- Studying the provisions of commercial legislation related to commercial activities, merchants, businesses, commercial contracts, banking operations, commercial companies, and commercial papers requires a general introduction. In this introduction, we will provide a comprehensive overview of commercial law, clarifying its meaning, explaining its position in the general division of law, and defining its scope of application. We will also discuss the characteristics of commercial law, its independence from civil law, the sources from which its rules are derived, and the impact of technological development on the conclusion and execution of commercial operations through electronic means, now known as e-commerce.

Definition of Commercial Law and its Position in the General Division of Law:

2- Law, in general, is the set of rules that regulate the behavior of individuals in their relationships with each other, as well as the relationships of public authorities with each other and with citizens. In light of this dual function, law is customarily divided into public law and private law. This jurisprudential division of law is based on the persons to whom its rules are addressed. If the law applies to the state or one of its bodies as a sovereign public authority, it is called public law. If it is directed at ordinary persons, it is called private law.

However, the connection between public and private law is close, as there are no definitive boundaries between them. They influence and are influenced by each other, and the scope of one expands or contracts at the expense of the other with changes in time and place, due to the influence of political, social, and economic conditions within each state.

The branches of public law are related to the concept of the state, as they include the set of rules that organize the public authorities of the state, their activities, and govern the relationships in which they are a party. Public law, in this description, regulates relationships in which the state appears in its capacity as a sovereign public authority.

Public law is in turn divided into external public law, which is public international law, and internal public law, which includes constitutional law, administrative law, financial law, and criminal law.

Private law is defined as the set of rules that govern the relationships of individuals with each other and the relationships of individuals with the state and its institutions, but not with the state considered as a sovereign public authority, but rather as an individual.

Among the most important branches of private law are civil law and commercial law. Civil law is considered the general code that regulates the activities of all individuals, regardless of their profession or the nature of the legal operations they undertake. Commercial law, however, only regulates commercial activities and the activities of merchants in the practice of their trade.

While civil law originally regulates all relationships between different individuals, commercial law is limited to governing specific relationships arising from commercial activities and regulating the activities of specific individuals, namely merchants. Thus, commercial law is narrower in its scope of application than civil law.

Characteristics of Commercial Law:

3- It is well-known that civil law, as the general code, was applied to transactions in general, regardless of their nature or the status of the person conducting them. Over time, special rules for commercial transactions emerged from the commercial environment, separating from civil law to form commercial law. Commercial law is a product of the commercial environment, created and developed in response to the evolving needs of trade and the practical necessities that required subjecting a certain class of persons (merchants) and a certain category of activities (commercial activities) to a special legal regulation consistent with the requirements and demands of trade. This special legal regulation has systems with specific characteristics that give it a special character and justify its independence from civil law.

Foremost among these characteristics are stimulating, facilitating, and supporting credit, and simplifying and streamlining procedures to pave the way for the conclusion and execution of commercial operations with the speed that suits the nature of trade.

Trade is based on facilitating and supporting credit. Therefore, commercial law systems aim to achieve this by increasing creditor guarantees. The existence of these guarantees encourages them to grant credit to others. At the same time, these guarantees are also in the interest of the debtor, as they enable them to obtain easy credit on favorable terms. One of the most important manifestations of supporting commercial credit is the presumption of joint liability among debtors in commercial obligations, without the need for a special agreement, which provides a significant guarantee for the creditor. Other manifestations include increasing the legal interest rate, the harshness of the law of exchange for those who violate the trust required in commercial papers, and the establishment of the bankruptcy system.

The bankruptcy system is one of the most important manifestations of supporting commercial credit. It is a method of execution against the assets of a merchant debtor who ceases to pay their commercial debts. It aims to stimulate credit and support confidence in commercial transactions through a series of procedures designed to protect the interests of creditors and safeguard their rights by enabling them to seize the remaining assets of the debtor, preparatory to their liquidation and the distribution of the proceeds among the creditors, each in proportion to their debt.

Additionally, the bankruptcy system is characterized by its severity in dealing with a merchant who ceases to pay their commercial debts. Their control over managing and disposing of their assets is removed, and some of their civil and political rights are forfeited. This severity makes the merchant debtor keen to pay their debts, which has a major impact on supporting commercial credit.

The second characteristic of commercial law systems is the simplification of procedures to facilitate the conclusion and execution of commercial operations with the speed that suits the nature of trade, unlike civil transactions, which are characterized by slowness and their infrequent occurrence in practical life or their occurrence at long intervals. Commercial transactions, on the other hand, occur frequently in a merchant's life and often involve movable goods subject to price fluctuations or spoilage, which requires them to be concluded quickly. A merchant contracts quickly and without hesitation, even if the contract involves a degree of risk.

Thus, special rules have been established for commercial law due to the difference between the commercial and civil environments in terms of transaction speed. These rules aim to simplify procedures and avoid formalities to conclude commercial operations with the required speed. One of these rules is the freedom of proof in commercial transactions, where a legal act, if commercial, may be proven by evidence and presumptions and by all means of proof, regardless of the value of the act. This is unlike civil matters, where the rules require written proof if the value of the act exceeds a certain amount or is of undetermined value.

Another of these rules is freeing the circulation of rights established in commercial papers from the procedures of civil assignment. These rights are circulated by commercial methods, which are manual delivery if the paper is payable to the bearer, and endorsement if it is payable to order. Other rules include shortening the deadlines for the execution of debts established in commercial papers, being strict in granting a grace period to a debtor of a commercial debt, the immediate enforceability of judgments issued in commercial transactions, and the short prescription periods for commercial debts.

In summary, commercial activity is based on speed in dealing and on credit. Therefore, the systems of commercial law are directed towards achieving these two goals.

Despite these characteristics that distinguish commercial law systems and justify their independence from civil law, some jurists are not convinced and have called for the unification of private law by merging commercial law and civil law into a single law that governs both civil and commercial transactions.

This view has not convinced the majority of commercial law jurists, who see the unification of private law as a denial of the practical necessities that required the existence of special rules applicable to commercial transactions and merchants, consistent with the requirements and demands of trade.

Despite this opposition, the prevailing view in jurisprudence is that commercial law should have its own existence and be an independent entity from civil law. Most countries have adopted this approach, including the Hashemite Kingdom of Jordan, where the Jordanian legislator recognized the independence of commercial law by issuing the Commercial Code and its supplementary laws alongside the Civil Code, which governs civil acts. Thus, the rules of commercial law have stabilized and developed with the development and expansion of trade. The matter is not limited to national commercial laws; new commercial rules have emerged aiming to unify the rules governing international commercial dealings. However, the independence of commercial law from civil law does not mean they are completely separate. The link between them is close, as there are no definitive boundaries between them. Rather, they complement, influence, and are influenced by each other, as they are both branches of private law whose provisions aim to regulate legal relationships between individuals.

ISBN: 9789957163730
Weight: 0.800 kg
Size: 17×24 cm
Paper: White
Pages: 384
Year: 2014
Binding: Hardcover