On Trade Usage

Both custom and customary law have played important roles in the long human society: They are important origins of law and therefore they provide the foundation for the production and development of written law. They are the folk method and therefore they adjust and standardize people's behavior and life. They can assist to interpret contract law and make up for contract loophole and therefore fulfill justice of contract law. Overseas research on trade usage is really more than internal research on it. Trade usage is trade rule which is practiced repeatedly and observed generally by the parties of the contract in the activities of market transaction. In our new contract, there are nine articles about the application of trade usage, however scholars on the law research have much controversy on some aspects of trade usage: The first one is the limit of trade usage. It can affect to determine the scope of trade usage. The second one is the important conditions of trade usage. It can affect to recognize trade usage. The last one is the judicial practice of trade usage. It can affect to distribute the right and duty between the parties of the contract and to administer the adjudication of the court. Therefore, thinking these following questions through is necessary: trade usage should refer to custom and customary law. The important conditions of trade usage should include: trade usage is not repelled to be used by the parties of the contract clearly. Trade usage should possess the repeatability, the endurance, the determinism and the uniformity. Trade usage has the attribute to be affirmed as law. Trade usage should be legitimate and reasonable. Trade usage that conforms to important conditions of it should be entrusted with legal effect. The value containing in trade usage determines its important status in international commercial law system and internal law system and its suitable space in civil law. Some rules should be abided by in the judicial practice of trade usage: regarding trade usage which has not been collected, the burden of proof rests on the party holding trade usage. Regarding trade usage which has been collected, the burden of proof rests on the court. Simultaneously, expert evidence may play a vital role during the course of investigating and collecting evidence. Regarding the different trade usages in conflict with others, the sequence of the different trade usages should be used correctly. In the interpretation of the contract, appropriate method of interpreting the contract should be used. Supplementing the contract according to trade usage should take priority over supplementing the contract according to arbitrary norm.When trade usage has violated either the forceful stipulation or the principle of public order and public morals or the honest credit principle or when trade usage has been removed by the express clauses or when there has been a contradiction between trade usage and the express clauses, trade usage should be removed.