By: Ajit Singh Sidhu
Many people believe that commercial law is the engine that drives the desire for trade .This is a mistaken view .As an engine would connote , that the law is complete, precise and all encompassing. commercial law is not a fixed entity like an engine because it is an amalgamation of many different parts but the lubricant oil (that facilitates) and occasionally the breaks (that regulates) the law.
Commercial law was made in a haphazard fashion unlike an engine that was made and build together with precision it was rather made in ”piecemeal and haphazard”. [ Crowther Committee ]. Lachmi Singh observed that the law of passing of title in fact was made in a haphazard and piecemeal purpose and not together as one .As the laws were made to help balance the deontological perspective of protecting the original owner rights and at the same time the innocent buyers right to hold goods . There seems to be a contradiction here. It is also a law that is not stable like an engine but fragmented to develop for its needs such as the Hire Purchase Act that was pass to protect the innocent consumer buyers right to enjoy the car and not as a whole with Sales of goods Act [SOGA] s21 and also the removal of the market overt exception to prevent the sale of stolen items this to show that commercial law was not built like an engine .Rather acting as the breaks and oil to help facilitate trade .
The statutes on commercial law is unprecise and is not held together like an engine, rather flexible like oil . Lachmi Singh opines that s14(2) Sales of Good Act 1979 is based in what reasonable people would be life satisfactory and not merely acceptable that denotes a higher standard .As even the cases and academics are not clear what it means . As Atiyah says it denotes a mediocre quality means low and Lachmi argues its high quality. This flexibility would allow for adaptability like oil and being able to stop injustice in trade by being the breaks .In Bramhill v Edwards , Alud J states its based on a buyer in the position with knowledge and skill that says its satisfactory . This show commercial law is not built like and engine of precise parts but rather like oil which is fluid with the rational to cater for different cases when needed,
It has to be noted commercial law each part of the law actually is catered for different things but has the same goal of facilitating businesses [ being the oil ] and the breaks when needed , despite in a narrow view each has a different purpose but has the same goal that overspills .
M. Connelly states that the law aim is “protect third party who was armed by the principal with apparent authority “in agency . In Hely– Hutchinson v Brayhead, Lord Denning asserted his view of how the agents authority appears to others. However a narrow view would be to protect a third party who would belief the agent has authority to do the Act. Rather, indirectly the law has the aim of improving trade via providing assurance to the third party that if the agent were to do something wrong that they can sue the principal thus indirectly sharing the same goal as being the oil that facilities trade and being the break that stops unfair actions form happening .
Also as seen in the realm of bill of exchange where it seen the law like the oil focus on give effect to parties clear intent like oil . As Hong Kong Banking v GD Trading , the law did not follow the strict confines like an engine being bolted down .Rather focuses on the flexibility like oil of giving effect to parties intention . As the courts held the intent of the parties were clear to prevent undermining the parties intent of payment of the bill of a ‘ fixed determinable date ‘ via s.3 of the Bill of Exchange Act 1882 .By enforcing the parties intent rather than the literal law. The goal of commercial law can be met to help facilitate trade and act as a break on when parties intent are not clear that may hinder the payment if the bill which may impact trade in general.
The law despite of having the separate goal of balancing the parties in the in the context this in turn would help facilitate the main goal of being the oil and breaks .As seen s.13 of SOGA , in the case of Ashington Piggeries where it was held what was agreed upon was given to the seller albeit the fish being unsafe for use .It was held it did comply to the description .Contrast with Arcos case, Lord Atkins was of the view that a “yard is a yard sand not about it” shows that the narrow goal is to give what the seller bargain for but by being flexible .But enhances trade as allows for the protection of both parties by in terms of giving the items that was prescribed in the agreement . This is reconciled Chai Chert watt to allow the protection of both parties interest as the seller need give what specified if it was a detailed description while if it was not detailed to give what is asked for to avoid overburdening the seller in turn facilitating the law but being the breaks as needed
As seen commercial law is not the engine but the breaks and oil of the law , rather the desire of trade is the real engine. Whilst a complete set of precision in law is good at the same time the commercial law also seeks to ensure it is flexible to cater for new developments in the trading space.
An engine on its own will not be able to work perfectly without the lubricant (flexibility) and brakes (regulations).
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