Commercial Transactions – HBM & CO
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Commercial Transactions

Commercial Transactions:

Commercial transaction, in law, the core of the legal rules governing business dealings. The most common types of commercial transactions, involving such specialized areas of the law and legal instruments as sale of goods and documents of title, are discussed below. Despite variations of detail, all commercial transactions have one thing in common: they serve to transmit economic values such as materials, products, and services from those who want to exchange them for another value, usually money, to those who need them and are willing to pay a countervalue. It is the purpose of the relevant legal rules to regulate this exchange of values, to spell out the rights and obligations of each party, and to offer remedies if one of the parties breaches its obligations or cannot perform them for some reason.

The law of commercial transactions thus covers a wide range of business activities. It does not, however, govern such essentially noncommercial relationships as those involved in succession and family law. Historically, land was of such prime importance that it was not subject to frequent disposition and therefore was also excluded from the category of commercial transactions.

In some countries the term commercial transactions is merely descriptive. In Anglo-American law especially, it is merely a collectivename for those rules that relate to business dealings. The term itself has no legal consequences. It serves only as a convenient and illustrative shelter under which certain legal rules may be assembled.

Many countries, however, have established a technical concept of commercial transactions with precise definitions and important legal consequences. This is most often the case in the civil-law countries. In these countries the term commercial transactions thus has more than a merely descriptive function. It designates in part those rules that are peculiar to commercial transactions. In France, for example, bankruptcy is open only to individuals who are merchants and to business organizations, and there are special rules applying to commercial cases. In Germany, similarly, the general rules on consumer sales are in part superseded by special rules on commercial sales. A commercial transaction thus results in a number of specific legal consequences that differ from those of ordinary consumer transactions. Such a special commercial regime exists usually because it is thought that the ordinary citizen should not be exposed to the rigours of commercial rules that presuppose a knowledgeable, versatile individual who does not need as much protection against the legal risks and consequences of his dealings.

In those countries in which specific legal consequences attach to commercial transactions, it is necessary to develop a precise definition of what constitutes a commercial transaction. Although such definitions are more or less closely related, they are peculiar to each individual country. The majority of them, found generally at the beginning of a special “commercial code,” combine two elements: definitions of a “merchant” and of a “commercial transaction.” In certain countries—Germany, for example—the emphasis is on the definition of the merchant; in others, such as France, the emphasis is on that of the commercial transaction (acte de commerce). This latter criterion, the so-called objective test, was adopted in the 19th century for ideological reasons, the French wanting to avoid any repetition of the pre-Revolutionary differentiation of legal rules according to the social condition of persons. However, whatever the test, the results are quite similar, because the gist of the various definitions is that a transaction is “commercial” if it is concluded by a merchant in the exercise of his profession.

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