Mercantile law

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Mercantile law is a set of norms of private law, which regulates the organization of entrepreneurs and business activities, both internal (domestic) and international. It is a discipline derived from civil law [1].

Sources of mercantile law

The main sources of mercantile law are the Civil Code and the Commercial Companies Code, as well as constitutions, international conventions and mercantile law. Trade law has its roots in classical Roman contract law [2]. The origins of separate commercial law can be traced back to later medieval Italy, when supra-local trade was reborn and dealt with by specialised entities (from which today's commercial companies were born). The full emancipation of mercantile law occurred in Europe in the 19th century under the influence of intense economic development [3].

Scope of mercantile law

The scope of mercantile law is quite broad, we can divide it into two groups:

  • the general part - it includes issues related to entrepreneurs, e.g. business activity, entrepreneur, taking up and registering business activity,
  • entities (all entrepreneurs) - companies, cooperatives, banks, foundations, associations, state enterprises, individual business activity,
  • business agreements - these will be all agreements concluded in the Civil Code, i.e. transport agreements, bank agreements, commercial and licensing agency agreements, business insurance agreements, construction works agreements, works contracts, contract of mandate,
  • other - competition law, property law of entrepreneurs, stock exchange law, copyright law, bankruptcy and reorganization law [4].

Standards of mercantile law

Law studies distinguish commercial law standards from private law standards using various competitive criteria [5]:

  • subjective criterion - the norms of commercial law regulate those legal relations in which the parties are persons professionally engaged in trade (merchants); in this context, commercial law was the law of the state of commerce (lex mercatoria);
  • objective criterion - commercial law regulates legal relations resulting from specified legal acts related to economic activity, defined as commercial activities;
  • the mixed criterion (subject-objective); this system distinguishes three types of commercial law transactions:

objective (regarded as commercial law transactions regardless of the entity carrying them out), subjective (the subjective one was given the character of a merchant), activities which covered the commercial law, if the entity performing them was a merchant [6].

Characteristics of mercantile law

  • Commercial law is a standard that falls under private law, not public law. The distinction between private and public law is based on a number of criteria (interest protected in the light of normative regulation - public - public) or private, parties to the legal relationship - is there a public body among them [7], the relationship between the entities - the method of regulation - equivalence, or (e.g. allocation, etc.).
  • Commercial law undoubtedly falls within the scope of private law, unlike e.g. to public economic law, which is a discipline public law, using an administrative and legal method to the shaping of economic relations by the state [8].
  • Commercial law is a set of rules of private law
  • Commercial law is not a homogeneous discipline, but a combination of different disciplines, standards that apply to traders. It is therefore not a homogeneous set of standards, but a complex of a variety of standards which, in principle, have a subjective aspect, i.e. a relationship with the activity of entrepreneurs. This team includes both the provisions of regulating the organization of entrepreneurs (companies, proxy, company), as well as the following by them (activities, commercial contracts), and also, occasionally, the principle of coexistence in the market (protection of competition) [9].
  • Some legal acts (acts), which cover the matter of commercial law (private), but also contain rules of public law (e.g. Bankruptcy and Reorganisation Law, Competition and Consumer Protection Act).
  • Commercial law concerns legal relations with the participation of entrepreneurs
  • Commercial law concerns the so-called professional legal transactions, i.e. relations with business entities, in private law referred to as businessmen [10].

Examples of Mercantile law

  • Contract law: This is the set of rules governing the formation and performance of contracts between private parties. It encompasses the negotiation, formation, interpretation, and enforcement of contracts, and the legal remedies available in case of a breach.
  • Agency law: This is the set of rules governing the relationship between a principal and an agent. The principal is the party that has given the agent the authority to act on the principal's behalf. The agent is the party that is authorized to act on behalf of the principal.
  • Sales law: This is the set of rules governing the sale of goods and services, including the formation and performance of sales contracts, the rights and obligations of the parties, and the remedies available in case of a breach.
  • Negotiable instruments law: This is the set of rules governing the transfer of money or other negotiable instruments. It includes the negotiation and transfer of negotiable instruments, the rights and obligations of the parties, and the remedies available in case of a breach.
  • Bankruptcy law: This is the set of rules governing the insolvency of business entities and individuals. It includes the procedures for filing for bankruptcy, the rights and obligations of the parties, and the remedies available in case of a breach.
  • Commercial paper law: This is the set of rules governing the issuance and transfer of commercial paper, including promissory notes and negotiable instruments. It includes the negotiation and transfer of commercial paper, the rights and obligations of the parties, and the remedies available in case of a breach.

