principles that are considered to be inherent in nature and
accepted universally, in determining whether human conduct is right or wrong”.
its concept deduced from: a) the nature of man & society & things. and
b) that there is a perfect justice given to man by nature and
the law should conform to it.
it provides the judge with space of freedom.
Rules of Equity:
it is “the application of justice through flexible idea and concept, that varies from one
person to another”.
Q26: When they are applied?
when all the previous sources are silent regarding the relevant issue.
PART TWO - Chapter one
Q27: what are the conditions for a natural person to enter into a civil contract?
1- complete the age of 21 (full capacity, fully mature, legal
age) 2- the capacity not withdrawn or restricted by the
law.
Limitation to Age minor’s transactions can be done through two stages of age
Non-Discretion & Discretion Age
Q28: what is Discretion and Non-Discretion Age?
1- Non-Discretion Age (minor under 7 years old): cannot enter into a contract, all his acts
void.
2- Discretion Age (minor Completed 7 years old but under 21): if the contract
is: a- absolutely beneficial to the minor valid.
b- absolutely prejudicial to the minor void.
c- profitable and detrimental at the same time (in between) voidable, if it is in the
interest of the minor
Q29: When does a minor with discretion lose the right to void the contract?
1- if the minor licenses the transaction after reaching the age of 21.
2- if before minor reaches 21 , and the license was granted by his:
a) guardian b) trustee c) Minors’ Guardianship Council.
Shariaa court can issue an interdiction decision if it is satisfied with medical reports
and documents that a person suffers from one or more of the above impediments.
Q31: Is a contract concluded by an insane or imbecilic person
valid?
If the contract was concluded:
1- after the registration of interdiction decision: the contract is void.
profitable and detrimental at the same time (in between) voidable for the
interest of the prodigal or feeble-minded.
b- before the registration of interdiction decision: the contract is valid, but it will be
void or voidable in the case of: exploitation or collusion by the other party.
Q37: If a minor has met the above requirements, does he need to get a license from his
guardian to conduct commercial transactions?
No, the minor will be considered as fully capacitated in all transaction of trade such as
sales, purchases, lending, borrowing, adjudication, reconciliation, arbitration concerning
money used in trade.
Court may order the liquidation of his money and withdrawal of his funds from such
business.
court may allow his continuation in the business, whichever is beneficial, provided that:
a) court issue an order of continuation.
b) activities are conducted by the guardian.
Q39: What are the imposed restrictions on guardian?
1- Guardian is not permitted to perform certain transactions without a permission from
the Guardianship Council, such as:
a- Transferring rights and debts.
b- arbitration and conciliation unless it related to management.
2- If there are serious reason to believe guardian mismanages the money, court may:
withdraw or limit its authority, without prejudice to the third parties who acted in
good faith.
All such court orders (whether to continue the business, withdraw or restrict the
authority), shall be:
a- entered in the Commercial
Registry. b- published in the Official
Gazette.
2- bankruptcy shall not affect them in person cannot be imprison or deprived from
civil and professional rights.
PART TWO
Chapter TWO
Q45: are the directors, chief executive & managers of Partnerships Company considered as
traders? Why?
YES, both the company and its managers are considered as traders.
Because their liability is not limited to their shares in the company, it extends to their
personal funds.
Q46: are the directors and managers of the Shareholding and Limited Liability Companies
considered as traders? Why?
NO, only the company is considered as trader.
Because they are appointed or elected to manage the company while their
liability is limited to their shares and not their personal funds.
c- Their relation is governed by the vicarious liability principle -> the employer
(trader) is liable for representative’s acts performed within its authority limit.
Q49: What are the types of the authorities that commercial representative may have?
General and limited (specific) authorization.
However, to protect third parties limited authorization shall be considered as
general
unless proved otherwise.
Q51: is a Commercial Agent considered as trader? what is the difference between civil and
Commercial Agency?
YES, Commercial Agent conducting the activities in a professional manner while Civil
Agent does not.
Q52: what are the conditions of Commercial Agent?
