CHAPTER I Introduction

Author:Martin Wolff
Profession:Sir
Pages:210
 
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SECTION I - THE CONCEPT OF COMMERCIAL LAW

  1. German law, unlike English law, distinguishes between commercial law (Handelsrecht) and civil law (Biirgerliches Recht). Commercial law is that part of private law which is applicable only to those legal relationships which arise from commercial intercourse. Two points in this definition need explanation:

    (a) Commercial law is private law. There are also some rules of public law relating to merchants and commerce. Examples of these are the provisions of commercial treaties between two states, or rules of administrative law such as those concerning the organisation of chambers of commerce or state supervision of stock-exchanges, or rules governing taxes on commercial transactions, currency regulations, and other government measures designed to influence commercial intercourse.. Then again some parts of the penal law are directed against crimes or misdemeanours committed in the commercial sphere, such as laws concerning black market activities, publication of fraudulent company prospectuses, etc.

    (b) Commercial law is that part of private law which is applicable only to commercial affairs. Many rules of private law are equally applicable to civil and to commercial matters. Such are: all the rules relating to the conclusion of contracts or their performance, most of the rules relative to the sale of goods, the rules on the transfer of ownership of goods, etc. These are not 'commercial' law, even if in fact they are usually applied to commercial matters.

  2. The fact that the whole continent of Europe (except the Scandinavian states) and the whole of South and Central America have developed and still maintain a distinction between civil law (droit civil, biirgerliches Recht) and commercial law (droit commercial, Handelsrecht) is mainly due to the belief that civil law by itself does not satisfy all the requirements of commercial life. While e.g. in England the contract of sale between merchants follows the same rules as a contract between non-merchants-apart perhaps from contracts in market overt-German law distinguishes sharply between commercial and non-commercial contracts of sale; only in the case of commercial contracts concluded between two merchants is a duty imposed on the buyer to examine the goods delivered to him as soon as possible in order to ascertain whether or not they conform to the contract. Or to give another example: Under English law any contractual relationship between persons...

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