CC BY
20Marietta D. Shapsugova
Institute of State and Law, Russian Academy of Sciences Znamenka street 10, Moscow city, 119019 Ph.D. in Law, Associate Professor, Senior Researcher ResearcherlD: A-6840-2015 ORCID: 0000-0002-3741-0519 DOI: 10.24411/2520-6990-2020-11572 THE LEGAL STATUS OF PERSONS ENGAGED IN TRADE AND CRAFT ACTIVITIES IN THE RUSSIAN PRE-REVOLUTIONARY LEGISLATION. MERCHANTRY.
The article studies the legal status of traders and artisans in pre-revolutionary Russia. The study is based on an analysis of the legislation of the specified period. The primary documents regulating the situation of the trade and handicraft population, including the Decree "On the entry to the settlements of commoners and peasants engaged in trade in cities" of November 24, 1699, the Certificate on the rights and benefits to the cities of the Russian Empire of April 21, 1785, are considered. The manifesto "On the New Benefits Granted to Merchants, Excellent Benefits, and New Ways to Distribute and Strengthen Trade Enterprises" January 1, 1807, and others.
Evolutionary trends are identified in the regulation of the legal status of persons belonging to the above categories using historical and comparative methods. Besides, the institute of a merchant family, which can be considered as a prototype of a modern model of a family business, is considered.
Keywords: artisans, merchants, individual entrepreneurs, merchants, guilds, peasants, wholesale trade, retail trade, pre-revolutionary legislation, philistines.
The formation of individual entrepreneurship has a history of its own. It is considered that the prototype of modern individual entrepreneurship was the merchants, which finally formed in the 18th century. The processes of Gathering of Lands, and then centralization of power, required significant financial resources. Therefore, the economic support of the princes in Russia were merchants who received in return princely protection and support in their activities. Besides, the state, regulating the activities of merchants pursued fiscal goals. As long as Russia is a multinational country, the factor of creative potential in a certain sense contributed to the successful integration of "non-Russian" merchants into the business and socio-cultural environment of a Russian city that made them a part of its historical heritage. The spread of mercantilism and protectionism in the world was reflected in the policies of the Moscow princes. Issues of levying duties on goods were settled by the Decree of Prince Alexei Mikhailovich of October 25, 1653 "On levying customs duties on goods in Moscow and cities, with an indication of how much was taken and from which goods" [1]. Later, on April 22, 1665, the Novotrade Charter was signed[2]. The charters became the prototype of the Customs Code. Its adoption was to the fact that foreign merchants sold low-quality, often fake goods on the territory of the Moscow state, thereby inflicting severe losses for the Russian merchants who worked with them. They practically did not contain norms concerning the legal personality of the tradespeople.
In accordance with the Decree "On the Record in the Embassies of Raznochintsy and Peasants Engaged in Trade in the Cities" of November 24, 1699 No. 1723, bell-ringer, coachmen hunters, artillerymen, guard of the gate, and metropolitan and monastery artisans or whose peasants, and other mensch rank people, engaged in retail trade in cities[3] . Land-lordly and patrimonial peasants lost the right to engage in trade and works. Such a decision was made
because they "took away crafts from the townspeople" so that all merchants were on the same conditions.
The document confirming the status of a merchant was the Certificate of Rights and Benefits to the Cities of the Russian Empire dated April 21, 1785 No. 16.187[4] (starting now - the letter). Following Section E of this letter, the population was divided into three guilds depending on material well-being. His membership in the guild determined the content of the legal personality of a person.
It is noteworthy that the legal status of the merchant was determined by the amount of capital declared by him, on which the scope of the legal personality and the volume of trade allowed depended. An analysis of paragraphs 102-119 of the letter leads to this conclusion. For example, a merchant of the first guild with a declared capital of ten to fifty thousand rubles had the right to conduct domestic and foreign trade activities, wholesale and by sea, and have sea vessels. A merchant of the second guild with a capital of five to ten thousand rubles was allowed to trade only within the country by a river and land transport, have river vessels, trade only in cities, and in fairs. Merchants of the first and second guilds were allowed to have factories and plants. The capital of merchants of the third guild ranged from one thousand to five thousand rubles; they were allowed to conduct only small trade, use only land transport, and also have taverns, bathhouses, and hostelry.