1- the commercial agency shall be registered in the Commercial Agencies Register at
Ministry of Commerce.
2- must be Bahraini.
3- commercially capacitated.
4- not been declared bankrupt unless he has been
reinstated. 5- not been convicted for:
a- a felony, or
b- a punishment limiting his freedom for a crime affecting his honour or
integrity, or c- any crime against the economy.
unless he reinstated
2) as an enterprise
B) Commission Agent is solely and directly liable to third parties with whom he
contracts, and such third parties are directly liable to the Commission Agent.
Therefore third parties and the principal have no right of recourse against
each other, unless otherwise provided by the Law.
Eg. a third party seller cannot sue the principal asking him to pay the price
of goods sold to the Commission Agent, he should sue the agent.
Brokerage
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Foreign Traders
Q60: What are the restrictions imposed on foreign person to establish a commercial company
in Bahrain?
There are restrictions on companies such as:
a) General Partnership Company only by Bahraini unless exemption granted by Minister
of
Commerce & Industry.
b) Limited Liability Company shall have a Bahraini partner holding at least 51% of the
capital.
Q61: which law applicable to the Foreign Married woman who practices trading?
Her capacity is regulated by the law of the country of her nationality.
Q62: are there any restrictions imposed by Bahraini law on foreign married woman?
Bahraini Law assumes that the foreign married woman practices business with the
permission of her husband.
If: a) the applicable law grants the husband the right to object to his wife’s business, or
b) the husband withdraws his previous permission:
the objection or withdrawal shall be entered in the Commercial Registry +
published in a local newspaper.
Q63: Does Bahraini Law apply on Foreign Married woman the separation of property system?
Bahrain law assumes that a foreign wife is married on separation of property system,
unless the financial agreement between the spouses provides otherwise.
The financial agreement between the spouses shall not affect third parties unless:
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Small Craftsmen
Liberal Professions
But, if the profession exceeds its scientific boundaries making the speculation the
main factor commercial activity and commercial law is applied.
Eg. - Doctor who treats the patients in his small clinic civil act
- Doctor who establishes a hospital in which the commercial activity is dominant
commercial act & commercial law is applicable.
Small Farmers
a) transforms the products by him, using machines with high mechanical power,
or a small number of workers, or
b) establishes a shop or factory to regularly sell his products, whether in its original
form or being transformed
such activity shall be considered as commercial
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But, this assumption can be rebutted (to prove otherwise) by establishing that such
person has not actually practiced any trading activity. It can be rebutted through any proof
methods.
Part Two Chapter Three
Legal Persons (juristic
person)
Q78: Can a Legal Person enjoy the rights available to natural person? If yes, are there any
restrictions?
YES, the legal person enjoys many of natural person rights such as:
the right to have a name, to litigate, an independent financial status, capacity,
domicile, to be represented (through its representative which expresses the legal
person will).
b) any other limitations specified by the legislator, which varies according to each
state legal system.
BLC: adopts the formal criterion, as it states “a trader is any company takes any of
forms stipulated by the Commercial Companies Law for any object”.
- for this reason Bahraini law stipulates: “if a civil company takes a commercial form,
regardless of its purpose, it shall be subject to all the provisions applicable to
commercial companies”.
Eg: physician Association: if it takes the form of Joint Stock or Partnership Co. the
company is civil in nature + the law considers it as trader + subject to provisions
applied to commercial companies.
Q80: Are government ministries, municipalities, societies, clubs considered as traders? and
which Law governs their commercial activities?
Although such state bodies may practice some commercial activities directly or
through ministers, municipalities or agencies, they are not considered as a trader.
Therefore not obliged by the obligation imposed on traders such as keeping
commercial books, to have a commercial name, registration in the commercial register
and avoiding unfair competition.
because their main purpose is not to speculate, but rather to provide better
services & meet public needs.
Q81: Are Companies established or acquired by the State & others public institutions
considered as traders?
If their acts are mainly based on commercial business Yes.
obliged by the obligation imposed on traders unless the law otherwise provides.
