In 2009 in Romania trebuie cautate solutii pentru diminuarea blocajului financiare.
Mai jos gasiti mai multe informatii despre asa numita lege Gayssot, in vigoare in Franta din 1998.

Aceasta lege ajuta transportatorul sa-si recupereze banii direct de la furnizor, daca clientul, sau cel care a dat comanda a intrat in incapacitate de plata.
Ar fi benefic daca si Romania ar adopta o asemenea lege in ajutorul transportatorilor. Iar acest lucru s-ar putea face prin modificarea Codului Comercial Roman, singurul cod care nu a beneficiat de atentie din partea Ministerului Justitiei in vederea modernizarii lui. Este o transpunere directa a actiunii oblice din dreptul romanesc.

The Direct Action against the client not willing to pay for the commercial transport.


A true cultural revolution, the direct action (with the right of lien) constitutes with no doubt, one of the most outstanding progresses lived by the Transport Profession these ten last years and by the world of road transport.
Adopted on February 6, 1998 by the Parliament, this protective device truly changed the  payment of the credits while making it possible carryers to reach guarantees which had been refused to them before hand.
The range of the text, its contents extremely clair (dixit certain judges near the bankruptcy courts), as many elements truly having upset and having improved the lives of the comercial haulage contractor while enabling him to imply the initial client.
Let us guarantee that this protective device - and who largely has since fact his evidence is not appropriate for the whole of the speakers and economic partners and whom it will be appropriate - at the dawn of a strong political change to be particularly attentive so that lobbies do not manage to influence the elected officials to reduce or modify the range of a truly protective text for the Profession. Let us be convinced, out of legislative matter as in any field, nothing never is definitively acquired or solidified! …
OF WHAT DOES CONSIST the Direct action?
Taking into account the new context of the article L 132-8 of the Commercial law the new (Article 101 old Commercial law) shipper and the recipient are guaranteeing payment of the services of the conveyor.
For the implementation of this guarantee, the Law known as “Gayssot” (98-69 of February 6, 1998 - OJ of Feb 7 Article 10 and 11), confers to the conveyor chartered two distinct direct actions against the shipper (and the recipient if necessary). GIVES LEGAL APPLICABLE: two possible ways.
1- The direct action on the base of the article L 132-8 of the new Commercial law.
The article L 132-8 of the new commercial law), is written as follows:
“The freight bill forms a contract between the shipper, the carrying one, and the recipient or between the shipper, the recipient, the commission agent and the carrying one. The carrying one thus has an direct action in payment of its services against the shipper and of recipient, which are guaranteeing payment of the price of transport. Any contrary clause famous is not written”.
On the base of this text, the unpaid chartered conveyor is in right to enjoin the shipper and the recipient to pay directly his invoice even if those already carried out the payment between the hands of the commission agent. From now on, it thus weighs an obligation of “guarantee” of payment.
The new article L 132-8 forces to them to ignore, even at the price of a double payment.
The article L 132-8 of the new Commercial law is of law and order, which strikes nullity any stipulation tending to derogate from it. Important: yearly regulation. Taking into account the characteristic of this action, the law envisages a regulation as from the day of the delivery and the handing-over of the good. To note: the fact of addressing to the shipper and to the recipient settings of residence to pay does not stop the regulation. Indeed, only a quotation in Justice by way of assignment is likely to stop the regulation.
In the light of current jurisprudence, it is not possible to deduce from the silence of the debtors on injunctions to pay delivered, a tacit recognition their credits which could have extended one year the yearly regulation additional.
2- The direct action in payment within the framework of the law “subcontracting”.
The law n° 75-1334 of December 31, 1975 finds from now on its application as regards road freighting since the law known as “Gayssot” supplements the article in the following way 1st law of 1975: “The provisions of this law are applicable to the operations of transport, the initial client being compared to the building owner, and the contracting one of the conveyor subcontractor who carries out the operations of transport being compared to the principal contractor”
