Pr.

Sabrina DARBALI
2021-2022
 « Law »
 A rule, usually made by a government, that is
used to order the way in which a society
behaves.
 A rule defining correct procedure or behaviour.
 The system of rules which a particular country
or community recognizes as regulating the
actions of its members and which it may
enforce by the imposition of penalties.
 Chapter 1: Commercial and Corporate Law

Introduction
Definition:
 Commercial law can be defined as the branch of private law
relating to the legal operations carried out by traders, either
between themselves or with their customers.
 It can also be defined as a set of legal rules applicable to
traders within the framework of their professional activity,
whether it is carried out on an individual or corporate basis.
• Thus, commercial law is the law that applies specifically to
certain persons: traders (natural persons) and corporations
(legal persons), and to certain legal operations (regime of
commercial transactions « commercial acts », negotiable
instruments « commercial bills of exchange », goodwill, etc.).
 Chapter 1: Commercial and Corporate Law

Interest of commercial law

The appearance of commercial law is explained
by the specificity of trade which requires:
 A great speed of execution of the operations
which prevents or makes difficult the
constitution of means of proof.
 The strict punctuality in the respect of the
deadlines of the installation of procedures
holding to eliminate the failing traders.
 Chapter 1: Commercial and Corporate Law

Area of commercial law: The C.L. has a dual purpose :

In its subjective view :

 It governs traders. From a legal point of view, a trader is not
only someone who trades: that is, who carries out a
commercial activity: distribution, purchase and resale.
 The industrialist also belongs to the category of trader.
 He can be found in the production sector; he can also be found
in the service sector: carrier, insurer, banker.
 In truth, the businessman is the central character of
commercial law.
 On the other hand, and even if their status is sometimes
 Chapter 1: Commercial and Corporate Law

In its objective vision:

Commercial law governs commercial acts, which
are not reserved for the use of traders alone.
Thus the signature of a letter of exchange is a
commercial act, whatever the quality (civil or
commercial) of those who are involved.
 Chapter 1: Commercial and Corporate Law

Specificity of commercial law :

1. Trade law:
 Trade is exchange, speculation.
 Commercial law reflects a social state where
men strive to achieve well-being and wealth.
 It rejects the gratuitous, the voluntary and the
sentimental.
 Chapter 1: Commercial and Corporate Law

2. Corporate Law:
The C.L. is all about the business spirit. One does not manage the
patrimony of an incapable person as one manages a business or
a commercial company. For this spirit, we find that the C.L
requires:
Flexibility: limit to the maximum the restrictions to the action of
the companies. The methods leave a great part to the freedom
of the parties involved (solutions of the conflicts, the freedom of
proof).
Speed: commercial time is shorter than civil time. Traders can
conclude their contracts by the fastest ways (telephone, fax,
net...) without having to worry about the formalism of the
writings required by civil law. As well as the introduction of a
shorter limitation period of 5 years (Art 5 of the C.C).
 Chapter 1: Commercial and Corporate Law

3. Law of professionals :
The actors of the C.L are industrial or trader
professionals.
This quality allows to understand the strictness of
the sanctions in C.L.
When the debate does not oppose any more two
professionals, but a private individual and a
professional, the change of the rules takes place to
make a balance between the two parts (Art 4 C.C)
 Chapter 1: Commercial and Corporate Law

The sources of commercial law :

1. Historical sources :
Before 1913, Morocco had no commercial
legislation in the modern sense of the term.
In the context of relations with other Muslim
countries, Muslim law and regional customs
constituted a universal legalization.
In the land of Islam, Muslims are governed by
Muslim law and other believers by the "Dhimma".
 Chapter 1: Commercial and Corporate Law

2. Written sources :
A. The law:
The law remains the essential source. The term law must be
understood in a broad sense, it includes :
 The law: written rule, elaborated and voted for the
parliament
 The regulations: the regulatory provisions made by the Prime
Minister. In the absence of a law, custom or usage,
commercial law is governed by a rule of civil law.
Example: Art 982 of the D.O.C.(Dahir of Duties and Contracts)
regulates the corporate contract.
 Chapter 1: Commercial and Corporate Law

B. International conventions :
Following the considerable expansion of international trade, the
States have established uniform rules through international
conventions, so that in the presence of a dispute relating to an
international contract, its solution will be settled without difficulty.
There are two ways to make an international rule enforceable:
a. Apply the conventional rule in the presence of a conflict of
interest of an international character.
b. To impose on all the countries that signed the convention the
adoption of the same internal law.
Example: the Geneva Convention providing a uniform law on bills of
exchange, cheques and promissory bills (1930/1931) applicable by
the terms of the DAHIR of 19 January 1939.
 Chapter 1: Commercial and Corporate Law

3. Unwritten sources:
A- Uses:
Business practices commonly followed and considered normal in
a given environment. They arise from the frequent repetition of
the same legal acts, the same operations. The judge can apply it
once he has proof of its existence provided that it does not go
against of a mandatory law
B-Customs :
It is a de facto usage whose legal value reflects a great
importance. It is a fact practiced over a long period of time. It is
recognized by the juridical authority. (Especially by the
Supreme Court) which considered as a source and not as a fact.
 Chapter 1: Commercial and Corporate Law

