Commercial Law: Doctrines, Characteristics, and Sources
Timeline of Commercial Law
- Geographical Discoveries to the Present: Tracing the evolution of commercial law from the era of geographical discoveries, through the French Revolution, to the present day.
Objective vs. Subjective Doctrines of Commercial Law
- Objective Doctrine: Anyone can perform an act of commerce, regardless of their profession or trade.
- Subjective Doctrine: Only a registered trader can make a commercial transaction.
- The subjective doctrine does not recognize all commercial activities, and that non-commercial traders are active.
- Critique: Some literature points out the impossibility of establishing a unitary concept of a commercial act, due to the lack of differentiating elements from non-commercial acts.
Adoption of Doctrines by the Commercial Code
The Commercial Code adopts a mixed approach. It governs the obligations of merchants in commercial transactions, including those who are not formally registered as merchants but engage in activities that are inherently commercial.
Characteristics of Commercial Law
- Real and Objective: Applies to general commercial transactions, regardless of the profession of those executing them.
- Progressive: Business operations evolve rapidly, giving rise to new problems and legal solutions.
- Expansive: Its institutions influence other areas of law.
- International Uniformity: Aims to overcome the diversity of laws applicable to international commercial transactions.
Relationship with Other Branches of Law
Civil Law: It is the foundational source of commercial law.
Article 2 of the Commercial Code states: “In cases not specifically determined by this code, the provisions of the Civil Code shall apply.”
Importance of the Relationship Between Commercial and Civil Law
The relationship is crucial because Civil Law serves as a default rule. As per Article 2 of the Commercial Code, the provisions of the Civil Code apply in cases not specifically addressed by the Commercial Code.
Commercial Law vs. Business Law
Commercial law is also called business law because it regulates the economic activity established within a company or organization and regular business operations of a professional enterprise.
Sources of Commercial Law
Sources of Commercial Law:
- Material Sources: Contribute to the formation of law.
- Formal Sources: These are the forms of manifestation of the legal rules.
Commercial Custom: Concept and Characteristics
Commercial custom is the widely used and certain practice of events that have acquired the force of rules or standards. It consists of acts that reveal a legal sense, with the certainty that they can be subject to legislative and judicial sanction.
Proving Commercial Custom
- Two authentic judgments asserting the existence of the custom.
- Three previous public writings related to the facts being tested.
- Maritime commercial customs can be proven by experts.
The Doctrine of the Accessory
This doctrine applies to individuals who perform “non-market” activities to ensure compliance with trade obligations. However, transactions like the purchase or exchange of articles intended for ancillary operations of a non-commercial industry are not considered commercial.
The Theory of Mixed Acts (Dual Character)
These are acts of commerce for one party and civil acts for the other. For example, buying property in a supermarket is a civil act for the buyer and a business event for the supermarket owner.
Exceptions to the Attachment Theory
- Certain instruments or contracts are always civil, regardless of who makes them. Those performed on the property always fall under civil law.
- Certain events are always commercial, regardless of the party who executes them. These are called formal trade actions and are always commercial (e.g., bills of exchange, checks).