The current legislation of the Russian Federation does not impose any restrictions on individual entrepreneurs in connection with the presence of a minimum amount of capital. However, such experience could act a decisive role in guaranteeing the interests of counterparties of an individual entrepreneur.
Registration in the guild was allowed from December 1 to January 1 of each year (paragraph 92 of the letter). At the same time, an annual payment of 1% of the declared capital was to be paid. Merchants were
exempted from the poll tax (paragraph 93 of the letter).
The declaration of capital was based on "testimony on the conscience of everyone"; therefore, denunciations of capital concealment were not accepted, and no such investigations were conducted. In the event of bankruptcy, the person was excluded from the guild.
Those registered in the guild were allowed to enter into state contracts, in which they commanded: "everyone to build trust as they declared capital according to their conscience, and no more" (paragraph 100 of the letter). Those enrolled in the guild were entered into the second part of the town philistine book.
So the accounting of merchants was carried out. The book can be perceived as a prototype of the register of business entities. Like other urban residents, merchants had to provide evidence of their condition. An open list of such evidence was enshrined in paragraph 78 of the letter. These included, in particular: the name and status in the parish book, the testimony of the parish priest, census records of previous years, the latest revision, the guild sheet at the hands of the guild foreman and two people, witnesses who entered the same guild, decrees, letters, sheets indicating the state or fishing, a determination in the case, proving the state, credit cards, trade and customs books, goods and ships in cash, serviceability of a contract or purchase, promissory notes paid on time, contracts and trusts of many, all kinds of other docs Alignment.
On January 1, 1807, in order to support and increase the merchant class, Alexander I signed the Manifesto "On the New Benefits Granted to Merchants, Excellent Benefits, and New Ways to Distribute and Strengthen Trading Enterprises" [5] (starting now - the Manifesto of January 1, 1807). The Manifesto recommended that merchants carry out activities in the form of full partnerships and partnerships in faith.
Nobles were allowed to enroll in the first and second guilds, however, under Art. On January 7, 1807, the Manifesto, bearing all the duties of the merchant rank on a par with the merchant, they did not cease to fulfill their duties and obligations of the noble rank.
Particular attention in the Manifesto was given to the status of foreign merchants. They were forbidden to enroll in guilds, exercise rights, and bear duties assigned to guilds (Article 8 of the Manifesto on January 1, 1807). However, according to Art. 13, foreign merchants were allowed to ride in pairs and in a carriage, to buy goods from the Russian merchants on the stock exchange in gross for sale outside the Russian Empire. They were also allowed to carry out wholesale trade with Russian merchants, store goods in the state or city barns, or, by agreement, in private cellars. As stated in the Manifesto, "in general, the visitant merchant other than these rights, which are granted to foreign guests, do not belong."
In Art. On January 15, 1807, the Manifesto distinguished between merchants and shopkeepers, contractors, and farmers. From now on, a merchant was considered to be "trading only in gross within the State, either to a port or abroad, as well as a shipowner, banker, basing his trade on a bill of exchange and exchange rates." Merchants of the 3rd guild were not
allowed to government contracts and farms in which the annual amount exceeded 12,000 rubles, and in which exceeded 50,000 rubles, merchants of the 2nd guild were not allowed.
Merchants of the first guild were divided into two categories: primary merchants or actual merchants of the 1st guild and others, called merchants of the 1st guild. Those merchants who, along with the wholesale retail and shop trading, or along with the wholesale trade were distributors or contractors, were not considered primary merchants.
In Art. On January 16, 1807, the Manifesto clarified the rights of merchants of the 2nd guild: they did not have the right to exchange, sell or purchase from
foreigners, except peasant works and bourgeois needlework, necessary for domestic needs. Only merchants of the 1st guild had this right.
The merchants were given the right not to include in the guild of a merchant convicted of deliberate bankruptcy, brought to justice, an official "deprived of honor, below the Nobleman, who, in court, fell away from his estate" (Article 17 of the Manifesto on January 1, 1807)
The merchant community was also allowed to exclude from the 3rd guild the merchant, "in obvious vices noted." In addition, recruits were removed from merchants of all guilds.
Primary merchants in city services were selected only in the most important places. They were granted the honor of coming to the Court of the Emperor and the right to wear swords or sabers (for those who dress in Russian dress). All these honors were granted to a person who declared his capital. For children and family members, if capital was not declared to them, these honors did not extend. Another innovation was the opening of a velvet book of noble merchant families, which was entrusted to the Minister of Commerce.
