territory; however, both its role and technicalities, have been appreciated by
the different legislations of the federation in the perspective of the advantages
given by a uniform approach. Before going through the analysis of the UCC
(Uniform Commercial Code) it is necessary to look at the federal Constitution
as far as the commercial law has been regulated, to whom its competence is
attributed and then to relate those aspects to the UCC non federal nature. The
presence and the use of the Commercial clause in article I ,8 of the U.S.
Constitution (which states as follows: “to regulate commerce with foreign
Nations, and among several States, and with the Indian tribes”) by the
Congress has been at the centre of a long dispute, since it determines the
weights of federal and state powers, having an immediate effect on citizenry.
The Congress based its power on the 10
th
Amendment stating the federal
competence only in the subjects explicitly delegated to it, so reserving all the
others to state power.
A fundamental help to the Congress in supporting the commercial competence
and other subjects not specifically enumerated by the Constitution has been
offered by the U.S. Supreme Court which enforced for many times what is
defined as the “dormant” commerce clause doctrine. The conception inferred
by the federal Supreme Court from article I, 8 of the Constitution developed its
own justification around the fostering given by the commerce clause, “ that
every farmer and every craftsman shall be encouraged to produce by the
2
certainty that will have free access to every market in the Nation”
1
and that
neither the taxation nor the police power may be utilized as means to create
barriers of any sort to constrain a fair competition between state productions.
The U.S. Supreme Court has always been ready to back the Congress
competence on a large view through the application of a discriminatory test
with only two exceptions to it: either that the challenged state law is necessary
or it is an expression of a legitimate local interest; however, it is to be reported
that over the last decade the Supreme Court has been changing its point of view
insofar as the dormant commerce clause is concerned. In 1995 Chief Justice
W.H. Rehnquist ruled that Congress is empowered to regulate: the channels of
commerce, the instrumentalities of trade and actions that substantially
influences intra-state commerce. The Rehnquist conception expounded, for the
first time from Franklin Roosvelt age the belief that the Congress is not
legitimated to retain such an excessive and unlimited power to regulate
commerce.
The analysis of competence in the commercial field linked to the weird nature
of the UCC bring any kind of reader to pose him/herself the following simple
questions: why the UCC, the main text covering commercial transactions, is
not a federal text? Why isn’t it transplanted into federal legislation, since its
main problem stands in keeping uniformity at a high degree? Actually, the
1
H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 532, 93 L. Ed. 865, 871 (1949).
3
need to frame the UCC stemmed from a federal failure in the enactment of the
Federal Sales Act (1930s); the result of that caused many to think that
uniformity should have been achieved through state enactment of a uniform
statute. However, today something has changed, and the solution adopted has
been revealing some weaknesses; yet, a proper level of uniformity has not been
reached even though the excellence of the UCC has been capable to solve
intricated and thorny legal matters. Such a problem of uniformity in the
commercial area where the federal legislator, as seen, could legitimately
intervene, has provoked different points of view and critics to arise.
Professor Cohen
2
is one of those thinking that federalization would not be the
right thing to do although the amendment mechanism of the UCC should be
reviewed to address states on a common law perspective. The advantages of
having a NCC (National Commercial Code) would be undeniable under
different sides: attainment of final uniformity, simplicity in correcting the code
and deciding on hard matters, more democratic approach, harmonization with
other federal-ruled subjects (as Bankruptcy) etc.. Nonetheless, all the positive
aspects that have been mentioned hide something negative; for instance, the
democratic process installed through the federal Congress participation would
enable interest groups and lobbies to determine the final results more and more
than under the current mechanism; yet, the alternation of political parties in the
2
Cohen , Neil B., “Drafting commercial law for the new Millennium”, 26 Loy. L.A. Rev. 551 (1953).
4
detention of power would render the code susceptible to “wind changes”,
causing one of the main principle of law, the certainty tenet, to fail in ensuring
the stability of commercial transactions and crashing against what the U.S.
Supreme Court has always striven to guarantee. So far, Cohen’s view aims at
keeping the code updated and maybe more democratic to let the highest
possible number of interests enter the UCC and be considered in the
construction of provisions (Neil B. Cohen, 1993).
As an opponent to Cohen, Taylor
3
supports the federal ideal for the code to be
transplanted into national legislation; however, he also thinks that the state
rights should not be forgotten inasmuch as they provide local matters to be
fixed properly at a closer level to the people. The way prospected by Taylor is
finalized to reaching a balance between the legislative federal power and the
possibility to file claims and suits stemming from the national legislation,
directly into the “hands” of state courts; the hybrid supported by Taylor is an
attempt to give uniformity in the commercial field that being rich in
complexity, fundamental for the life of the country and constitutionally
defended, has been subdued too much to continuous breakdown and damage
coming from the flawed original process of the UCC. As a result, a code
getting older should necessarily be subjected to a substitution with a new
streamlined uniform code, that is to be reformulated in the obsolete parts; in
3
Taylor, E.Hunter, “Uniformity of commercial law and state-by-state enactment: a confluence of contradictions”, 39
Hastings L.J.337 (1978).
