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Commercial Law I

2nd Degree in Law

law School
University of Granada

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Lesson 1: The concept of Commercial Law.

1. Commercial law as a historical category.

A) The 'historicity' and 'relativity' of Commercial Law.

Commercial law constitutes a historical category since as an autonomous

discipline, its appearance occurs at a certain historical moment, as a branch of private
law and to satisfy certain requirements. Therefore, since then it has undergone a
constant transformation, due to economic, political and social factors, until reaching
its current content.

Relativity is explained since there is a connection or relationship between

Commercial Law and the economic and political factors of each historical moment, so
that as these evolved, the contents and profiles of Commercial Law also evolved, and
therefore, its concept. Hence, it is affirmed that commercial law is a legal discipline in a
permanent process of evolution and transformation.

B) The birth of Commercial Law as a Special Law.

In Roman private law, the existence together with the ius civile of the ius honorarium,
and the recognition of a ius gentium, gave the system enough flexibility and capacity
to adapt to social realities so that the legal regulation of trade did not require a
special right. For this reason, the existence at this time of a commercial right,
separate and differentiated from the ius civile, is denied.

During the High Middle Ages, the feudal economic system did not foster the birth of
Commercial Law. The birth of Commercial Law as an autonomous branch within Private
Law is usually located in the Late Middle Ages, in the 12th century, mainly
in the cities of northern Italy.

The crisis of the feudal system generated the appearance of new protagonists
(citizens, as opposed to the servile population), a new scenario (since life moved
from the rural environment to the city) and a change in the patrimonial system (since
the value of the land and its exploitation are going to be replaced by another economic
activity, the commercial one). The merchants and artisans of the different cities are
associated in guilds and corporations, governed by the prevailing mercantile practices or uses.
The Consular Courts arise within the corporations, their main function was to
judge disputes arising from the exercise of commercial activity. The consular
jurisdiction resolved conflicts by applying commercial uses. It is important to
mention the 'Llibre del Consolat del Mar', the work of the Magistrates of the Maritime
Consular Court of Barcelona, which collected the customary law in force throughout
the Mediterranean basin.

The basic characters with which this special right arises in the Middle Ages are:

- It is a subjectively based right, a right of merchants. Not only

regulates their activity, but it is also a right created by them. Commercial Law
emerges as a class-oriented corporate Law.

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- Born of custom, is a right of customary origin. The

corporation statutes and city ordinances compile the prevailing usages in traffic, and the consular
jurisdiction resolves issues in accordance with equity, according to usages or trade customs.

- It is a right of local origin but with a tendency towards uniformity and

internationality. Born linked to certain cities but the right contained in the statutes of corporations
passes from corporation to corporation.

C) Commercial Law in the Modern Age.

The commercial law that emerged in the Middle Ages undergoes profound changes with the advance of the
Middle Ages and the arrival of the Modern Age, in the 16th, 17th and 18th centuries. Economic activity will
continue to focus on small businesses and craft and agricultural activities. But along with them, an international
trade market will begin to develop, in which the State will be the protagonist as a new economic and
political reality.

The appearance of States in the Modern Age will mean a momentous change in the conception
of Commercial Law. The economic power of cities is going to yield to new players, the States. The
Commercial Law is nationalized and ceases to be the right of the merchants of the cities to become
the right of the merchants of the various states. The transformation of Commercial Law resides not only in
expanding its scope of application, but also in the dilution of its primitive character as essentially
customary law.
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The merchants will stop being their producers and executors, with which the commercial law begins to lose
part of its consideration of class law, even when it continues to be a legal right emanating from the state
powers.

Despite this, the content of this right continues to be the same, just as in the Middle Ages, we are dealing
with a right aimed at satisfying the needs of professionally organized economic activity.

The characteristics of commercial law in the Modern Age are:

- The first formal source of production of commercial law becomes the law,
custom is relegated to the background.
- The power to enact laws lies in the State, in the sovereign power. For this reason, commercial law
becomes written and state law.
- The delimitation criterion of commercial matters continues to be subjective,
but on this professional and class core, the application of Commercial Law is expanding to other non-
commercial subjects and to economic activities other than commerce.

- The note of the internationality of commercial law yields to a progressive

nationalism, which affirms the power of the State in its territorial sphere of sovereignty.