4. Indirect sources of the C.L.

A- Jurisprudence :
This is the body of decisions delivered by the different jurisdictions
of the kingdom, and more particularly by the Supreme Court. The
Supreme Court is responsible for applying these decisions to
disputes that are brought before it. The courts interpret the laws
and regulations, adapt them to the changes in economic life and
if necessary complete them.
B- Doctrine :
This is the set of opinions issued by legal practices (professors,
judges, arbitrators, lawyers, experts, notaries...).Through their
criticism and analysis of texts in specialized journals, they
influence the legislator.
 Chapter 1: Commercial and Corporate Law

THE TRADER
I - The status of the trader
A- Conditions related to the person :
Conditions concerning commercial capacity
The Moroccan legislator, in the Family Code, has set the age of
majority at 18 years (Art 209 of the Family Code). However, there
are exceptions to this principle:
1) The minor: He may be in a state to benefit from such capacity
either by the effect of a special authorization, or by that of an
anticipated declaration of majority.
2) Incapable adults: They are assimilated to non-emancipated
minors, i.e. mentally ill or feeble-minded persons who are subject
to a tutorship or curatorship.
 Chapter 1: Commercial and Corporate Law

3) The foreigner: A foreigner who has reached the age of

twenty years and is considered to be of legal age to trade in
Morocco, even if his national law provides for an age of
majority higher than the one stipulated by Moroccan law
(Art. 15 of the Commercial Code).
4) Married women: In Morocco, for a long time, married
women were considered to be incapable, because they could
only trade with the authorization of their husband.
This restriction disappeared with the advent of the new
commercial code which states in its art. 17 that: "the
married woman can exercise the trade without authorization
of her husband. Any contrary convention is considered null".
 Chapter 1: Commercial and Corporate Law
Conditions to preserve the public interest

1- Disqualification: Article 711 of the C.C states that: "commercial

disqualification leads to a ban on directing, managing,
administering or controlling, directly or indirectly, any commercial
or artisanal company, and any commercial company with an
economic activity". When the court pronounces the commercial
disqualification, it must set the time period, which must not be less
than 5 years (art.719 of the CC)
2- Incompatibility: This is a prohibition made to certain persons to
exercise the beginning because of their professions or their
functions. It is indeed forbidden to civil servants, notaries, lawyers,
architects ... to exercise a trade. Failure to comply with these
restrictions may result in penal and disciplinary sanctions. However,
the acts of trade carried out remain valid. (Art 11 of the C.C)
 Chapter 1: Commercial and Corporate Law

B- Conditions related to the activity

According to art. 6 of the C.C: the quality of trader is
acquired by the usual or professional exercise of
activities called commercial.
Therefore, three conditions are to be retained:
The accomplishment of commercial acts:
Based on arts 6,7,8,9,10 of the C.C, we can adopt a
classification of commercial acts:
1- Commercial acts by nature: The commercial act by
nature is commercial because of its object.
 Chapter 1: Commercial and Corporate Law

2. Commercial acts by accessory: In accordance with the

principle that "the accessory follows the principal", are
considered commercial acts, all the duties of the trader born
for the needs or on the occasion of his trade. The theory of the
accessory is based in Moroccan law in art. 10 of the C.C.
Examples: civil acts by nature accomplished by the trader in the
exploitation of his business:
- The acquisition of a vehicle for the delivery of goods is not a
commercial act by nature but the act is considered commercial
because it is concluded for the needs of the trade.
- Loans taken out by a trader for the purposes of his business.
 Chapter 1: Commercial and Corporate Law

3. Commercial acts by form:

These are acts that are commercial by reason of their form,
regardless of the object and purpose of the act and
regardless of the person who performs them.
This is a formal commerciality and concerns two important
areas: A and B.
A- The bill of exchange: According to art 9 of the C.L, it is a
commercial act whatever the person who signs it.
This last one is subjected to the rules of the commercial law
and in particular the competence of the commercial courts.
 Chapter 1: Commercial and Corporate Law

The cheque: the signatory of a cheque is only under a

commercial duty if he signs for the needs of his business
Promissory bills: are considered commercial when they
result from a commercial transaction (Art. 9 C.L)
B- Commercial companies by form: These are companies
which are expressly declared to be commercial by
reason of their form alone and independently of their
activity.
This is the case of : SNC, SC, SARL (limited liability
company) and SA.
 Chapter 1: Commercial and Corporate Law

4. Mixed commercial acts:

These are those which have a commercial
character for one party and a civil character
for the other party.
The Commercial Code through its art. 4 states
that "The rules of commercial law apply to the
party for whom the act is commercial".
 Chapter 1: Commercial and Corporate Law

Habitual or professional trader :

In Morocco, the reference to habit or profession is sufficient to
give the author of commercial acts the status of trader.
1- Habit: The habit is characterized first of all by a material
element, i.e. the repetition of acts of the same kind, extended
in time.
Thus, a person who performs commercial acts on an occasional
basis (from time to time) without worrying about the number
and frequency of such acts does not become a trader.
2- Profession: The profession implies an activity carried out in a
continuous, regular and independent way.
 Chapter 1: Commercial and Corporate Law