Q88: what are the obligations imposed on a trader (as a natural person) with regard to
Commercial Title?
As the Commercial Title becomes part of the trader’s personality & distinguishes him from
other commercial titles:
1- should be registered in the Commercial
Registry. 2- it should contain the trader’s name
and surname.
3- it may contains extra information, such as the type of the performed trade or an
invented name, but it shall be:
a) consistent with the actual business conducted, and
5- Trader must conduct his business transactions and sign all documents under that title
6- display the Commercial Title at the entrance of his business premises (place of
business).
Q89: what are the obligations imposed on Companies with regard to Commercial Title?
Commercial Companies Law states that:
A- General Partnerships Company: The company Commercial Title
shall: 1- consists of:
a) all partners’ names, or
b) the name of one or more of them accompanied by (& Co.) or by a similar
word giving the same meaning.
2- be followed by (A Bahraini Partnership Company) or (BPC).
3- be consistent with the status quo (existing status, the object) of
the Eg. “Khalid Ali (& Co.) for import & export, BPC”, or
“Khalid Ali (& Associates) for import & export, BPC”.
B- Limited Partnerships:
1- shall only include the names of the general partners (joint partners) who are
jointly liable to the extent of all their property.
2- if there is only one partner who is liable in all his property, the word (& Co.) shall
be added to his name.
3- shall not include the name of the limited liability partner (who are liable to the
extent of their shares in the capital only). If it is included with his knowledge, he
shall be liable as a joint partner towards third parties acting in good faith.
1- shall consist of the name of a joint partner or more, who are jointly liable to the
extent of all their property.
2- shall not include the name of the limited liability partner (who are liable to the
extent of their shares in the capital only). If it is included with his knowledge, he
shall be liable as a joint partner towards third parties acting in good faith.
3- an invented denomination (name) or a name derived from the company’s
objective may be added to the title of the company.
3- must be followed by the phrase (with Limited liability) or (W.L.L.) which should
be mentioned in all the company’s contracts, invoices, advertisements, papers
and publications, otherwise company’s managers shall be jointly liable + to
the extent of their private property towards third parties.
G- Holding Company:
a holding company may take the forms of: Joint Stock Company, a Limited Liability
Company or a Sole-Owner Company.
company name must contain the phrase (Holding Company) or (H.C.)
Q90: what is the difference between Commercial Title and Commercial Name?
Commercial Title is to distinguish between the trader and other traders, while
Commercial Name is to distinguish between the business premises of the traders
and other premises.
However, Bahraini law used the two terms interchangeably.
Q91: what is the difference between Commercial Title and Trademark?
Trademark: is a name, symbol, logo used to identify a product or service.
Q92: what is the difference between Commercial Title and models, designs and patents?
They are non-material element sof business premises, which can be transferred with
business premises when it is disposed. Therefore, they are more attached to business
premises rather than Commercial Title.
Q94: How does the registration of Commercial Title protect the interest of the Title holder?
1- the ownership will be publicly known by publishing the registration in the Official
Gazette, therefore, no one may claim his unawareness of such ownership.
2- other traders will not be allowed to use such Title in the same type of trade, otherwise
title holder has the right to claim compensation for damages.
Q95: How does the registration of Commercial Title protect other traders?
They will own their different Title which will distinguish them from other traders.
For this reason, a trader when intend to register a Title, he should make sure that it is not
similar to commercial titles already registered, otherwise he has to add other particulars
to his title to create such distinction.
Q96: Can a Commercial Title owner makes changes to his Title?
Yes, but any changes in the Title should to be updated in Commercial Registry +
published in the Official Gazette.
Part Three - Chapter 2
Commercial
Registration
Q100: When shall the application for Commercial Registration take place?
two duplicate forms must be signed and submitted to the commercial registry within
one month of: a) opening the business premises, or
b) the date of acquiring business premises.
2- who have a business premises in Bahrain: if the trader does not have such
premises not obliged to register. Eg roving traders.
when the above requirements have been satisfied, registration staff must check the
validity of the documents, and may ask the applicant for further documents.
