Commercial Uses: Types, Training, and Legal Implications
Commercial Uses in the Legal Code
Commercial uses refer to the consistent and repeated conduct of traders in their businesses. The significance of these uses is rooted in their origins. Commercial law, by its customary nature, highlights the historical importance of trade practices as a primary source of law. These uses emerge from the daily activities of traders and historically stem from agreements among merchants. Initially, these agreements were included in written contracts, but through repetition, they became standardized to the point where they were assumed to be part of the parties’ intentions without explicit mention.
While the importance of commercial uses as a primary source of law has diminished, they remain a significant alternative source. They allow retailers to find solutions more quickly and adapt to the evolving needs of business, aligning with the law. Although fewer uses exist in a strict sense, their importance is considerable.
Currently, there is a rise in general contracting conditions and contract types. In international trade, the uses are particularly relevant due to the scarcity of legal regulations. These are not strictly international practices or sources of law but rather contract clauses that require acceptance by the parties. An example is the Uniform Customs and Practice for Documentary Credits.
Training and Types of Commercial Uses
There are three phases in the development of commercial uses:
- Clauses repeatedly included in contracts, often referred to as terms of style.
- Practices that, through repetition, do not need explicit inclusion in contracts because they are presumed to reflect the parties’ intentions. These interpretive uses help define legal relationships.
- Objective contents of clauses that apply to contracts unless otherwise agreed upon by the parties. These policy uses are not derived from individual freedom but from the objective existence of traffic rules.
Commercial Custom Classes
- Interpretive Uses: These facilitate the interpretation of intentions by clarifying contract clauses, defining obscure words, or determining the effect of an act or contract based on the presumed intentions of the parties. They govern legal relationships only if presumed to be intended by the parties.
- Normative Uses: These are customs in the legal sense, forming rules of law that apply regardless of the parties’ intentions. Article 1.3 of the Civil Code (CC) states that applications not purely legal interpretations of intent are considered usual.
Commercial uses are substantive law, a source of commercial law affecting commercial traffic. They are local usages applied in the absence of commercial law, preceding the regulation of commercial matters, except as specified in Article 50 of the Commercial Code (CCo).
Evidence of Use
According to Article 1.3 of the CC, commercial uses must be proven. The CCo does not provide specific rules on this matter. The party invoking a use must prove it as a matter of fact. The High Council of the Chamber of Commerce, Industry, and Navigation of Spain, as well as the Supreme Banking Council, compile these uses. These collections can be used as evidence but are not conclusive. Expert reports or opinions can also be used. Increasingly, employers are turning to general conditions of trade to establish contract rules, due to the difficulty of proving uses and the need for certainty about the consequences of their actions.
Mass Recruitment
Due to market overcrowding, contracts are often made multiple times. To improve organization and time efficiency, entrepreneurs create standardized contracts. These contracts, known as contracts of adhesion, are based on general conditions that apply to all contracts entered. While some have suggested they are a new source of law, they are contractual in nature and ineffective if not agreed upon by both parties.