The commercial law

Definition of the Commercial Law

Commercial Law is that branch of privet law which deal's with rights and
duties of trades and certain act which are commercial act.

‫ﺗﻌﺮﯾﻒ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري‬

‫اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ھﻮ ذﻟﻚ اﻟﻔﺮع ﻣﻦ اﻟﻘﺎﻧﻮن اﻟﺨﺎص واﻟﺬي ﯾﺘﻌﺎﻣﻞ ﻣﻊ اﻟﺤﻘ ﻮق واﻟﻮاﺟﺒ ﺎت ﻟﻠﺘﺠ ﺎر وﻟﻨ ﻮع ﺧ ﺎص‬
. ‫ﻣﻦ اﻷﻋﻤﺎل ھﻲ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ‬

Principles of the Commercial Law

‫ﻣﺒﺎدئ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري‬

Rapidity – Credit - Predictably - Good faith - Fairness - Party autonomy -

Flexibility

Rapidity
‫اﻟﺴﺮﻋﺔ‬
Commercial law is very faxable in regard of commercial transaction where the
parties can change or terminate the contract without the need of court
decision, also there are provisions in the commercial law that allow the court
to respond fast in case of commercial dispute

‫اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﻣﺮن ﺟﺪا ﻓﯿﻤﺎ ﯾﺘﻌﻠﻖ ﺑﺎﻟﻤﻌﺎﻣﻼت اﻟﺘﺠﺎرﯾﺔ ﺣﯿﺚ ﯾﻤﻜﻦ ﻷﻃﺮاف اﻟﻌﻘ ﺪ أن ﯾﻐﯿ ﺮوا أو ﯾﻠﻐ ﻮا اﻟﻌﻘ ﺪ‬
‫ وﻛﺬﻟﻚ ﻓﺈن ھﻨ ﺎك ﺑﻨ ﻮد ﻓ ﻲ اﻟﻘ ﺎﻧﻮن اﻟﺘﺠ ﺎري ﺗ ﺴﻤﺢ ﻟﻠﻤﺤﻜﻤ ﺔ أن ﺗﺘﺠ ﺎوب‬، ‫ﺑﺪون اﻟﺤﺎﺟﺔ إﻟﻰ ﻗﺮار ﻣﻦ اﻟﻤﺤﻜﻤﺔ‬
. ‫ﺑﺴﺮﻋﺔ ﻓﻲ ﺣﺎﻟﺔ اﻟﺨﻼف اﻟﺘﺠﺎري‬

Credit:
‫اﻻﺋﺘﻤﺎن‬
The nature of commercial law transactions need credit , where one party will
give loan to another party to be paid back after certain period of time.
‫ ﺣﯿﺚ ﯾﻘﻮم ﻃﺮف ﺑﺈﻋﻄﺎء ﻗﺮض إﻟﻰ ﻃﺮف آﺧﺮ وﻣﻦ ﺛﻢ ﯾﺴﺘﺮده‬، ‫ﻃﺒﯿﻌﺔ اﻟﻤﻌﺎﻣﻼت اﻟﺘﺠﺎرﯾﺔ ﺗﺤﺘﺎج إﻟﻰ اﻻﺋﺘﻤﺎن‬
. ‫ﺑﻌﺪ ﻓﺘﺮة زﻣﻨﯿﺔ ﻣﺤﺪدة‬

credit is very important for the commercial life because it helps improving the
business
‫اﻻﺋﺘﻤﺎن ﺿﺮوري ﺟﺪا ﻟﻠﺤﯿﺎة اﻟﺘﺠﺎرﯾﺔ ﻷﻧﮫ ﯾﺴﺎﻋﺪ ﻋﻠﻰ ﺗﺤﺴﯿﻦ اﻟﻌﻤﻞ اﻟﺘﺠﺎري‬

Subject of the law ?

‫ﻋﻠﻰ ﻣﻦ ﯾﻄﺒﻖ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ؟‬

There are two theories that explain the subjects of commercial law
‫ھﻨﺎك ﻧﻈﺮﯾﺘﯿﻦ ﻟﺘﻔﺴﯿﺮ ﻋﻠﻰ ﻣﻦ ﯾﻄﺒﻖ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري‬

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Materialism theory :
: ‫اﻟﻨﻈﺮﯾﺔ اﻟﻤﺎدﯾﺔ‬
This theory states that commercial law will imply on the commercial acts
whether they are done by a trader or non-trader.
‫ھﺬه اﻟﻨﻈﺮﯾﺔ ﺗﻨﺺ ﻋﻠﻰ أن اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﺳﯿﻄﺒﻖ ﻋﻠﻰ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ ﺳﻮاء ﻗﺎم ﺑﮭﺎ ﺗﺎﺟﺮ أو ﻏﯿﺮ ﺗﺎﺟﺮ‬

According to this theory the rules of commercial Law will apply to commercial
Transaction done by any person even is he not a trader
‫ﻃﺒﻘﺎ ﻟﮭﺬه اﻟﻨﻈﺮﯾﺔ ﻓﺈن ﻗﻮاﻋﺪ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﺳﺘﻄﺒﻖ ﻋﻠﻰ اﻟﻤﻌﺎﻣﻼت اﻟﺘﺠﺎرﯾﺔ اﻟﺘﻲ ﯾﻘﻮم ﺑﮭ ﺎ أي ﺷ ﺨﺺ ﺣﺘ ﻰ‬
‫ﻟﻮ ﻟﻢ ﯾﻜﻦ ﺗﺎﺟﺮا‬

The theory was criticized where it makes clear distance between commercial
Acts and non-commercial acts, especially with the advance on commercial
world, where there are mixing in the fields of the law such as the case in the
law dealing with bankruptcy
‫ ﺧﺎﺻﺔ ﻣﻊ‬، ‫اﻟﻨﻈﺮﯾﺔ ﺗﻢ اﻧﺘﻘﺎدھﺎ ﺣﯿﺚ أﻧﮭﺎ ﺗﻀﻊ ﻣﺴﺎﻓﺔ واﺿﺤﺔ ﺑﯿﻦ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ و اﻷﻋﻤﺎل ﻏﯿﺮ اﻟﺘﺠﺎرﯾﺔ‬
‫اﻟﺘﻄﻮر ﻓﻲ اﻟﻌﺎﻟﻢ اﻟﺘﺠﺎري ﺣﯿﺚ ھﻨﺎك ﺗﺪاﺧﻞ ﻓﻲ اﻟﻤﺠﺎﻻت اﻟﺨﺎﺻﺔ ﺑﺎﻟﻘﺎﻧﻮن ﻣﺜﻞ ﺣﺎﻟﺔ اﻟﻘﺎﻧﻮن اﻟﻤﺘﻌﻠﻖ ﺑﺎﻹﻓﻼس‬
.