Q103: What is the effect on trader non-compliance with Commercial Registration rules?
There are 3 types of penalties: penal, administrative and civil.
b) the entry or renewal fees stipulated by the regulations were not paid in due date.
d) the commercial register number was not fixed on the trader's stationary
(documents) or at the trader's business premises.
e) the commercial activity was performed though the initial application, renewal or
supplementary application for a new activity was rejected.
2- Where the violation continues for 30 days from the date when the court decision
becomes final, court shall impose a new fine not less than double the minimum &
not more than double the maximum limits.
Q104: What are the cases where the Registration should be writing off (deleted)? and who shall
apply for it?
1- When trader abandon his commercial activities the trader
but if such application has not been submitted within the time stipulated by the law
“Commercial Registrar” at the Ministry shall be entitled to write off the registry.
Part Three - Chapter Three
Keeping Commercial Books
Q108: How can keeping Commercial Books evaluate Trader’s commercial status?
By balancing his assets and liabilities, and insures that the liquidity can face his
obligations.
Q109: How can keeping Commercial Books create an evidence of proof for traders?
The general rule is that a person cannot create an evidence to proof his case,
Q110: How can keeping Commercial Books help traders in their financial evaluation?
When commercial books kept in legal and order way can be used as a reliable
source to estimate quantum(amount) of taxes to pay.
otherwise he should
refer to many documents or accept a haphazardly(random) assessment
Q111: How can keeping Commercial Books help the trader in his Bankruptcy?
1- When a trader stops paying his commercial debts, he may avoid being declared
bankrupt through apply for a composition with his creditors, provided that he acted in
good faith, and he can prove that through submitting his commercial books.
2- If the bankrupt trader hides his commercial books, he may be convicted of negligence
or fraudulent bankruptcy, while he can use his books to prove that his bankruptcy was
due to unforeseen circumstances.
Q112: what are the types of the books that trader must keep?
1- Compulsory Commercial books.
2- Optional Commercial books.
Q113: What are the Compulsory Commercial books & documents according to Bahraini Law?
1- Basic Journal book.
2- General ledger book.
Q121: What does Ancillary Journal book (subsidiary Journal book) contain?
it contains details of various commercial transactions types.
it shall be sufficient to record the aggregate(total) of these transactions in the
Basic Journal book on regular basis.
If the last procedure is not followed every subsidiary journal shall be
considered as a Basic Journal book.
Q122: Can a traders use electronic accounts instead of keeping Commercial Books?
YES, Minister of Industry and Commerce is authorized to exempt specific establishments,
companies and banks from keeping commercial books if they use electronic accounts
for their transactions.
Q123: Which books shall be presented to the Ministry of Commerce & Industry?
Basic Journal Books + General Ledger.
Q124: When shall these books be presented to the Ministry of Commerce & Industry?
1- Before using the books:
- the concerned person in the ministry will number + sign + stamp every page +
state the total number of pages.
- Why? To avoid hiding or replacing some of the pages.
2- When the book pages are fully used:
the concerned person in the ministry will make notation (mark) on the last entry +
state the book closing date .
- Why? Because these books should be maintained for specific period, which starts
from closing the books. Therefore the ministry will know when this period
starts.
Q126: can the trader claim his unawareness of the commercial books entries?
- Bahraini law presumes that entries made by authorized employees, have been made
with his knowledge + consent
- however the trader can prove otherwise.
Q127: for how long a trader must keep his commercial books and relevant documents?
1- commercial books & supporting documents:
10 years commences from the date of closing the commercial books by the
ministry.
use microfilms for commercial books and relevant documents and correspondence
for the above periods (10 & 5 years), provided that a trader
keeps the original copies of all above books & documents for at least two years.
Q129: Can traders use microfilms as an evidence to prove their case? (conclusiveness of proof)
YES, Bahraini Law considers microfilms copies as admissible evidence which have the
exact effect of the original documents.
Q130: What are the legal consequences for trader non-compliance with book-keeping
provisions?
