Commercial law

The commercial law is part of the Droit of the businesses, bearing spécifiquemet on the commercial acts.

Object of the commercial law

Straight is a whole of rules, which govern the relations between two individuals. The commercial law is a whole of rules which applies to Trading S (i.e. those which exert commercial acts on a purely professional and usual basis), as to the not-tradesmen when they occasionally achieve a Commercial act.

The commercial law constitutes with the Company law, the banking Droit and stock-broker as well as the Droit of the industrial property an eminent branch of what it is agreed to call the Droit of the businesses.

The commercial law is defined like the whole of the legal provisions private applicable to the tradesmen and the commercial acts. This first definition reveals the coexistence of two designs:

in the subjective design , the commercial law is the right of the tradesmen: it is about a professional right, resulting from the practices of the merchants and whose application is started by the quality of the people in question.
in the design objectifies , the commercial law is the right of the commercial acts, i.e. business transactions: its application is conditioned not by the profession of the interested party, but by the nature of the act, or the meeting of certain objectively definite circumstances.

The article L. 121-1 of the French Commercial law lays out " Those are tradesmen which exert commercial acts and make their profession habituelle" of it;. The criterion usually was retained by jurisprudence, for a moral person whose activity was of civil nature, in these terms: Attendu that a moral person, even if it is of civil statute, can be held for commercial in the exercise of a usual activity consisting of the repeated practice of commercial acts; that such is the case for the Cases of Agricultural credit, in their practice of the operations of bank, even if they are legally authorized to achieve acts in addition concerned with the civil law seems to privilege the objective design by defining the tradesman as that which achieves commercial acts.

The evolution showed that the commercial law could develop according to these two axes which are, on the one hand, the statute of the tradesman (access terms with the profession, rights and obligations specific) and, on the other hand, the rules applicable to the tradesmen, and the whole of the community activities.

Relationships to the other rights

The commercial law is classified among the public Droit until the XVIIe century because it was considered that the trade created above all the richnesses for the State. This design is found in the policies interventionists.

It was deeply influenced by the Civil law which is the common right, in particular for the contracts. But with the development of the business firms at the XIXe century, the need for a special right appeared.

It is also related to the Social right since it is interested in the companies which have employees and the tax Droit.

The criminal Law has finally also importance to repress the illicit frauds and profits with the detriments of the consumers or other companies.

Evolution of the commercial law

The commercial law goes back to the Code of Hammourabi towards 1730 before Jesus Christ. It takes importance in the Roman law which is marked by the Corporatisme. The Moyen-âge is marked by the fairs which gathered the tradesmen of several cities and which supported the emergence of rules and the specialized creation of jurisdiction. The Church after being itself opposite with the trade, will try to reconcile it with the religious regulations by authorizing for example the payment for the exchange.

In France, a turning is taken with the French revolution which allows a great liberalization. Thus the decrees of 1791 which proclaim the freedom of trade and remove the system of the corporations.

After the First World War: the State intervenes more and more to cure excesses of liberalism, and the commercial law becomes very directed. For a few years, one has attended a return of liberalism in practically all the fields. There is currently an mixed economy, where liberalism and interventionism coexist.

More recently, the European countries have to adapt to the Community legislation and in particular to the principles of freedom of movement of the goods and services, and of free establishment.

Sources of the commercial law

International sources

Has the international treaties Many fields of commercial law see their rules depending on the international treaties. It is thus as regards transport, of industrial property, check. The international treaties play a big role in commercial law from 3 points of view according to their object. Certain treaties propose 1 body of rules unified applicable to a sphere of activities or a type of operation. One can quote for example, the convention of comes of April 11th, 1980, coming into effect to France in 1988. It regulates the international sale of goods. The convention of Bern of 1990 which regulates the international rail-bound transports; the convention of Warsaw of 1929, it applies to air international transport. They are of practical interest because they meet the needs for the international business. However these conventions are not applicable in internal rights but such conventions can lay down applicable uniform rules as well in international law as in internal rights. Such conventions carry out a harmonization of the national legislations. It is the case of conventions of Geneva of 1930 on the 1931 and bill of exchange on the check. These conventions were introduced in France by 2 decrees laws of October 30th, 1935. More modestly of other international conventions the conflicts of national laws regulate. These conventions do not establish a new body of applicable rules. They are restricted to define the applicable native law in a given situation. It is the object for example of the convention of $the Hague of October 2nd, 1973 relating to the responsibility for the objects. A last category of international conventions establishes permanent organizations which will formulate legal provisions international. Such conventions will set up organizations… Ainsi a convention created linked the right i.e. the international institute for the unification of the private law. Today about fifty state adhered to linked right. This institution published into 1994 of the principles relating to the contract of the international business. These principles are usually called “principles plain right”, the international institute for the unification of the right. One can still mention in this work of the international rules of the trade, the international office for the industrial property, or the commission of the nations linked for the development of the international business.

