Commercial Law - Introduction and Sources

Flashcards summarizing vocabulary, legal articles, cases, and key concepts from the lecture on Commercial Law (ACC2841).

Trade and Commerce

The means by which products or services are exchanged between persons.

First Act of Trade

The purchase of goods with the object of re-selling them at a profit.

Objective Acts of Trade

Acts which the law declares to be acts of trade regardless of whether they are performed by a trader or not.

Subjective Acts of Trade

Acts which become acts of trade simply because they are performed by a person who is a trader.

Article 2 of the Commercial Code

Provision stating that the commercial law relates to traders and to acts of trade done by any person, even though not a trader.

Article 3 of the Commercial Code

Stipulates that in commercial matters, commercial law applies, provided that where no provision is made, usages of trade apply, and in their absence, civil law applies.

Contract Law (as a source)

A mutual agreement between contracting parties that has the force of law between them and can take precedence over Commercial Law whenever the law permits ('saving any agreement to the contrary').

Usage of Trade

An unwritten rule of law established by the constant and uniform practice of traders, followed because persons feel it carries the obligatory force of law.

Requisites of a Legal Usage of Trade

Uniform and continuous observance of an unwritten rule for a period of time, followed out of legal obligation rather than mere courtesy, and being lawful (not contrary to commercial law or criminally offensive).

Universal Usage of Trade

A usage of trade observed internationally or throughout the whole territory of a country.

Local Usage of Trade

A usage of trade observed on a smaller scale, such as confined to a particular region or locality.

General Usage of Trade

A usage of trade that extends to all branches of trade.

Particular Usage of Trade

A usage of trade limited to a given branch of trade or to a given class of traders.

HSBC Bank (Malta) Limited vs. Teg Industries Limited (FHCC; 29.11.2001)

Court case establishing that a commercial usage of trade allowing compound interest added automatically every 6 months applied over the more burdensome Civil Code provision.

Article 1142 of the Civil Code

Provision requiring interest fallen due to bear other interest only from a judicial demand or an agreement made after interest is due, provided interest is due for not less than one year.

Article 562 of the COCP

Establishes that, saving any other provision of law, the burden of proving a fact rests in all cases on the party alleging it.

Mifsud Adrian Noe vs Abela Godwin Noe (Court Of Appeal; 14.01.2002)

Court case confirming that the party alleging a commercial usage must clearly and unequivocally prove its existence and consistent, generally accepted characteristics over time.

Civil Law (as a source)

The final subsidiary source of Commercial Law, comprising the Civil Code and other civil regulations, applied to commercial matters when no commercial law provision or trade usage exists.

Article 965 of the Civil Code

Provision stating that contracts shall be governed by the general rules contained in its Title saving such special rules as apply to certain contracts.

Minor Sources of Commercial Law

Teachings of important writers on commercial law and previous judgments, which have no binding force but are given due consideration by judges.