The codification of commercial law: from idea to realization

10.12737/984 ◽  
2013 ◽  
Vol 1 (4) ◽  
pp. 209-218
Author(s):  
Татьяна Батрова ◽  
Tatiana Batrova

The question of the independence of trade law is often associated with the presence of the Commercial Code, along with civil, that formally should indicate the position of the legislator regarding necessity of the structural separation of the relevant legal standards. Based on the analysis of foreign law, the author considers the peculiarities of the codification of commercial law in the period since 17th century to the present, analyzes the causes and characteristics of its implementation in the various national legal systems, and assess the status and prospects of the codification of commercial law at the national and supranational level.

2021 ◽  
Vol 2 (2) ◽  
pp. 71-87
Author(s):  
Teshale Shambel

This paper aims to analyze unfitness of micro and small enterprises with the existing trade law particularly partnership rules in Ethiopia. Qualitative research methodology is utilized in order to capture and analyze accurate and in-depth insight of the fact that micro and small enterprises in Ethiopia are not compatible with the existing partnership law though partnership form of firms are suitable for small business. The available literatures related to the issue were professionally scrutinized and analyzed for the purpose of the research. The results of this research shows that micro and small enterprises in Ethiopia are formed as simply business organization which does not specify the kind of firm structure. Formation, management, liability and dissolution of micro and small enterprises deviate from the partnership requirements stipulated under the Ethiopian commercial code. Furthermore, micro and small enterprises are operating as informal sector business though the sectors‘ development strategy clearly states that they should be organized under trade law. Therefore, micro and small enterprises system should be reformed in order to make them to be compatible with the existing commercial law.


2011 ◽  
pp. 362-382 ◽  
Author(s):  
Assafa Endeshaw

A great deal of uncertainty surrounds the impact of the continuing growth of electronic commerce (e-commerce) on existing law. While commercial law has evolved over the centuries in response to the development of trade in goods and services, within or across nations,1 the emergence of an electronic medium (‘cyberspace’) as an additional avenue for trade has pushed to the fore many questions: whether and how an adaptation of existing law would be possible, appropriate or sufficient to catch up with the problems thrown up by the new medium. For one thing, the nature and effects of transactions that would ordinarily have been taken for granted had they occurred on non-electronic media confound established notions of commercial law. Secondly, the unpredictability of the ultimate consequence of such transactions to the respective trading partners, who would be more likely to come from different jurisdictions, prompts scrutiny of pre-existing, widely accepted formulations in domestic trade law, custom and treaty among nations. A major feature of the emergent situation is that the impact of e-commerce on the law has not been across the board, simply because e-commerce has not been developing evenly. Most transactions to date relate to the purchase of computer hardware or software or the supply of information of various types: plain news, financial data, entertainment, education, travel, advertisements, health and DIY tips. These items have one characteristic, namely the buyers’ lack of interest in, or disregard of, any need to have to conduct checking or inspection prior to purchase or, at any rate, before delivery. In light of the general uncertainty surrounding the status of the online buyer and seller, the relevant law and of how it might be applied on behalf of a buyer claiming redress, the purchase of “safe” items acquires a precautionary significance. In other words, the very nature of the items involved in the transactions seems to rule out any fundamental failure that could surface at a later stage and necessitate the intervention of the law to resolve the consequences of that failure. Obviously, once money has passed from the buyer to the seller, the path to recovery of that money, let alone further damages as would be expected under normal contract law, could be too complicated for the buyer to understand or pursue. What makes the plight of an on-line buyer who seeks redress intractable is that solutions to on-line legal disputes are only just evolving in bits and pieces. New rules have begun to emerge in the form of statutory reforms in single jurisdictions or through case decisions on disputes arising from on-line transactions. However, the ambit and applicability of the evolving laws tend to be subject to time, the nature of the concrete problems they are meant to address, as well as the diverse contexts. Consequently, pre-existing laws have not undergone modification or replacement by the emergence of e-commerce in all respects, to the same extent, nor in every jurisdiction. This chapter explores the nature of legal changes that have been propelled by the onset of e-commerce and the likely course of future developments. First, we present a brief summary of the impacts on contract law followed by a discussion on the liabilities arising from on-line transactions. Then, the focus is on issues of security and privacy of transactions. Finally, we cover the incipient forms of dispute resolution in e-commerce. The conclusion affirms that the law as applied to e-commerce is still in continuous flux and will take more time to acquire a definite shape. In particular, it underscores the urgency of meeting with the ever-apparent demand for an international treaty or agreement, at least parallel to existing treaties in contracts or sales.


