La costumbre y su eficacia en la legislación mercantil ecuatoriana

Abstract

Abstract: In our legal system, judges are not allowed to use commercial custom when resolving conflicts or controversies between merchants; rather, they should resolve it according to the provisions of the Commercial Code.Commercial law arises from practices between merchants that, due to their generalization and uniformity, have gradually gained recognition as "binding rules", these practices are known as commercial customs, which makes mercantile or commercial law adapt and modify according to the needs of merchants.The mercantile custom in hierarchical order is below the law, but above other sources of law (contract and analogy).Commercial custom is a source of exceptional law, becausejudges may only go to it in cases where there are gaps or legal silences.At the time of proving commercial custom, the interested part must prove it.For the commercial custom to be recognized by the judge, it must have a uniform, general and mandatory conduct.The means of proof used in commercial custom must be those expressed in the Ecuadorian Commercial Code.