CHAPTER THREE SANCTIONS SECTION ONE PENAL PROVISIONS
Article 97. Failure to Register
Whosoever fails to register or to cause an entry to be made in the register in accordance with the provisions of this Code shall be guilty of an offence and shall on conviction be liable to the penalties provided in the pertinent penal law.
Article 98. Inaccurate Statements
Whosoever intentionally makes inaccurate statements in relation to registration shall be guilty of an offence and shall on conviction be liable to the penalties provided in the pertinent penal law.
SECTION TWO CIVIL SANCTIONS
Article 99. Effect of Registration
1/ All registered persons or business organization shall be deemed to be traders, unless the contrary is proved.
2/ Registered persons or business organizations shall not be permitted to prove they are not traders and shall incur all liabilities which the status of trader entails.
Article 100. Effect of Failure to Register
1/ Any person who fails to register in accordance with the provisions of this Code may not hold himself out to be a trader to third parties, but he shall be liable as though he were a trader.
2/ The relevant provisions of Book II of this Code shall apply to business organizations.
Article 101. Effect of Failure to Cancel Entries
Any registered trader who assigns his business or lets it out for hire shall, until his registration is cancelled, be
jointly and severally liable for all debts incurred by the assignee or lessee.
Article 102. Effect of Entries
1/ Any person who caused an entry to be made in the register shall not be permitted to show that such entry is inaccurate as a defense against third parties that relied on such entry.
2/ Third parties shall not be permitted to prove that they did not know of a fact entered in the commercial register.
Article 103. Facts Relating to Persons who are traders not to affect Rights of Third Parties.
The following facts relating to persons who are traders shall not affect the rights of third parties in good faith where they have not been entered in the commercial register:
1/ the minority of the trader; 2/ the marriage of the trader;
3/ the marriage settlement of the trader;
4/ the dissolution of the marriage of the trader;
5/ the judgment declaring the trader incapable; 6/ an objection under Article 15 of this Code;
7/ the limitation of the powers of a manager to the management of a branch or representative office;
8/ the removal or dismissal of a manager.
Article 104. Facts Relating to Business Organizations not to Affect Rights of Third Parties.
Facts relating to business organizations which do not affect the rights of third parties where they have not been entered in the commercial register are prescribed by Book II of this Code.
Article 105. Matters to be Prescribed
Without prejudice to the provisions of Article 71 (2) of this Code the Council of Ministers may issue a regulation for the implementation of the provisions of this title.
TITLE FIVE BUSINESSES CHAPTER ONE GENERAL PROVISIONS
Article 106. Definition
A business is an incorporeal movable consisting of all movable property brought together and organized for the purpose of carrying out any of the commercial activities in Article 5 of this Code.
Article 107. Traders and Business
1/ Every trader operates a business.
2/ A trader may operate several businesses for the purpose of carrying out various commercial activities.
3/ A trader may operate a business in the capacity of owner, usufructuary or lessee; only the person who operates the business shall be deemed to be a trader and the owner or lessor of the business shall not be regarded as a trader.
Article 108. Principal Business and Branches
1/ A business may consist of one principal business or of a principal business with branches or representative offices which shall be deemed to be part of the business.
2/ Where a branch or representative office is sold or let out for hire without the principal being sold or let out for hire, such sale or lease shall be deemed to be a sale or lease of a business.
CHAPTER TWO ELEMENTS OF A BUSINESS SECTION ONE
CONSTITUENTS OF A BUSINESS
Article 109. Goodwill and Incorporeal Elements
1/ A business consists mainly of goodwill.
2/ A business may consist of other incorporeal elements such as:
- the trade name;
- trademark and any other designation under which the trade is carried on;
- the right to lease the premises in which the trade is carried on;
- intellectual property rights;
- Such special rights as attach to the business itself and not to the trader.
Article 110. Corporeal Elements
A business may consist of corporeal elements such as equipment or goods.
Article 111. Assets and Liabilities
1/ A business shall normally not include the assets and debts of the trader, with the exception of the right to the lease of the premises.
2/ Nothing in this Article shall affect the special rules provided in relevant law regarding the rights of a transferee of a property with insurance cover and the rights of employees regarding the continuation of employment contracts when the business organization is transferred.
SECTION TWO GOODWILL AND ITS PROTECTION
Article 112. Definition
The goodwill results from the creation and operation of a business and is of a value which arises from relations between a trader and third parties who may require from him goods or services.
Article 113. Preservation of Goodwill
A trader may preserve his goodwill by instituting proceedings for unfair competition or by setting up the legal or contractual prohibitions provided in Article 29,39,53,118,130,131,166, and 167 of this Code.
Article 114. Unfair Commercial Competition
1/ A trader may claim damages under Article 2057 of the Civil Code from any person who commits an act of competition which amounts to a fault.
2/ Without prejudice to the provisions of Sub-Article (1) of this Article, details on unfair commercial competition and its effects shall be prescribed by law.
Article 115. Trade name, Trademark and Intellectual Property Rights
The relevant provisions of the Civil Code and special laws shall apply to the administration of a trader’s trade name, trademarks and intellectual property rights.
SECTION THREE
RIGHT TO THE LEASE OF THE PREMISES
Article 116. Civil Code Applicable
Without prejudice to the provisions of this section, the provisions of the Civil Code shall apply to the right to the lease of the premises in which the trade is carried on.
Article 117. Nature of the Trade carried on
Where the contract of lease specifies the nature of the trade to be carried on by the lessee, the contract may be cancelled where the lessee carries on a different trade.
Article 118. Prohibition of Trade by the lessor
1/ After the contract of lease has been entered into, the lessor may not carry on in the same building a trade similar to the trade carried on by the lessee.
2/ Where the lessor disregards the prohibition provided in Sub-Article (1) he shall be liable for damages and his business shall be closed.
Article 119. Prohibition from Assigning or Sub-Letting
1/ Notwithstanding the provisions of Article 2959 of the Civil Code, any provision in the contract of lease which prevents the lessee from assigning the contract of lease or from sub-letting the premises to the person
who buys his business, or which make such assignment or sub-letting lease dependent on the lessor’s consent, shall be of no effect.
2/ Any provision which prevents or restricts a person in charge of reorganization or trustee in bankruptcy from exercising the powers provided under the proceedings in Book Three of this Code shall be of no effect.
Article 120. Termination of Contract of Lease
1/ Where a business is mortgaged, the lessor shall inform the creditors when he terminates the lease or he intends amicably to terminate the lease or to enforce a provision for termination made in the contract. The lease shall terminate not earlier than thirty consecutive days following such notice to the creditors.
2/ Where notice is not given under Sub-Article (1) of this Article, the termination of the contract of lease shall not affect creditors having secured rights on the business.
Article 121. Lessee Subjected to Proceedings under Book Three
1/ Any clause in the contract of lease providing that the contract shall terminate as of right where the lessee is subject to the proceedings provided in Book Three of this Code shall be of no effect.
2/ Where the lessee is subject to the proceedings under Book Three, the person in charge of reorganization or trustee may exercise their rights provided in Book Three of this Code.