Overall sources of commercial law are the signs of outward expression of this particular branch.
1. THE LAW.
As a means of expression of the state resulting in the formulation of rules to regulate trade matters
Article 1 º C. Co.
"Merchants and trade issues are governed by the provisions of commercial law and the cases not specifically covered herein shall be determined by analogy to their standards."
1.1 THE COMMERCIAL LAW. It is undeniable that the law has been developing commercial from the usual reason for determining the content of a law merchant must for us to be positive to their content, which must develop the characteristics attributed to commercial law. Accordingly, we find regulations that most clearly meet this criterion include the Commercial Code (Decree Law 410 of 1971), the provisions governing the Banking and Financial System Organic Statute (Decree 663 of 1993).
this notion should be included in international treaties ratified by Colombia, to the extent they are incorporated into positive law by act of Congress. Alongside them should include the rules of Decision 486 of the Cartagena Agreement, issued by the Commission of the Andean Community.
1.1.1 The written rule. The legislative discretion. Is the criterion specific and clear to define the commercial field. The written precept holds advantages over the usual about unity, firmness and certainty, also display precedence over it.
A) The mandatory standard. Mandatory rules impose limitations on the autonomy, ie freedom of contract, penalty or establish regulations that are NOT SUBJECT TO CHANGE by individuals. Its application is restricted (can only be applied to the matter being regulated and are not susceptible to analogy) . Are known as public policy provisions because they are inspired by its principles state security, morality, community and third party protection.
parties. Just look at the particular interest as opposed to mandatory.
-device main road. Regulates matters outside the individual will.
Exs. 1. The commercial business that typify
2. That determine the structure of typical commercial contracts or nominees.
3. Governing the registration of commercial, industrial property.
- device via suppletive. When are designed to meet the will of the parties to fill gaps in their contractual arrangements.
Exs. 1. Which indicate the extent to which partners share in the profits earned in the fiscal year, in the absence of a stipulation in the constitution (Art. 332 C. Co.).
2. The provisions on the management of partnerships and limited liability, failing which the statute is delegated to one or more members or strangers (Art. 310 C. Co.)
civil procedure.
When a business process requires that particular standard is governed by civil law, is filled mercantile deficiency.
1.2.1 Direct Referral. . These references explicit content filling in the blanks of the orders that command.
Exs. Section 822 C. Co. civilian law enforcement. The principles that govern the formation of the acts and contracts and obligations of civil law, its effects, interpretation, so extinguished, canceled or terminated, shall apply to bonds and commercial legal business, unless the law provides otherwise.
Exs. "Article 12 C. Co. Any person who by common law has the capacity to contract and bind, is able to conduct business. ..."
Other examples: Arts. 127, 900, 1223, 1282, 1438, 1447 C. Co.
1.3 THE TECHNIQUE OF ANALOGY.
Using this technique, logical legal loopholes are filled. Compared to two cases in fact, covered one and the other not, the interpreter is equal treatment because of the similarity of assumptions.
Act 153 of 1887. ARTICLE 8. When there is no case law exactly applicable to the issue, apply the laws governing such cases or matters, and failing that, the constitutional doctrine and general rules of law.
1.4 Implementation of EXTRA CIVIL LAW. A lack of commercial provision to resolving the present case, or the mechanisms that bring commercial law itself for this purpose, the provisions should apply in civil. As stated in the preamble to the initial draft of the Code of Commerce: "Having exhausted the above rules, operating civil or common law as a right of all private relationships that are not subject to special regulations. "
2. CONTRACTUAL PROVISIONS. The principle of freedom of contract, contained in article 1602 of the Civil Code, which stipulates that "every contract validly entered into is a law for the parties,"
3. THE USUAL.
As seen in general practices, uniforms, public and repeated, binding requirements with sufficient power to regulate many relationships born of commercial activity.
ARTICLE 3. AUTHORITY OF THE CUSTOM COMMERCIAL - LOCAL CUSTOM - CUSTOM GENERAL. Commercial practice will have the same authority as the law as long as they do not overtly or tacitly runs counter to the facts constituting the same are publicly available, consistent and repeated in the location where they met performance or relationships come to be regulated for her.
In the absence of local custom is taken into account the overall country, provided they meet the requirements stipulated in the preceding paragraph.
ARTICLE 13. Law 153 of 1887. The practice, still widespread and in accordance with Christian morals, is right, to lack of positive legislation.
CUSTOM TEST.
3
o.; y cuando se aduzcan como prueba dos decisiones judiciales definitivas, se requerirá que éstas hayan sido proferidas dentro de los cinco años anteriores al diferendo.
Artículo 8o. PRUEBA DE COSTUMBRE MERCANTIL EXTRANJERA - ACREDITACION. La prueba de la existencia de una costumbre mercantil extranjera, y de su vigencia, se acreditará por certificación del respectivo cónsul colombiano o, en su defecto, del de una nación amiga. Dichos funcionarios para expedir el certificado solicitarán constancia a la cámara de comercio local o de la entidad que hiciere sus veces y, a falta de una y otra, a dos abogados del lugar, of recognized integrity, specialized in commercial law.
Customs Regulations. Are those that are valid and widespread human conglomerate Porel abiding conviction of their obligation. Its features are: A) There are even contractors do not invoke them in their contracts. B) In the absence of written rules become rules that replace the will of the parties, C) If the judge knows should apply automatically. Failure to act could result in the appeal, it is the first cause of such action on Article 368 of the Code of Civil Procedure "be the sentence in violation of a rule of law
- by law Tradition (secundum legem). Eg Arts. 827, 842, 911, paragraph 4 of 923, 933, 935, 971, 1264 of C.
Co.
- Custom
- beyond the law (praeter legem). Is to amend errors or gaps in the written standard. Establishing new rules of written law, there may be the most important customs analyzed.
- Custom contra legem (against law). Tends to repeal a provision of law. For this reason it is inadmissible because the custom has power only when the substantive law provides a direct solution or by analogy.
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interpretative function.
- integrative function.
The role of bridging gaps in the law.
4. NO INTERNATIONAL AGREEMENTS OR CONVENTIONS RATIFIED BY COLOMBIA
5. GENERAL PRINCIPLES OF COMMERCIAL LAW.
ARTICLE 7. APPLICATION treaties, conventions and international custom. Treaties or international conventions not ratified by Colombia trade, international commercial practice which meets the requirements of article 3
o.
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