1- Failure to maintain compulsory books (i.e. Basic Journal book & General ledger)
fine of not less than BD 100 and not exceeding BD 1000.
Q131: when hearing a dispute, can the court ask a trader to submit his Commercial Books?
YES, the Court may:
a) on request of one of the litigant, or
b) by the court initiative
order the submission of the books to examine them
Q132: can the court appoint someone to examine the books? and how does the examination
take place?
YES, the Court may:
a) examine the commercial books by itself, or
b) through an expert who is appointed for this purpose.
The trader remains the owner & possessor of the books, therefore examination
shall be in his presence & under his supervision.
Q133: does Bahraini Law oblige the trader to surrender (leave the possession) of his
commercial books to others (such as his opponent)?
Generally NO, because doing so will permit the other party to closely know the trader’s
financial status and his commercial secrets. But there are exceptions:
1- the court may ask the trader to leave the books possession to the court in order to
enable his opponent to examine them in disputes relating to:
a) estates b) companies c) division of common property
Q134: can a trader use his commercial books as evidence against non-traders?
1- the particulars contained in the commercial books can be used as a basis for judge to
ask one of the parties to take a suppletory oath, and
3- The books relied upon are the compulsory commercial books, which are
maintained according to the law.
Q136: can others use commercial books as evidence against its owner?
Yes they can, whether:
a) The compulsory books are legally kept or not.
Q137: When others use trader’s commercial books against its owner, can they apportion the
entries? and why? (to depend on some information in the book and ignore others which
may not serve their case).
NO, they cannot.
- Because depending on trader’s own books against him is considered as
admission and the admission is inapportionable.
Part Three - Chapter Four
Avoiding illegal
competition
Introduction
- a trader while performing commercial activities is not totally free, and he is always
subject to restrictions based on social economical & political considerations.
- such restrictions are imposed by the law such as national legislations & International
conventions to protect traders from illegal & unfair practices he may face while
performing his business.
Q141: What are the legal consequences for non-compliance with illegal competition
provisions?
1- Claim for compensation:
- Based on the general legal principles of liability in tort in civil law any fault
causes damage to another person, shall oblige the wrongdoer for compensation.
- BLC entitled trader to take a legal action against the wrongdoer and claim for
compensation.
- The fault would take place when the trader, through his competition commit one
or more of the above acts.
- Some writers believe that the fault can be materialized (happens) by violating the
accepted rules in the commercial environment.
2- penalties:
The penalty can be: a) Fine not exceeding BD 500 or imprisonment. or
b) both (fine & imprisonment).
2- Prohibition should be related to specific activity and not all commercial activities in
general. Eg.: a sale agreement for business premises of mobile phone shop, if the
buyer wants to include a non-compete provision in the contract it should be about
mobile phones only. If one of the two above conditions are not met
the non-compete agreement shall be void
Q144: What are the legal consequences of non-compliance with the non-compete contract?
The violator’s liability is based on the contractual liability, which entitles the other
trader to take a legal action demanding for:
1- Compensation for the loss or damages, such compensation can be a
specific amount agreed previously in the contract, or left to the court
decision.
2- Contract revocation.
3- Close the business premises which was opened in breach of the contract.
To take such legal action, the violation & the legal action should be made within the
prohibition period agreed in the contract, after that time, parties will be released
from their contractual obligations.
Part Three - Chapter five
Business Premises
Q169: Which elements fall outside the business premises elements? not part
1- Real Estate: because BLC stipulates that: “a disposal of the premises shall not include
the immovable property where the place of business is located, and every condition to
the contrary shall be deemed null and void”.
2- Personal Furniture: furniture confined to trader’s personal use are not included
though exist in the premises, especially where the trader resides(live) in his business
premises.
3- Commercial Books:
If the trader transferred his business premises ownership during the 10 years
period, he shall not abandon his books to the buyer.
- however, some legislations permit the new owner to examine the books,
Bahraini Law was silent in this regard, therefore it is left for the parties
agreement.
