Difficulties Of Codifying Commercial Law

Codification of commercial law

Discuss about the Difficulties of Codifying Commercial Law.

Sir Royston Miles "Roy" Goode was born in 1933, and practiced as commercial lawyer in the United Kingdom. In 1972, he received the award for OBE and in 1994 for CBE. Later, in 2000 he knighted for providing services to academic law. Centre for Commercial Law Studies was founded by Roy Goode at Queen Mary, University of London[1].

In this essay, we will discuss the statement made by Roy Goode that is “the case for a commercial code as unanswerable”, and also state the opinion on this statement. Subsequently the essay is concluding with the brief conclusion.

The exact time when process of codification of law was started in England was not certain, and it was assumed that this process was started when this piece of legislation was enacted in the Canute of Denmark (1017-1035). Later, in 18^th Century other people initiated the process of codification of law and this approach was developed by utilitarian philosopher Jeremy Bentham. In 1873, Joseph Dixon said by addressing the Glasgow Juridical Society in his entitled ‘The Codification of the Law’:

“Demand for codification of law was initiated with the approach of Bentham, and this demand was continued and leaves impacts on the mind of people because of which they ask for the scheme related to codification of law[2].

In 1961, “Rupert Cross said that he cannot easily believe that codification of English law will not become an issue in next fifty years”. The assumption made by Rupert Cross was right and Law Commission introduced a law which stated that it was the duty of the Law Commission to review the enacted law with a view to systematic development of law and this review also lead to codification of enacted law[3][4].

Need to codify the law is the question which have diversified answers. Codification of law resolves many things such as it simplified the meaning of law, and makes the law more accessible and also more ascertainable. While codifying the law, all the rules and principles of law are collected at one place, and this approach of codification of law helps in identifying the weakness in the existed law. It also helps to enable the law to be more modernized by adopting the doctrine to practice and remove the ambiguities and inconsistencies which are raised because statutes are drafted by different number of people at different times, and these drafted statutes are different from the other statutes[5].

Need of codification of law

Codification of commercial law- commercial law regulates the business transactions and commercial transactions, and this law can be considered as branch of civil law. Commercial law deals with both private law as well as public law, and it includes number of titles such as principal and agent, carriage by land and sea, merchant shipping, and partnership etc. there are number of countries which adopted the civil codes that contain comprehensive statement related to their commercial law. The main purpose of commercial law is to identify the ways through which commercial men can do business in that manner in which they want to do it. The concept of commercial law was developed from last few years and there are number of challenges for the commercial contract law which are identified in 21^st century.

There are number of benefits of codification of commercial law which are defined below:

• Commercial and business transactions were conducted more efficiently.
• Legal rules which are made to fulfill business objectives can be understand easily.
• Time which was consumed in digging the particles of commercial law and after that assembling them was saved.

Enactment of any law requires time, effort and money, and Roy Goode believes codification is the thing which must be done in such a way so that high quality product is achieved with efficient use of resources.

Codification of commercial law provides approach of integrated corpus under which various branches are linked by common concepts, those characteristics which are not possible to achieve in any separate codification of statutory and it also develops coherent philosophy. In federal jurisdiction a code covers the complete country either in the form of federal law or state law, and it also harmonizes the commercial law of various jurisdiction systems and provides facility of interstate trade. In the absence of such harmonization the burden of conducting the transaction of the business at national level is difficult.

Codification not only help in improving the law but also saves lot of time, efforts and money which are spend in understanding the law, advising on the law and also by complying with it. Therefore, it is surprising especially in America that government does not show much interest in the codification of law. The reason behind this was the resistance from business man and lawyers who are afraid of change. If change occurred then lawyer who was expert in law has to start again[6].

Commercial law mostly covers common contracts, sale contracts, contract which are associated with carriage, warehousing contracts, and insurance transactions and financial transactions. In present time, the perspective of commercial law is wider, which includes leasing of equipments, receivables financing, systems related to payment, security of personal property, rights related to investment of securities, and also those commercial transactions which are not derived from contract of sale. Accommodation with new technology is also mandatory for commercial law in this modern era especially in the field of transmission of trade and data related to financial transactions. It also required new system for clearing the dealings related to money, commodities and securities. Therefore, coverage of transactions by commercial law is depend on two points that are:[7].

Scope of codification of law

First point states that commercial law is not abstraction, but it is the tool for its users. The needs of users are changing from place to place as per its national practices, level of business, and type of business and financial institutions. It is not possible for every country that they copy the model represented by American Uniform Commercial Code which was designed for almost fifty jurisdictions, and for some 200 million lawyers.

Second point states that in case when business community codified the usage of trade then legislation becomes both unnecessary and unhelpful. We can understand this with the help of example such as codification of law related to documentary credits was needed with a view of adoption of the Uniform Customs and Practice around the law.

At last, we can say that because of the availability of experts, freedom of the code that draftsman draft from the drafting traditions and constraints of legislation, codification also provide facilities of finding and interpretative aids which are not found in the statutes of normal nature. For example, Uniform Commercial Code contains at the initial stage of each article the definition of general relevance related to that article, and also index which shows the definition of other words related to this article are located. Each and every section of the law must include official comment which states the prior statutory source. It also includes the changes that were made in the old law and comment on the purpose of that change and new matter which is the result of that change, explanation of each section or sub section, references of other sections and cross references which is definitional. It also states the definition of key words used in the article[8].

The official text of any statute which is ordinary contains only table which state sections, amendments, repeals, but it does not contain history, any detailed statement stated purpose of the section or any other explanation. On the other hand internal cross-references are designed to state the relationship between two statutory provisions. The person who reads the ordinary statute usually finds it difficult to understand the basic nature of the provision or solution of the problem which person wants to resolve, because of which he has to spend lot of time to understand that law and resolve his problem through that statute. It is also difficult for the person to understand the meaning of statute and also the reason why this statute was at that place. Therefore, it is necessary that government must focus on the codification of law.

Conclusion:

After discussing the above facts, it is clear that person who reads the uniform commercial code is not able to understand the general view of commercial code, purpose of the commercial code. If codification of law is not there then it becomes difficult for the person who reads the law to understand the intention of the legislature, and this confusion leads to mistakes by the person.

t last, we conclude that I agree with the statement of Roy Goode that case for a commercial code as unanswerable because codification helps to communicate the real intention of the legislature.

CISG, ‘Sir Roy Goode’, < https://www.cisgac.com/sir-roy-goode/>.

Halson, ‘ a common lawyer’s perspective on common code’s’, 2011 < https://eprints.whiterose.ac.uk/89802/3/Halson%20paper%2024%20March%20RH%20Final%20to%20Jers%20Law%20Rev%20(1).pdf>.

Roy Goode, Commercial Law in the Next Millennium <

https://socialsciences.exeter.ac.uk/media/universityofexeter/schoolofhumanitiesandsocialsciences/law/pdfs/Commercial_law_in_the_next_Millennium.pdf>.

Grant Gilmore, On the Difficulties of Codifying Commercial Law, 1^st January 1948 < https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3646&context=fss_papers>.

Roy Goode, ‘The Concept of "Good Faith" in English Law’, march 1992 < https://www.cisg.law.pace.edu/cisg/biblio/goode1.html>.

Roy Goode, ‘THE CODIFICATION OF COMMERCIAL LAW’, < https://www.austlii.edu.au/au/journals/MonashULawRw/1988/5.pdf>.

Joseph Anthony Dixon The Codification of the Law (1873) p 1.

Rupert Cross, ‘ Precedent in English Law’, 1961 p197.f>.