Personalzim theory :
‫اﻟﻨﻈﺮﯾﺔ اﻟﺸﺨﺼﯿﺔ‬
This theory states that the commercial law apply to traders only, so the
commercial acts will not be subject of the commercial law unless they are
done by traders
‫ ﻟﮭ ﺬا ﻓ ﺎن اﻷﻋﻤ ﺎل اﻟﺘﺠﺎرﯾ ﺔ ﻟ ﻦ ﺗﻜ ﻮن‬، ‫ھﺬه اﻟﻨﻈﺮﯾﺔ ﺗﻨﺺ ﻋﻠﻰ أن اﻟﻘﺎﻧﻮن اﻟﺘﺠ ﺎري ﺳ ﯿﻄﺒﻖ ﻋﻠ ﻰ اﻟﺘﺠ ﺎر ﻓﻘ ﻂ‬
. ‫ﺧﺎﺿﻌﺔ ﻟﻠﻘﺎﻧﻮن اﻟﺘﺠﺎري إﻻ إذا ﻗﺎم ﺑﮭﺎ اﻟﺘﺠﺎر‬

This theory was criticized where it limits the scope of the law to traders only.
‫ھﺬه اﻟﻨﻈﺮﯾﺔ ﺗﻢ اﻧﺘﻘﺎدھﺎ ﺣﯿﺚ إﻧﮭﺎ ﺗﺤﺪد ﻣﺪى اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﺑﺎﻟﺘﺠﺎر ﻓﻘﻂ‬

The Bahrain commercial law takes both theories in consideration. Where it

applies the commercial law to the commercial acts and the acts by traders.

‫ ﺣﯿﺚ ﯾﻄﺒﻖ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﻋﻠﻰ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ‬، ‫اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري اﻟﺒﺤﺮﯾﻨﻲ ﯾﺄﺧﺬ ﻛﻼ اﻟﻨﻈﺮﯾﺘﯿﻦ ﻓﻲ اﻟﺤﺴﺒﺎن‬
. ‫وﻋﻠﻰ أﻓﻌﺎل اﻟﺘﺠﺎر أﯾﻀﺎ‬

Commercial acts are different from civil acts where the commercial acts has
the following criteria
-: ‫اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ ﺗﺨﺘﻠﻒ ﻋﻦ اﻷﻋﻤﺎل اﻟﻤﺪﻧﯿﺔ ﺣﯿﺚ أن اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ ﻟﮭﺎ اﻟﺨﺼﺎﺋﺺ واﻟﺼﻔﺎت اﻟﺘﺎﻟﯿﺔ‬

1 - speculation:
: ‫اﻟﺘﻮﻗﻊ‬
The commercial acts aim to make profit so any act that aim to make profit
commercial act
. ‫ وﻟﮭﺬا ﻓﺄي ﻋﻤﻞ ﯾﮭﺪف ﻋﻠﻰ اﻟﺮﺑﺢ ھﻮ ﻋﻤﻞ ﺗﺠﺎري‬، ‫اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ ﺗﺴﺘﮭﺪف اﻟﺮﺑﺢ‬

This criteria was criticized where many acts aim to make profit but are not
considered as commercial act such as the work of the lawyers, doctors , etc

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‫ﺗﻢ اﻧﺘﻘﺎد ھﺬه اﻟﺨﺎﺻﯿﺔ ﺣﯿ ﺚ أن اﻟﻜﺜﯿ ﺮ ﻣ ﻦ اﻷﻋﻤ ﺎل ﺗ ﺴﺘﮭﺪف اﻟ ﺮﺑﺢ وﻟﻜﻨﮭ ﺎ ﻻ ﺗﻌﺘﺒ ﺮ أﻋﻤ ﺎل ﺗﺠﺎرﯾ ﺔ ﻣﺜ ﻞ ﻋﻤ ﻞ‬
‫اﻟﻤﺤﺎﻣﯿﻦ واﻟﺪﻛﺎﺗﺮة اﻟﺦ‬

2 - Circulation :
‫اﻻﺳﺘﻤﺮار واﻟﻨﻘﻞ‬
Any act that deal with goods during their movement from the producer to the
consumer, are considered as commercial acts
‫أي ﻋﻤﻞ ﯾﺘﻌﻠﻖ ﺑﺎﻟﺒﻀﺎﻋﺔ أﺛﻨﺎء ﺣﺮﻛﺘﮭﺎ ﻣﻦ اﻟﻤﻨﺘﺞ إﻟﻰ اﻟﻤﺴﺘﮭﻠﻚ ﺗﻌﺘﺒﺮ أﻋﻤﺎل ﺗﺠﺎرﯾﺔ‬

This deals with the transfer of the goods from the factory to the buyer.
. ‫ھﺬا ﯾﺘﻌﻠﻖ ﺑﻨﻘﻞ اﻟﺒﻀﺎﻋﺔ ﻣﻦ اﻟﻤﺼﻨﻊ إﻟﻰ اﻟﻤﺸﺘﺮي‬

3 - Commercial Profession:
‫اﻟﻤﮭﻨﺔ اﻟﺘﺠﺎرﯾﺔ‬

This means that persons will take commercial acts as profession and will
practice these acts on continues basis. so the acts of the traders will be
subject to commercial law and they have commercial nature if they are similar
to his profession while other acts that are not like his profession will be
considered civil act such as marriage ,divorce . . etc

‫ وﻟﮭ ﺬا ﻓ ﺎن‬. ‫ وﺳﯿﻤﺎرس ھﺬه اﻷﻋﻤﺎل ﺑﺼﻔﺔ ﻣ ﺴﺘﻤﺮة‬، ‫ھﺬا ﯾﻌﻨﻲ ﺑﺎن اﻟﺸﺨﺺ ﺳﯿﻤﺎرس اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ ﻛﻤﮭﻨﺔ‬
‫أﻋﻤ ﺎل اﻟﺘ ﺎﺟﺮ ﺳ ﺘﻜﻮن ﺧﺎﺿ ﻌﺔ ﻟﻠﻘ ﺎﻧﻮن اﻟﺘﺠ ﺎري وﻟﮭ ﺎ ﻃﺒﯿﻌ ﺔ ﺗﺠﺎرﯾ ﺔ إذا ﻛﺎﻧ ﺖ ﻣ ﺸﺎﺑﮭﮫ ﻟﻤﮭﻨﺘ ﮫ ﺑﯿﻨﻤ ﺎ اﻷﻋﻤ ﺎل‬
‫اﻷﺧﺮى واﻟﺘﻲ ﻻ ﺗﺘﻤﺎﺛﻞ ﻣﻊ ﻣﮭﻨﺘﮫ ﺳﺘﻌﺘﺒﺮ أﻋﻤﺎل ﻣﺪﻧﯿﺔ ﻣﺜﻞ اﻟﺰواج واﻟﻄﻼق اﻟﺦ‬

This criteria was criticized because it does not define the commercial acts
‫ھﺬه اﻟﺨﺎﺻﯿﺔ اﻧﺘﻘﺪت ﺑﺴﺒﺐ إﻧﮭﺎ ﻻ ﺗﻌﻄﻲ ﺗﻌﺮﯾﻔﺎ ﻟﻸﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ‬

4 - The Enterprise:
‫اﻟﻤﺆﺳﺴﺔ‬

The distinction between the commercial acts and civil acts

‫اﻟﺘﻤﯿﯿﺰ ﺑﯿﻦ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ واﻷﻋﻤﺎل اﻟﻤﺪﻧﯿﺔ‬

1 - legal jurisdiction :

Most of countries makes deference between commercial law and civil law
where they have to judicial systems (civil courts and commercial courts) such
as France and Belgium,

‫أﻛﺜﺮ اﻟﺪول ﺗﻀﻊ ﻓﺮﻗﺎ ﺑﯿﻦ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري واﻟﻘﺎﻧﻮن اﻟﻤﺤﻠﻲ ﺣﯿﺚ ﯾﻜ ﻮن ﻟﮭ ﺬه اﻟ ﺪول ﻧﻈ ﺎﻣﯿﻦ ﻗ ﻀﺎﺋﯿﯿﻦ )ﻣﺤ ﺎﻛﻢ‬
. ‫ﻣﺪﻧﯿﺔ وﻣﺤﺎﻛﻢ ﺗﺠﺎرﯾﺔ ( ﻣﺜﻞ ﻓﺮﻧﺴﺎ وﺑﻠﺠﯿﻜﺎ‬

Bahrain adopted one judicial system for both civil and commercial court ,
where the same court will look in the commercial case and use the
commercial law and look into the civil case and use the civil law.

