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Assignement 3
Legal Environment
Dr Benlamhidi

Alaoui Lala Oumkaltoum


Ait Belhoucine Mariam

April 28, 2008


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1). What is a check and what it should have to be a check?

A great part of the commercial law in Morocco deals with the checks, their

issuance, their validity, and their circulation.

A check is mean of payment instructing a financial institution or a bank to pay a

specific amount of money from a specified demand account held in the maker/

depositors name with that institution. Both the maker of the check and the payee must be

natural persons or legal entities.

In other words, the issuer or maker of the check gives an order to a banker to pay a

certain sum of money with no delay to the beneficiary.

To be a check, it should have the following elements:

The commercial paper should be designed a check in the authority itself and in the

language used for editing it.

The effective order of performing a certain amount.

The name of the issuer of the check (the one who will be withdrawn from its

account).

The location in which the transaction will take place.

The date and place of the establishment of the check.

The name and signature of the withdrawer (the one to whom the check is

destined).

Types of checks:

o Certified checks: is a check that the issuer has certified by a bank. The

banker ensures that the amount for which the check has been issued will

be maintained until the end of the delay of the presentation of the check.
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o Marked Check: the issuer of the check can mark his check by a bank. So

the bank affixes a seal with a mention. The check is dated, signed and the

beneficiary thus knows that the check was covered when it was marked.

This is a limited safety.

o Endorsed Check: the payment of the check is guaranteed by a neutral

third party. The following information must be affixed in the endorsed

check:

*A specific mention

* The name of the person to whom the guarantee is given

*The amount for which the guarantee is given.

* The signature of the issuer of the downstream

o Barred Check: The barred checks that are issued ordinarily freely by

the bank cannot be liquidated by someone who does not have a bank account

because this check is not endorsable


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?What is the new commercial code in Morocco .(2

The new commercial law in Morocco has been implemented by the Dahir No. 1.96.83 of

.the 15 Rabih Alawal of 1417 (August 1, 1996)

:This new commercial law includes five main parts

The trader or mechant .(1

The registry of commerce .(2

The commercial papers .(3

The commercial papers .(4

.The difficulties of enterprises .(5

The commercial law regulates the rules and procedures related to the commercial

.businesses and the traders and merchants

The trade issues are solved under the laws and customs and habits of trade or under civil

.law unless the rules are incompatible with the basic principles of commercial law

.The private and local customs and habits prevail over the public customs and habits

If the work is commercial for one of the contractors and civilian for the other, the rules of

the commercial law should be applied in facing the party who had the commercial work,

but the commercial law cannot be used in facing the party who has the civilian work,

.unless there is an appropriate clause that states something else

The obligations arising from a commercial work between the merchants or between the

merchants and non merchants cannot exceed 5 years before being presenting the case to

.court (statute of limitation), unless there is specific requirements that violates this
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?Who is a merchant and what activities should he perform to be called a merchant

A merchant is someone whose occupation is the wholesale purchase and retail sale of

.goods for profit

According to the Moroccan commercial law, for anyone to acquire the profile of a

:merchant, he should be habitually or professionally practicing the following activities

The purchase of the transportable objects either physical or nonphysical with the .(1

intent to sell them or to sell them after reconfiguring them or with the intention of renting

.them

The purchase of the real estate with the intent to sold them directly or after changing .(2
.them

Industrial activity or craft .(3

Transportation .(4

.The financial transaction and the banking and the loans .(5

.The operation of insurance with fixed premium .(6

.Brokerage and factoring and other acts of mediation .(7

.Exploitation general stores .(8

.Printing and publishing in all its forms and foundations .(9

.Construction and public works .(10

Offices and agencies and business travel, media and publicity .(11

The supply of materials and services .(12

Organizing public entertainment .(13

Sale by auction .(14


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Distribution of water and electricity and gas .(15

Post and communication .(16

In addition to those activities, a merchant can also perform any operation linked to the

.exploitation of ships and aircraft and maritime trade

3). What is the commercial court system in Morocco?


According to the explanation given by the website of the commercial court of appeal of

Marrakech, the commercial jurisdiction is composed of three commercial courts of appeal

located in Marrakech, Fez and Casablanca and eight commercial courts located in

Casablanca, Rabat, Tangiers, Marrakech, Fez, Agadir, Meknes and Oujda.

The organization of the commercial courts:

A president , several vice presidents and magistrates

A prosecutors office made up of the Kings attorney and one or several deputies

A court clercks office and a secretariat of the prosecutors Office.

The president of the commercial court appoints, based on a proposal from the

general assembly, a magistrate in charge of the following up the enforcement

procedures.

The commercial court of Appeal:

A first president, several president of chambers and counselors,

A prosecutors office made up of the King attorney and his deputies

A court Clerks office and a secretariat of the ministry.

The hearings are held at the commercial courts and at the commercial courts of appeal by

three magistrates including one president, assisted by a court clerk.

