The legal value of incoterms in the Spanish jurisprudence: past, present and future

Abstract

As commercial activity in the world grows, legislators are not able to keep up with the frenetic pace of international trade expansion. Thus, as it was already in the Middle Ages, it is the merchants and businessmen themselves who are creating a new supranational legal system called lex mercatoria, in order to be able to develop their commercial activity with guarantees. The basis of said system is contract law. Dynamic sectors such as insurance or transport have already created their own standards, via contractual models or standardized contracts, which apply regularly in their international relations. The model contracts have for a time turned this part into a source of rights and obligations between the parties replacing the national regulations, unable to provide the necessary flexibility and dynamism, as well as the international merchandise sales contract, the international arbitration courts or incoterms.

Incoterms are one of the most used elements in international trade relations since many years ago and that survives over time; its use is so frequent that Spanish jurisprudence has made several analyses of it in various sentences.