In brief: In Morocco, merchant status is governed by Loi 15-95 formant Code de Commerce (Art. 1 to 18). A merchant is any person who habitually and professionally carries out commercial acts. This status entails specific obligations: registration with the commercial registry, maintaining compliant accounting records and legal publicity. Commercial capacity is subject to specific rules concerning minors, foreigners and professional incompatibilities.
What is a merchant in Morocco?
Article 6 of Loi 15-95 defines a merchant as any person who, as a habitual profession, carries out one or more activities classified as commercial acts. Two cumulative criteria characterize merchant status:
- Habituality: the repeated and regular performance of commercial acts, as opposed to the occasional completion of an isolated commercial transaction
- Professionality: commercial activity constitutes the main profession or one of the professions of the person concerned, carried out in their own name and on their own account
This definition applies to both natural persons and legal entities (companies commercial by form such as the SARL, SA or SNC). For commercial companies, merchant status derives from their legal form, regardless of the nature of their activity.
Commercial acts under the Code de Commerce
The Code de Commerce distinguishes three categories of commercial acts that determine the scope of commercial law.
Commercial acts by nature (Art. 6)
These are intrinsically commercial activities. Article 6 provides an exhaustive list including notably:
- The purchase of tangible or intangible movable property for resale
- The rental of tangible or intangible movable property for sub-letting
- Banking, credit and foreign exchange operations
- Fixed-premium insurance operations
- Brokerage, commission and all intermediary operations
- Operation of warehouses and general stores
- Transport operations
- Supply operations (water, electricity, gas)
Commercial acts by form (Art. 9)
Regardless of the subject matter or the status of the parties, certain acts are commercial by reason of their form. Article 9 primarily targets the bill of exchange, the promissory note and the warrant. Any person who signs these commercial instruments is subject to commercial law courts and rules, even if they are not a merchant.
Commercial acts by accessory (Art. 10)
Article 10 establishes the principle that acts performed by a merchant in connection with their business are deemed commercial acts, unless proven otherwise. This accessory theory allows acts that, taken in isolation, would be civil in nature (for example, purchasing a vehicle for business needs) to be drawn into the commercial sphere.
Commercial capacity: who can be a merchant?
The capacity to engage in commerce is subject to specific conditions set out in Articles 12 to 18 of Loi 15-95.
Principle: legal majority
Any person of legal age (18 years old) enjoying their civil rights and not subject to any prohibition or incompatibility may engage in commerce. The emancipation of a minor does not automatically confer commercial capacity.
The authorized minor (Art. 13)
Article 13 provides for the possibility for a minor to be authorized to engage in commerce by their legal guardian. This authorization must be:
- Registered with the commercial registry
- Approved by the competent judge
- Limited to the commercial acts expressly specified
The authorized minor is deemed to be of legal age for the purposes of their commercial activity, but this capacity remains supervised and may be withdrawn by court decision.
The foreign merchant
Foreigners may engage in commerce in Morocco subject to satisfying the conditions set by current legislation, including obtaining a registration card and complying with foreign exchange regulations. In practice, setting up a business in Morocco as a foreigner does not require a local partner in the majority of sectors.
The married woman
Since the reforms of the Family Code and the provisions of the Code de Commerce, married women enjoy full commercial capacity. They may engage in commerce without their spouse’s authorization and pledge their own assets in their activity.
Legal obligations of the merchant
Merchant status entails compliance with several mandatory obligations aimed at ensuring transparency and security of commercial transactions.
Registration with the commercial registry (Art. 37)
Every merchant, whether natural or legal person, must register with the commercial registry within three months of starting their activity. This obligation, set out in Article 37, is fundamental because registration with the RC creates a presumption of commerciality and allows the merchant to assert their rights against third parties. Failure to comply with this obligation exposes the offender to criminal penalties.
Maintaining accounting records (Art. 19)
Article 19 requires every merchant to maintain accounting records in compliance with the provisions of Loi 9-88 relative aux obligations comptables des commerçants. These accounting records must include:
- A journal chronologically recording all transactions
- A general ledger recording entries by account
- An inventory book containing the balance sheet and profit and loss account
Accounting documents must be kept for ten years from the closing date of the financial year. For companies subject to corporate tax, these accounting obligations are coupled with strict tax obligations.
Publicity and transparency
The merchant is required to carry out the required legal publications (incorporation, changes to articles of association, dissolution) in a journal d’annonces légales (JAL) and in the Bulletin officiel (BO). These formalities ensure that third parties are informed and that commercial transactions are legally secure.
Incompatibilities and prohibitions
Certain professions and functions are incompatible with engaging in commerce:
- Civil servants and government employees may not engage in commerce, except with special authorization
- Regulated liberal professions (lawyers, doctors, chartered accountants) are in principle incompatible with merchant status, except for exceptions provided by the texts governing each profession
- Persons subject to commercial disqualification by court decision, particularly following judicial liquidation proceedings
Violation of these incompatibilities does not render the commercial acts performed null and void, but exposes the offender to disciplinary sanctions and, where applicable, to the loss of their rights in their original profession.
Penalties for non-compliance
The Code de Commerce provides for penalties in case of breach of merchant obligations:
- Fine for failure to register with the commercial registry
- Criminal penalties for maintaining fictitious or non-existent accounting records
- Civil liability for damages caused to third parties due to non-compliance with publicity obligations
It is therefore essential to engage competent professionals from the start of commercial activity. A chartered accountant ensures accounting and tax compliance, while legal counsel ensures compliance with legal formalities.
Reference text: Code de Commerce (PDF) — Loi 15-95, Art. 1 to 18
Frequently asked questions
What is the difference between a merchant and an auto-entrepreneur?
A merchant carries out commercial activity on a professional and habitual basis, with full obligations (commercial registry, accounting, VAT). The auto-entrepreneur benefits from a simplified status with a turnover ceiling, reduced tax regime and simplified accounting obligations. The merchant is subject to classic commercial law, while the auto-entrepreneur falls under a specific regime (Loi 114-13).
Can a civil servant be a partner in a commercial company?
Being a partner in a commercial company (SARL, SA) does not necessarily imply engaging in commerce. A civil servant may hold shares in a SARL without performing management functions. However, managing a commercial company is considered engaging in commerce and remains incompatible with civil servant status, except by express derogation.
What are the consequences of engaging in commerce without registration in the commercial registry?
The absence of registration in the commercial registry does not deprive the person of merchant status (the registry has a declarative effect, not constitutive), but exposes them to criminal penalties (fines) and prevents them from claiming this status before the courts. Furthermore, third parties may invoke their de facto merchant status against them to apply the rules of commercial law.
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