Advantages of Mercantile law

Mercantile law provides an efficient legal framework for businesses and entrepreneurs. It offers numerous advantages, such as:

  • Security - Mercantile law helps to protect business owners from potential legal risks by establishing clear regulations and guidelines. It provides a way to settle disputes between businesses, customers, and other parties in a fair and equitable manner.
  • Clarity - Mercantile law sets out clear and concise regulations and procedures that businesses must follow. This helps to ensure consistency and compliance with applicable laws and regulations.
  • Flexibility - The regulations set out in mercantile law are often flexible and allow businesses to remain competitive in the marketplace. This allows businesses to adjust their operations as needed to meet changing market conditions and customer demands.
  • Efficiency - By providing businesses with a clear legal framework, mercantile law helps to ensure that operations run smoothly and efficiently. This can help to reduce the cost of doing business and increase profitability.

Limitations of Mercantile law

Mercantile law has certain limitations that affect its ability to regulate business activities:

  • The rules of mercantile law are limited in scope and can only regulate certain types of activities, such as contracts and exchanges of goods and services.
  • Mercantile law is not designed to provide comprehensive protection against fraud, criminal activity, or other illegal activities.
  • Mercantile law is limited in its ability to regulate the activities of foreign businesses and individuals operating in the domestic market.
  • It is also limited in its ability to oversee the activities of businesses operating in multiple jurisdictions, as each jurisdiction may have different laws and regulations.
  • Mercantile law does not provide for the enforcement of its rules, so any disputes must be settled in court.

Other approaches related to Mercantile law

  • Contract law: This branch of Mercantile law focuses on the regulations and requirements of the different types of contracts that are created between parties. It encompasses the principles of offer and acceptance, capacity to contract, legality, and remedies for breach of contract.
  • Negotiable Instruments: This branch of Mercantile law focuses on the use of different types of negotiable instruments such as checks, bills of exchange, promissory notes, and other similar instruments. It includes the rules of negotiation, transferability, and enforcement of these instruments.
  • Bankruptcy Law: This branch of Mercantile law focuses on the regulations and requirements related to insolvency proceedings. It includes the laws related to the filing of bankruptcy and the process of negotiating a settlement between creditors and the debtor.
  • Corporate Law: This branch of Mercantile law focuses on the regulations and requirements related to the formation, organization, operation, and dissolution of business entities. It includes topics such as corporate governance, securities, and mergers and acquisitions.
  • Competition Law: This branch of Mercantile law focuses on the regulations and requirements related to the prevention of anti-competitive practices. It includes topics such as cartels, restrictive agreements, and monopolies.

In summary, other approaches related to Mercantile law include Contract law, Negotiable Instruments, Bankruptcy Law, Corporate Law, and Competition Law. Each branch focuses on different aspects of business law and regulations and helps to ensure the smooth operation of businesses.


Mercantile law — recommended articles
Nominee shareholder — Arms length price — Torrens system — Nominee shareholding — Copenhagen criteria — Mutual agreement — Selling Group — Conditions of sale — Binding contract

References

Footnotes

  1. ↑ Baker 1979, p.32
  2. ↑ Baker 1979, pp.32-36
  3. ↑ Trakman 1983, pp.165-167
  4. ↑ Smith, 2011, pp.121-124
  5. ↑ Smith, 2011, pp.121-124
  6. ↑ Smith, 2011, pp.121-124
  7. ↑ Benson 1989, pp. 644-661
  8. ↑ Benson 1989, pp. 644-661
  9. ↑ Rogers 1995, pp.6-10
  10. ↑ Trakman 1983, pp.165-167

Author: Patrycja Barszcz

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