In Art. On January 19, 1807, the title of eminent citizens was canceled with merchants. The Minister of Commerce was obliged to protect the rights and advantages of the merchant estate.
February 28, 1809 by the Decree of the Governing Senate No. 23503 "On the aversion of the forgery caused by the bourgeois and villagers entering the guilds by the registry of many families into one capital to avoid recruitment" [6] , in order to prevent evasion of recruitment, a circle of family members was determined who could be recorded with persons declaring capital to join the guild. These included children (that is, a father or mother-widow, together with unseparat-ed sons and unmarried daughters, brothers and nephews could not be in the same capital. A son or daughter who received his capital from his father during his life, could not transfer the guild rights to him to others brothers and sisters, and a married daughter to her husband. The tradesman or villager whose family is assigned a recruiting service could not be registered in the guild until this duty was fulfilled or the bourgeois or peasant society all unanimously released him and voluntarily flax someone from this society will assume his duties.
The Manifesto "On the Transformation of the Debt Repayment Commission," dated February 11, 1812 No. 24992, introduced the Regulation on the collection of peasants from trading[7] (starting now -Regulation).
The adoption of this Regulation was since state and landowner peasants, under the name of merchants or on behalf of landowners, carried out trade without fulfilling guild duties.
By paragraph 1 of the Regulation, peasants could participate in trade under temporary trusts (powers of attorney) from those persons who had a legal right to such trade. In addition to this power of attorney, the peasant had to declare which trade he wished to carry out (the types of trade were determined in the same way as for guilds: 1 - wholesale trade in general; 2 -domestic wholesale trade; 3 - retail trade by county and city. These notifications are peasant had to submit to the Treasury Chamber annually. After the announcement, the Treasury Chamber issued a certificate for one year. When the certificate was issued, the peasant paid a fee depending on the type of trade in the amount of 2500, 1000, and 400 rubles, respectively. Without a certificate, trade was prohibited. According to para. 12 of the Regulations, the farmer, could not "enter into the mercy of, contracts, deliveries, and obligations or the private individuals or the treasury, without producing the certificate above."
By decree of December 29, 1812 No. 25.302 "On Additional Rules for Allowing Peasants to Trade in Various Goods with the Obtaining of the Right to This and with the Payment of Certain Fees" [8] (hereinafter the Decree of December 29, 1812) additions were made to the February 11 Manifesto, the application of which made it unclear what types of trade and crafts were allowed to be carried out without a certificate. In particular, it was explained that they included: industry, typical of peasant life, agricultural products, carriage, maintenance of mail horses, riverboats, taverns, hostelries in villages, handicrafts, needlework, transportation and sale of firewood, stoves and other materials, gardening and horticulture.
As a matter of the convenience of traveler and satisfying peasant needs, roads in villages and villages allowed peasants to trade in shops and sheds, in addition to rural and edible supplies, with those goods that were bought in cities and at fairs for transportation and sale in villages. Besides, peasants were allowed during large city fairs to remove shops and sell small goods in them, as well as buy such goods for subsequent sale in the village.
All other trade and fishing carried out both on land and on ships, selling products, not of our production, but purchased in the amount of more than 2 thousand rubles a year, was attributed to the trade permitted to the merchant and philistine rank (estate) and prohibited to peasants without evidence.
There are four types of evidence:
For general trade, wholesale not only within the Empire but also at the stock exchange, with a capital amount of 50 thousand rubles or more.
For the production of wholesale trade within the Empire in the amount of 25 thousand rubles.
For trade or fishing in the amount of 8 thousand rubles.
For trade or fishing in a county or city in the amount of 2 thousand rubles.
Following paragraph 11 of the Decree of December 29, 1812, legal registration of rights and certificates was carried out by county treasuries at the request of landowners or their managers or the request
of volost boards and specific orders for state and apanage peasants.
No trust power (letter of authority) was required to obtain a certificate. The trading peasant who received the certificate could now trade on his own name (paragraph 12 of the Decree of December 29, 1812). Also, the amount of the fee levied on the issuance of the certificate has slightly changed. The issuance of a certificate, pursuing primarily fiscal goals, was the prototype of the modern state registration of an individual entrepreneur.
