What is Commercial Law?
Commercial law provides the rules that merchants and others involved in commerce must follow as they conduct business amongst themselves and with consumers. It governs the sales of goods and services, negotiable instruments, security interests, leases, principal and agent relationships, contracts of carriage, and much more. In a broad sense, commercial law also encompasses related issues like business bankruptcy and tax planning.
Because various legal issues may be included or excluded from the subject of commercial law depending upon how expansively it is defined, it may be more helpful to consider the matter in terms of timing. Commercial law covers legal issues that arise prior to the initiation of a lawsuit. By contrast, once a lawsuit is filed, the same issues are more properly characterized as litigation. Thus, commercial law attorneys help their clients negotiate and enter into business deals. Litigation attorneys help their clients defend their interests in court when deals go bad.
Elements of a Contract
The ability to form contracts represents the foundation of modern commercial law. Without contracts, sellers and buyers would be unable to enter into transactions, as they would have no guarantee that the other side will honor its half of the bargain. That is not to say that contracts are based on the goodwill or trustworthiness of parties in the marketplace. Rather, contracts are based on a system of rules for forming agreements that, if followed, allows parties to rest assured that the terms of their agreements will be enforced by the legal system if necessary.
Contracts are formed when the following three elements are present: an offer, an acceptance, and consideration. For an offer to be valid, specific rules must be followed. The offer must be made to an identified party, and it must set forth definite and certain terms. The offer must also demonstrate a present intent to enter into an agreement. Similarly, the other party must properly accept the offer in order for a contract to be formed. In most situations, a valid acceptance must mirror the offer. A purported acceptance that adds new terms to the deal will not count. Instead, it will be treated only as a counteroffer.
The final element required to form a contract is known as consideration. Consideration refers to a bargained-for exchange. It means that the person who promises to do something must receive a benefit in return. Otherwise, the promise is merely gratuitous, and there is no contract. For example, if the owner of a lawnmower promises to lend it to a neighbor, no contract exists and the owner can later refuse. But if the neighbor pays the owner $10 in consideration for the right to borrow the lawnmower, a contract has been formed and the owner must honor it.
The Uniform Commercial Code (UCC)
Because commercial law is primarily found in state statutes, there is a potential for states to enact conflicting rules, thereby disrupting the flow of interstate commerce. The UCC was created to remedy this situation. It was drafted by a non-governmental body to provide a standardized set of statutes dealing with commercial law, which each state is free to adopt if it chooses. All states have now adopted some form of the UCC.
Not all commercial transactions are governed by the UCC, however. It applies to the sale of “goods.” This includes just about any movable object, but it does not include services or real estate. The UCC also provides special rules for those who regularly deal in the type of goods at issue, as opposed to non-merchants who only buy or sell them occasionally. Another unique aspect of the UCC is known as the “perfect tender rule.” General commercial law principles only require parties to substantially perform their contractual duties to avoid breach. Under the UCC, a contract will be breached if the goods (or their delivery) fail to conform to the agreement in any way.
Third Party Contract Issues
In today’s complex marketplace it is not unusual for a contract to affect the rights of a third party – that is, someone other than the parties who created the contract. This can create a number of legal issues. Consider the example of a bank who lends money to a borrower. After making the loan, the bank sells its right to collect the loan to another company. Is the borrower obligated to pay the company, even though the borrower never contracted with them directly? And if the borrower fails to pay, can the company turn around and sue the bank for breach of contract? Commercial law provides answers to these and other such questions involving third parties.
Contact a Commercial Law Attorney
If you are struggling with a commercial law issue, there is no reason to handle the matter on your own. An experienced attorney can explain how the law applies to your situation and suggest a course of action designed to protect your legal rights. Schedule a consultation today.
Articles About Commercial Law
- Divorce Can Derail A California Family BusinessHow a dissolution matter can effect a functioning family business in California.
- Finding the Best California Business Lawyer For You in Palm Springs or Orange CountyA guide by Attorney Sebastian Gibson to finding the best business attorney for you and your business, from finding a business lawyer with the right experience to finding one with the right comfort level for you, the right hourly rate and one who listens to you and your concerns. It’s also a useful guide to understanding the costs of litigation and the alternatives to filing suit that exist and which may be more beneficial and less costly.
- Defenses to the Enforcement of Timeshare ContractsUnderstand your timeshare contract obligations, the hidden language, and the defenses that may get you out of your agreement.
- What is Net Neutrality and Why Should You Care?Much has been made over the last few years about net neutrality. Still, most people are confused by what this term refers to and why it matters. This confusion is understandable given the misleading nature of the name, and the way it is often misapplied in the media. But, net neutrality is actually a very important concept to understand and one that could directly impact the way the Internet works and how we all use it.
- How to Negotiate a Managed Care ContractManaged care contracts are not take-it-or-leave-it deals. A physician practice can and should negotiate its managed care contracts. Read this article to learn how to do it. I focus on three major topics: compensation, exit, and unilateral actions by the payor.
- Operating Agreements for California Surgery CentersIn this article, I explain the basic negotiation points in an Operating Agreement for a California ambulatory surgery center (ASC). I focus mainly on control and on exit (buy-sell).
