Does commercial law exist?

July 20, 2013 | 0 Comments

Just read this while doing research for the Lee & Lee memo assignment and found it quite striking and applicable to many areas of law:

“Does commercial law exist? Are there unifying principles which bind the almost infinite variety of transactions in which businessmen engage, marking these off from other types of contract? The absence of anything resembling a commercial code makes this question harder to answer than might be imagined. If by commercial law we mean a relatively self-contained, integrated body of principles and rules peculiar to commercial transactions, then we are constrained to say that this is not to be found in England. The law affecting business transactions is not a seamless web, nor is it a jigsaw in which, with careful study and some luck, all the pieces can be fitted neatly together to make a harmonious whole. Rather it is a collocation of ill-assorted statutes bedded down on an amorphous mass of constantly shifting case law.

But if we view commercial law as the totality of the law’s response to the needs and practices of the mercantile community, then, indeed, commercial law exists and flourishes in England, adapting itself constantly to new business procedures, new instruments, new demands. 

This, then, is the essence of commercial law – the accommodation of rules, usages and documents fashioned by the world of business; the facilitation, rather than the obstruction, of legitimate commercial development.”

Ewan McKendrick, Goode on Commercial Law,
4th ed (LexisNexis, 2009)

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