B the Community legislation

What increased considerably the role of the treaties is the European construction which tends towards the standardization of the right. The Community legislation is an important source of the commercial law. The Treaty of Rome of March 28th, 1957 instituted the EEC which created the Common Market and of the common marketing policies. The single currency, trade with third countries and finally consumer protection. Whole points of the commercial law concern the provisions of sources Community. In particular right of the competition, VAT, law the company. The Treaty of Rome proclaims great freedoms which interest the commercial law basically. The right of establishment i.e. the right to carry on an community activity in any other state of the union under the same condition that the nationals, one can still quote free movement of the goods, the services and the capital. The derived right also interests the commercial law, they are the regulations and the Community directives. The directives are envisaged by article 189 of the Treaty of Rome. Many directives were applied in the company law, for example as regards SA, of amalgamation of company, as regards tender offer. The derived Community legislation obliges the states to adapt the national right to transpose these Community directives.

C international practices

The international practices are particularly developed in measurement or the international business needs common rules, but the states enact rules which apply to their territory and they are unsuited to the international business except when conventions are concluded. Many problems in broad fields are not regulated by international texts. The uses fill the difficulties of with the absence of harmony between the national rights. Also certain organizations developed standards, formulas which are used in the commercial contracts. As of the 19th century the tradesmen of the same profession grouped within international organizations who codified the uses, which drew up standard contracts. One can quote the chamber of commerce international which sits at bets. This room codified uses, in particular as regards contractual guarantees, it worked out incoterms. They are standardized commercial terms intended for the sales of goods accompanied by transport. These terms are words codes whose main interest is to define the principal obligations of the parties in the commercial sales accompanied by a transport. The obligations of each party are codified by initials. With each initials corresponds of the interesting precise obligations for example, the place of delivery of the goods or the conditions of the insurance. The international chamber of commerce set up standard contracts used in certain commercial exchanges. This institution is not a chamber of commerce with the institutional direction of the term. One can still quote the international institute for the unification of the private law which counts about fifty states. This institution worked out into 1994 the principles relating to the contract of the international business, the principles plain right. These rules and uses play a very important part, in practice they contain arbitration clauses almost systematically. In fact clauses provide that if a litigation occurs between 2 contractors, this litigation is not submitted to the courts but to referees. These referees are often lawyers qualified as regards international business. One them crystallized the litigation, they decide which wrongly or rightly, they fix the amount of the damages. Example: a French manufacturer of vehicles is made deliver defective steel coming from another European country; none of the 2 parties may find it beneficial to make advertizing around this litigation. It will be regulated quickly by the chamber of commerce international of bets which will use the arbitration. The arbitration is an ignored field of the right of the businesses. It however has importance growing because of the speed and the discretion of the procedure. It is obvious that the parties do not wish to put on the public place of the disagreements relative to the bad quality of the delivered goods, with delays of delivery etc which would cause an injury in term of brand image. The disadvantage is due so that the awards remain secrete, ignored. They escape control from the public authorities i.e. states.

Internal sources

The countries developed their national legislation to adapt to various phenomena.

economic: the industrial revolution of the 19th century; the crisis of the Years 1920 and 1930; the tendency to the regrouping of companies monopolisatrices.
political: democratic regime; two World wars; the constitution of an economic and political European unit.
ideological: socialist doctrines; appearance of the neoliberalism.
social: claim of the increasingly high wages; organization of the consumers.

The legislation is thus burst between several codes, but also in decrees, circulars and recommendations which can have obligatory value.

Another source is commercial jurisprudence, resulting from the bankruptcy courts but also from the commercial Room of the Court of appeal.

The last source, less important is the doctrines: writings, articles, comments written by lawyers, professors, theorists or experts who can inspire the judges.

Uses

The uses are very old practices whose recipients acquired the certainty which they were obligatory. Today marginalized by the development of the statute law, they remain important in the commercial law. Examples:

In the Maritime law
Practical of the standard contracts: the chambers of commerce set up models of contract in precise fields which become usual
Réglementation of the international Chamber of commerce
arbitration jurisprudence

In France, these uses have obligatory value according to jurisprudence when well even a Loi of law and order would say the opposite.

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