Peasants who conducted trade or fishing allowed merchants and philistinism without evidence that were subjected to fines and penalties under Art. 16 and 17 Manifesto February 11. Trading without a certificate for those types of activities for which its presence was mandatory was punished by paying a fee in double amount, the second time - the duty increased fourfold, the third - deprivation of the right to trade.
Article 17 of the Manifesto provided for trade sanctions "inconsistent with its certificate, such as, for example, according to a certificate issued to retail trade, to conduct wholesale trade." In this case, the first time the fee was doubled, the second - four times, and the third - the person was deprived of the right to trade.
In order to facilitate duties and promote trade, on November 14, 1824, an Additional Resolution was approved "On the construction of guilds and the trade of other conditions" [9] (starting now - Resolution). Innovations in domestic law occupy a special place in civil law [10, 152]. The decree reduced the monetary obligations of the trading classes and, more specifically, determining their rights and obligations. The following conditions were highlighted and described in detail in the Resolution:
• Merchants.
• Non-resident merchants.
• Visiting non-resident merchants and foreigners living in Russia.
• Merchants and townspeople.
• Trading peasants.
All these conditions corresponded to distinct forms of managing.
Chapter 1 of the supplementary Regulation was devoted to the trade of merchants. In accordance with Art. 1 merchant of 1 guild was allowed to conduct domestic and foreign wholesale trade of Russian and foreign goods "everywhere"; have ships and ships and send them "overseas, from one port of the Empire to another and according to internal communications"; have shops, pantries and cellars for the storage of goods and wholesale trade in them; to have factories and plants, except for distilleries; engage in the transfer of money to Russian and foreign cities, taking into account bills and "in general, all sorts of banking"; have insurance offices; enter into government contracts and purchase of any amount; enter into private contracts and brokerage terms for any amount. Retail trade according to Art. 2 it was allowed to the merchant of the first guild in the city where he was registered, for retail trade in another city, he was obliged to take a certificate on the salary of that city of the merchant of the third guilds. Shops opened by the mer-
chant at the factories belonging to him were considered permissible according to the evidence available to the merchant.
Nobles were now allowed to enroll in the only first guild.
The merchant of the second guilds could carry out the trade allowed to the merchant of the first guild except the following (Article 5 of the additional Regulation):
• In one ship cargo or one land transport, there could not be goods worth more than 50 thousand rubles. The total annual volume of foreign trade (exportimport) could not exceed 300 thousand rubles. In case of violation of this restriction, the merchant was obliged to pay a double duty of the merchant of the first guild.
• Could enter into state contracts and repurchases in the amount of only up to 50 thousand rubles.
• Could conclude private contracts and brokerage conditions, not more than 50 thousand rubles.
• Could not have an insurance office and a banking house.
Merchants third guilds following Art. 7 additional orders were allowed:
• Retail trade in the city where it is recorded and in the county where it is located, by any Russian, as well as from foreign merchants bought from Russian merchants of the first two guilds and from peasants who trade on the first two birth certificates.
• Own ships, but only for the transport of goods "to the account of such merchants who have the right to bargain abroad," and internal communication vessels for any use.
• Keep in the cities where they are recorded, taverns, "cellars, inns, trading baths, and fish tanks," drinking houses and porter shops.
• To have in the cities where the factories and factories are registered, tanneries, morocco, rawhide, wax-making, candle, fat-melting, oil mill, potassic, saltpeter, tobacco, brick, pottery, sawmill, tar, coal, timber, trellis, carpet, simple kind of dyeing, colorful, wax, varnishing, parchment, tube, paper turned things, cosmetic, varnish, vinegar, brewing, mead. On top of this, they could have other small household establishments and camps belonging to other types of factories and plants, if their functioning did not require extensive establishments and sophisticated machines. They were not allowed to have more than thirty-two employees in these institutions; otherwise, they had to go to the higher guild.
• To buy domestic products in their county and at fairs and deliver them to marinas, markets, bazaars located in or adjacent to that county.
• Deliver food from the capital.
• Enter into contracts and farms and conclude private contracts and conditions for up to 20 thousand rubles.
