by Albrecht Cordes*

(2003) Oxford U Comparative L Forum 5 at ouclf.law.ox.ac.uk | How to cite

The Argument

In the first winter of the Seven Years War, on the 14^th of December 1756 to be precise, French pirates seized the English freighter “Sarah”. At this point she had covered 17 of the estimated 21 days of the journey from Newfoundland to Lisbon. The freight was not lost beyond retrieval, as three days later an English privateer was able to recapture the “Sarah”. The goods were then transported to England, where the privateer had to be rewarded for the re-seizure with half the total value of the goods¹. What was the consequence of this loss for the freight due to the carrier? The shipowners and freighters Luke and associates and their customer, the merchant Lyde, argued as to how much of the ₤150 reward Lyde was liable to pay after this incident.
The case appeared before one of the most renowned jurists in English legal history, the recently appointed Chief Justice of the King’s Bench, Lord Mansfield² who decided as the second and final instance. First of all, Lord Mansfield halved the disputed amount, i.e. ₤75. As half of the cargo’s value was to be paid to the privateer, half of the freight should be lost, too. But not even this second half was entirely granted to the petitioner. Lord Mansfield ruled that the sum payable to him was to be diminished in correspondence with the part of the journey which had in fact been covered. As the incident had occurred after 17 of 21 days, Lord Mansfield decided accordingly that the defendant should pay 17/21 of the ₤75 – i. e. ₤60 and 14 s. The principle of this decision is that of proportional freight – in Mansfield’s words freight “pro rata itineris”³. The contrary maxim is that of half freight: if the journey is interrupted by an incident for which the freighter is not responsible, nothing is due for the lost cargo, whereas for the saved cargo half of the freight has to be paid irrespective of the part of the journey covered⁴.
Lord Mansfield based his judgement in the first place on “common sense”. This sounds very British but is rather similar to a way of reasoning which became popular in Germany at that same time, i.e. to deduce arguments from the “Natur der Sache”⁵, the nature of the matter. Secondly, Lord Mansfield based his findings on the result of his own comparative investigation. He concluded that all past and present systems of law, from the ancient Lex Rhodia through the medieval maritime laws of the Catalan Llibre del Consolat de Mar and the French Rôles d’Oléron to the Hanseatic maritime laws and King Louis XIV’s Ordonnance de Commerce had come to this same decision⁶. Lord Mansfield concluded that Maritime Law was not the law of one particular country but instead a general law of nations: “Non erit alia lex Romae alia Athenis; alia nunc alia posthac; sed et apud omnes gentes et omni tempore una eademque Lex obtinebit”⁷ – Neither Rome nor Athens had any other law, neither today nor previously; but in all countries and at all times the same rule would did apply.
A similar pattern of reasoning is used in today’s discussion about the principles of the so-called New Lex mercatoria⁸. According to its supporters, its rules emerge and come into being independent from the will of any particular national legislator⁹. The belief in the unchanging content of the rules may have been lost since the days of Lord Mansfield but there is a clear similarity in the conviction as such. Supporters of International Private Law challenge the idea of the so-called mercatorists that law could possibly come into being without the explicit enactment by a legislator¹⁰ – among other reasons because their own set of rules for norm collision might become superfluous in view of such a system of supranational law. Another objection they have against the New Lex mercatoria is that this supposed area of law appears so nebulous that it is impossible to determine its content and its standards¹¹. But above all, a law without state authority is unthinkable for the scholars of International Private Law for theoretical reasons. In defence of their theory, the supporters of International Trade law have used a historical argument, which even provided them with a name for their new matter: “Lex mercatoria”. A law merchant such as that developing today, the argument states, had already existed in the Middle Ages¹². Their suggestion that law develops without any national or transnational legislator having a word in the process demonstrates what dynamism the concept of a modern Lex mercatoria could unleash in times of globalisation of large areas of hitherto purely national law.
Alas, the legal historian is forced to water the wine of Lex mercatoria euphoria and state that this use of a legal system of the past is both inconsistent and unhistorical. A similar problem results from current attempts to resort to the early modern Ius commune for the purpose of creating a European order of private law¹³. In both cases the laws of the past are divorced not only from their theoretic but also from their social and economic context, and dragged into legal surroundings which are completely foreign to them.
In these two cases the robor antiquitatis, the vigour of (old) age, seems to strengthen the authority of a set of legal rules. On the other hand it would be easy to draw up a list of examples in which the antiquity of a legal institute is used against its continuation or renewal because it is démodé, outdated. Whether the fact that a particular set of laws once existed speaks for or rather against its “return”¹⁴ is an open question. In order to find an answer, one has to consider the reasons why it was renounced in its time and subsequently forgotten¹⁵.
The following expositions deal with the hypothesis which Harold Berman accentuated in the following way:

