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一、交易习惯的意义交易习惯是指不违反法律、行政法规强制性规定,在交易行为当地或者某一领域、某一行业通常采用并为交易双方订立合同时所知道或者应当知道的做法,或者当事人双方经常使用的习惯做法。①早期的商法主要由商习惯构成。中世纪时期,地中海沿岸的一些城市商业贸易和海上运输业比较发达,在广泛的商业交往过程中,逐步形成了商业活动中的一些习惯规则。这些习惯规则最初由商人组成的商业团体根据商业活动的习惯,通过订立自治规则的形式表现出来,这些自治规则即是当时的商习惯法。这些商习惯法仅适用于商人团体内部。商事习惯在中世纪时是调整商事关系的基本规则,但是,由于社会变迁迅速,习惯法形成不易,再加上随着后来欧洲资本主义国家先后开展大规模的商事立法活动,习惯法作为一种法源,已丧失其重要性,商事习惯法逐步被商成文法所取代。客观地说,由于制定法本身具有不可克服的局限性,再加上商事交易方式不断变化,导致商成文法不足以解决所有的问题,因此商事习惯法仍然有补充适用的余地。在交易上的一些惯性,虽
First, the meaning of the transaction habits Trading practices refers to not violate the mandatory provisions of laws and administrative regulations, in the conduct of the transaction or a field, an industry commonly used and the parties to the transaction know or should know when the contract practice, or The usual practice used by both parties. ① Early commercial law was mainly constituted by commercial habits. During the Middle Ages, commercial trade and maritime transport in some cities along the Mediterranean coast were relatively developed. During the course of extensive commercial exchanges, some customary rules in commercial activities were gradually formed. These customary rules were originally formulated by businessmen in the form of self-governing rules based on the customs of commercial activities. These rules of self-government were then customary practices. These customary practices apply only to merchant groups. Commercial practices in the Middle Ages were the basic rules for adjusting commercial relations. However, due to the rapid social changes, the formation of customary law was not easy. In addition, as European capitalist countries successively conducted large-scale commercial legislative activities, customary law was used as a method Source, has lost its importance, commercial customary law is gradually replaced by commercial law. Objectively speaking, due to the insurmountable limitations of the statutory law itself, coupled with the ever-changing commercial trading methods, the commercial grammar is not enough to solve all the problems. Therefore, there is still room for commercial customary law to be supplemented. Some inertia in the transaction, though