Carrying on business in his own name and for his own account:
Commercial acts must be carried out by the trader in his own
name and for his own account.
To this end, the following are not considered as trader:
 employees bound to a trader by an employment contract.
 commercial travelers, managers and salesmen are not traders.
 the spouse of a trader who assists him in the exercise of his
commercial activity.
 the executives of commercial companies, who, as legal
representatives, therefore agents, carry out commercial acts in
the name and for the account of the legal entity.
 Chapter 1: Commercial and Corporate Law

II - The trader's duties

A- Opening a bank account
Art. 18 of the C.C states that: "every trader, for the needs
of his trade, is under the duty to open an account in a
banking establishment or in a postal check center".
At this level, the trader must operate by crossed check,
bill of exchange, and transfer, all the payments whose
amount is higher than 10.000 Dhs.
And this in order to reduce cash payments and lead to a
reduction in tax fraud.
 Chapter 1: Commercial and Corporate Law

B- Publicity in the trade register:

Definition: It is a publicity support intended to make known the
existence, the characteristics of the establishments of trade, by
providing all information by way of copy or certified extract of
the inscriptions which are carried there.
The organization of the trade register :
1- Local register: It is kept by the secretariat of the registry of
each commercial court or, failing that, of the court of first
instance, under the supervision of the president of the court or
by a judge appointed each year for this purpose (Art. 28 CC).
The registration must be made at the registry of the court within
whose jurisdiction the trader's principal place of business or the
registered office of the legal entity is located.
 Chapter 1: Commercial and Corporate Law

2. Central register: It is intended to centralize the

information contained in the various local registers and
to ensure communication by means of a certificate.
It is therefore a second original of the registers kept at the
level of each registry. Its primary purpose is publicity,
the aim being to inform third parties of facts likely to
affect the situation of traders.
Registrations in the Trade Register: According to Art. 36 of
the CC: "Registrations in the Trade Register include
registrations, amending registrations and removals".
 Chapter 1: Commercial and Corporate Law

The persons subject to registration are enumerated in art. 37 of the

CC and are:
 All natural or legal persons, Moroccan or foreign, operating on the
territory of the Kingdom.
 Any branch or commercial agency of Moroccan or foreign
companies.
 Any commercial representation or commercial agency of foreign
states, communities or public institutions.
 All Moroccan public establishments of an industrial or commercial
nature, subject by their laws to registration in the trade register.
 Any economic interest grouping.
 Chapter 1: Commercial and Corporate Law

C. Accounting
Art.19, para.1 of the C.C provides that: "The trader shall keep
accounts in accordance with the provisions of law n° 9-88
relating to the accounting duties of traders".
The purpose of accounting:
"Accounting can be defined as an information mission consisting
of collecting, listing, classifying and processing all operations
expressed in monetary form that performs a business".
The law provides that the trader must proceed to the accounting
recording of the movements affecting the assets and liabilities
of the company; these movements are recorded
chronologically, operation by operation and day by day.
 Chapter 1: Commercial and Corporate Law

1- Accounting books: There are three of them:

The journal book: It records operation by operation, and day after day all the
movements affecting the company's assets
The general ledger: It allows the recording of the entries of the journal book
which are copied there, but this time distributed between the various
accounts: situation of the company, administration, special account...
The inventory book : The inventory is made at the end of each year. The duty
includes the elaboration of an inventory of movable and immovable effects
on the one hand, and an inventory of debts and receivables on the other
hand.

2- Summary statements:
The summary statements must be established three months after the closing
date of the fiscal year, in view of the different accounting books. They must
give a true and fair view of the assets and liabilities as well as the financial
situation and results of the company.
 Chapter 1: Commercial and Corporate Law

The keeping of accounts:

At the time of the opening of the business, the journal book and the inventory
book must be presented to the court, which must count the pages by giving
them numbers going from the first to the last, then initial them, each book
receives a number listed by the registrar on a special register.
In case of error, the trader can neither scratch nor erase, he must correct with
new entries.
The purpose of the accounting :
Art.19, para. 2 of the C.C provides that if the accounting is regularly kept, it is
admitted by the judge as evidence between traders for commercial facts.
Art. 22 adds: "during a legal proceeding, the court may order, ex officio or at
the request of one of the parties, the representation or communication of
accounting documents".
 Chapter 1: Commercial and Corporate Law

