Commercial Law: Origins, Evolution, and Modern Challenges
1. The Relationship Between Civil and Commercial Law
Mercantile law is special in relation to the civil system, and civil law has application on a subsidiary basis. Article 2 states, “Acts of commerce, whether performed by business persons 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.”
- Special order of priority in mercantile law: the “mercantile customs” prevail upon “civil law” (Article 2 of the Commercial Code).
- Exception to this rule: in “mercantile contracts,” the common rules prevail over the mercantile custom as a source (Article 50 of the Commercial Code).
2. Development of Commercial Law in Medieval Times
The main source of commercial law arose through the development of customs. This was due to the inability of common rules (civil rules: Roman and Canonic law) to address the needs of merchants.
3. The Enterprise Doctrine: Origins and Purpose
The “enterprise doctrine” represents an effort to unify the mercantile system.
The mercantile evolution trend is toward unification in a common private law:
- The spreading of commercial law to rule new social and economic areas (from ruling only trades to regulating industrial and agricultural activities and even liberal professionals).
- The constant and parallel generalization of commercial institutions from the business realm to be used in non-business transactions (e.g., bills of exchange).
- A contradictory and paradoxical slimming down of the scope of commercial law due to the increasing process of generalization by which special rules of commercial character become general rules to be applied to any situation, and falling accordingly within the scope of civil law.
4. Principal Challenges Facing Commercial Law Today
Future trend: Reinforcement of the autonomy of the mercantile discipline. The “Proposal of a new Code of Commerce.”
Future: The Second Section of Commercial Law of the General Codification Commission delivered to the Ministry of Justice, on June 17, 2013, the proposed Commercial Code in substitution of the Code of Commerce in force. This would mean that special legislation will be incorporated into the new Commercial Code.
5. Features of the Sources of the Legal System
Features of the “sources of the legal system”:
- On the one hand, a source could describe public authorities empowered to adopt regulatory actions on specific matters (state, regional, or local authorities, parliament, ministries, or supervisory bodies).
- On the other hand, different forms that legislation and regulations may take (law, regulation, ministerial order).
- From a more general perspective, political and socioeconomic phenomena are able to give rise to binding rules (hetero-regulation by means of enacted legislation, self-regulation by drawing codes of conduct, generally observed practices in the market which become custom, by court case-law).