Law of Commerce, Commercial Law, Business Law
A standard handbook of Roman law states unambiguously at the outset: ‘Ein besonderes Handelsrecht haben die Römer daneben nicht ausgebil- det.’3 However, there is no dearth of books and articles entitled or explicitly dealing with Diritto commerciale romano or L'histoire du droit commercial romain.4 Behind this apparent contradiction lurk both a question of definition and a recurrent and continuing scholarly debate about the way to approach the Roman legal institutions that governed trade and other economic activities.5 We can evaluate the usefulness, sophistication, and shortcomings of the Roman law of commerce against the standard of commercial law and business law.6
According to a strict definition, ‘commercial law’ is a set of legal rules originating with merchants, designed for merchants, and enforced — partly, at least — by merchants.
Scholars looking for Roman ‘commercial law’ focus on sources of law, legal interpretation, practical application, and jurisdiction. The former two are quite accessible through extant sources, the latter two mostly blurred through lack of evidence.Historically, the definition proposed above applies to the law developed in western Europe, mostly Italy and France, during the middle ages. Thus ‘commercial law’ (ius mercatorum, lex mercatura: law merchant) was meant to be more pragmatic and flexible, less bookish, and less dominated by scholars than Roman and Canon laws. Its purpose was to satisfy the needs of commerce, facilitating transactions, expediting proceedings through separate jurisdictions and procedures, and transcending the limits of national legal systems as an early form of international law. Its provisions inevitably reflect the concerns and interests of an identifiable socioeconomic class of people, namely traders.
‘Commercial law’ was a part of private law and its status with regard to civil law has fluctuated through history. Distinct at first, it tended to merge and become absorbed by the latter, as in Swiss or Italian law, and eventually become a subfield of the law of obligations. Or else, ‘commercial law’ opened up to other fields of law and became more inclusive in terms both of the people it governed and the types of issues and transactions it dealt with, thus evolving into ‘business law’.7In the middle ages, cases of ‘commercial law’ were heard in special courts. As litigation frequently involved people of different national and social origins, judges based their decisions on a mixture of mercantile codes and usages, while paying particular attention to good faith. The formalism of legal procedure was somewhat relaxed, and judicial decisions were rendered on the basis of considering facts rather than legal technicalities.8
Originally, ‘commercial law’ was mostly maritime law, with an emphasis on contracts related to sales, transportation, and money-lending. With time, the nature of trade became more diverse and more complex. ‘Commercial law’ also applied to land-based trade (in the context of fairs and markets), including production, storage, and distribution, and to people involved in any economic activity. A final development even took consumption and consumer protection into consideration. A standard modern treatise of (British) commercial law deals with property, contract (mostly sales and partnerships), agency, payment instruments and systems, financing, insolvency (in connection with company law), and the resolution of commercial disputes through litigation or arbitration.9
style='text-indent:18.0pt'>While ‘commercial law’ was exclusively concerned with identifiable (registered) businesses and exclusively applied to business transactions performed by well-defined groups of people, traders, and professional businessmen, such restrictions came to be seen as counterproductive and called for adjustment. So the modern trend is for ‘commercial law’ to evolve into ‘business law’, disregarding the specific status of both structures and people, and combining elements of both private and public law. Legal practitioners thus deal with all kinds of issues relating to the multifarious aspects of commercial life.10Because ‘business law’ is more inclusive than ‘commercial law’, and because of the reciprocal ‘civilizing’ of commercial law and ‘commercializing’ of civil law which resulted in the development of ‘business law’, it seems appropriate to look at Roman legal institutions, both private and public, in their historical development from the earliest time until the period of classical law. The purpose is to evaluate their commercial relevance, usefulness, and adequacy in comparison with both later ‘commercial law’ and ‘business law’. The following survey will show that while the appellation of Roman ‘commercial law’ is unsustainable, the Roman law of commerce shares many features with modern ‘business law’, features which extend far beyond the scope and limits of the Roman law of obligations.
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