II. Trading Company « Corporations »

I- Conditions for the creation of corporations
A corporation can be created either by a contract between several
persons, or by a unilateral act of will by a single person within the
framework of a "single shareholder" (ex: SARL).
The company contract is subject to conditions of substance and form.
A - Substantive conditions
According to art. 982, "a company is a contract by which two or more
individuals pool their property or their work, or both at the same
time, with a view to sharing the profits that may result from it".
It is clear from this article that the partnership contract is subject to
three basic conditions concerning the partners, the contributions
and the sharing of profits; to these conditions should be added a
fourth condition of jurisprudential origin: "affectio societatis".
 Chapter 1: Commercial and Corporate Law
a. Capacity
This is of course the capacity to enter into duties, i.e. the ability to
enter into a company contract.
For the subscription or acquisition of shares in companies, minors
who are incapable of doing so must be represented by their legal
tutor (father or mother) or, with the authorization of the judge, by
their testamentary or dative tutor, since the act of entering into a
company is considered by the D.O.C to be an act of disposition
(art. 11, para. 2).
At the age of 16, an emancipated minor may be a shareholder in a
corporation (SA) or a limited partnership with shares, a limited
partner in a limited partnership, or a partner in a limited liability
company (SARL).
 Chapter 1: Commercial and Corporate Law
However, in partnerships that require trader status, the entry
of a minor, even an emancipated one, is subject to the
special conditions of commercial law.
Thus, a minor can only be a partner in a general partnership or
a general partner in a limited partnership or a partnership
limited by shares if he is authorized to trade.
Finally, married women are no longer subject to marital
authorization to trade since art. 17 of the new C.C abolished
this authorization which was awkwardly applied to
Moroccan women.
As a result, she can perfectly well become a partner even in
partnerships as a partner in name.
 Chapter 1: Commercial and Corporate Law
b - The number of partners
According to the principle laid down in art. 982 D.O.C, a company
may be formed by at least two partners.
As for commercial companies (corporations), the minimum number
of partners varies according to the type of company:
- 5 for the S.A.;
- at least 3 limited partners and one or more general partners for
the limited partnership by shares;
- two for the SARL;
- and only one for the SARL with a single partner, (contrary to the
principle of the plurality of partners laid down in art. 982 D.O.C.)
 Chapter 1: Commercial and Corporate Law
2 . Contributions
There are three types of contributions.
a. Contributions in cash
These are the cash (money) brought by the partners to constitute
the company. Each associate gives to the founders his financial
share at the time of the constitution of the company.
b. Contributions in kind
They are constituted by different types of goods, other than cash,
likely to be capitalized.
These contributions can be made in full ownership (the company
becomes the owner), in enjoyment (the contributor remains the
owner but the company has the use of it), or in usufruct.
 Chapter 1: Commercial and Corporate Law

C. Contributions in the form of services or know-how

They are made up of the know-how of certain partners and
are only possible in partnerships and, under certain
conditions, in limited liability companies.
As they cannot be seized, they do not constitute the share
capital (they are non-capitalized contributions).
On the other hand, they entitle the holder to a share of the
profits and make him/her liable for the debts of the
company up to the value of his/her contribution.
 Chapter 1: Commercial and Corporate Law
3. PROFIT SHARING
The company is formed with the aim of making profits or
benefiting from an economy.
Thus, each partner will receive a share of the profits in
proportion to his contributions. These rules also apply to the
partners' contribution to losses.
However, the statutes may not provide for clauses that have
the effect of attributing to a partner a share in the profits or
losses greater than the share proportional to his stake.
It is therefore sufficient for this share to be greater than the
proportion of a partner's stake to give rise to the nullity of
the partnership.
 Chapter 1: Commercial and Corporate Law
4 . AFFECTIO SOCIETATIS
This is a psychological element developed by jurisprudence. It consists
in the will of the partners to collaborate in an active way
(information, vote, etc.)
- active (information, voting, etc.),
- voluntary
- and egalitarian, since there is no link of subordination between the
partners.
For example, in an employment contract in which it is stipulated that
the employee will be remunerated by a share in the profits, the
employee cannot be considered as a partner who makes a
contribution in kind because the employee remains subordinate to
his employer, whereas affectio societatis does not involve
subordination. Moreover, this element remains very useful in
determining the existence of de facto partnerships.
 Chapter 1: Commercial and Corporate Law

B. Formal requirements
In order to exist, a company must meet specific formal
requirements; they are more or less identical for all
companies.
1. The statutes
This is the founding act of the company; it consists in the
drafting and signing of the statutes.
In principle, by virtue of art. 987 D.O.C, the partnership
contract is simply consensual, i.e. only the consent of the
parties is necessary to form a partnership;
however, in the case of commercial partnerships, it is
mandatory that the statutes be drawn up in writing.
 Chapter 1: Commercial and Corporate Law

The statutes may be drawn up in the form of a deed.

They contain information on :
- the identity of the company,
- that of the contributing partners,
- as well as the operating rules that govern it.
 Chapter 1: Commercial and Corporate Law

