What are the Special Usances in Construction?

Abstract

Half a year ago, the Croatian Chamber of Economy and the Croatian Employer’s Association issued the Special Usances in Construction, which regulate the legal relationship between the client (employer) and the contractor. This continues a long tradition of codifying the commercial usages into usances (uzance). It was, however, never sufficiently explored whether the commercial usages can at all be codified. Even if the answer is affirmative, it was not sufficiently explored whether the usances indeed reflect the existing commercial usages. The aim of this research paper is to bridge such gap by analysing the nature of usances and, in particular, the Special Usances in Construction. Several methods are used. First, the textual analysis of the usances. Second, the analysis of jurisprudence. Third, historical method, which explores the origin of usances in former Yugoslavia. The analysis leads to the conclusion that neither earlier usances nor the Special Usances in Construction reflect the existing commercial usages. Instead, they imitate statutory provisions, e.g. by containing the date of the entry into force and even (purportedly) mandatory provisions. Consequently, the Special Usances in Construction have to be qualified as a quasi-legislative instrument. Considering that the legislative power cannot be delegated, unless the parties agree on their application, the Special Usances in Construction cannot be used as a source of law.