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‫اﻟﺒﺤﺮﯾﻦ ﺗﺒﻨ ﺖ ﻧﻈ ﺎم ﻗ ﻀﺎﺋﻲ ﻣ ﺰدوج ﻟﻜ ﻞ ﻣ ﻦ اﻟﻤﺤ ﺎﻛﻢ اﻟﻤﺪﻧﯿ ﺔ واﻟﺘﺠﺎرﯾ ﺔ ﺣﯿ ﺚ أن اﻟﻤﺤﻜﻤ ﺔ ﻧﻔ ﺴﮭﺎ ﺳ ﺘﻨﻈﺮ ﻓ ﻲ‬
‫اﻟﻘﻀﯿﺔ اﻟﺘﺠﺎرﯾﺔ وﺗﺴﺘﺨﺪم اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري أو ﻓﻲ اﻟﻘﻀﯿﺔ اﻟﻤﺪﻧﯿﺔ وﺗﺴﺘﺨﺪم اﻟﻘﺎﻧﻮن اﻟﻤﺪﻧﻲ ‪.‬‬

‫‪2 - Direct Execution :‬‬

‫اﻟﺘﻨﻔﯿﺬ اﻟﻤﺒﺎﺷﺮ‬

‫‪Very important deference between the civil acts and commercial acts is that‬‬
‫‪the commercial cases must have fast judgments and direct execution such as‬‬
‫‪in the cases of bankruptcy, commercial paper etc‬‬

‫ﻓﺮق ﻣﮭﻢ ﺟﺪا ﺑﯿﻦ اﻷﻋﻤﺎل اﻟﺘﺠﺎرﯾﺔ واﻷﻋﻤ ﺎل اﻟﻤﺪﻧﯿ ﺔ ھ ﻮ أن ﻓ ﻲ اﻟﻘ ﻀﺎﯾﺎ اﻟﺘﺠﺎرﯾ ﺔ ﯾﺠ ﺐ أن ﯾﻜ ﻮن ھﻨ ﺎك ﺣﻜ ﻢ‬
‫ﻗﻀﺎﺋﻲ ﺳﺮﯾﻊ وﺗﻨﻔﯿﺬ ﻣﺒﺎﺷﺮ ﻟﻠﺤﻜﻢ ﻛﻤﺎ ھﻲ اﻟﺤﺎﻟﺔ ﻓﻲ ﻗﻀﺎﯾﺎ اﻹﻓﻼس واﻷوراق اﻟﺘﺠﺎرﯾﺔ‬

‫‪The civil judgment need dogmatism degree to be executed while commercial‬‬

‫‪judgment will be executed immediately‬‬

‫اﻟﺤﻜﻢ اﻟﻤﺪﻧﻲ ﯾﺤﺘﺎج إﻟﻰ اﻛﺘﺴﺎب اﻟﺪرﺟﺔ اﻟﻘﻄﻌﯿﺔ ﻟﻜﻲ ﯾﺘﻢ ﺗﻨﻔﯿﺬه ﺑﯿﻨﻤﺎ اﻟﺤﻜﻢ ﻓﻲ اﻟﺘﺠﺎري ﺳﯿﻨﻔﺬ ﻓﻮرا ‪.‬‬

‫‪3 - Freedom of Proof:‬‬

‫ﺣﺮﯾﺔ اﻹﺛﺒﺎت‬

‫‪The cases in commercial law can be proved by all means of proof , because‬‬
‫‪of the nature of the commercial world and because delay in the commercial‬‬
‫‪cases will cost money‬‬

‫اﻟﻘﻀﺎﯾﺎ ﻓﻲ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﯾﻤﻜﻦ إﺛﺒﺎﺗﮭﺎ ﺑﻜﻞ وﺳﺎﺋﻞ اﻹﺛﺒﺎت ‪ ،‬ﺑﺴﺒﺐ ﻃﺒﯿﻌﺔ اﻟﻌﺎﻟﻢ اﻟﺘﺠﺎري وﺑ ﺴﺒﺐ أن اﻟﺘ ﺄﺧﯿﺮ‬
‫ﻓﻲ اﻟﻘﻀﺎﯾﺎ اﻟﺘﺠﺎرﯾﺔ ﯾﻜﻠﻒ ﻧﻘﻮدا ‪.‬‬

‫‪4 - Solidarity Between Debtors :‬‬

‫اﻟﺘﻀﺎﻣﻦ ﺑﯿﻦ اﻟﺪاﺋﻨﯿﻦ‬

‫‪If a person gives a loan to several persons jointly, then they will be all jointly‬‬
‫‪liable for this debt, and he can claim the debt from anyone of them. And the‬‬
‫‪creditor can take legal actions against them jointly also‬‬

‫إذا أﻋﻄﻰ ﺷﺨﺼﺎ ﻗﺮﺿﺎ إﻟﻰ ﻣﺠﻤﻮﻋﺔ ﻣﻦ اﻷﺷﺨﺎص ﺑﺼﻮرة ﻣﺸﺘﺮﻛﺔ ‪ ،‬ﻓﺈﻧﮭﻢ ﺳﯿﻜﻮﻧﻮن ﻣﺘﻀﺎﻣﻨﯿﻦ ﻣﺴﺌﻮﻟﯿﻦ ﻋﻦ‬
‫اﻟﻘ ﺮض ‪ .‬وﯾﻤﻜ ﻦ ﻟﻠ ﺸﺨﺺ أن ﯾﻄﺎﻟ ﺐ أي ﻣ ﻨﮭﻢ ﺑ ﺎﻟﻘﺮض ‪ .‬وﯾﻤﻜ ﻦ ﻟﻠ ﺪاﺋﻦ أن ﯾﺘﺨ ﺬ إﺟ ﺮاءات ﻗﺎﻧﻮﻧﯿ ﺔ ﺿ ﺪھﻢ‬
‫ﻣﺸﺘﺮﻛﯿﻦ وﻣﺘﻀﺎﻣﻨﯿﻦ‬

‫‪5 - Grace period :‬‬

‫ﻓﺘﺮة اﻟﺴﻤﺎح‬

‫‪The grace period in civil cases is more than the grace period in the‬‬
‫‪commercial cases where in some cases the judge will not give grace period if‬‬
‫‪this will effect the victim , such as in case of commercial papers.‬‬
‫ﻓﺘﺮة اﻟﺴﻤﺎح ﻓﻲ اﻟﻘﻀﺎﯾﺎ اﻟﻤﺪﻧﯿﺔ ھﻲ أﻛﺜﺮ ﻣﻨﮭﺎ ﻓﻲ اﻟﻘﻀﺎﯾﺎ اﻟﺘﺠﺎرﯾﺔ ﺣﯿﺚ ﻓﻲ ﺑﻌﺾ اﻟﻘﻀﺎﯾﺎ ﯾﻤﻜﻦ ﻟﻠﻘﺎﺿﻲ أن ﻻ‬
‫ﯾﻤﻨﺢ ﻓﺘﺮة ﺳﻤﺎح إذا ﻛﺎﻧﺖ ھﺬه اﻟﻔﺘﺮة ﺳﺘﺆﺛﺮ ﻓﻲ اﻟﻀﺤﯿﺔ ‪ ،‬ﻛﻤﺎ اﻟﺤﺎل ﻓﻲ ﻗﻀﺎﯾﺎ اﻷوراق اﻟﺘﺠﺎرﯾﺔ ‪.‬‬

