Spanish Mercantile Law: Sources and Constitutional Framework

Legal Sources of Mercantile Law

• Law: Code of Commerce and special legislation.
• Mercantile Customs: Binding business practice generally observed in each city.
• Common Law: Civil law has application on a subsidiary basis.

The Reform of Current Commercial Law

Spanish commercial law has changed almost completely in the last 20 years: corporations, partnerships, competition, and insolvency all have new rules outside the Code of Commerce. These rules are so-called special legislation. A reform would mean that special legislation will be incorporated into the new Commercial Code.

Constitutional Distribution of Power

The Spanish Constitution drew a political and socioeconomic picture described as a "state of autonomies" to recognize a certain extent of autonomy and self-government for diverse territorial entities within the proclamation of the indissoluble unity of the Spanish nation (Art. 2). As far as private law matters are concerned, exclusive legislative power to regulate mercantile matters is granted to the state in order to guarantee market unity and equal civil rights of citizens within the entire national territory (Art. 149.6.9.11).

The Four Main Functions of Customs

Functions of commercial uses:

1. Source of Law: In the absence of applicable law, uses (usos normativos) are applied to fill the gaps and regulate relevant situations as a pure source of law.
2. Concretization: When the statutory provision is too abstract, uses may help to concretize the legal mandate.
3. Contractual Rules: Uses are called on to establish certain rules of the contract when the laws as well as the parties have remained silent thereon.
4. Interpretation: Uses are important interpretative tools likely to dispel doubts and clarify obscure provisions (uso interpretativo) (Art. 52 and 59 Ccom).

Defining General Principles of Law

According to Art. 1 CC, in the absence of applicable legal provisions or customary rules, general principles of law shall be applicable. Therefore, general principles of law are set up as subsidiary sources of the legal system. Despite their considerable usefulness for construing legislation and filling gaps, general principles are a very equivocal concept.