2 - Subscription of capital and payment of contributions

A company can only be constituted if all the issued securities are
subscribed by the partners.
In the S.A. and SARL, the capital subscription (when it is provided
by the partners, according to the law 24-10 of 2011) is required
because it is possible to split the payment.
On the other hand, in other companies, the cash contributions
must be fully paid up at the time of incorporation.
For the S.A. the realization of the capital is done by subscription
forms which must be established in duplicate, one of which is
given to the subscriber containing a certain number of
information on the company.
 Chapter 1: Commercial and Corporate Law
3 - deposit of funds in the bank
This formality is only provided for companies that require a
minimum capital, notably the S.A. (art. 22); the SARL is
currently subject to this formality only when the capital
provided by the partners exceeds 100000 dhs according to
law 24-10) (art. 51).
The purpose of this formality is to avoid the creation of
companies with fictitious capital.
Indeed, the funds coming from cash subscriptions must be
deposited by the founders in the name of the company in
formation, within 8 days of their receipt, in a blocked bank
account with the list of subscribers indicating the amounts
paid by each of them.
 Chapter 1: Commercial and Corporate Law
4 - Declaration of subscription and payment
This formality concerns only the S.A. When the capital is fully
subscribed and the required payments are made in a regular way,
the founders must establish a declaration noting these operations
either by notarial deed or by private deed; in the latter case, the
deed must be deposited at the clerk's office of the court of the
place of the registered office.
For this purpose, the founders must present, with their declaration,
the subscription forms and a certificate from the depositary bank in
order to enable the notary or the secretary-registrar, in the case of
a private deed, to check the conformity of the founders'
declaration.
They must also attach a list of subscribers, a statement of the amounts
paid by each of them and a copy of the articles of association.
 Chapter 1: Commercial and Corporate Law

5 - Formalities for submission to the court

The founders of the company must file a certain number of
documents with the court of the place of the registered
office, in particular
- two copies of the articles of association certified by the
company's representative;
- the deeds of appointment of the first directors,
- the report of the auditor, if any, etc.
 Chapter 1: Commercial and Corporate Law
6 - Publicity of the constitution
In order to ensure greater transparency in the life of companies and
to protect their business partners, publicity requirements have
been made mandatory. After filing the articles of association and
other documents with the court, the founders must apply for
registration in the Trade Register. (Why?)
Then, within 30 days of the registration of the company in the Trade
Register, the founders must publish an extract of the articles of
association in a legal gazette and in the official bulletin.
This notice must contain the essential information on the
incorporation of the new company; it must also contain the
number of the company's registration in the Trade Register.
 Chapter 1: Commercial and Corporate Law

II. Classification of companies

Chap 2: Business Law

 Chapter 1: Commercial and Corporate Law
III. The goodwill
The legal status of goodwill
The goodwill was born in practice. Art. 79 of the C.C defines it as
"an immaterial movable constituted by the whole of the
movable goods assigned to the exercise of one or more
commercial activities".
Every trader owns a business, and this business constitutes a
transferable and assignable property. The recognition of this
property is a fact of capital importance in the commercial
economy.
Goodwill is a complex legal reality, the main elements of which
should be identified before describing the privileged situation of
the trader-tenant to enable him to preserve his leasehold rights
and the economic value of his goodwill.
 Chapter 1: Commercial and Corporate Law

1. The elements of the goodwill

A- Corporal elements
These elements include rights on tangible and movable assets,
excluding buildings. They include equipment and materials as well
as goods.
Equipment and material tools :
These are goods which are used for the operation of the goodwill
and which are not intended to be sold: industrial tools,
equipment, office furniture...
From an economic and accounting point of view, the equipment
enters like the buildings in the fixed capital of the company. But
from a legal point of view, the equipment is by its nature classified
as movable property.
 Chapter 1: Commercial and Corporate Law

The goods

These are raw materials intended for processing or

products and goods intended for sale.
They are characterized by two particularities:
 In case of transfer of the goodwill, they are subject to a
separate valuation.
 In case of pledging of the fund, they are always
excluded.
 Chapter 1: Commercial and Corporate Law

B. Intangible elements :
These elements include a set of rights that are essential to the
commercial operation. They give the goodwill its main value.
Customers and ridership
These are all the consumers who have a business relationship
with the trader. The doctrine has sometimes tried to give a
meaning to this distinction:
 The clients are the permanent and loyal customers of the
company because of its competence or its know-how.
 The ridership concerns the customers passing through,
attracted by the establishment of the commercial property.
 Chapter 1: Commercial and Corporate Law
In fact, there is no practical consequence to this distinction (from a
legal point of view):
a- The customer base must exist
A virtual or potential clientele cannot be taken into consideration. It
is therefore not sufficient to open the doors of the establishment
to the public for the clientele to appear; it is also essential that
the business has actually started operating.
b- Clientele specific to the business
It is necessary that the clientele is related to the owner of the
goodwill, that it is attached to him in his own right. This condition
is not always met when the customer base is dependent on a
larger client base of which it is only a fraction.
 Chapter 1: Commercial and Corporate Law

The trade name/commercial name

This is the name under which a person carries on business.
It can be his patronymic name preceded by his first
name... For companies, the trade name is referred to as
" trade name " in partnerships, and as " corporate name
" for corporations.
Unlike the civil name, the trade name can be transmitted
with the goodwill of the trader or on its own. The
commercial name is a patrimonial name. This explains
why it is protected against usurpation or deliberate
confusion, by means of an action for unfair competition.
 Chapter 1: Commercial and Corporate Law

The commercial sign

It is an external sign which allows to personalize the
company, the store.
It can be an acronym, a logo, or an image affixed to the
location and related to the activity that is carried out
there.
The sign benefits from the same protection as the
commercial name, provided that it is special, and that
the person who uses it justifies a priority of use.
 Chapter 1: Commercial and Corporate Law