‫‪4‬‬
6 - Interest :
‫اﻟﻔﺎﺋﺪة‬

The interest in the commercial cases are more than what they are in the civil
cases because the commercial life is more risky from the civil life
‫اﻟﻔﺎﺋﺪة ﻓﻲ اﻟﻘﻀﺎﯾﺎ اﻟﺘﺠﺎرﯾﺔ ھﻲ أﻛﺜﺮ ﻣﻤﺎ ھﻲ ﻓﻲ اﻟﻘﻀﺎﯾﺎ اﻟﻤﺪﻧﯿﺔ ﺣﯿﺚ أن اﻷﻋﻤ ﺎل اﻟﺘﺠﺎرﯾ ﺔ ھ ﻲ أﻛﺜ ﺮ ﺧﻄ ﻮرة‬
‫ﻣﻦ اﻷﻋﻤﺎل اﻟﻤﺪﻧﯿﺔ‬

The interest rate will be fixed by the parties but will not be more than 7%
% 7 ‫ﺳﻌﺮ اﻟﻔﺎﺋﺪة ﺳﯿﺘﻢ ﺗﺤﺪﯾﺪه ﻣﻦ ﻗﺒﻞ أﻃﺮاف اﻟﻌﻘﺪ وﻟﻜﻦ ﯾﺠﺐ أن ﻻ ﯾﺰﯾﺪ ﻋﻦ‬

The Bahrain commercial law state that : -

: ‫اﻟﻘﺎﻧﻮن اﻟﺒﺤﺮﯾﻨﻲ اﻟﺘﺠﺎري ﯾﻨﺺ ﻋﻠﻰ أن‬

interest for not paying the dept will start at the maturity date
. (‫اﻟﻔﺎﺋﺪة ﻟﻌﺪم دﻓﻊ اﻟﻘﺮض ﺑﺪأ ﻣﻦ ﺗﺎرﯾﺦ اﻟﻨﻀﺞ ) ﺗﺎرﯾﺦ اﺳﺘﺤﻘﺎق اﻟﻘﺮض‬

the interest must not be more than the amount of the principle loan
‫ﯾﺠﺐ أن ﻻ ﺗﺰﯾﺪ اﻟﻔﺎﺋﺪة ﻋﻦ ﻗﯿﻤﺔ أﺻﻞ اﻟﻘﺮض‬

The creditor can ask for additional payments as compensations because of

damage without the need for proving such damage
‫ﯾﻤﻜﻦ ﻟﻠﺪاﺋﻦ أن ﯾﻄﺎﻟﺐ ﺑﻤﺒﺎﻟﻎ ﺗﻌﻮﯾﺾ ﺑﺴﺒﺐ اﻷﺿﺮار ﺑﺪون اﻟﺤﺎﺟﺔ إﻟﻰ إﺛﺒﺎت ھﺬه اﻷﺿﺮار‬

Prescriptions :
‫اﻟﺘﻘﺎدم‬

Prescription is the period of time ,where at the end of it, the rights of the
creditor and court judgment will have no effect

‫اﻟﺘﻘﺎدم ھﻮ اﻟﻔﺘﺮة اﻟﺰﻣﻨﯿﺔ اﻟﺘﻲ ﻋﻨﺪ اﻧﺘﮭﺎﺋﮭﺎ ﻓﺈن ﺣﻘﻮق اﻟﺪاﺋﻦ وﻗﺮارات اﻟﻤﺤﻜﻤﺔ ﻟﻦ ﯾﻜﻮن ﻟﮭﺎ ﺗﺄﺛﯿﺮ‬

In the civil courts, the prescription is 15 years, while in most Arab countries
the commercial prescription will be 7 years, and in Egypt 10 years

‫ ﺳﻨﻮات وﻓﻲ‬7 ‫ ﺳﻨﺔ ﺑﯿﻨﻤﺎ ﻓﻲ ﻣﻌﻈﻢ اﻟﺪول اﻟﻌﺮﺑﯿﺔ ﻓﺎن اﻟﺘﻘﺎدم اﻟﺘﺠﺎري ھﻮ‬15 ‫ﻓﻲ اﻟﻤﺤﺎﻛﻢ اﻟﻤﺪﻧﯿﺔ ﻓﺄن اﻟﺘﻘﺎدم ھﻮ‬
. ‫ ﺳﻨﻮات‬10 ‫ﻣﺼﺮ‬

5
 Chapter 2
SOURCES OF COMMERCIAL LAW

The Sources of Commercial law are : -

-: ‫ﻣﺼﺎدر اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ھﻲ‬

1 - Commercial Legislation:
‫اﻟﺘﺸﺮﯾﻊ اﻟﺘﺠﺎري‬

legislation means legal rules made by proper authority (in Bahrain the
National Assembly ), in order to control the people acts.
‫اﻟﺘﺸﺮﯾﻊ ﯾﻌﻨﻲ اﻟﻘﻮاﻋﺪ اﻟﻘﺎﻧﻮﻧﯿﺔ اﻟﺘﻲ ﺗﺼﺪرھﺎ ﺳﻠﻄﺔ ﻣﻼﺋﻤﺔ ) ﻓﻲ اﻟﺒﺤﺮﯾﻦ ھ ﻲ اﻟﻤﺠﻠ ﺲ اﻟ ﻮﻃﻨﻲ( ﻟﻐ ﺮض ﺗﻨﻈ ﯿﻢ‬
‫ﺗﺼﺮﻓﺎت اﻷﻓﺮاد‬
All legislation must be published in the Official Gazette to be active.
. ‫ﺟﻤﯿﻊ اﻟﺘﺸﺮﯾﻌﺎت ﯾﺠﺐ أن ﺗﻨﺸﺮ ﻓﻲ اﻟﺠﺮﯾﺪة اﻟﺮﺳﻤﯿﺔ ﻟﻜﻲ ﺗﺼﺒﺢ ﻓﻌﺎﻟﺔ‬

The commercial Law in Bahrain it is based on the law of commerce 7 of 1987

and other laws related to it
. ‫ وﻗﻮاﻧﯿﻦ أﺧﺮى ﻣﺮﺗﺒﻄﺔ ﻣﻌﮫ‬1987 ‫ ﻟﺴﻨﺔ‬7 ‫اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﻓﻲ اﻟﺒﺤﺮﯾﻦ ﯾﺴﺘﻨﺪ إﻟﻰ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري رﻗﻢ‬

2 - Agreement:
-: ‫اﻻﺗﻔﺎﻗﺎت‬

The contract results from the agreement between the parties of the contract,
the Bahrain commercial Law state that any contract must comply with the law.
‫ اﻟﻘ ﺎﻧﻮن اﻟﺘﺠ ﺎري اﻟﺒﺤﺮﯾﻨ ﻲ ﯾ ﻨﺺ ﻋﻠ ﻰ أن أي ﻋﻘ ﺪ ﯾﺠ ﺐ أن ﯾﺨ ﻀﻊ‬، ‫اﻟﻌﻘﺪ ﯾﻨﺘﺞ ﻋﻦ اﻻﺗﻔﺎق ﺑﯿﻦ أﻃﺮاف اﻟﻌﻘﺪ‬
. ‫ﻟﻠﻘﺎﻧﻮن‬
That means any contract must have:
-: ‫ھﺬا ﯾﻌﻨﻲ أن أي ﻋﻘﺪ ﯾﺠﺐ أن ﯾﻜﻮن ﻓﯿﮫ‬

