De dogmatische handelsgewoonten in Nederland en België (19de-21ste eeuw)

This contribution draws a distinction between three types of commercial practice. Usages-règle are customary practices in the sense that they constitute repeated conduct based on the belief that it is legally valid. Very often these practices have a limited scope and are regarded as supplementing the relevant legislation. Usages-présomption (or usages-conventionnels) are commercial practices which are intended to give concrete from to, and supplement, arrangements between contracting parties. Where commercial practices are treated as usage-principe, they are regarded as open rules which are capable of interpretation by the courts. Usages-règle were promoted by the Historical School in the early 19th century. Previously, commercial practices had frequently been treated as usage-principe, in that they were regarded as being narrowly linked to principles which were equated with “custom and practice” and could be derived and confirmed from various legal sources. From the end of the 19th century, commercial practices were predominantly regarded as usages-présomption in France and Belgium. In the Netherlands, on the other hand, their status as dogma became less significant, which was linked to the courts’ increased discretion in interpreting and supplementing contracts. Accordingly, Belgium needs a legally dogmatic approach towards commercial practices much more urgently than is the case in the Netherlands. However, the customary practices remain subject to the parties’ freedom to contract, and the qualification of such practices as rules has, in practice, not been completely achieved. In spite of the trend towards objectification when it comes to applying commercial practices, the traditions referred to above continue to prevail.

Keywords:handelsrecht, gewoonterecht, rechtsvergelijking, Nederland, België