. reclaiming or revendication in matter of commerce (stoppage in transitu); on insurance; on rights and obligations resulting from navigation (Shipping Laws), viz., of sea-going vessels, of owners and managers, of ship's masters, of ship's officers and seamen, of affreighting and chartering of ships; on charter-parties and bills of lading; on passengers; on collision and fouling; on salvage, shipwreck, stranding and flotson; on jettison; on bottomry; on insurance against the dangers of sea; on abandonment; on averages; on prescription of contracts in maritime commerce; on bankruptcy and surcease of ment; on assignees or curators in bankruptcy. By this it is obvious that the lex mercatoria is the most important branch of Private International. Law. pay Positive Civil Law ($37) is applicable to commercial matters in so far as it is not deviated from by special Commercial Laws. Usages and customs of trade, being ingrafted upon Civil Law and made part of it, are allowed, for the benefit of trade, to be of prominent validity in all commercial transactions. * In this and the following sections there will be noted some rules for the different circumstances in which the lex mercatoria is applicable. As every nationality, however, has its own lex mercatoria, though agreeing with those of other Commercial Nations on the main principles of general commercial usages, the rules given in $ 59-84 of this chapter are to be regarded (as stated already in § 50), as mere indications how some instances of the lex mercatoria may be viewed in cases of Concurrent Jurisdiction ($49). * BLACKSTONE'S. Comment. I. Introd. § 3. PHILLIMORE. Comment, on Intern, Law, Vol. IV. Chapt. XLI. Traders are the subjects of the lex mercatoria, and Acts of Commerce are its objects. Traders. The ler mercatoria considers those Traders and Acts as traders who perform acts of commerce and Commerce. whose habitual profession is trade. In the obligations of traders in general are included those of bankers, brokers, commission agents and other agents, also all sorts of partnerships and transactions on joint account, and all trading companies, sailing or steam-ship companies and mail companies, also joint proprietorship in vessels etc. Under the term Acts of Commerce we comprehend all acts done in connection with the purchase of goods for the purpose of reselling the same, either wholesale or by retail, either in their natural or in a manufactured state, or merely for the purpose of letting the same for hire. mercatoria. The lex mercatoria likewise includes, under the objects of the lex denomination of Acts of Commerce, besides the acts of traders or merchants in general, the following transactions, viz.:-- The acts of brokers and administrators of public stocks and public companies; further, all commission business and banking operations and whatever relates to exchange transactions, without distinction as to the person concerned, and whatever relates to notes payable to order, with regard to traders only. Under the same denomination is comprehended whatever relates to contracts made for the building, repairing or fitting out of vessels and the purchase or sale of vessels for inland or foreign navigation; all forwarding and conveyance of merchandise; the purchase and sale of shipstores and provisions; all shipowning, freighting or chartering of vessels, as also bottomry and other agreements relative to shipping; the hiring of masters, mates and Partnership and mariners and their engagements in the mercantile marine; the acts of managers, shipbrokers, custom-house agents and book-keepers and other merchant clerks in the business of their employers; all insurances. Objects of the lex mercatoria are also the obligations which originate from collision, drifting, fouling or running down of vessels; also from salvage, shipwreck, stranding, flotson, jettison and average. Partnerships and Corporations. There are three kinds of commercial partnerships, viz.:--a. Partnership contracted by two or more persons for the purpose of trade under a social firm, called general partnership (société en nom collectif). b. Partnership contracted by one or more persons, responsible to the whole extent of their property, in combination with one or more persons who simply invest in the partnership a certain amount of money, called commandite partnership (société en commandite). Such partnership is carried on under a social firm, which must include one or more of the responsible partners. c. Trading companies or corporations which are not carried on under a social firm or under the names of any of the partners, but under the name of the undertaking (Société Anonyme) managed by agents (partners or non-partners). The above mentioned distinctions are those followed by the European Continental Codes. "British Law," says Leone Levy, "recognizes only two kinds of partnerships, viz., private partnership with no more than seven partners, and public partnerships or corporations, composed of any number of partners, with limited or unlimited liability." "The English law does not provide for the formation of partnerships consisting of partners, some with a limited and some with an unlimited liability, on the principle of the commandite partnerships of France and other States. The English law allows limited liability to companies of seven members and upwards, but all the members have an equal liability, whether limited or unlimited. Yet it is submitted, that the combination of limited and unlimited liability is founded upon sound principles. It is just and reasonable that those who appear before the world as partners, who manage the affairs of the concern, and who, by their names or by their acts, either as directors or managers, whether of a private partnership or a public company, lead others to trust the firm, should be liable, to the full extent of their property, for any debts which that partnership or company may have contracted. But it seems also just and reasonable that a partner or shareholder who takes no part in the management and whose name never appears, and who is not likely to deceive third parties in the belief that he is a partner in the concern, should be liable only for the amount he had invested in the concern. This union of limited and unlimited partners is the distinctive principle of commandite partnership (société en commandite), as contrasted with general partnership and with companies with limited or unlimited liability of the English law." * Public Companies and Corporations. With American Laws. regard to the laws of the United States of * LEONE LEVI. International Commercial Law. Vol. I. Chapt. III, IV & V. Professor von America, Timothy Walker makes the following remarks. "The stockholders of a corporation (société anonyme), unless the contrary is provided in the charter, are not personally liable for the debts or undertakings of the corporation beyond the amount of their shares in the capital stock; but the reverse prevails with respect to partnership. By the Common Law there is no such limited responsibility, and each partner is personally liable for all the partnership debts and undertakings. To limit this liability a special statute is necessary. In some of the States, such provision has been made and limited partnerships (société en commandite) are permitted, whereby a partner may put into the concern a given amount of capital and by making public record of the fact, may exempt himself from liability beyond that amount. Such provisions are deemed highly beneficial, because they take away the fear which often withholds capitalists from employing their means in this way." With respect to Private International Law the above quoted author makes the following remarks. "The general rule is that the existence of foreign corporations is recognized for all purposes and in all respects except those specially prohibited by the domestic laws. Subject to this exception, they can make contracts, sue and be sued, establish agencies and do any other acts to which they would be competent in the place of their domicile. They must dwell in the place of their creation and cannot migrate elsewhere; but this does not hinder their rights from being recognized and protected elsewhere." * This is also the opinion of Professor von Bar, as will be seen from the following quotation. * TIMOTHY WALKER LL. D. Introduction to American Law. Edit. Bryant Walker. 1874. page 240 & 754. Dr. C. L. von BAR. Das Internationale Private und Strafrecht, |