The merchant law

Mercantile law, or “law merchant”, has been described as “Neither more nor less than the usages of merchants and traders … ratified by the decisions of the Courts of law which, upon such usages being proved before them, have adopted them as settled law” (Goodwin v. Robarts, 1875).

The law merchant in medieval times was applied in (a) maritime courts found in coastal towns, and (b) local courts found in certain market towns.

(a) The Maritime Courts applied the customary maritime law which operated generally in western Europe and which was derived from the Laws of Oleron, the Consolato del Mare, the Laws of Wisby, and other Mediterranean maritime laws.

Jurisdiction included such matters as the hiring of ships, charter-parties, carriage of goods by sea, marine insurance, piracy and crimes on the high seas.

As England became a trading and seafaring nation the jurisdiction of the maritime courts increased. In 1482 the Lord High Admiral of England appointed on behalf of the Crown a special judge to take over the jurisdiction of the local maritime courts and extended their jurisdiction to include prize matters. Prize jurisdiction determines whether a ship, with its cargo, captured during time by war by a belligerent is “prize”, and, if so, how it is to be disposed of.

(b) Local Courts administering mercantile or commercial law were of two kinds. In towns holding fairs at fixed times and places, courts were constituted on the spot and usually included the mayor assisted by one local trader and one foreign merchant. Justice was speedy and the unwritten law applied was based on the customs of merchants in buying, selling and delivering goods, bills of exchange, negotiable instruments and the like. The courts were sometimes called “Piepowder” courts, because the merchants attending them often came into court with dusty feet (pieds poudres). The second group were known as the Courts of the Staple and were set up in certain “staple” towns which had a monopoly in trading in such staple goods as wool and leather. These courts also applied the law merchant.

In both the local courts and the staple courts the law contained an international flavour. This was because the Crown, wishing to encourage Continental trade, gave the foreign merchants and traders the protection of the law which applied to men of their kind generally throughout Europe. Accordingly justice was administered on the spot by the special courts constituted by the mayor with one local and one foreign merchant, Merchants and traders moving from one fair to the next could not wait for the justice of either the ordinary English local courts or the royal courts. In any case the common law of England was inadequate to deal with the contractual disputes of the traders.

Gradually, however, the courts merchant declined in importance as the common law courts became more efficient and reliable and became centralized in London. Moreover, limitations were imposed by statute in 1477 on the jurisdiction of the local courts merchant.

By the middle of the eighteenth century the common law courts had absorbed nearly all the jurisdiction of the courts merchant, except for the maritime law and prize law applied in the maritime courts.

Lord Mansfield, Chief Justice in 1756, was notable for his work in regard to the law merchant. He established the principle that once a judgment had been given on a mercantile custom, that custom became judicially recognized and no further proof of it needed to be given in a similar case in the future. Specially selected juries of merchants ensured continuity in the administration of mercantile law. Mansfield's work was carried on by other judges and resulted in the absorption of this branch of the law into the common law of England.

Local custom. A local custom is a usage or rule which has gathered the force of law and is binding within a defined area upon the persons affected thereby. Common examples are local rights of way or rights of common. A useful case which exemplifies the operation of law is the following:

M ercer v. Denne (1905)

Defendant owned part of a beach and proposed to erect houses thereon. Local fishermen sought to stop him by claiming that they had a local customary right to dry their nets on the land. Witnesses proved that the custom dated back for some seventy years and reputedly earlier. This raised the presumption of antiquity. Held: that the defendant must not build the houses on the land: the local customary right was upheld.

The onus of proof of a local custom rests on the person claiming that such a custom exists. Judicial recognition will be given and the custom will be enforced if it is:

a. Reasonable.

b. Certain as to the subject-matter of the right, the persons benefited by it and the locality.

c. Local, in the sense that the custom must be applicable to a district known to law, e.g. a parish, manor, or shire.

d. Of immemorial existence, i.e. must have existed from “the commence­ment of legal memory”: arbitrarily fixed at 1189, the first year of the reign of Richard I. Because of the difficulty of proving this, courts presume that the custom existed then unless there is clear evidence of the contrary.

e. Peaceably used. The custom must have been exercised peaceably, openly and as of right (neeper vim, nee dam., necprecario). If a right is exercised by permission, then it cannot be claimed to be exercised “of right” for the right can only be exercised in accordance with the permission.

b. Continuously observed. This does not mean that the right must have been continuously exercisedbut that it could have been the right to do so being observed without interruption.

c. Compulsory. Once established the custom must be local common law and legally effective because it is right and enforceable.

d. Not contrary to any statute.

e. Consistent, in the sense of being consistent with other customs and not contradictory to them.

Local customs must be distinguished from conventional usages, which are found and observed in particular occupations, trades or business or among professional groups. Following the analogy of the local custom, the courts have laid down certain principles. Every usage must be certain and reasonable and must have acquired notoriety (in the sense that the usage is well known and observed) in the trade or business to which it relates. In contracts, for example, there will usually be express terms, but in addition to these the court may, in construing the contract, imply a term or terms where the parties are deemed to have contracted on that basis. Thus, if a usage is shown to exist in a class of workers entitling members to, say, three months' notice terminating their engagements, this usage or trade custom will apply unless expressly negatived by the contract itself.

Dashwood v. Magniac (1897)

A had devised an estate to В with “a power to cut timber for the repair of the estate”. Evidence was admitted to show what trees were included in the term “timber” in the locality. Held: that “timber” included beech in addition to the usual meaning of oak, ash, and elm.

Grant v. Maddox(1846)

Evidence was admitted in this case of a theatrical usage to show that the word “year” in a theatrical contract means those parts of the year during which the theatre is open.

Smith v. Wilson (1832)

A usage was proved and admitted that in a lease of a rabbit warren the words 'thousand rabbits' meant in that particular locality twelve hundred,

A more recent example is Egerton v. Harding (1974), where the duty to fence was held to be based on custom.

SYSTEMS OF LAW

Warming-up:

1. What do you know about the common-law system & the civil law system?

2. Which legal system operates in your country?

Vocabulary notes:

legal system	правова система
form of government	форма державного правління
common-law system	система загального права
civil law	римське цивільне право
case law	прецедентне право
statutes	статут, законодавчий акт
code	кодекс
derive from	походити
to apply the law system	застосовувати правову систему
to amend	Вносити поправки
basic ingredient	основні складові частини
court decision	судове рішення
legal precedent	судові прецеденти
private law	приватне право
contract law	договірне право
property law	право власності
public law	публічне право
estate in land	нерухомість
personal property	особиста власність
to decide court cases	вирішувати судові справи
to adopt a common-law system	прийняти систему загального права
to encompass	здійснювати
to compensate smb. for the loss	компенсувати втрати
to assemble statutes into codes	укласти закони у кодекс
to confuse with	заплутати
to refer to precedents	звертатися до прецеденту
to combine features of both systems	поєднувати риси обох систем
to deal with matters	мати справу з питанням

Дата добавления: 2014-12-17