The right to a commercial lease

This is the right of claim of the trader tenant against the building in
which the goodwill is operated, and whose object is the
enjoyment of the rented locations.
Because of its importance, especially for the retailer, the right to the
lease is subject to special protection, which gives the trader a real
right to renew his lease, failing which the lessor must pay him an
eviction indemnity.
Industrial property rights
These rights refer to patents, trademarks, service marks, and
designs. They are intangible assets that give their owners a
monopoly of exploitation.
 Chapter 1: Commercial and Corporate Law

2. Operations relating to the goodwill

The main operations that can be carried out on the goodwill are: the
sale of the goodwill, the Termination of the lease, the pledge
and the free management.
A. Sale of the goodwill
This is an important operation on the economic level. It is important
for the seller and his creditors. It is an investment that can be
considerable for the buyer because there are goodwill of great
value.
Art. 81 of law 15-95 states: "Any sale or transfer of a fund as well as
any contribution to a company or any allocation of a goodwill by
sharing or auction shall be recorded by deed...".
 Chapter 1: Commercial and Corporate Law

This act mentions :

 The name of the seller, the date and the nature of his act
of acquisition, the price of this acquisition by specifying
separately the prices of the intangible elements, the
goods and the equipment.
 The state of the registrations of the privileges and
pledges taken on the fund.
 If applicable, the lease, its date, its duration, the amount
of the current rent, the name and address of the lessor.
 The origin of the ownership of the goodwill.
 Chapter 1: Commercial and Corporate Law

B. Pledging of the goodwill

The trader, natural person, can bring his goodwill either to
a company that he creates with other people, or to a
company already created.
Even if this operation is very similar to the sale. But, there
is a difference between the two operations. It concerns
the method of payment.
Indeed, the amount provided to the contributor is not a
sum of money, but shares. This difference involves some
modifications in the situation of the creditors.
 Chapter 1: Commercial and Corporate Law
The conditions of the pledge
Concern the basis of the pledge, its form and its publicity:
The substantive conditions
It appears from art. 107 of the CC that only the elements listed in art
8, excluding the goods, are likely to be included in the pledge.
In the absence of an express and precise designation in the act
constituting it, the pledge only includes:
- the trade name;
- the commercial sign;
- the right to the lease;
- the clientele and;
- the goodwill.
 Chapter 1: Commercial and Corporate Law

In the case where the pledge concerns a goodwill and its

branches, these must be designated by the exact
indication of their headquarters.
Goods are never included in the pledge because they are
intended for sale, and this is incompatible with the
concept of a pledge, which requires that its purpose
remain the same.
 Chapter 1: Commercial and Corporate Law

The conditions of form and publicity

According to art. 108 of the CC, the pledge must be
recorded in a deed.
An extract of the deed must be registered in the trade
register within fifteen days of its date.
In case the pledge concerns industrial property rights, an
additional registration must be made at the Moroccan
office of industrial property.
This registration is not subject to publication in the
newspapers (art. 108 al 3).
 Chapter 1: Commercial and Corporate Law
C. Termination of the lease:
The lease may be terminated at the request of the owner for
several reasons: the termination may be due to non-payment
of rent, the lessor may need the location to live in etc. ....
The termination of the lease may result in a significant decrease
in the value of the business.
This is why the Commercial Code provides in its art. 112 "the
owner who pursues the termination of the lease of the
building in which a goodwill encumbered by registrations is
operated, must notify his request to the creditors... The
judgment may not be pronounced until 30 days after the
notification. The amicable termination of the lease does not
become final until 30 days after the date of notification...".
 Chapter 1: Commercial and Corporate Law

D. Free management
The free management (or management lease) allows the
owner to give the management of the fund to a person
by way of a lease contract in return for a rent which can
sometimes take the form of a share in the profits.
In this case, the tenant manager has the status of a trader
and assumes the risks of the business alone.
The Commercial Code regulated free management for the
first time in articles (152 to 158); this regulation deals
with the publicity of the contract while providing for the
protection of all interests involved.
 Chapter 2: Business Law
Legal forms of companies in Morocco
The classification of private law companies requires
several distinctions.

In addition to the distinction between civil companies

and commercial companies, within the latter there are
partnerships and limited companies, with limited
liability companies occupying a special place.

 The different types of commercial companies

recognized in Morocco are :
 Chapter 2: Business Law
1. Partnerships
These are companies that are characterized by :
- the importance of the personal factor (intuitu personae)
in their constitution and functioning;
- the commitment of the associates beyond their
contributions, their responsibility will be unlimited, i.e.
joint and not subject to any limitation;
- in return for their contribution, the associates receive
interest shares or social shares, which are non-
negotiable securities, i.e. they are only transferable by
civil means.
Partnerships: general partnership, limited partnership,
joint venture.
 Chapter 2: Business Law
2 - Joint stock companies, Limited companies (SA,
SARL AND SCA)
In this type of companies :
- the consideration of the person is indifferent, the sum
of the individual contributions counts more than the
person of the contributors;
- each partner is only liable up to the amount of his
contribution;
- the partners receive shares which are negotiable.
 Chapter 2: Business Law
a. The Limited Company  - public limited-liability company (S.A.)