This second direct action is very different from the first but less interesting for the conveyor because of the essential following conditions: it subcontractor must be accepted and his terms of payment approved by the building owner; it owner the building is held only of what there remains duty with the principal contractor: a double payment is thus excluded here; it owner the building can oppose to the subcontractor all the means of defense which it has with regard to the principal contractor; in the event of plurality of subcontractors, the sums remaining had by the building owner are distributed with marc the franc. Failing this, the unpaid conveyor is likely to see himself opposing the inadmissibility of his requests. Not important: this second direct action has the merit to escape the yearly regulation. Conclusion: it will undoubtedly be preferable to choose the ground of the article L 132-8 rather than that of the law of 1975, except if one tries
to escape the yearly regulation, in the event of late direct action.
HOW THIS DEVICE DOES FUNCTION ?
At the time of the realization of a service of transport agreed upon at the request of a commission agent, contracting of the initial client, shipper or recipient of the goods, the haulage company is thus sub-contracting. A freight bill is drawn up, in accordance with the decree of November 9, 1999 taken pursuant to the decree of August 30, 1999.
Phase 1 - Report of the non-payment and injunction preliminary to the engagement of the article L 132-8 of the new commercial law. If the debtor of the conveyor did not pay the invoice of the service in his term, he is regarded as failing. The conveyor addresses then to his faulty debtor, an injunction to pay within 8 day following the expiration date of his invoice. Form and contained injunction. Addressed to the commission agent in registered letter, the injunction to pay must also specify that in the absence of payment, the conveyor will proceed then to the direct action in payment near the initial client. Foot-note: the experiment tends to show that a non-payment on behalf of the commission agent is often related to his voluntary liquidation. On this assumption, it will be advisable to address the declaration of credit corresponding to the representative of the creditors of the commission agent (this within the legal delay) in parallel at the request
of payment to the initial client.
Phase 2 - The claim for payment on the base of the article L 132-8 of the new Commercial law. The conveyor formulates his request against the shipper and/or to the recipient by registered letter with notice of receipt (see example hereafter).
Contents of the request.
The conveyor must transmit:
1°- the copy of the above mentioned injunction above and copies it of marked the reception;
2°- the signed freight bill, and possibly any other document establishing accomplished transport;
3°- the copy of the invoice of origin (our council: certified conforms either by an auditor, or by an certified public accountant, or an approved accounts centre).
To note: on the assumption that the debtor of the conveyor is the subject of a file for bankruptcy, the conveyor, who exerts the direct action aimed by the article L 132-8 of the new Commercial law, addresses moreover to the shipper and/or the recipient against (S) which (S) it acts, the copy of his declaration of credit and his appendices and the copy of acknowledgement of delivery.
Phase 3 - The payment and the act of subrogation. With reception of the documents aimed in phase 2 above, the shipper and/or the recipient pay the conveyor. As of reception of this payment, the conveyor addresses to the author of the payment an act of subrogation to height of the discharged credit. That which regulated the conveyor, and who is in possession of the act of subrogation, the address with the representative of the creditors of the initial debtor by registered letter with notice of receipt.
MODEL OF MAIL TO ENGAGE the Direct action.
This model is only one example and could not answer the various situations likely to occur.
Dear Sir, Madam, Company (shipper or recipient)
Registered letter with defendant-reception.
Subject: injunction. M .......
The company (name/company name) entrusted to it (date) the transport of your goods to us.
This company is failing and did not regulate us the invoices related with the services specified hereafter and carried out with its request for your account in the capacity as (specify shipper or recipient). Indicate in a detailed way the list of the sendings with, for each sending: - the date d' removal, - nature, quantity, weight, volume or length of the transported goods, - the number of the document of transport, - the number and the date of the emitted invoice.
Pursuant to the Law Gayssot and more particularly of article 132-8 of the New Commercial law: - we make you absolute defense to pay to the company “X” (or an unspecified company

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