Custom & Law Merchant. Plan . Introduction Custom Law merchant Why a law merchant? Conclusion. Custom . Definition : The custom is one the sources of law. It is not a written rule but its existence is due to the union of 2 elements: 1) The repetition of acts
1) The repetition of acts
2) The legal or psychological element which is composed by 3 aspects:
- The « opinion juris »
- The « opinion necesitatis »
- The « estimacio communis »
This defintion is valid as well in french law as in internationa law
- Custom is a fondamental source of international law.
- According to the article 38 of the charter of the United Nations: in
case of dispute, the court can apply « the international customs as
proof of a general practice which is accepted as being law »
The « custom certificate » is an attestation of a foreign lawyer
concerning the existence, the contents and the interpretation
of a foreign law.
Why a « custom certificate »?
Who deliver this « custom certificate »?
Exemple with two japaneses traders
The Law Merchant was originally a body of rules and principles
laid down by merchants themselves to regulate their dealings.
It consisted of usages and customs common to merchants and
Characteristics of rules:
It is not really rule of law
- Custom and Law merchant are linked.
- Law merchant includes all international merchant customs BUT customs are valid in french and international law WHEREAS law merchant is practised only in international trades
- The main fonction is to be a system of law which is added to law of states and the international law, we can say that is a “third law” according to M. VIRALLY.