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D) The revolutionary or liberal Commercial Law.

At the end of the 18th century, with the French Revolution, another period of
important social, political and economic transformations that influence Commercial Law
begins.

The revolutionary principles will mean the establishment of economic freedom and the
absence of any intervention by the State. On the other hand, any citizen will be able to
freely exercise commerce and guilds and merchant corporations will disappear. The
'subjective' conception of commercial law falls into crisis. Commercial law cannot continue to
be a special, privileged and class-based right, but a right of all to the extent that they carry out
commercial acts.

E) Commercial law and codification.

In the 19th century we find ourselves with the codifying movement, characterized by concern
for the certainty and rationality of law.

The first exponent of this movement in the commercial field is the Napoleonic
Commercial Code of 1807. The historical significance of this Code results from its relationship
with the Civil Code of 1803, and from the fact that it is the Code model that would
later be adopted. in other countries, such as Spain.

The Code of 1807 was more than a commercial code, since it regulated, along with
commercial activity, industrial activity. On the other hand, compared to the previous
subjectivism, by which Commercial Law affected only those who were registered as merchants
in the registry, the Code of 1807 will configure the new commercial law on objective
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approaches, and in particular around the concept of act of commerce. The French Commercial
Code adopts a mixed criterion of mercantile classification, since although the central axis is
constituted by commercial acts, the qualification of these depends on their performance
by a merchant.

The Code of 1807 supposes an important objectification of commercial law, since it ceased
to be the right of merchants to become the right of 'commercial acts'. The importance of
the concept 'acts of commerce' is such that it is even incorporated into the definition of
merchant, when it is stated that 'merchants are those who carry out acts of commerce and
make them their habitual profession' (art. 1).

The Code of 1807 influenced the Codes that later arose in other European countries, including
our Commercial Code of 1829.

The Code of 1829 focused the concept of commercial law on the act of commerce,
surpassing the previous corporate vision and recognizing the principle of equality of citizens
before the Law. In addition, commercial acts will be submitted to commercial jurisdiction,
whether or not they were carried out. by merchants.

This objectivist conception will be accompanied by a subjective nuance, since it also regulated
certain aspects related to merchants, requiring their participation to qualify certain acts as
commercial.

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Although the Code of 1829 revolved around the concepts of commercial act, it could not
be clearly ascribed to the objective system or to the objective. In addition, the concept
of act of commerce and merchant were not well connected, since, on the one hand, it is
said that a merchant is the one who performs acts of commerce, and it turns out that
many of the acts of commerce included in the Code receive this consideration precisely
as a result of the participation in them of one or two merchants.

The Code of 1829 left certain sectors of Commercial Law out of its regulation.
This explains the appearance of complementary legislation that soon began to claim the
need to review the Code in order to unify commercial matters, which will end up
causing its replacement by a new Commercial Code, which is approved and
promulgated by Law August 22, 1885.

2. Formal-positivist conceptions of Commercial Law.

With the consecration of the act of commerce as a delimiting criterion of commercial

matters, we find a new basis to define Commercial Law. It started from the idea that in
order to define Commercial Law it was necessary to come up with a concept of the 'act
of commerce'.

A) The unitary constructions of the concept of objective act of commerce.

Since there is no legal definition in positive regulation and the acts qualified
as 'commercial' by law are diverse and heterogeneous, the doctrine starts from
the examination of the regulated acts to try to find a note or a common characteristic
that is present in all of them and that serves as a basis for building a unitary
concept that understands the specific cases contemplated by the legislator.

For a part of the doctrine, the essential element was given by the data of the
circulation of goods and wealth. The act of commerce would be all that implied a
participation in the circulation of goods and wealth.

Another part of the doctrine will understand that, in order to identify the legal concept of
commerce with that of the circulation of products, money, etc., the profit motive must
be added.

Finally, another part of the doctrine will identify commercial matters as that which is
made up of acts that can be classified as commercial by their own intrinsic
nature, and intimidating commercial acts related to the above. The essential
feature of commercial matters will be provided by commercial acts due to their
intrinsic nature. And the essential feature of commercial acts due to their intrinsic
nature is represented by the fact that an indirect change is executed or that an act
of interposition in the change is produced.

All these constructive efforts come up against the impossibility of redirecting to an

abstract unit the accumulation of heterogeneous acts qualified by the legislator as
commercial.

