The Historical Roots of Belgian Commercial Law

Abstract

The article presents a synthetic approach to the history of Belgium commercial law. The author starts with the regulations of Roman law leading us from the beginnings of civil law in the times of the Roman Republic, describing the role of aediles and praetors, to the times of the Roman Empire. A signifi cant part is dedicated to grain trade and aimed at searching – not always successfully – for self-contained norms within commercial law. A separate analysis is applied to Roman equivalents of banking law, including the notion of cheque and accounting. The fall of the Western Roman Empire brought changes in trade in the Mediterranean region. The description of the Middle Ages includes a list of causal factors that contributed to the development of commercial law in Western Europe and that were related to Roman tradition (including development of canon law and the institution of Church itself, as well as development of universities). It also contains the analysis of both organizational and private law elements of commercial law of that time mainly in Italy who then had a leading role. A signifi cant part has been devoted to the development of the notions of promissory note, notary and legal personality. Since the 11th century cities have begun to gain importance and consequently so have autonomous and tradeorientated systems of city rights. The process that originated in the Apennine Peninsula later appeared also in the north of Europe, including German maritime cities, and eventually brought organizational changes and led to establishment of the Hanseatic League. Legal regulations embraced, inter alia, maritime trade. Improvement in safety and quality of roads enhanced the development of towns situated by trade routes: fi rst fairs appeared. Changes in socioeconomic structure and the fall of Constantinople infl uenced the progressive standardization of commercial law in different countries. The Greeks took to the West not only money and wealth but also their law. The origins of the contemporary Belgium commercial law are without a doubt connected with French law – protectionist policies of French rulers characterized by their strong interference in laws regulating trade were included in the Ordinance of 1673 and its equivalent of 1681 concerning maritime trade and connected with the person of Savary. Such actions resulted in developing organizations gathering and representing interests of entrepreneurs of that time. The next stage important for the contemporary Belgium law was the issuing of Napoleonic Code de Commerce of 1807. French law was implemented also in the parts of the Netherlands conquered by Napoleon. There was French organization of commercial law courts established there based on judges who were not professionals but entrepreneurs. When in 1830 the Belgians gained independence, one of their goals was to implement a new commercial code. But in the end they chose a different way – a comprehensive revision of the existing law that continued throughout the following decades. Through that process Belgium commercial law was complemented with, among other things, private companies. The French commercial court system was not changed. The changes of the legal code in the 20th century resulted mainly from the development of the international law (e.x because of accepting the convention on promissory notes code) as well as the European one. In 1999 commercial companies code was separated from Code de Commerce. For the last two hundred years the changes have affected also commercial court organization. Although some argue that there is a need for reform and removal of non-professional judges’ particularism, the author of this paper is of the opinion that the current structure serves its purpose.