Mercantile law
| Mercantile law |
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| See also |
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].
References
- Baker J.H., “The Law Merchant and the Common Law”, Cambridge Law Journal 38, no. 295 (1979).
- Benson B.L., “The Spontaneous Evolution of Commercial Law”, Southern Economic Journal 55, no. 3 (1989): 644–661.
- Rogers J.S., The Early History of the Law of Bills and Notes (1995), p. 6-10.
- Leeson P.T., One More Time with Feeling: The law Merchant, Arbitration and International Trade., West Virginia University, 2007.
- Smith J.W., Mercantile Law, Cambridge Law Journal 38, 2011, p. 121-124.
- Trakman L. E., Law Merchant: The Evolution of Commercial Law. Littleton, Colo.: F.B. Rothman, 1983.
Footnotes
Author: Patrycja Barszcz