Part Four: Commercial
Transactions Chapter one:
Concepts of Distinction
Introduction:
- Some writers in Common Law countries defines commercial transaction as “those acts or
series of acts, involving business negotiations, such as buying, selling, and resulting in a
change of legal right and duties of the participants”
- This definition is not comprehensive because it only refers to the acts which are
considered as commercial which is similar to that of Bahraini legislator.
Q174: What are the concepts established by jurists to distinguish between Commercial and Civil
acts?
1- The concept of Speculation 2- The concept of Circulation
3- The concept of Enterprise 4- The concept of Commercial
Profession 5- The concept of Cause
- it is based on the objective of the transaction which is to make profit through
speculation.
- BLC adopted this concept in certain transactions, eg: purchase of movables with the
intention of selling or leasing out in order to make profit commercial
Part Four: Commercial
Transactions Chapter2: features
of Distinction
Q180: What are the legal effects for the distinction between Commercial and Civil
Transactions?
1- Individual v. Dual Legal Jurisdiction
2- Commercial Character
3- Application of Bankruptcy
4- Interest Rate
5- Urgency
6- Solidarity between
Debtors 7- Capacity to
contract
8- Instruments of Proof
9- Grace Period
10- Prescription
Q181: Explain ‘Individual v. Dual Legal Jurisdiction’ as an effect for the distinction between
Commercial and Civil Transactions
individual legal jurisdiction civil courts adjudicate both civil + commercial cases,
while dual legal jurisdiction civil courts adjudicate civil cases only, and there are
commercial courts adjudicating commercial cases.
dual legal jurisdiction advantages:
1- many aspects will be taken into consideration such as: procedures, court
formation & location which may be located in commercial centers.
2- providing judges and administrative staff specialized in commercial transactions.
Q182: Explain ‘Commercial Character’ as an effect for the distinction between Commercial
and Civil Transactions
To be characterized as a trader: for
Natural person:
1. legally capacitated (18 years old).
2. practice trade professionally.
3. in his own name and for his own account.
Legal Person: to take one of the forms that stipulated by the law, regardless of its
object.
Q183: Who is a bankrupt trader?
Bahraini Law defines the bankrupt traders as: every trader whose business is
disordered and stopped to make payment of his commercial debts is considered to be
in a state of bankruptcy and should be declared bankrupt by a court order.
trader’s property will be liquidated and the resulted money will be distributed
between the creditors.
Q184: What is the difference between civil insolvency & commercial bankruptcy?
1) commercial bankruptcy prevents trader from managing his property,
while in civil insolvency he will not.
2) commercial bankruptcy suspending trader’s civil rights unless he is reinstated,
while in civil insolvency he will not.
3) commercial bankruptcy all his debts maturity dates will be due for payment,
in civil insolvency although his debts maturity dates will be due for payment, but
the judge has the power to delays the payment or allow payment by installments,
provided that no serious damage caused to the creditors.
- Explain ‘Application of Bankruptcy’ as an effect for traders and non-traders.
The answers of the two above questions.
Q185: Explain the ‘Application of Interest Rate’ as an effect for the distinction between
Commercial and Civil Transactions.
A. Higher interest rate in Commercial debts
Generally, in commercial debts the interest rate is higher than those of civil debts.
Why? because:
a) using the borrowed amount in commercial transactions attract higher profit for
the borrower, while in civil transactions the profit is expected to be lower.
b) Commercial transactions are based on speculation, therefore, the lender in
commercial transactions is exposed to higher risk than in civil debts.
Bahraini Law:
- in Civil Loan:
a) the law prohibits charging interests in civil loans and every condition
providing for the contrary shall be void
b) every benefit required by the lender shall be considered as interest.
- in Commercial Loan: it is assumed that contracting parties have agreed that the
loan is with interest unless otherwise proved.
Q186: Explain the ‘Urgency’ as an effect for the distinction between Commercial and Civil
Transactions
c- litigating in civil cases may take a long period to settle the dispute & enforce the
judgment which is inconsistent with the commercial transactions that are based on
rapidity & flexibility.