Merchants third guilds in accordance with Art. 8 it was allowed for trade to have in the city where it was recorded, and in the suburbs of this city only three
open shops or stores with or without pantries for storing goods, including the shop that the merchant of the 3 guilds set up in the building of his factory or factory for retail sale products. For each "excess trading institution," the merchant was required to pay a fee of 50 rubles to the treasury and 75 rubles in the capitals. Tickets were issued to shops when issuing certificates. Under the bench under the note to Art. 10 also understood Rensk cellar, hotel, restaurant, coffee house, tavern, tavern, inn, factory, factory, trading bathhouse, and generally any trading establishment. Merchants of the 2nd and 3rd guilds were allowed to bid for large amounts, but with the obligation that if in a row "they will be followed, then before the conclusion of the contract they will add all additional duties to the treasury compared to the higher guild" (Article 12 of the additional Regulation).
Chapter II was devoted to the personal advantages of merchants. So, merchants of the 1st guild, engaged in money transfer, accounting of bills, and "generally any banking business," could take the title of a banker. Merchants who have been in the first guild for at least twelve consecutive years, Christian denominations could receive the rank of advisers of commerce, their children could also be accepted into civil service along with the officers of the officers. Merchants of the 1st guild could be awarded orders for particularly essential merits, but monetary donations and concessions on contracts did not give the right to an award or order. Merchants of the first guild had the right to wear the provincial uniform of the province in which they were recorded.
It was noted that the merchants of the 1st guild constituted a particular class of honorable people in the state (Article 28 of the additional Resolution).
If they were elected, merchants of the 1st guild were required to take over the posts of mayors, lay judges, conscience courts, orders of public charity, deputies of trade and directors of banks and their offices and church leaders; they had the right to refuse other posts (Article 30 of the additional Resolution). The merchants of the second guilds, in addition to the above-mentioned posts, were obliged to accept the posts of the burgomaster, municipal councilor, and members of the shipping reprisals (Article 31 of the additional Resolution). The merchants of the third guilds were obliged, also, to accept the posts of town elders, members of the six-digit councils, deputies at various places, etc. ( Article 32 of the additional Resolution). The petty bourgeoisie was elected to other lower posts if the merchants did not want to accept them (Article 33 of the additional Resolution).
The duties of merchants were enshrined in Chapter III of the supplementary Resolution. In Art. 35 confirmed the previous size of capital required for entry into the appropriate guild. For merchants of the first two guilds, the size of the guild tax was fixed at 4% of the declared capital, for water and land communications at 10% of the tax on rubles, for zemstvo duties of 0.25%, for city duties of 0.25%. The price of the certificates of the three guilds was specified. Passports established for primary merchants were canceled.
In Chapter IV of the supplementary decree on children and relatives of merchants belonging to the same family, in Art. 43, the composition of the mer-
chant family was determined in order to issue one certificate per family. Merchants were considered a family consisting of: a father with sons and unmarried daughters, or grandchildren, filial children, if they are not separated; from a widow with sons and unmarried daughters or grandchildren, filial children, when they live in the same house inseparably; from siblings and unmarried sisters, when they live in the same house inseparably.
If other relatives were in the merchant family, they should have received a separate certificate for trade or fishing, or transferred to the middle class. Certificates and tickets to the shops were issued in the name of the head of the merchant family, regardless of the number of persons who composed him. Only that person from the merchant family, in whose name a certificate of trade and fishing was issued, received the title of merchant and enjoyed the trade rights and personal advantages assigned to the guild. All other persons belonging to the merchant family were called merchant children, brothers, grandchildren - and, without in themselves a separate right to trade, they enjoyed, however, as family members the same civil rights that belonged to the head of the family (Article 48 of the additional Regulation).
If a father with a son or grandson after his son, or brother and sibling opened a trading house, trading in one company, then both members of such a house, taking one certificate, enjoyed the rights and advantages granted to the merchants (Article 50 of the additional Regulation).
Thus, only a merchant or co-founder of a trading house possessed an independent commercial legal personality. The legal capacity of members of a merchant family in the sphere of production and trade was derived from the commercial legal capacity of a merchant.
Merchant brothers and children who received a power of attorney to conclude a government contract or purchase concluded it in the name and at the ex-
pense of the head of the family, who assumed responsibility for the contract. Persons belonging to the merchant family, not being its heads, could not be bound by promissory notes without the power of attorney of the head of the family, in this case, the responsibility fell on the head of the family. Due to the lack of independent legal capacity in the economic turnover, members of the merchant family did not have the right to conclude business transactions independently and were not liable for economic obligations.
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