A) mandatory rules:
: ‫أ ( اﻟﻘﻮاﻋﺪ اﻹﻟﺰاﻣﯿﺔ‬

This rules can not be broken by the agreement between the parties, and in
case the contract does not comply with these rules then the contract will be
void and null, an example of these mandatory rules , the commercial Books
must not have blanks, deletion etc..
‫ ﻓ ﺈن‬، ‫ وﻓ ﻲ ﺣﺎﻟ ﺔ أن اﻟﻌﻘ ﺪ ﻻ ﯾﺨ ﻀﻊ ﻟﮭ ﺬه اﻟﻘﻮاﻋ ﺪ‬، ‫ھﺬه اﻟﻘﻮاﻋﺪ ﻻﯾﻤﻜﻦ ﻛﺴﺮھﺎ ﻣﻦ ﻗﺒﻞ اﻻﺗﻔﺎق ﺑ ﯿﻦ اﻷﻃ ﺮاف‬
‫ ﻛﻤﺜﺎل ﻋﻠﻰ ھ ﺬه اﻟﻘﻮاﻋ ﺪ اﻹﻟﺰاﻣﯿ ﺔ أن اﻟ ﺴﺠﻼت اﻟﺘﺠﺎرﯾ ﺔ ﯾﺠ ﺐ أن ﺗﺨﻠ ﻮ ﻣ ﻦ‬، ‫اﻟﻌﻘﺪ ﺳﯿﺼﺒﺢ ﻏﯿﺮ ﻧﺎﻓﺬا وﺑﺎﻃﻼ‬
‫اﻟﻔﺮاﻏﺎت واﻟﺤﺬف اﻟﺦ‬

B) complementary rules:
: ‫اﻟﻘﻮاﻋﺪ اﻻﺧﺘﯿﺎرﯾﺔ‬
These rules are according to the will of the parties.
‫ھﺬه اﻟﻘﻮاﻋﺪ ھﻲ ﻃﺒﻘﺎ ﻟﺮﻏﺒﺔ أﻃﺮاف اﻟﻌﻘﺪ‬
Each agreement must have the following :
-: ‫ﻛﻞ ﻋﻘﺪ ﯾﺠﺐ أن ﯾﺤﺘﻮي ﻋﻠﻰ ﻣﺎ ﯾﻠﻲ‬
(contract ingredients)
( ‫)ﻣﻜﻮﻧﺎت اﻟﻌﻘﺪ‬

6
 • Offer which is expect.
‫ﻋﺮض ﻣﻊ ﻗﺒﻮل‬
• Both parties must intent to enter into legal.
‫ﻛﻼ اﻟﻄﺮﻓﯿﻦ ﯾﺠﺐ أن ﺗﻜﻮن ﻟﮭﻤﺎ اﻟﻨﯿﺔ ﻓﻲ اﻟﺪﺧﻮل ﻓﻲ اﻟﻌﻘﺪ‬
• Both parties must have capacity to enter into contract .
‫ﯾﺠﺐ إن ﯾﻜﻮن ﻟﻜﻼ اﻟﻄﺮﻓﯿﻦ اﻷھﻠﯿﺔ ﻟﻠﺪﺧﻮل ﻓﻲ اﻟﻌﻘﺪ‬
• The contract is not made by mistake.
‫ﻟﻢ ﯾﺘﻢ إﻧﺸﺎء اﻟﻌﻘﺪ ﻋﻦ ﻃﺮﯾﻖ اﻟﺨﻄﺄ‬
• The object of the contract must be legal.
‫ھﺪف اﻟﻌﻘﺪ ﯾﺠﺐ أن ﻻ ﯾﻜﻮن ﻏﯿﺮ ﻗﺎﻧﻮﻧﻲ‬

3 - Commercial Custom :
: ‫اﻟﻌﺮف اﻟﺘﺠﺎري‬

This is the most important source of commercial Law, the court will use this
source if there is no legislation and there is no agreement.

‫ واﻟﻤﺤﻜﻤﺔ ﺳﺘﺴﺘﺨﺪم ھﺬا اﻟﻤﺼﺪر إذا ﻟﻢ ﯾﻜﻦ ھﻨﺎك ﺗﺸﺮﯾﻊ وﻟﻢ‬، ‫ھﺬا ھﻮ أھﻢ ﻣﺼﺪر ﻣﻦ ﻣﺼﺎدر اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري‬
. ‫ﯾﻜﻦ ھﻨﺎك اﺗﻔﺎق ﻣﻜﺘﻮب‬
The commercial Practice must be general, old, stable, continuous.

‫ﻋﺎﻣﺔ – ﻗﺪﯾﻤﺔ – ﻣﺴﺘﻘﺮة – ﻣﺴﺘﻤﺮة‬ ‫اﻟﻤﻤﺎرﺳﺔ اﻟﺘﺠﺎرﯾﺔ ﯾﺠﺐ إن ﺗﻜﻮن‬

the difference between the commercial usage (habit) and the commercial
custom is that the usage is not considered as binding while the custom is
considered as binding by the traders

‫اﻟﻔﺮق ﺑﯿﻦ اﻟﻌﺎدة اﻟﺘﺠﺎرﯾﺔ واﻟﻌﺮف اﻟﺘﺠ ﺎري ھ ﻮ أن اﻟﻌ ﺎدة اﻟﺘﺠﺎرﯾ ﺔ ﻏﯿ ﺮ ﻣﻠﺰﻣ ﺔ ﻟﻠﺘﺠ ﺎر ﺑﯿﻨﻤ ﺎ اﻟﻌ ﺮف اﻟﺘﺠﺎرﯾ ﺔ‬
. ‫ﯾﻌﺘﺒﺮ ﻣﻠﺰﻣﺎ ﻟﻠﺘﺠﺎر‬
Commercial Custom have two elements:
: ‫ﻟﻠﻌﺮف اﻟﺘﺠﺎري ﻋﻨﺼﺮﯾﻦ‬

1 - Material element:
: ‫اﻟﻌﻨﺼﺮ اﻟﻤﺎدي‬
This is the rule followed by the traders for a long time.
‫ھﺬه ھﻲ اﻟﻘﺎﻋﺪة اﻟﻤﺘﺒﻌﺔ ﻣﻦ ﻗﺒﻞ اﻟﺘﺠﺎر ﻟﻔﺘﺮة زﻣﻨﯿﺔ ﻃﻮﯾﻠﺔ‬

2 - Psychological element :
‫اﻟﻌﻨﺼﺮ اﻟﺴﯿﻜﻮﻟﻮﺟﻲ‬

This is the believe by the traders that they are bonded by the rule.
‫ھﺬا ھﻮ اﻻﻋﺘﻘﺎد ﻣﻦ ﻗﺒﻞ اﻟﺘﺠﺎر ﺑﺄﻧﮭﻢ ﻣﻠﺰﻣﻮن ﺑﺎﻟﻘﺎﻋﺪة‬

7
4 - Provisions of the civil Law:
: ‫ﻧﺼﻮص اﻟﻘﺎﻧﻮن اﻟﻤﺪﻧﻲ‬
Civil law is the source of all other branches of privet law. So if the commercial
matter is not government by the commercial law then the provisions of the
civil law will apply.

