Commercial Law: History and Sources
Topic 1: Introduction to Commercial Law
Commercial Law is substantially a product of history. No Commercial Law existed in Rome because of the dynamism of ius civile and praetor activity. The birth of Commercial Law started in the Middle Ages with the following social and political situation: the advent of merchants, the growth of trade by sea, the rise of towns and fairs, and the progressive weakening of the agricultural and feudal economy. Its concept was based on the personal condition of the parties involved (the merchants, subjective rationale), sources (uses and practices), and competence (special consular courts formed by merchants).
Commercial Law in the Modern Era
During the Modern Era, the social and political situation changed with the formation of modern states, the sovereignty of monarchies, and public interventionism (compilation of uses and practices). The concepts remained based on the personal condition of the parties involved, the merchants (subjective rationale). Sources included the compilation of uses and practices. Competence was handled by special consular courts, attached by regal jurisdiction.
Commercial Law in the 19th Century
During the 19th century, the social and political situation was defined by the French Revolution, codification (a perpetual systemized set of rules, e.g., Spanish Commerce Codes 1829 and 1885), the Industrial Revolution, and Liberal Capitalism. The concept was based on the “acts of commerce” (objective rationale). Sources included codes and laws. Competence was with Commerce Courts/Civil Courts.
Article 2 of the Commercial Code of 1885 declares: “Acts of commerce, whether performed by businesspersons or not, and whether or not they are specified in this Code, shall be governed by the provisions thereof; failing that by the business practice generally observed in each city and, if not covered by either of the rules, by those of ordinary Civil Law. The acts included in this Code and any others of a similar nature shall be considered acts of commerce.”
Commercial Law Today (20th Century)
Today, in the 20th century, the social and political situation is characterized by public interventionism, the EU, and globalization. The concept is the set of rules aimed at governing economic activity run by businessmen in the market (subjective rationale). Competence is with Commerce courts/arbitration.
Sources of Commercial Law
- Attending to the authority empowered to adopt regulatory actions.
State Law
State Law includes:
- Acts from the legislative branch (Ley ordinaria and Ley orgánica: Article 81 of the Spanish Constitution).
- Regulatory initiatives characterized by emanating from the executive by express delegation of the legislative (“Real” because it is an expression of a parliamentary monarchy system): Real Decreto Legislativo and Real Decreto-Ley.
- Regulations subject to that prescribed by the law they develop: Reales Decretos and Órdenes Ministeriales.
State – Autonomous Regions (Comunidades Autónomas)
- 17 autonomy entities called Comunidades Autónomas are recognized and invested with legislative, executive, and judicial powers in the Spanish Constitution. Statutes of Autonomy (Estatutos de Autonomía) are approved as the supreme text of each region.
- From Article 149.1.8 of the Spanish Constitution (subsequently developed by the States of Autonomy): the regulation of civil matters is an exclusive power of the State; without prejudice to the competence of regional authorities where special civil legal systems exist to preserve, modify, and develop them.
- From Articles 149.1.6, 9, … of the Spanish Constitution, Comunidades Autónomas have no power in Commercial Law matters. Limit: the principle of market unity, guaranteed by State-adopted legislation (judgments 62/1991, 22 March, 96/1996, 30 May, …).
European Law
- Adhesion by Spain in 1986.
- Supremacy of EU law (famous case Costa vs. ENEL).
- Composed by:
- Treaties (articles 93-96 of the Spanish Constitution).
- Policy guidelines.
- Derivate regulations (288 TFUE):
- Directive: binding, shall leave to the national authorities the choice of form and methods.
- Regulation: entirely and directly applicable in all Members States.
- Decision: binding in its entirety (to whom it is addressed).
- Recommendation: no binding force.
- Case law of the European Court of Justice.
International Uniform Law
International Uniform Law refers to Uniform Law for International Trade (collection of rules, regulations, principles, and legislation): a new regulatory state governed by a reinforced private autonomy and leading roles for international uses and practices. Conflict rules used to be the main tool of International Private Law.