Prawo ◽  
2017 ◽  
Vol 324 ◽  
pp. 129-167
Author(s):  
Leonard Górnicki

Mixed legal systems, especially those of Poland’s former partitioners, and the work on the codification of civil and commercial law in the Second Polish RepublicThe author explores the question of codification of civil and commercial law in the Second Polish Republic in conditions of mixed legal systems, especially those of Poland’s former parti­tioners. The co-existence in independent Poland of several legal systems prompted the country’s codifiers to conduct extensive comparative studies, as a result of which in the codification process they drew also on other legislative systems from Europe and even other continents.The author argues that the common denominator, developed by Poland’s Codification Com­mission, of the intermingled legislations encompassed primarily the legislations of the partitioning states, complemented by other legal systems, and what bound them together was the Polish, original legal thought. A model, not always enactable, consisted in creating a synthesis of the legislations of the former partitioners and more recent developments in law. In particular, the codifiers wanted to avoid radical solutions highlighting one system or model of law in order to avoid too great upheavals in the various provinces of the state. A model example of putting the idea of “mixed systems” into practice is the Code of Obliga­tions of 1933, which combined elements of the Romanesque and the German systems. Both these systems were also in evidence — in varying mutual relations and scope of use — in other acts of parliament and draft codifications of civil law. In the Commercial Code, on the other hand, pragmatic considerations prevailed over the idea of a synthesis, hence the predominance of German and Austrian solutions. In the laws concerning industrial property, the provisions dealing with the fundamental question of obtaining patents were based on the Romanesque system, while the Act on Combatting Unfair Competition was closer to the French rather than the German system. The Polish bill of exchange law, taking into account convention-based solutions the bill of exchange rules of 1910 and 1912, was similar to the German regulations; similarly, the Polish cheque law was based on the provisions of the Hague Convention of 1912, the Austrian and the German cheque laws as well as the later cheque rules of 1931.Die Grenzgebiete der Rechtssysteme, insbesondere der Nachteilungszeit, in den Kodifizierungsarbeiten betreffend das Zivil- und Handelsrecht der Zweiten Polnischen RepublikDer Verfasser behandelt die Probleme der Kodifizierung des Zivil- und Handelsrechts in der Zweiten Polnischen Republik vor dem Hintergrund der Berücksichtigung der Grenzgebiete von Rechtssystemen, insbesondere der Nachteilungszeit. Die Koexistenz von einigen Rechtssystemen im unabhängigen Polen veranlasste unsere Kodifikatoren, umfangreiche vergleichende Rechtsana­lysen durchzuführen. Infolge dessen hat man bei der Kodifikation des Rechts zu anderen europäi­schen und sogar weltweiten Gesetzgebungsverfahren gegriffen.Der Autor beweist, dass vor allem das Recht der Nachteilungszeit und ergänzend auch andere Rechtssysteme den gemeinsamen, durch die Kodifikationskommission der Republik Polen ausgear­beiteten Nenner für die sich durchdringenden Einflüsse verschiedener Rechtsvorschriften bildeten, und die polnische, originelle Rechtsidee diente als verbindendes Element. Ein gewisses Modell, das nicht immer realisierbar war, stellte eine Synthese des Rechts der Nachteilungszeit und der neuen Strömungen im Recht dar. Man wollte insbesondere radikale Lösungen vermeiden, die ein gewisses System bzw. ein Rechtsmodell einseitig bevorzugen, damit zu den zu weit gehenden Erschütterun­gen in den einzelnen Staatsteilen nicht kommt.Die Idee des „Grenzlandes“ realisierte fast modellartig das Schuldrechtsbuch von 1933, das in sich die Elemente des romanischen und germanischen Systems vereinigte. Diese beiden Systeme, im diversen gegenseitigen Verhältnis und verschieden angewandt, waren auch in anderen Gesetzen und Kodifikationsentwürfen aus dem Bereich des Zivilrechts sichtbar.Beim Handelsgesetzbuch wiederum waren pragmatische Gründe stärker als die Idee der Syn­these, so dominierten hier die deutschen und österreichischen Lösungen. Die Vorschriften betreffend gewerbliche Schutzrechte, bezogen auf die fundamentale Frage zur Erlangung eines Patents, wurde auf dem romanischen System gestützt, das Gesetz über die Bekämpfung des unlauteren Wettbewerbs stand dagegen dem französischen System näher. Das polnische Wechselrecht, unter Berücksichti­gung der konventionalen Lösungen Wechselreglement aus den Jahren 1910 und 1912 platzierte sich im Bereich der germanischen Rechtsvorschriften. Auch das Scheckrecht basierte auf den Be­stimmungen der Hager Konferenz von 1912, auf dem österreichischen und deutschem Scheckgesetz und auch dem späteren einheitlichen Scheckreglement aus dem Jahre 1931.


