|
|
The legal relation between the medieval law merchant and the Spanish Commercial code of 1829
| Custom, not law, has been the basic element of commerce since the origins of exchange. From the earliest times, merchants have thought up their own business practices and regulated their own conduct. International trade law has been adopted by merchant custom. For example, maritime trade in the Mediterranean for centuries has been based upon merchant traditions. The mobility of the merchant carried with it a mobility of local customs from region to region. The laws of particular towns, usually trade centers, inevitably grew into dominant codes of custom of trans-territorial proportions. In this way, the customs of Barcelona, known as the Consulato del Mare (approximately 1340 A.D.) ascended as an international recognized body of mercantile custom. The island of Oleron in the twelfth century produced the famous Rolls of Oleron. And the Laws of Wisby came into prominence as the third great commercial code of Europe several centuries later. Each of the codifications exemplified the localization of custom throughout the medieval world.
The Consulato del Mare, the Rolls of Oleron and the Laws of Wisby were a reflection of merchant desires, not legal commandments.
Mainly commercial usages were: special mercantile jurisdiction, custom as source of law, informal arrangements (oral promises, mere nods of the head…), summary procedure, oral proceedings, informal testimony of witnesses, unwritten judicial decision and the use of merchant judges.
The codes of commerce which prevail in European states began to be introduced at the opening of the nineteenth century, when the general European movement for codification may be said to have been inaugurated. France led the way with its separate Code of commerce of 1807. Such was its prestige that it was adopted at the time over almost all of Europe.
The Spanish code of commerce of 1829 was written by Pedro Sainz de Andino. It is important to remember the influence of the French Code of commerce, the Castilian Law, Ordinances of Bilbao of 1737 as well as Pardessus, a brilliant jurist.
Here the focus of study is on the changing nature of trade custom on the first Spanish Code of Commerce. Were the legal conceptions and the commercial usages of merchants forgotten in the Spanish code of commerce of 1829?
|
|