- Georgia's Right to Repair ActGeorgia's Right to Repair Act allocates specifics obligations, duties and rights to homeowners and home builders. And this article helps explain the process in an effort to avoid construction litigation.
- Exceptions to No Damages For Delay ClauseThe majority of construction contracts include a provisions referred to as the "No Damages For Delay" clause; a well-drafted clause can limit a party's exposure to damages in the event of a delay on the project's schedule. Despite these provisions, there are exceptions to their enforceability.
- Common Contract ClausesThis article intends to highlight and decipher some of the most common clauses that appear in a typical business contract. These basic provisions, called boilerplates, are included in agreements to protect the contracting parties. They typically follow a standard format and they are worded carefully in order to hold up in a court of law. Even though most contracts include these boilerplates, many people do not read nor understand what they are signing.
- Less Talk, Less LiabilityDon’t say it if you don’t have to, and never in writing.
- All Business and Industry Law Related Articles
Commercial Law - US
- Bureau of Economic Analysis
BEA is an agency of the Department of Commerce. Along with the Census Bureau and STAT-USA, BEA is part of the Department's Economics and Statistics Administration. BEA produces economic accounts statistics that enable government and business decision-makers, researchers, and the American public to follow and understand the performance of the Nation's economy. To do this, BEA collects source data, conducts research and analysis, develops and implements estimation methodologies, and disseminates statistics to the public.
- Commercial Law - Definition
Commercial law (sometimes known as business law) is the body of law which governs business and commerce. It is often considered to be a branch of civil law and deals both with issues of private law and public law. Commercial law regulates corporate contracts, hiring practices, and the manufacture and sales of consumer goods.
- US Commercial Service
The U.S. Commercial Service is the trade promotion arm of the U.S. Department of Commerce’s International Trade Administration. U.S. Commercial Service trade professionals in over 100 U.S. cities and in nearly 80 countries help U.S. companies get started in exporting or increase sales to new global markets.
- US Department of Commerce
The U.S. Department of Commerce has a broad mandate to advance economic growth and jobs and opportunities for the American people. It has cross cutting responsibilities in the areas of trade, technology, entrepreneurship, economic development, environmental stewardship and statistical research and analysis. The products and services the department provides touch the lives of Americans and American companies in many ways, including weather forecasts, the decennial census, and patent and trademark protection for inventors and businesses. The development of commerce to provide new opportunities was the central goal at the department's beginning in 1903 and it remains a primary obligation today.
Commercial Law - International
- Commercial Law International
The goals of this site will be to inform; give opinions; at times be controversial; and to provoke insightful discussions about the latest, most interesting and sometimes stranger developments that affect the commercial world. In other words, our aim is to expand commercial awareness – that is the economic, social, political and legal dynamics – of well known and not so well know regions of the world.
- European Judicial Network in Civil and Commercial Matters
Information about the Member States, Community law, European law and various aspects of civil and commercial law.
- International Trade Administration (ITA)
The International Trade Administration (ITA) strengthens the competitiveness of U.S. industry, promotes trade and investment, and ensures fair trade through the rigorous enforcement of our trade laws and agreements. ITA works to improve the global business environment and helps U.S. organization compete at home and abroad. ITA supports President Obama’s recovery agenda and the National Export Initiative to sustain economic growth and support American jobs.
- Pace Institute of International Commercial Law (IICL)
Founded in 1991, the Pace Institute of International Commercial Law has played an instrumental role in the evolution of teaching and scholarship in the fields of international commercial law and international arbitration, by creating the award-winning CISG Database and founding the Willem C. Vis International Commercial Arbitration Moot.
Organizations For Commercial Law
- Better Business Bureau
BBB’s mission is to be the leader in advancing marketplace trust. BBB accomplishes this mission by: * Creating a community of trustworthy businesses * Setting standards for marketplace trust * Encouraging and supporting best practices * Celebrating marketplace role models, and; * Denouncing substandard marketplace behavior
- Commercial Law Development Program
The Commercial Law Development Program (CLDP), a program of the U.S. Department of Commerce Office of the General Counsel, is uniquely tasked with providing technical assistance in the commercial law arena to the governments and private sectors of transitional countries in support of their economic development goals.
- Commercial Law League of America
The Commercial Law League of America ("CLLA") is a respected organization of attorneys and other experts in credit and finance actively engaged in the field of commercial law, bankruptcy and insolvency. Since 1895, The CLLA has been associated with the representation of creditor interests, while at the same time seeking fair, equitable and efficient administration of bankruptcy cases for all parties in interest.
Publications For Commercial Law
- ABA - Commercial Law Newsletter
The UCC Committee is continually striving to provide its members on a timely basis with important information about developments in commercial law and commercial practice.
- Electronic Library on International Commerce Law
Pace Law School database on the CISG and International Commercial Law. The CISG is the United Nations Convention on Contracts for the International Sale of Goods, the uniform international sales law of countries that account for two-thirds of all world trade.
- Journal of International Commercial Law and Technology
The Journal of International Commercial Law and Technology ( JICLT) is a peer-reviewed free open-access scholarly journal dedicated to furthering the understanding of international commercial law and technology. It is published by the International Association of IT Lawyers (IAITL) . The journal is a quarterly publication in online formats. By publishing on-line, a scholar’s research is made available more quickly and is available to those who do not have access to a well stocked research library.