‫ وﻟﮭ ﺬا ﻓ ﺈن ﻛ ﺎن اﻷﻣ ﺮ اﻟﺘﺠ ﺎري ﻏﯿ ﺮ ﺧﺎﺿ ﻊ‬، ‫اﻟﻘﺎﻧﻮن اﻟﻤﺪﻧﻲ ھﻮ اﻟﻤﺼﺪر ﻟﻜﻞ ﻓﺮوع اﻟﻘﺎﻧﻮن اﻟﺨﺎص اﻷﺧ ﺮى‬
‫ﻟﻠﻘﺎﻧﻮن اﻟﺘﺠﺎري ﻓﺎن ﻧﺼﻮص اﻟﻘﺎﻧﻮن اﻟﻤﺪﻧﻲ ﺳﺘﻄﺒﻖ ﻋﻠﯿﮫ‬

Chapter (4)
Classifications of Commercial acts

We can calcify commercial acts as follow :-

"‫ﯾﻤﻜﻦ أن ﻧﺼﻨﻒ اﻷﻓﻌﺎل اﻟﺘﺠﺎرﯾﺔ ﻛﺎﻟﺘﺎﻟﻲ‬

A- commercial act by nature

‫اﻷﻓﻌﺎل اﻟﺘﺠﺎرﯾﺔ ﺑﻄﺒﯿﻌﺘﮭﺎ‬

It includes activities which are commercial by their nature regardless of the

person doing them. And they are commercial by nature even if they are done
for one time only.
‫ وھﻲ ﺗﺠﺎرﯾﺔ ﺑﺎﻟﻄﺒﯿﻌ ﺔ‬. ‫ھﺬا ﯾﺘﻀﻤﻦ اﻷﻓﻌﺎل اﻟﺘﻲ ھﻲ ﺗﺠﺎرﯾﺔ ﺑﻄﺒﯿﻌﺘﮭﺎ ﺑﻐﺾ اﻟﻨﻈﺮ ﻋﻦ اﻟﺸﺨﺺ اﻟﺬي ﯾﻘﻮم ﺑﮭﺎ‬
‫ﺣﺘﻰ ﻟﻮ ﻣﻮرﺳﺖ ﻣﺮة واﺣﺪ ﻓﻘﻂ‬
Examples of such acts are :-
‫ﻣﺜﺎل ﻋﻠﻰ ھﺬه اﻷﻓﻌﺎل‬

1- Purchase of movables for the purpose of selling of leasing them.

‫ﺷﺮاء اﻟﻤﻨﻘﻮﻻت ﺑﻐﺮض ﺑﯿﻌﮭﺎ أو ﺗﺄﺟﯿﺮھﺎ‬

The purchase of goods means the transfer of ownership from one party to
another, (from the seller to the buyer) . and the movable thing is a thing that is
not fixed and can be moved from one place to another.
‫ واﻟﻤﻨﻘﻮﻻت ھﻲ اﻷﺷﯿﺎء اﻟﺘﻲ‬. (‫ﺷﺮاء اﻟﺒﻀﺎﺋﻊ ﯾﻌﻨﻲ اﻧﺘﻘﺎل ﻣﻠﻜﯿﺘﮭﺎ ﻣﻦ ﻃﺮف إﻟﻰ آﺧﺮ ) ﻣﻦ اﻟﺒﺎﺋﻊ إﻟﻰ اﻟﻤﺸﺘﺮي‬
‫ﻟﯿﺴﺖ ﺛﺎﺑﺘﺔ وﯾﻤﻜﻦ ﻧﻔﻠﮭﺎ ﻣﻦ ﻣﻜﺎن إﻟﻰ آﺧﺮ‬

The Bahraini law state that the purchase must be in exchange of return, so if
somebody donate something to other person then this is not considered as
purchase because there is no return.
‫ وﻟﮭﺬا ﻓﺈذا ﻗﺎم ﺷﺨﺺ ﺑﺎﻟﺘﺒﺮع ﺑﺸﻲ ﻣﺎ‬، ‫اﻟﻘﺎﻧﻮن اﻟﺒﺤﺮﯾﻨﻲ ﯾﻨﺺ ﻋﻠﻰ أن اﻟﺸﺮاء ﯾﺠﺐ أن ﯾﻜﻮن ﻓﻲ ﻣﻘﺎﺑﻞ ﻋﺎﺋﺪ‬
. ‫إﻟﻰ ﺷﺨﺺ آﺧﺮ ﻓﺎن ھﺬا ﻟﻦ ﯾﻌﺘﺒﺮ ﻋﻤﻠﯿﺔ ﺷﺮاء ﻷﻧﮫ ﻟﯿﺲ ھﻨﺎك ﻋﺎﺋﺪ‬

The purchase must be with the intention of re-selling or leasing the items.
Otherwise it will not be considered as Commercial act. Also the purchase will
be considered as Commercial act regardless whether it will be sold in it's
original form or after changing it.

8
The act will be considered commercial act if – at the time of purchase – the
intention was to resell or lease the items in order to make profit, so if the
purchase was made without the intention to make profit then it will be
considered as civil act not commercial act, for example if student union buy
pens in order to resell them to students at cost price – no profit- then this act
will be civil act and not commercial act.

2- lease of movables with the intent to release them.

According to the commercial law of Bahrain the act of renting movables with
the intention of re-renting it is considered as commercial act. The person
renting the movables must prove the intention of re-renting in front of the
court. The act will be Commercial act even if the renters make no profit,
because in the moment of rent he had the intention of making profit.

3- Establishing of commercial Companies.

the Bahraini commercial law defines the company as (a contract where two or
more parts agrees to participate in a business with the intention of making
profit where each party will put a share of the capital, and the profit or loss will
be divided between them.)

The Bahrain commercial laws considered the establishing of a company as

commercial act regardless of the nature of the company.

Article 2 of the commercial companies law state the forms of companies as :-

A- Partnership under a collective name

B- Simple commandite partnership
C- Association in participation
D- Joint stock company
E- Commandite company by shares
F- Company with limited liability
G- Sole proprietorship
H- Holding company

4 – Maritime and Air Navigation Acts

article 4 of the commercial law of Bahrain provide that “ all activities relating to
maritime and air navigation shall be considered as commercial acts”

such as:-

1. construction, repair or maintenance of ships and aircrafts

2. purchase, sale, charter of ships and aircrafts with the intention of using
them in commercial way

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 3. purchase of materials to supply ships and aircrafts

4. sea and air transport

5. loading and unloading operations

6. contracts regarding the employment of staff for ships and aircrafts

7. lending and borrowing

Construction, repair or maintenance of ships and aircrafts

According to article 4 theses acts will be considered as commercial acts as

long as they are related to commercial navigation, that is if the ship or aircraft
are used for personal activities and not for commercial reasons then these
acts will be civil acts but if the ship or aircraft is used for commercial activities
then these acts will be considered as commercial acts.
The law dose not require theses acts to be done in the form of enterprise or
as profession to be commercial .

Purchase, sale, charter of ships and aircrafts with the intention of using
them in commercial way

According to article 4/2 these acts if they are made with the intention of
making profit.
If the purchase of ship or aircraft is for private use then it will not be
considered as commercial act but it will be as civil act.
If the ships and aircrafts are for commercial use then the Purchase, sale,
charter of such shills and aircrafts will be considered as commercial acts.

Purchase of materials to supply ships and aircrafts

According to article 4/3 of the Bahraini commercial law, the purchase of

equipment and materials for the purpose to supply ships and aircraft are
considered as commercial acts, if these ships and aircrafts are used for
commercial activities.

