A critical evaluation of the application of usages of trade as a source of commercial law

Abstract

It is proposed to study the concept of usages of trade on the background of the nature and efficacy of custom or consuetude in general. The principles enunciated particularly by Maltese courts in respect of the establishment of usages of trade shall be considered in the light of the wider doctrinal discussion related to custom in general and, more specifically, on the basis of an analogical analysis with the rules and principles applied within the context of custom in public international law. The reference to rules of public international law in this connection shall be made on the basis of the assumption that the notion of international custom has historically received more attention and is therefore more developed. The definition and requisites of usages of trade in Maltese commercial law shall therefore be weighed on the scales provided by customary international law in so far as this is possible and tenable. This should lead the study to provide some suggestions for the purpose of arriving at a .more workable theory of usages of trade in the context of modern commercial realities. The study shall also attempt to provide a doctrinal and, as far as this is possible, a practical basis in respect of the application of international usages of trade in Maltese commercial law. The reception of such usages in Maltese law is believed to be essential in the context of the ever-increasing 'internationalisation' of trade.