1999 ◽  
Vol 48 (2) ◽  
pp. 302-339 ◽  
Author(s):  
Gerry Maher ◽  
Barry J. Rodger

It is a well-known facet of litigation that the first step is often more important than any to follow. Virtually all legal systems bestow on litigants a variety of interim and provisional remedies. These remedies have a number of different functions and rationales but two in particular are thought to be fundamental.1 First, protective remedies provide a litigant with a degree of protection by ensuring that the status quo is preserved while the litigation is proceeding; second, these remedies secure the position of a litigant not only during the course of an action but also once it is over and he has judgment in his favour. This second function is usually achieved, in one way or another, by tying up and freezing the property of the other party to the action.2 However, protective remedies also serve other functions. Some remedies exist to promote the interest of a party in the advancement of his case (e.g. orders for disclosure of evidence), whereas others provide a litigant with part of the overall final remedy or judgment that he is seeking to gain from the action (e.g. interim payment or interim damages).


1976 ◽  
Vol 29 (4) ◽  
pp. 392-402
Author(s):  
E. W. Anderson

On 29 October 1969, taking the chair at a Duke of Edinburgh Lecture, the great educator Lord Butler commented, ‘…in my view, it would do a great deal of good if navigation could be considered an educational subject’. Indeed, we know that by 1700 the discipline was being taught in ordinary schools in this country, and it is perhaps worth repeating Isaac Newton's remarks on the Christ's Hospital syllabus: ‘he that is able to argue nimbly and judiciously about figure, force and motion is never at rest until he gets over every rub’.The inclusion of navigation in the curricula of schools during the 17th century was for financial rather than for educative reasons. In those days, the master of a ship was responsible for its navigation and invariably had a stake in the marine enterprise. Thus he might make a small fortune in a single voyage. By 1800, the introduction of the limited liability shipping company and the growth of marine insurance were beginning to relegate the captain to the status of a hired servant paid the minimum wage. Navigation rapidly disappeared from ordinary schools and was taught only in the specialized nautical establishments. Nevertheless, it is worth noting that today, the mariner, the submariner, the pilot and the astronaut have restored to the subject its original lustre and the yachting explosion has given the discipline a wide appeal.


2021 ◽  
Vol 21 ◽  
pp. 15-92
Author(s):  
Camiel Hamans

This paper summarizes the discussion about the origin and the status of Afrikaans. Two schools appear to be opposed to each other: the philological school and a creolistic view. The philological school tried to demonstrate with meticulous research of sources that Afrikaans is a full daughter of 17th century Dutch, which set foot ashore with van Riebeeck in 1652 at the Cape of Good Hope. Linguists who thought of a pattern of creolization in the formation of Afrikaans point to the influence of the languages of slaves brought to South Africa and to the influence of the original inhabitants, the Khoi and the San. This contribution mainly outlines the ideological background of these two schools of thought. For the philological school this is the system of Apartheid, while for the Creolist view the emphasis is more on decolonization.


2021 ◽  
Author(s):  
Matthias Lehmann

Abstract Various states have started providing private law frameworks for blockchain transfers and crypto assets. France and Liechtenstein have adopted the first acts, while a commission of the British government sees no difficulties in extending property protection under the common law to crypto assets. In the USA, an amendment to the Uniform Commercial Code has been suggested, which has not stopped some states going their own, different way. The aim in all cases is to promote the use of modern distributed ledger technology and enhance investor protection. While these initiatives will increase legal certainty, they differ significantly. This has an important downside: there is a strong risk that the blockchain will be made subject to diverging legal rules. Similar to the world of intermediated securities, various national laws will need to be consulted to determine the rights and privileges of investors. This may increase transaction costs, thwart interoperability, and produce thorny conflict-of-laws problems. Markets risk being fragmented into national segments, with an inevitable diminution of their depth and liquidity. As a remedy, this article suggests developing uniform rules for the blockchain. Before national legislators and judges once again divide the world through idiosyncratic rules, the private law of crypto assets should be harmonized to the highest degree possible. Uniform rules should ideally be forged at the global level, by fora like the International Institute for the Unification of Private Law (UNIDROIT), the United Nations Commission on International Trade Law (UNCITRAL), and the Hague Conference on Private International Law. In the absence of worldwide rules, uniformization of private law should take place at the regional level—for instance, by the European Union. The article makes specific suggestions as to how this can be achieved and what the content of those rules should be.


2006 ◽  
Vol 67 (4) ◽  
Author(s):  
Elizabeth Shackelford

In the last half of the twentieth century, the trend towards “world-wide harmonization of trade law” has increased steadily with the globalization of economies and the corresponding increase in transnational commerce. Throughout this period, efforts have emerged to unify and harmonize international commercial law in order to promote international trade. The two primary ways this was pursued during the twentieth century were unification of choice of-law rules and harmonization or unification of substantive rules.


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