Commercial traffic does not admit delays. Trading operations cannot stop to implement great formal rituals. Market operators require dynamism to contract and execute. The price of missed opportunity is too high. That is why the Spanish Commercial Code, in force since 1885, recognizes the uses and customs observed in each market as a binding source of law, and this recognition is repeated in practically all contemporary mercantile systems. In other words, the legal system, in order to be useful and efficient, validates the dynamic forms of contracting used by merchants around the world.
WHO IS INVOLVED IN TRADE OPERATIONS?
Sellers, buyers and intermediaries or mediators, no matter where they are on the planet. Every day there are countless trade operations and in most cases the parties to them are not known, and it is likely that they will never be known. Merchandise located in Tarragona owned by a Madrid seller can be bought from Barcelona with the same ease and dynamism as merchandise located in Singapore owned by a Dutch seller can be bought from Lima. Moreover, in most cases said merchandise does not even exist at the time the sale is made, which does not constitute an impediment for the parties to contract and be bound in relation to it.
The trade operations we refer to are almost always carried out verbally. In Europe, in the absence of an agreement to the contrary, the contractual terms are subject to the current legislation of the place in which the essential obligation is fulfilled (e.g. delivery of the merchandise and/or payment of the price), as well as the resolution of disputes that may arise. Of course, the parties are not usually alone in their commercial endeavor. Mercantile trade, both nationally and internationally, is usually promoted, encouraged and even protected, by trade intermediaries or mediators, colloquially called “brokers”, who know the market and usually charge a commission as fees for their services. determined based on the amount of each contract.
THE FIGURE OF THE INTERMEDIARY
The intermediary has multiple commercial contacts in the national and international market. In addition, he manages updated information in relation to available merchandise, places and current prices in the market. In some cases, he is also capable of anticipating or forecasting the future behavior of that market that he knows and trades on a daily basis, although such forecasts are always subject to change or revision. This privileged view of the market allows the intermediary to contact the parties interested in a trade operation, providing not only the information they need but also the possibility of contracting nationally or internationally. Thus, knowing the interest in contracting on both sides, the intermediary approaches their positions and allows them to verbally agree with his mediation the essential terms of the contract to be concluded (quality, quantity, price, deadlines, form and place of delivery, etc.). The verbal agreement between the parties is collected by the intermediary in a “minute” that he sends to them without delay. Said minute does not require a signature or any sign of acceptance, remaining solely pending compliance with the terms agreed for the execution of the contract by the parties thereof.
The figure of the commercial intermediary is not a typical figure in the Spanish legal system. This does not mean that it is not common (which it is and much so) but that the Spanish system does not contain a specific regulation of the intermediary, of his role in commercial contracts and of the legal consequences that are applicable to it. To the commercial intermediary we can apply the regulation of the mandate (verbal) that establishes the norms of the Spanish Civil Code, or those of the commercial commission agent that recognizes the Code of Commerce, but the provisions for one and the other figure do not finish covering the broad spectrum that actually covers. In some other cases, with less success from our point of view, it has been tried to analogically apply to it the regulation provided for in the Spanish law of the Agency Contract and even demand formal requirements of representation, without such cases resembling the true role played by the commercial intermediary in commercial traffic.
THE ROLE OF THE COURTS
To that extent, in order to know and understand the legal importance of the commercial intermediary in the Spanish system, it is essential to resort to the decisions of the courts, which are the ones that interpret in eachcase the scope of their function and give legal content to the verbal contracts entered into with their intervention.
Until just a few years ago, the ordinary Spanish courts found it difficult to accept that the parties could close important commercial operations and enter into million-dollar contracts by means of simple telephone calls. In fact, despite dealing with uses and customs perfectly rooted in commercial traffic, the role of the intermediary was not fully understood or the value of the minute that included the verbal agreement of the parties. Thus, in the event of the interested breach of any of the parties (eg due to a resounding drop or rise in the price of the contracted merchandise), the courts demanded that the powers of representation of the commercial intermediary be accredited, while questioning whether the minute was not signed and/or ratified by the parties to the contract.
However, the trend has been changing and there is currently sufficient case law to reveal that the courts are beginning to peacefully accept such commercial uses, in addition to properly understanding the fundamental role of the intermediary and his minutes in the contracting verbal made by merchants. In fact, in 2013, the Spanish Supreme Court itself expressly recognized the verbal form of contracting through the intermediary as a prevailing use of trade in the market, also recognizing the minute communicated to the parties as proof of the terms in which they contracted, as long as they did not question it upon receiving it. Said pronouncement has been reflected in recent judgments of multiple Provincial Courts around Spain, increasingly consolidating the aforementioned precedent.
THE VALUE OF SILENCE
Thus, for the Spanish courts, the silence of the merchant at the time of contracting through an intermediary acquires full validity and legal significance. Unlike other areas of contracting in which silence has no meaning and cannot be synonymous with acceptance or consent, in the field of commercial operations silence has a concrete and efficient value, which obliges and generates an economic expectation that it cannot be ignored. The legal value of silence obliges the merchant, who is not only bound by the verbal agreements reached through the intermediary, but must be diligent in verifying that the minute he receives reflects what was actually agreed upon, thus avoiding undesirable subsequent disputes. In case of doubt, it is recommended that the merchant immediately ask the intermediary for rectification and/or clarification of what the minute contains, since otherwise it will lead to assuming obligations that do not correspond to it or cannot be fulfilled.
That is to say, today, in the field of national and international trade operations, the Spanish courts finally understand that the silence of the parties implies a tacit acceptance of what has been communicated to them the intermediary through its minute, which undoubtedly favors the dynamism required in commercial traffic and provides merchants with the essential security to contract without fear that market fluctuations frustrate their legitimate commercial expectations.