If the purchase of such materials ( such as food, oil, fuel, etc ) are for ships
and aircrafts which are used for personal usage then these acts are civil acts.

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Air and sea transport

The Bahraini commercial law in article 4/4 consider all acts of transport in sea
or air as commercial acts as long as they are made as commercial activities
even if they are practiced for one time only.

These acts will be considered commercial acts regardless of the person who
practice them.

Theses acts will be commercial acts for the carrier but not for the passenger

B- Commercial act by profession.

These act are conceders as Commercial act only if they are practiced as
profession.

1- Supply, export and distribution of goods.

The Bahraini commerce law state that these acts are commercial acts as long
as they are practices as profession

The supply means that a person is liable to deliver, on regular basis, goods
or services to another party, such as supplying food to hospitals, or raw
materials to factories.

The export and distribution of goods are considered as commercial acts if

they are practiced as profession.

2- Banking operation and many exchanges.

According to article 5/7, all acts of banks such as debit or credit transaction,
are conceders Commercial acts because they are practices as profession.
The bank aim is to make profit and all actions of the bank are conceders
Commercial actions even if the bank makes some free service.

Money exchange operations are Commercial acts as long they are as

profession. So the act of exchanging money between friends and family is not
considered as commercial acts because it is not practiced as profession.

C – Accessory Commercial Acts.

According to articles 6 and 7 of the Bahraini commercial law, the acts that are
practiced by the trader are considered commercial acts if they are related to
his profession.

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These are civil acts but are considered as commercial acts if they are done by
the trader in relation to his business. Such as the insurance contracts

According to the Bahraini commercial law , the commercial character will be

given to civil acts if :

1. The act is practiced by a trader

2. The act should be related to his commerce

So the acts that are practiced by a trader but are related to his private life are
not considered as commercial acts and they will remain as civil acts.

These acts are related to the trader obligations which are :-

1. Traders contractual obligations

These are the transactions done by the trader for the benefit of his
business such as purchase of items for his business, opening accounts for
the business etc

2. Traders non – contractual obligations

These are obligations resulting from the commercial activities of the trader
such as the obligation to pay any damage caused by his employees during
work .

Chapter (5)
Trader

According to article 9 of the law commerce of Bahrain the trader is:

1. Every person with commercial capacity and who works in commerce in

his own name and for his own profit, as profession.

2. Every company established according to the provision of the Bahraini

commercial companies law regardless of it's objects, and it's form.

The commercial companies law give these forms for companies in

Bahrain :-

A- Partnership under a collective name

B- Simple commandite partnership
C- Association in participation
D- Joint stock company
E- Commandite company by shares
F- Company with limited liability

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 G- Sole proprietorship
H- Holding company

The trader can be natural person or artificial person , for a natural person to
have the character of trader the law required these condition.

First: professionalism of commercial acts.

Professionalism means that the person must practice the Commercial act as
profession and must be practiced with
A- rapidity,
B- regularly,
C- continuously,
D- and in order to make a living (as away of making a living)
and the Commercial act must be legal. So the trader character will not be
granted to any person how practice Commercial act which are against the
law or public order or morality.

Finally, the character of the trader will be granted to the person regardless of
the size of his capital or his business.

Second: professionalism in the name and for the account of a trader.

The person who practices Commercial acts must practice them in his name
and for his account. So any person who practice Commercial acts in the name
of other person or for the account of another person is not a trade, that means
all employees who are working in a company or a shop and practicing
Commercial acts are not considered as traders, even if they are practicing this
act as profession, unless if the worker or employee is director-partner.

Third: commercial Capacity

Capacity means the ability of a person to do legal acts by himself and have
legal rights and liabilities.

So the commercial Capacity is the ability of a person to do Commercial

activities as profession and bear obligation from these acts.

According to the Bahrain commercial Law the, any person in Bahrain -

regardless of sex - will have commercial Capacity when he is 18 years or
older, and can have the character of trader if he practice commercial activities
as profession. However, the commercial Capacity is affected by other things
such as the mental ability of a person or other incapacity reasons.

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So the commercial capacity will not be granted to persons how are unable to
be reasonable for these acts, also the commercial capacity will not be
granted to certain people how have certain jobs such as lawyers, judges,
ministers, parliament members etc... This is temporary case regarding their
jobs and they will have commercial Capacity once they leave the job.

Liability of a minor and distrained person

According to article 11/3 of the law of commerce , the minor or distrained

persons have limited liability , that mean he is responsible for the debt of the
business to the size of his share in the capital and not the all his personal
funds
‫ﻣﺴﺆوﻟﯿﺔ اﻟﻘﺎﺻﺮﯾﻦ واﻟﻤﺤﺠﻮر ﻋﻠﯿﮭﻢ‬
‫ ھﺬا‬. ‫ ﻓﺈن اﻷﺷﺨﺎص اﻟﻘﺎﺻﺮﯾﻦ واﻟﻤﺤﺠﻮر ﻋﻠﯿﮭﻢ ﻟﮭﻢ ﻣﺴﺆوﻟﯿﺔ ﻣﺤﺪودة‬، ‫ ﻣﻦ اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري‬3/11 ‫ﻃﺒﻘﺎ ﻟﻠﻤﺎدة‬
. ‫ﯾﻌﻨﻲ ﺑﺄﻧﮫ ﻣﺴﺆول ﻋﻦ دﯾﻦ اﻟﺸﺮﻛﺔ إﻟﻰ ﺣﺠﻢ ﺣﺼﺘﮫ ﻓﻲ رأﺳﻤﺎل اﻟﺸﺮﻛﺔ وﻟﯿﺲ إﻟﻰ ﻣﻤﺘﻠﻜﺎﺗﮫ اﻟﺨﺎﺻﺔ‬

Commercial Capacity of foreigner traders

According to article 16 of the law commerce in / of Bahrain, the foreign trader

is not allowed to do business in Bahrain unless he has a Bahraini partner
these Bahraini partner must have 51% or more of the capital. So the Bahraini
law does not give equal freedom to the foreign trader to work in commerce in
Bahrain that means that the foreign trader capacity is limited.