- debtors are jointly & severally liable, unless otherwise provided by the law or
parties’ agreement.
-
in civil debts: no solidarity unless otherwise provided by the law or parties’ agreement.
Q188: Explain the ‘Capacity to Contract’ as an effect for the distinction between Commercial
and Civil Transactions
The capacity to conclude:
a) Civil contract: 21 years old
b) Commercial contract: 18 years old.
Q189: Explain the ‘Instruments of proof’ as an effect for the distinction between Commercial
and Civil Transactions
Proof in Civil Transactions
if the value of the transaction:
a) exceeds 500 dinars, or
b) is not specified it should be proved in written and cannot be proved by
testimony (witness) unless otherwise provided by law or agreement.
in Civil Debts:
if the law does not provide otherwise, the judge in exceptional cases may delays
the payment or allow payment by installments, provided that no serious
damage caused to the creditors.
in Commercial Debts:
more restrictive because granting debtor new terms to repay his commercial debts
may endanger the creditor’s financial status & cause him gross damage as the
commercial transactions are closely linked to each other, therefore, debtor’s failure
to pay may lead to series of negative consequences including bankruptcy.
Eg., BLC stipulates that: courts shall not grant grace period to repay commercial
papers or to perform any related procedure unless otherwise stipulated by the law.
Q191: Explain ‘Prescription’ as an effect for the distinction between Commercial and Civil
Transactions
In both commercial and civil law, if a person does not claim his rights during specific
period of time a claim can no longer be filed, this period is called ‘Prescription’.
Generally, prescription limitations in civil transactions is longer than those of
commercial transactions.
prescription general period in:
1- civil transactions: 15 years, unless the law provides otherwise.
2- Commercial transactions: 10 years unless the law provides otherwise, such as:
a) carriage of goods contracts: 1 year.
b) Insurance contracts: 3 years.
Part Four – Chapter 3
Classes of Commercial
Transactions
Commercial Transactions by
Nature
Q193: What do Commercial Transactions by Nature mean?
Bahraini Law of Commerce does not define such transactions
the transaction is commercial if it is performed with the intent of making profit,
whether practiced:
- once or incidentally
- by trader on non-trader
Q195: What are the ‘Land Commercial Transaction by Nature’ stipulated by Bahraini Law of
Commerce?
1- purchase of movables of any kind with the intention of selling or leasing them in their
original form or after modification, to make profit through speculation.
2- sale or lease the movables mentioned above to make profit.
3- all transactions relating to bills of exchange, promissory notes, cheques, regardless
of the nature of transactions for which they are issued.
4- setting up of commercial companies.
2) Legal person: a company that takes one of forms stipulated by the Commercial
Companies Law.
2- The act related to Trader’s profession:
- the transaction performed by the trader should be related to his business.
- Eg.: a trader buys gifts to his family civil act
a trader buys gifts as a promotion for his business commercial
Q214: What is the ‘Presumption of Commerciality’ created by Bahraini Law of Commerce in this
regard?
- Bahraini legislator created a legal presumption that all transactions performed
by a trader shall be deemed relevant to his business unless proved otherwise.
- it can be proved otherwise by all methods of proof.
- the trader has the burden to prove that the transaction he performed is civil
through establishing that the transaction he performed is not related to his
business.
Q220: to prove their case, what are the method of proof parties may utilize?
- in Bahrain, both parties can utilize the methods of proof available in commercial law
which are wider and easier to apply.
- in other states which apply dual system applying civil law to the party whose
transaction is civil, and commercial law to the party whose transaction is commercial,
so the first party can only depend on proof methods stipulated in civil law.
Q221: Which Court has the jurisdiction to hear The Mixed Commercial Transaction?
1- Unified Legal Jurisdiction: such as Bahrain, one court will hear the case which is the
civil court.
2- Dual Legal Jurisdiction: such as France if the transaction to the plaintiff is:
- Civil Civil Courts.
- Commercial Commercial Courts.