5
this measure, the federalization could be the opportunity to solve the old
problems guaranteeing a top level of harmony in commercial law area, more
readily known and predictable for business, more flexible but stable to fit with
nowadays commercial matters, and so doing, contributing to increment
prosperity (E. Hunter Taylor, 1978) .
In spite of what has been seen, the majority of people continue to define the
code as “ the most spectacular success story in the history of American law”.
The significance of this positive comment stands in the fact that the UCC has
been capable for 50 years since its first enactment, to regulate commerce
between 50 different jurisdictions that are able to construe a non-binding
source of law in the manner they wish. The most obscure aspects of the UCC
have not succeeded in blurring the excellent result the code itself represents;
yet, it is one of the best example of viability of state government, trying to
explain how a federal system may work, by offering decisive competence to
operating non governmental groups, like NCCUSL (National Conference of
Commissioners for the Unification of State Laws) and ALI (American Law
Institute), and letting them both interact and cooperate with states to reach an
“outstanding job of crafting and updating”
4
(Fred H. Miller, 1993).
4
Miller, Fred H., “ Is Karl’s Kode Kaput”, 26 Loy L.A. Rev. 703 (1993) .
6
In conclusion of this introduction, it is to be acknowledged that the analysis of
an instrument like the UCC has to be focused on many sides, since this type of
codification is really a multi-faceted one. The necessity to structure the
introduction in this way has been dictated by the need to point out what the
basic law of USA explicitly states and then to anticipate the peculiarity and the
strength of the code through a contrasting comparison between what is positive
in the current form and what would be positive in the hypothesis a federal
version occur. Thus, the constitutional competence given through the
commerce clause article I,8 is sheer but not enough for legitimating a federal
regulation of commercial transactions to the detriment of a still functioning
model of UCC. To be able in understanding the working mechanism of the
code, going deeply to study a particular aspect, it is cogent to depart from the
historical development of the UCC, and subsequently, to consider the different
branches including methodology, interpretation and politics of the code itself.
Thereby, taking into account the key principles of the subject at issue it will be
much easier to concentrate the attention firstly, on how particular is the system
of Louisiana and secondly, on a comparison between two different tools, the
UCC, and the Louisiana civil code as far as the contract matters are concerned.
7
A general approach to the UCC throughout its historical
evolution, methodology, interpretative techniques and politics.
UCC: historical background.
As a mirror of the evolution of society and practices between interacting
people, law, and in the case, commercial law, has always been subdued to an
evolutionary process molded on different steps up to the start of the work for
the UCC in the first half of the 20
th
century. The steps involved in the growing
up of commercial regulation have to be reported because they give idea of the
changes and also for they may be partially included in today’s enforceable
project as examples of gap fillers.
- The first era was the law merchant one, when disputes were settled on the
spot according with merchants’ prevailing customs (from 1300 to 1700);
- the second stage welcome the English common law which Mansfield and
Holt attempted to integrate and melt with law merchant (1700);
- the third one has been represented by the reception of a prime quality
corpus of ordered rules by the American colonies through the study of
Blackstone’s Commentaries and the work made by Justice Story to create a
uniform and harmonious legal system (1800);
8
- the fourth step was given by the uniform acts and Restatements proposed
by NCCUSL and ALI to modernize the existing law in a climate of
continuous change and ferment (1890-1940);
- the creation of the UCC and its adoption by the 50 legislation, of the
American federation (Charles Bane, 1983)
5
.
The genesis of the UCC has been rooted on the active collaboration of two
national non governmental institutions: NCCUSL and ALI. Such a cooperation
worked for purposes of unification, improvement and simplification of USA
law
6
. The first of the aforementioned two was founded in 1892, through the
initiative of the American Bar Association (ABA), and was built up by
commissioners appointed by the governors of the states; since its creation this
institution had rarely met more than once, twice a year, even delimiting its
work to recommending acts to be adopted by state legislatures. Over a long
period of time, that as seen goes from the late part of the 19
th
century to the
first part of the 20
th
one, the successful output succeeded in securing the
widespread application of uniform statutes as the Negotiable Instruments Law
and the Uniform Sales Act.
Despite the excellent work made by the NCCUSL the process resulted very
slow and laborious, so failing in the attempt of creating a legal spectrum apt to
5
Bane, Charles, “ The Progressive Development of commercial law”, 37 U. Miami L. Rev. 351 (1983).
6
Twining, William, “Karl Llewellyn and the Realist Movement”, 1973.
9
Ricevi informazioni sui nostri servizi, sulle offerte e non perdere news e consigli su università e lavoro.
