In many countries where commercial law exists as an independent industry, the notion of a merchant or merchant is known as a participant in economic turnover whose legal status and transactions are subject to special regulation. A distinction is made in the regulation of the activities of merchants and non-commercials. Such countries include France, Germany, Belgium, Spain, a number of Latin American and other states of the Roman-German legal system.
Legislation of states with a single system of private law, in particular the United States, England and the countries of the English legal system, Italy, the Netherlands, Switzerland and some others, as a rule, does not know the formal legal concept of a merchant and a trade transaction. This is primarily due to the fact that commercial law is not separated from civil law. But this does not mean that it lacks certain rules that provide special rules on the organization of activities of persons conducting production operations in the form of fishing, and the definition of special rights and obligations of the parties in transactions concluded by these participants in turnover. Moreover, as civilization is “commercialized” and filled with norms designed to regulate commercial activity in civil relations, the number of such special rules increases.
In the United States, the Uniform Trade Code, putting forward, unlike other countries of this group, the general definition of “merchant” (Art. 2-104), includes a number of provisions designed for transactions between such participants in turnover
As a result, for all national systems of law, it is characteristic – to a greater or lesser extent – the presence, on the one hand, of special rules for the activities of merchants as independent entrepreneurs operating on a trade basis, and on the other hand – special rules for concluding and executing transactions that qualify as trading or commercial.
Thus, two trends are observed: towards the unification of private law through the application of uniform rules in the civil and commercial spheres and to the retention of the special regulation of the activities of merchants and some of their contracts as not characteristic of purely civil economic transactions.
In the US, according to Art. 2-104 of the Uniform Trade Code, a merchant recognizes a person who “performs operations with goods of a certain kind or in any other way behaves as if he has special knowledge or experience in relation to operations or goods that are the subject of a transaction as well as someone who can be considered as having such knowledge or experience due to the fact that he uses the services of an agent, broker or other intermediary. ”
The US law thus adheres to, in the sphere of relations regulated by the ETC, objective criteria for qualifying merchant status, while providing the court with ample opportunities to assess the “knowledge and experience” of a trader in a merchant.
In addition to the commercial nature of the conclusion of transactions, the condition for recognizing the status of a merchant as a person is his activity as an independent entrepreneur, owner of the industry acting in circulation on his own behalf. Therefore, they are considered as merchants, for example, commissioners, but employees who act as representatives of a company or a company on their behalf are not considered as merchants.
The concept of a commercial, or commercial, transaction is known only to the laws of countries with a dualistic system of private law, whereas the law of countries with a single system of civil law, such as English and Italian, this concept is not known. All transactions made by merchants and non-profitmen are subject to the same rules. This does not exclude the fact that the merchants themselves in these countries are subordinate in their activities, as was noted, to some special rules.
The division of transactions into civil and commercial in the countries where it is carried out, entails a number of legal consequences. The recognition of a trade transaction subordinates it not only to the general norms of civil law, but first and foremost to special rules of the law of trade codes and other acts of commercial law. Special substantive, procedural and legal rules relating to the procedure for their conclusion, certain parties of the content, that is, the rights and obligations of the parties, as well as to the procedure for resolving disputes arising between the parties in connection with the performance of duties, are applied to such transactions. This specificity is not the same for national legal systems, but some of the most common rules of this kind can be identified.