Definition of a Trader
Section 4 of the Commercial Code –
The term "trader" means any person who, by profession, exercises acts of trade in his own name, and includes any commercial partnership.
The fact that a person is considered to be trader has certain consequences and brings about certain rights and obligations.
The requirements for becoming a trader:
1. No formality such as registration.
A commercial partnership requires registration.
Break down of section 4
2. exercise of acts of trade.
-The law requires the exercise of objective acts of trade.
- There must be a certain continuity in the exercise of these acts of trade. Therefore a one off transaction does not give a person the status of a trader.
- There is no fixed number of acts of trade which give a status of trader, it all depends on the nature of the act of trade in question, e.g. a person who deals in property may have the status of a trader even if he performs two or three acts of trade a year, but if a green grocer performs two or three transactions per year – he will hardly be considered to be a trader.
- The Court will decide if there is sufficient exercise of acts of trade to allow status of trade.
- The trader need not perform the acts of trade personally, he may perform the through an agent. – WHAT IS IMP IS THAT THE ACTS OF TRADE ARE EXERCISED IN HIS OWN NAME.
- VIP the exercise of acts of trade must be performed with the intention of speculation – “FINIS MERCATORUM LUCRUM EST”.
3. Acts of trade must be exercised in his own name.
* Vis a vis third parties the trader must assume full responsibility for the acts performed by him.
* distinction between trader and persons auxiliary to trade. Agent, director, manager, the commercial traveler, the master of a ship, the curator of a minor are not traders.
4. The exercise of acts of trade must be done by profession.
* The law is not satisfied with a... [continues]
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