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All this has been useless because they do not give a good definition.

B) The legalistic resolutions of the problem of the delimitation of the acts

trade goals.

A large doctrinal sector abandons the attempt to formulate a unitary concept of commercial act to conclude
that commercial matters are made up of commercial acts. In this line, it is worth referring to those who
identify Commercial Law as commercial law, that is, as a law that regulates the activity of intermediation
between the sphere of production and that of consumption.

3. Material conceptions of commercial law.

The failure of the approach to the definition of commercial law through acts
of commerce, provoked the development of new theories. These theories were based on careful observation
of reality and its historical-economic analysis.

A) Commercial Law as the law of legal acts carried out in

mass.

One of the theses maintains that from said analysis of reality, it is obtained that commercial law exists,
separated from civil law, due to the demands of repeated or mass traffic. He maintains that this mass
performance of legal acts is the characteristic note of commercial law, which is justified in satisfying the
requirements of the mass performance of legal acts. These acts are commercial based on the way in which
they are executed, requiring a special law that adapts to that form.
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Mass contracting is not exclusive to commercial law, on the contrary: not all commercial law is a law that
regulates mass acts, since there are commercial acts that are not governed by the law of number.

B) Commercial Law as company law.

This thesis goes further than the previous one, it maintains that the core of this discipline resides in the
economic organization that is necessary to arrange for traffic, an organization that is none other than the
company (understood as the use of economic forces to obtain a profit). uncertain profit). Commercial law
will be built and identified around the company.

But this identification is difficult to sustain today, since commercial law is not the only one that deals with the
company.

C) Commercial Law as the right of the entrepreneur and of the activity

company external.

Today the majority doctrine maintains that the core of commercial law is maintained, rather than around the
company, in two elements that accompany it: its owner (the employer) and the activity that is carried out
with it. This is how the law is conceived

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mercantile as a sector of the private legal system that regulates the commercial entrepreneur
and his statute, as well as the activity that he develops.

D) Commercial Law as business law.

Another thesis maintains that commercial law is business law. The business world is an
economic phenomenon susceptible to specific and homogeneous regulation. The part
of the legal system in charge of undertaking this task is business law, and all activity related
to the business world would be connected to commercial law.

This identification of commercial law with business law presents drawbacks. In the first
place, the allusion to a concept as broad as that of business causes this part of the order
to lose some cohesion. Secondly, with this identifying criterion of commercial matters it
would be absolutely impossible to separate this matter from civil matters.

E) Commercial Law as Economic Law. a) The law of the

economy or economic law.

Our doctrine has two definitions of economic law:

- A strict one, in which economic law aims to delimit all the regulations in which public
intervention in the economy is manifested, so that it would be composed of
those norms that regulate public intervention or management of the
economy.
- A broad one, in which economic law is not reduced to the right of
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interventionism, but encompasses all public and private regulation of economic

activity.

Economic law would be made up of very heterogeneous norms, coexisting legal-public

norms with legal-private norms, and norms of an ordinary and constitutional nature.

The notion of company would be able to bring together all those norms, so that economic
law would include the sector of the internal structure of the company, that of the external
structure and that of its relations with the public power.

b) Economic law and commercial law.

With the conceptions of economic law, we are faced with the question of what is its
relationship with commercial law, and whether or not the first has led to the dissolution or
loss of autonomy of the second.

In this sense, a process of cancellation of commercial law is opened insofar as economic

law deprives commercial law of a large part of its characteristic content, and of its traditional
identity: private legal.

Economic law neither introduces any kind of confusion into the content of commercial
law nor does it affect the autonomy and substantivity of commercial law.

F) Commercial Law as market law.

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It is pointed out that in contemporary times commercial law has begun an important
evolution, since 'commercial law is moving towards what could be called market law'.
Commercial law as market law would take into account not only the company and
the employer, but all the operators and all the acts that take place in the market.

There have been no shortage of objections to this delimitation of the mercantile:

- Although commercial law is a market law, many other rules that regulate the market
are outside commercial law.
- Not only is it difficult to define the concept of the market itself, but the theory of
market law 'does not take into account that there are as many markets as
there are goods and services, some of them unregulated and others 'hyper-
regulated', and with fundamental differences' .

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