The commercial court has jurisdiction to hear all commercial litigations:


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Actions related to commercial contracts;

Litigation between merchants for matters related to their commercial activities;

Actions related to trade bills

Disputes between partners of a commercial company;

Cases related to insolvency

Traffic accidents are excluded from jurisdiction of commercial courts,

Merchants can agree with non merchants to jurisdiction in commercial courts of litigation

that might arise in subjects related to their business.

The parties may agree to submit the disputes listed above to arbitration procedures in

accordance with provisions of Article 5 of the law establishing the commercial courts.

The commercial courts must rule on challenges to jurisdiction with in eight days.

Decisions relative to jurisdiction are subject to appeal within ten days from the date of

ruling notification.

The court clerk transmits the case to the commercial court of appeal the following one

day of the filing of the appeal.

The court rules within ten days from the date the case is filled in the clercks office.

When the commercial courts of appeal rule in jurisdiction, they transmit the file

automatically to the competent court within ten days from the date the decision is

pronounced. The decision of the court is not subject to appeal.

Commercial courts have jurisdiction to rule on cases for which the cumulative value

exceeds 20,000 dirhams. They also rule on all cross actions or demands for compensation

whatever their values are.


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Commercial courts can require a deposit or freeze funds of the defendant when the debt is

established and is not subject to challenge on its face. This is subject to the plaintiff

providing sufficient real or personal guarantees.

Territorial jurisdiction or venue is with the court of the real or chosen address of the

defendant. When the defendant doesnt have an address in Morocco, but has a residence

there, jurisdiction belongs to the court of this residence.

When the defendant has neither an address, nor a residence in Morocco, the case will be

heard before the address or the residence of the plaintiff claimant or one among them if

there are several of them.

If there are several defendants, the plaintiff can choose the court of the domicile or the

residence of one among them.

Venue:

For companies, before the commercial court of the address of the head office or

its branch,

For bankruptcies, before the commercial court of the address of the head office

for companies or the main establishments for tradesman.

For conservatory measures, before the commercial court where the object of the

measure arose,

In any case, the parties can agree, in writing, on the competent commercial court.

Procedures before commercial courts:

Commercial courts are engaged by a written complaint signed by a lawyer licensed in a

foreign country that has an agreement with Morocco allowing him to plead before the

Moroccan jurisdictions, after having been allowed by the minister of justice, under the
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condition that he elects domicile with a lawyer registered in one of the bars of the

Kingdom.

Judicial fees are paid as long as the party does not benefit from a legal aid.

Complaints are filed on a specific register designed for that matter. The clerk delivers to

the plaintiff a receipt with the name, the date of filling, its number in the register and the

number and the nature of the attached documents, and places a copy of that receipt in the

file.

As soon as the complaint is filed, the president of the court designates a judge assigned to

the case to whom he transmits the file with in twenty-four hours. The assigned judge calls

the parties to the next hearing of which he fixes the date. Notification is transmitted by a

bailiff of justice except in the case of a decision of the court to notify according to the

code of the civil procedure.

When the file is not complete, the commercial court postpone the case to the next hearing

or sends it back to the judge rapporteur who schedules again the hearing with in a

timeframe not exceeding three months.

The procedures before the commercial court of Appeal:

The appeal of the judgment of the commercial court has to take place within the fifteen

days from the date of notification of the judgment, in accordance with the code of the

civil procedure, subject to arrangement challenges to judgments.

The request for appeal is filed are the clerks office of the commercial court that transmits

it, with the attached documents, to the clerks office of the commercial court of appeal

with in a maximum time range of fifteen days from the filing date.
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The same procedures for the commercial courts of appeal (filling a request by a lawyer,

state of the case, and pronouncement of the decision).

The execution of rulings and judgments:

The execution agent serves the judgment on the judgment debtor and warns him about

paying for the sum in the judgment or making known to the agent his intentions within a

time frame not exceeding ten days from the date of the execution request.

The execution agent must establish a report of the enforceable seizure or the motives

hindering the operation, this with in 20 days after the expiration of the warning time.

Commercial jurisdictions apply the dispositions concerning the general rules bound to

forced execution appearing in code of civil procedure except contrary disposition.

4). What does Lousra company must do to get paid? Did Coca Cola Company

violate the law?

In order to get paid, Lousra company should bring a lawsuit against Coca Cola

company in the commercial court, and this is done by delivering the check and

filling a specific form in the commercial court. After paying the fees of the

lawsuit, the two documents: the check and the filled form, should be presented to

the president of the commercial court (or to one of his representative), who must

sign the order of performing () . This means the order to withdraw

money from other account of Coca Cola company if any or from la caisse or to

perform the which means to have a temporary control over any

money or assets that Coca Cola company possess, transferring them or changing

them and this is done under an order issued by the commercial court.
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Coca Cola Company has violated the law because the law states that the issuer of

the check should have enough money in its account in order to pay the

beneficiary. Since Coca Cola Company knew that it went into some financial

difficulties and that it had no money in its account while making a check, we can

conclude that it violated the commercial law.


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:References

2008 - 2.0 , , retrived April 26, 2008 from:

http://www.cacmarrakech.ma/acceuillen.asp