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.)

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