Commercial (trade) usages as a non-normative regulator of civil relations

Volume 6, Number 1, 2021, P. 16–24

[ JURIDICAL SCIENCES ]

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Abstract:

The article examines the theoretical issues of determining the legal nature of commercial usages. The context of the use of the term » commercial usages» is established — entrepreneurial relations, as a rule, arising in the implementation of foreign economic activity, which are regulated by rules that have not a state, but a customary legal nature of origin. An analysis of the provisions of Article 9 of the 1980 United Nations Convention on Contracts for the International Sale of Goods was used as a methodological basis for defining the concept of commercial usages. The proposal to classify “alternative (plurality) of rules for doing business” as a distinctive feature of the commercial usages is critically assessed. The generalization of Russian legal science allowed us to single out three main concepts (theories) of defining the concept of «commercial usages» — the concept of «established practice», the concept of «legal custom», the concept of «illegal custom, sanctioned by a contract.» Within the framework of the theory of established practice, commercial usages are defined as a general and typical way of activity, which actualizes the issue of identifying «sociological patterns», «statistical norms». Within the framework of the theory of «legal custom», commercial usages are recognized as a special kind of legal customs that develop in the process of practical activities of state bodies and economic organizations. Within the framework of the “illegal custom, sanctioned by the contract”, the commercial usages cannot be considered a source of law in its traditional meaning, but are recognized as authorized by the terms of the contract, which perform the function of regulating public relations, the function of filling gaps in legal regulation and the function of interpreting the terms of the contract.

Keywords:

civil law, lex mercatoria, commercial usages, trade usages, legal custom, business custom, course of dealing

Author:

Aleksandr A. Pakharukov, Cand. Sci. (Jurisprudence), Associate Professor, Head of Jurisprudence Department, Irkutsk National Research Technical University, Irkutsk, Russia

For citation:

Pakharukov A.A. (2021) Commercial (trade) usages as a non-normative regulator of civil relations. Sotsial’naya kompetentnost’ = Social Competence. Vol. 6. No. 1. P. 16–24. (In Russ.)

References:

  1. Belov V.A. (2011) Civil law. Common Part. Volume 1: Introduction to Civil Law. Moscow: Yurayt Publishing House. 521 p. (In Russ.)
  2. Bratus S.N., Sadikov O.N. (ed.) (1982) Commentary on the Civil Code of the RSFSR. Moscow: Legal Literature. 680 p. (In Russ.)
  3. Vilnyansky S.I. (1954) Customs and Rules of Socialist Hostel. Uchennyye zapiski / Khar’kovskiy yuridicheskiy institute = Scientific notes / Kharkov Law Institute. Issue 5. P. 3–24. (In Russ.)
  4. Demin A.V. (2012) Usual Practices of Law Enforcement in the System of Sources of Tax law in Russia. Gosudarstvo i pravo = State and Law. No. 6. P. 70–77. (In Russ.)
  5. Dyakonova A.A. (2011) The Custom of International Trade as a Source of Non-state Regulation of Foreign Economic Transactions. Moscow. 25 p. (In Russ.)
  6. Dyakonova A.A. (2009) To the Question of the Relationship Between Customs and Customs of International Trade. Trudy Orenburgskogo instituta (filiala) Moskovskoy gosudarstvennoy yuridicheskoy akademii = Proceedings of the Orenburg Institute (branch) of the Moscow State Law Academy. No. 10. P. 100–112. (In Russ.)
  7. Zykin I.S. (1983) Customs and Usages in International Trade: Concept, Application, Formation, Applicable Law, Model Contracts. Moscow: International Relationships. 160 p. (In Russ.)
  8. Novitsky I.B. (1959) Sources of Soviet Civil Law. Moscow: Gosyurizdat.162 p. (In Russ.)
  9. Karapetov A.G. (ed.) (2020) The Main Provisions of Civil Law: Article-by-article Commentary to Articles 1-16.1 of the Civil Code of the Russian Federation. Moscow: Statute. 1104 p. (In Russ.)
  10. Popov V.V. (2000) Usual Practices of Law Enforcement. Volgograd. 15 p. (In Russ.)
  11. Protasov V.N. (2014) Theory of State and Law. Moscow: Yurayt. 495 p. (In Russ.)
  12. Regelsberger F. (1897) General Doctrine of Law. Moscow: Printing House of the Association of I.D. Sytin. 295 p. (In Russ.)
  13. Fleishits E.A., Ioffe O.S. (ed.) (1970) Commentary on the Civil Code of the RSFSR. 2nd ed. Moscow: Legal Literature. 823 p. (In Russ.)
  14. Cherdantsev A.F. (2012) Logiko-linguistic Phenomena in Jurisprudence: monograph. Moscow: Norma, INFRA-M.

    15. 320 p. (In Russ.)

  15. Volckart O., Mangels A. (1999) Are the Roots of the Modern «Lex Mercatoria» Really Medievial? Southern Economic Journal. Vol. 65. No. 3. Р. 427–450. (In Eng)