Definition
Commercial company in which the partners, called shareholders because of a right
represented by a negotiable security or share, bear the company's debts only up to the
amount of their contributions

Characteristics

- The number of shareholders cannot be less than 5.

- The minimum capital is MAD 3 million for public limited companies and MAD 300,000
in the opposite case.
- The nominal value of the share cannot be less than MAD 100.
- The shares in cash must be paid up at the time of subscription of at least 1/4 of their
nominal value. Shares in kind are fully paid up at the time of their issue.
- The capital must be fully subscribed; otherwise the company cannot be incorporated.
 Chapter 2: Business Law
- The Company has a legal personality as from its
registration in the Trade Register.
- The general management of the company is assigned
by right to the chairman of the board of directors, and
any appointment of a general manager, any definition
of his functions and powers can only take place on the
proposal of the chairman, as well as his dismissal.
- The chairman may be dismissed at any time by the
board of directors.
- The corporation has a Board of Directors and a
Supervisory Board.
 Chapter 2: Business Law
A distinction must be made between the SA with a Board of Directors
and the SA with a Management Board and a Supervisory Board.

S.A with a Board of Directors

Composition of the Board of Directors:

- At least three members and at most twelve.

- The Board of Directors is composed of at least three and at most fifteen
members if the company's shares are listed on the stock exchange.
- In the event of a merger, the number of twelve and fifteen may be
increased to the total number of directors in office for more than six
months in the merged companies.
 Chapter 2: Business Law
SA with a Management Board and a Supervisory Board:

 Composition of the Executive Board

- The number of members may not exceed five.

- Seven when the company's shares are listed on the stock exchange.
- The Board of Directors performs its duties under the supervision of
the Supervisory Board.
- The members of the management board are appointed by the
supervisory board.
- The term of office of the Management Board is determined by the
Articles of Association within limits of between two and six years.
 Chapter 2: Business Law
 Composition of the Supervisory Board

- At least three and no more than twelve members

- Fifteen members if the company's shares are listed on the stock exchange.
- In the event of a merger, the number of twelve and fifteen may be increased
to the total number of directors in office for more than six months in the
merged companies.
- No member of the supervisory board may be a member of the management
board.
- The members of the supervisory board are appointed by the articles of
association and during the life of the company by the ordinary general
meeting.
- The term of office of the members of the supervisory board may not exceed
six years.
 Chapter 2: Business Law
b. The Simplified Joint Stock Company (SAS)

Definition
The simplified joint stock company is a company
constituted between legal entities in order to
create or manage a common subsidiary, or to
create a company which will become their
common parent.
 Chapter 2: Business Law
Characteristics

- The members of the simplified joint stock company must have a capital
at least equal to two million dirhams or the equivalent of this sum in
foreign currency.
- The articles of association must be signed by all the members.
- The capital must be paid up in full as soon as the articles of association
are signed.
- The company cannot make a public appeal to savings.
- The articles of association determine the conditions under which the
company is managed.
- The company must have a president appointed initially in the articles of
association.
- The president may be a legal person.
 Chapter 2: Business Law
c. The Limited Liability Company (SARL)
Definition

The SARL is a commercial company that represents an intermediate type

between partnerships and corporations. The acquisition of the legal
personality is subordinated to the registration in the trade register.

Characteristics :

- Only one person - a single partner - can form a limited liability company.
- The maximum number of partners cannot exceed 50.
- The amount of share capital is freely determined by the partners and
must be paid up by at least a quarter and deposited in a blocked bank
account. Its withdrawal can be made only after registration in the Trade
Register.
 Chapter 2: Business Law
- The share is at least 10 DH. The shares held by the company, which
may be transferred by inheritance and may be transferred between
spouses and inheriting relatives, may only be transferred to third
parties with the consent of the majority of the partners.
- The contributions can be in kind. They are evaluated by an auditor if
their value exceeds half of the capital in cash.
- The management of a limited liability company can be assumed by
one or more natural persons who are individually or jointly
responsible to third parties.
- Decisions are taken in a general meeting unless otherwise provided
for in the articles of association.
- The control of the management of a limited liability company is
entrusted to one or more auditors if the turnover exceeds 50 million
dirhams.
 Chapter 2: Business Law
d. The economic interest grouping (EIG)
Definition :

The EIG is not a company, it constitutes an intermediate legal framework between

the company and the association for the pooling of certain activities by companies.
So it is constituted between legal persons in order to implement all the means
suitable to facilitate or to develop the economic activity of its members and to
improve or increase the results of this activity.