Commercial capacity of GCC nationals

The Bahraini law of commerce gave the GCC nationals the same status of
Bahraini nationals, that is they can make business in Bahrain if they are 18
years and older, even if they do not have the commercial capacity in their own
country , such as the case in Kuwait where persons will have commercial
capacity when the reach 21 years of age , such person can have commercial
capacity in Bahrain if he reach 18 years of age
‫اﻷھﻠﯿﺔ اﻟﺘﺠﺎرﯾﺔ ﻟﻤﻮاﻃﻨﻲ دول ﻣﺠﻠﺲ اﻟﺘﻌﺎون‬
‫ﻗ ﺎﻧﻮن اﻟﺒﺤ ﺮﯾﻦ اﻟﺘﺠ ﺎري أﻋﻄ ﻰ ﻟﻤ ﻮاﻃﻨﻲ دول ﻣﺠﻠ ﺲ اﻟﺘﻌ ﺎون اﻟﺨﻠﯿﺠ ﻲ ﻧﻔ ﺲ اﻟﻤﻤﯿ ﺰات اﻟﻤﻤﻨﻮﺣ ﺔ ﻟﻠﻤ ﻮاﻃﻦ‬
‫ ﺳﻨﺔ أو اﻛﺜﺮ – ﺣﺘﻰ‬18 ‫اﻟﺒﺤﺮﯾﻨﻲ – ﺣﯿﺚ اﻧﮭﻢ ﯾﻤﻜﻦ أن ﯾﺆﺳﺴﻮن ﻋﻤﻼ ﺗﺠﺎرﯾﺎ ﻓﻲ اﻟﺒﺤﺮﯾﻦ إذا ﻛﺎﻧﺖ أﻋﻤﺎرھﻢ‬
‫ﻟﻮ ﻟﻢ ﯾﻜﻦ ﻟﮭﻢ ﻣﺜ ﻞ ھ ﺬه اﻷھﻠﯿ ﺔ ﻓ ﻲ ﺑﻠ ﺪاﻧﮭﻢ – ﻛﻤ ﺎ اﻟﺤﺎﻟ ﺔ ﻓ ﻲ اﻟﻜﻮﯾ ﺖ ﺣﯿ ﺚ ﯾﺤ ﺼﻞ اﻟﻤﻮاﻃﻨ ﻮن اﻟﻜﻮﯾﺘﯿ ﻮن ﻓ ﻲ‬
‫ ﺳﻨﺔ ﻣﻦ اﻟﻌﻤ ﺮ وﻣﺜ ﻞ ھ ﺆﻻء اﻷﺷ ﺨﺎص ﯾﻤﻜ ﻦ أن ﺗﻜ ﻮن ﻟﮭ ﻢ اﻷھﻠﯿ ﺔ‬21 ‫اﻟﻜﻮﯾﺖ ﻋﻠﻰ اﻷھﻠﯿﺔ اﻟﺘﺠﺎرﯾﺔ ﺑﺒﻠﻮﻏﮭﻢ‬
‫ ﺳﻨﺔ ﻣﻦ اﻟﻌﻤﺮ‬18 ‫اﻟﺘﺠﺎرﯾﺔ ﻓﻲ اﻟﺒﺤﺮﯾﻦ ﺑﻤﺠﺮد ﺑﻠﻮﻏﮭﻢ‬

The position of small craftsmen

Small craftsmen: according to article 17 of law commerce is ((every person

14
who works in occupations that has law capital and small number of workers in
order to make certain income in order to make a living)).

According to the law such craftsmen are not required to have legal accounting
books and they are not required to register in the commercial register, and
they are not under the provisions of the commercial Law.

So small craftsmen to the civil law, but if the craftsmen expand his business to
open a factory and gate more workers than he will be under provisions of the
commercial Law.

The legal obligation of a trader

1 – the legal obligation to bear a commercial name

trader must have commercial name which is made of his name and his
surname and his commercial name must not be registered for another
business and must not be misleading
the name of the commercial companies will be according to the provisions of
the commercial law

the name of the business will not change if new partner join the business or if
one of the partners leave the business even if his name is in the name of the
company as long as this partner agree to keep the name

2 – traders obligation to record his trade name in the commercial

registry

all traders in Bahrain must register there commercial name in the commercial
registry witch will hold the name of the business and all other data regarding
the business as mirror too third party.
The commercial registry has also a statistics function.

All traders must register their business in the commercial registry regardless
of their nationality

3 – traders obligation to keep commercial books

every trader who has capital more than 10,000 BD must hold commercial
books as required by the commercial law
the trader must hold at least these books

A - basic journal book

this book include details of the commercial daily life of the business
where the trader must enter all daily transactions of his business as
well as his personal withdrawal

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B - general ledger

this book will contain all accounts transferred from the journal book
such as cash ,banks ,partners and expenses

the entries in the commercial books by the traders employee well be

considered as being entered by the trader him self

all books must be kept for the period of not less than tow years and banks and
commercial companies will keep microfilm of the books and documents for
five years

the traders must comply with the following:

1- commercial books must not have any blanks , deletions , striking off

2- each page of the books must be numbered and signed by the

commercial register

3- after filling the books the trader must present them to the ministry of
commerce for verifying them

4- in case of stopping the business the trader must submit the books to
the ministry of trade for verifying this action

5- all actions mentioned above is free of charge

if the trader fail to maintain his books then he will be punished with a fine not
les than 100 BD and not more than 1000 BD

4- trader is bound to avoid all sort of unfair competition

These means that trader will not do any fraud or cheating in order to make his
goods the trader must not give falls information regarding the origin or details
of the goods he is selling. The name of the trader must not be used by any
other person, and in case the name was used by another person than the
third party can claim damage. Also the trader must not induce the workers of
another trader to give him information regarding the other trader activities; the
trader must not do any act of unfair competition.

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 Chapter 6
The General Rules of Commercial Obligations

According to the law of commerce in Bahrain the most important rules for the
commercial obligations are :-
-: ‫ﻃﺒﻘﺎ ﻟﻠﻘﺎﻧﻮن اﻟﺘﺠﺎري ﻓﻲ اﻟﺒﺤﺮﯾﻦ ﻓﺎن أھﻢ اﻟﻘﻮاﻋﺪ اﻟﺨﺎﺻﺔ ﺑﺎﻻﻟﺘﺰاﻣﺎت اﻟﺘﺠﺎرﯾﺔ ھﻲ‬

1. If the nature of the contract is commercial to one party then the

commercial law will apply to all parties of the contract
‫إذا ﻛﺎﻧﺖ ﻃﺒﯿﻌﺔ اﻟﻌﻘﺪ ﺗﺠﺎرﯾﺔ ﻟﻄﺮف ﻓﺎن اﻟﻘﺎﻧﻮن اﻟﺘﺠﺎري ﺳﯿﻄﺒﻖ ﻋﻠﻰ ﻛﻞ أﻃﺮاف اﻟﻌﻘﺪ‬

2. Parties liable for commercial debt will be jointly liable for the debt,
unless it is mentioned otherwise in the contract. This means that the
debtor can ask any of the creditors to pay the money back and can
take legal actions against all or any of the liable persons.
‫اﻷﻃﺮاف اﻟﻤﺴﺌﻮﻟﻮن ﻋﻦ اﻟﺪﯾﻦ اﻟﺘﺠﺎري ﺳﯿﻜﻮﻧﻮن ﻣﺴﺌﻮﻟﯿﻦ ﺑﺼﻮرة ﺟﻤﺎﻋﯿﺔ وﺗﻀﺎﻣﻨﯿﺔ ﻋﻦ اﻟﺪﯾﻦ ﻣﺎﻟﻢ ﯾﺬﻛﺮ‬
- ‫ﺧﻼﻓﮫ ﻓﻲ اﻟﻌﻘﺪ‬
This will also apply to the guarantee of commercial debts also, so if
group pf people jointly guarantee a loan then they will also be jointly
liable for the payment of the loan in case of non- payment by the
creditor

3. if the trader take a loan for his business then the loan is a commercial
loan and the provisions of the commercial law will apply to it.
The interest shall be charged according to the legal rate unless it is
agreed otherwise and the interest must not be more than the principal
amount of the loan. The interest rate will not apply if the transaction is
made in foreign currency

4. according to article 77 of the law of commerce in Bahrain, the traders

authority and claims will not end by his death unless his heirs (‫ )اﻟﻮرﺛﺔ‬will
state that they do not want to stay in the business and they will not take
any liabilities if they inform the concerned parties at proper time

5. if there is a certain date to do a contract and the date has passed

without enforcement by the debtor, then the creditor will not be liable to
accept enforcement of the contract.

6. all notice or warnings in commercial matters must be served in

registered letters mail with a delivery notice.

7. all liabilities of the trader in the commercial matter will end after 10
years following the date of the maturity of the such liability

8. commercial books are evidence in legal actions for commercial

matters.

17