New concepts in romanian private law: the enterprise

Author:Cristian Gheorghe
Position:Senior Lecturer, Ph.D., 'Nicolae Titulescu' University
Pages:88-94
88 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 2/2012
NEW CONCEPTS IN ROMANIAN PRIVATE LAW:
THE ENTERPRISE
Cristian GHEORGHE*
Abstract
The new concept of enterprise is laid down in new Civil Code in connection with another new
concept: the professional (entrepreneur). The old commercial terms, commercial acts and deeds and
merchant, have been well represented in legal texts in comparison with present concepts. Our new
code imported these concepts together with their weaknesses from the Italian and Quebec Codes.
The short references within the Code to enterprise and professional put again the burden of
clarification on the scholars’ shoulders.The law defines the professionals as the persons who carry
on an enterprise and therefore the legislator pursues to the ‘carrying on an enterprise” definition.
Doing so, in fact the legislator leaves the enterprise concept undefined. The carrying on by one or
more persons of an organised economic activity, whether or not it is “commercial” in nature,
consisting of producing, administering or alienating property or providing a service, constitutes the
carrying on of an enterprise. The enterprise is a term long time connected with commercial and
private law. All past decades, beginning with the old Commercial code, then socialist economy and
post-communist era used intensively the concept of enterprise. The meaning of this term differed
substantially in every decade. Present notion need scientific scrutiny in order to crystallize a
convergent approach. In our paper we will consider the notion of enterprise starting from the past
perception of this concept then we will try to observe the variety of enterprises under present law.
Keywords: enterprise, professionals, new Civil Code, carrying on an enterprise, commercial
law.
Introduction
Our research intends to observe the institutions of the New Civil Code, in force from 2011, in
the commercial field. The new approach of the Romanian law, the unity of the private law, has a
direct impact on the commercial law science. Scholars working in commercial field need to explain
and apply the new regulation of the Civil Code.
The prominent concepts of the new code in commercial field are the enterprise and the
professional (entrepreneur). New commercial law science has to assimilate and construe these
concepts and to start building a new commercial doctrine .
The enterprise, as a concept, is connected in the new Civil Code with the concept of
professional (entrepreneur). The legal definition of the terms is rather unclear for the enterprise. It is
stated that the professional is the person/persons who exploit an enterprise.
The enterprise itself is not defined but the “exploitation of an enterprise” has a legal
definition. This indirect approach makes more difficult to explain the enterprise as a concept.
Simplifying the terms, the concept of professional doesn’t need the enterprise concept in order to be
fully determined. Professional means the person or persons who exercise in a systematic manner
organised activities (economic ones, as the legal text renders).
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* Senior Lecturer, Ph.D., “Nicolae Titulescu” University, (email: cristiangheorghe@gmail.com).

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