Characteristics :

- The EIG is designated by a corporate name which must be followed by the words
"economic interest grouping" or the acronym EIG.
- It is constituted between at least two legal entities.
- It can be created without capital. In the event of the constitution of a capital,
several types of contributions are possible, as well as contributions in cash, in kind
or in industry.
 Chapter 2: Business Law
- The EIG cannot be constituted by means of a call for savings
- The object of the EIG can be civil or commercial depending on
its nature.
- It is necessary to take care of the definition of the object in the
constitutive contract.
- It is constituted by a writing.
- The EIG contract must contain the following information:
1. Name of the grouping;
2. Duration of the grouping;
3. Seat of the grouping ;
4. Identification of each of its members.
5. The object of the grouping
 Chapter 2: Business Law

6. the corporate name or name, the legal form, the address of the registered
office of each of the members of the grouping, an indication of the registration
number in the trade register, if any, of each of its members, as well as the date of
their entry into the grouping if they were admitted to it after its formation, with
an indication, where appropriate, of the exemption granted to them from any
liability for the debts of the grouping before their admission.
7. where applicable, the amount and nature of the contributions to be made to
the capital as well as the amount of the capital
- The duration is generally linked to the objective of the EIG, which may be one-
time or ongoing.
- The EIG is administered by one or more administrators, chosen from among its
members or outside them.
- A legal entity may be a director provided that it appoints a permanent
representative who has the same civil and penal responsibilities as if he or she
were performing these functions in his or her own name.
 Chapter 2: Business Law
e. General partnership (SNC)
Definition :

The general partnership is a company whose partners are all traders and
are equally and jointly liable for the company's debts.

Characteristics :

- The general partnership is referred to by a corporate name, which may

include the name of one or more partners, and which must be immediately
preceded or followed by the words "General partnership".
- All the partners are managers, unless otherwise stipulated in the articles
of association, which may appoint one or more managers, whether or not
they are partners, or provide for their appointment by a subsequent act;
 Chapter 2: Business Law

- The partners may appoint one or more auditors by a majority of the

partners. However, companies whose turnover at the end of the fiscal
year exceeds 50 million DH, are required to appoint at least one auditor;
- The dismissal of the managers can only be decided by unanimity of the
partners. This dismissal involves the dissolution of the company, unless
its continuity is provided for by the articles of association or the other
partners decide it unanimously;
- The shares are registered and can only be transferred with the consent
of all the associates;
- The company is terminated by the death of one of the associates,
unless it has been stipulated that the company will continue, either with
the associates only, or with one or more inheritors, or any other person
appointed by the statutes;
 Chapter 2: Business Law
f. The Limited Partnership (SCS)
Definition :

The limited partnership is made up of general partners and limited

partners. It is referred to by a corporate name to which the name
of one or more general partners may be added and which must be
immediately preceded or followed by the words "Limited
Partnership".

The provisions relating to general partnerships are applicable to

limited partnerships (subject to the rules provided for in the first
chapter of the law on limited partnerships / see BO n° 4478 of 1-5-
97 / page 485).
 Chapter 2: Business Law
General partners:

The general partners are indefinitely and jointly and severally liable for the
company's debts.

Limited partners:

- Limited partners are liable for the company's debts only up to the amount of
their contribution. This contribution may not be a contribution in kind.
- The limited partner may not perform any management act that commits the
company to third parties, even by virtue of a power of attorney.
- Any amendment to the Articles of Association is approved with the consent of
all the general partners and a majority in number and capital of the limited
partners.
- The Partnership will continue despite the death of a limited partner.
 Chapter 2: Business Law
g. The Partnership limited by shares (SCA)
Definition :

A partnership limited by shares, whose capital is divided into shares, is formed

between one or more general partners, who are traders and are indefinitely and
jointly liable for the company's debts, and limited partners, who are shareholders
and bear losses only to the extent of their contributions.

The partnership limited by shares is designated by a name or the name of one or

more general partners may be incorporated and must be immediately preceded
or followed by the words "partnership limited by shares".

Characteristics :

- The number of limited partners may not be less than three (3).
 Chapter 2: Business Law
- The first manager or managers are appointed by the articles of association.
They carry out the incorporation formalities.
- The Ordinary General Meeting of Shareholders appoints a Supervisory Board,
composed of at least three shareholders.
- A general partner may not be a member of the supervisory board; nor may
shareholders who are general partners participate in the appointment of
members of the supervisory board.
- The ordinary general meeting of shareholders appoints one or more auditors;
- The manager is vested with the broadest powers to act in all circumstances on
behalf of the company.
- The supervisory board assumes the permanent control of the management of
the company. To this end, it has the same powers as the auditors.
- The transformation of the partnership limited by shares into a public limited
company or a limited liability company is approved by the extraordinary general
meeting of shareholders with the agreement of two thirds of the general
partners, unless the articles of association set another conditions.
 Chapter 2: Business Law
h. The Joint Venture
Definition :

The joint venture exists only in the relationship between partners

and is not intended to be known by third parties.

It has no legal personality. It is neither subject to registration nor to

any publicity formality and its existence can be proven by any
means.

The partners freely agree on the company's purpose, their

respective rights and duties and the conditions of functioning of the
company.
 Chapter 2: Business Law
If the company has a commercial character, the relations
of the partners are governed by the provisions applicable
to general partnerships unless otherwise stipulated.

Characteristics :

- With respect to third parties, each partner contracts in

his own name. He is the only person liable even if he
discloses the names of the other partners without their
consent. However, if the participants act as partners,
they are bound towards third parties as general partners.