The crucial period of change were the late eleventh and twelfth centuries. It was then that the basic concepts and institutions of modern western mercantile law – Lex mercatoria, ‘the law merchant’ – were formed, and even more important, it was then that mercantile law in the west first came to be viewed as an integrated, developing system – a body of law.¹⁶

Accordingly, three features characterize the medieval Lex mercatoria: (1) its existence is not derived from any “national” – for the Middles Ages one should more accurately speak of “particular”¹⁷ – legislator, (2) it is a body of law in the sense of a coherent system of rules, and (3) its most fundamental concepts and legal institutes originate in the High Middle Ages.
The discussion of this threefold hypothesis will equally proceed in three steps. First of all, we will take a look at the historical roots of this unhistorical approach towards a “Lex mercatoria”, a search which will lead us to England in the late thirteenth century. Secondly, on a purely theoretical level, we will examine from what point and to what degree one can speak of an independent body of law in the sense of a coherent set of merchant laws at all in the Middle Ages – a search which takes us to an impasse once we leave the spheres of Roman and canon law. And finally, as a third step, we will have to look at those spheres of law which really were important for medieval merchants; the opening example of the allegedly universal principle of payment of freight for an unfinished journey fits within that context. Yet, the research which has so far been undertaken in this field is by no means sufficient to tackle this question in a sufficiently thorough manner which would en able us to visualise the outlines of medieval commercial law. Especially in the various fields of substantive law the (envisaged) search for ubiquitous principles frequently leads into an impasse as soon as crucial details are examined. In the area of legal procedure the search proves to be more promising. This does not mean that a universal system of legal procedure did exist. But there is no doubt that merchants all over Europe had similar interests when confronted with court or arbitration proceedings, and that their specific interests were attended to. Compared with regular proceedings, this concerned in particular a more rational law of evidence and a swifter procedure for the summoning of defendants, which helped to speed up trials as a whole.
(1) The earliest recordings of the term Lex mercatoria originate from this same area of legal procedure. They date back to late thirteenth-century England. The law book Fleta from around 1290¹⁸ explains the writ of debt and describes in detail the rigid distribution of the burden of proof between plaintiff and defendant. In this context, it is a question of exceptions made in favorem mercatorum, in favour of the merchants. The plaintiff is granted a privilege by royal grace that under certain circumstances, namely in towns, at markets and between merchants, he may bring forward proof according to the Law merchant: “…quod parti affirmative secundum legem mercatoriam erit probacio”¹⁹. The plaintiff was permitted to support his claim with his own proof, as opposed to regulations in continental law. There the merchants doggedly fought for the permission to maintain the oath of office of the defendant, which the church, conceiving this as an invitation to perjury, wanted to restrict²⁰. This striking difference is probably an early reaction to the developing system of writs which made claiming debts a difficult enterprise in England. Simultaneously, merchants on the continent were preoccupied with another problem: the danger to be subjugated to an uncertain and possibly perilous process of establishing proof through duels and other ordeals. If this assumption is right, the same rational attitude of merchants lead to opposing expectations and demands according to the legal system under which the merchants conducted business. It is safe to say that the Lex mercatoria in late thirteenth-century England was connected to a royal privilege, which partially freed the merchants from the rigid law of evidence of the common law.
The law of evidence is also among the main subjects in a short treatise entitled “Lex mercatoria”. It was written around 1280 and thus represents the earliest reference of this term to be found to date²¹. It was included in the Little Red Book of the city of Bristol, which owed its name, like many other medieval town books, to the colour of its cover and to its size. It contained a variation of entries regarding the law of commerce, among others one of the oldest copies of the famous Rôles d’Oléron, a collection of maritime laws from the west coast of France dating from the middle of the 13^th century.
In this treatise, Common law is depicted as the mother of Lex mercatoria, who endowed her daughter with certain privileges: “Lex communis, que est mater legis mercatorie et que suam filiam ex certis privilegiis et in certis locis dotavit”²².Three differences between the two areas are named by way of direct contrast²³. All three relate to speedier court trials and the simplified way of adducing evidence under the umbrella of the “daughter” Lex mercatoria. In other words, there are no traces of substantive merchant law to be found here. There is no mention of purchase deeds, methods of payment or fairs, nor of partnerships, trade companies, banks or insurance. In the perception of the treatise, as in the above-mentioned passage in the law book of Fleta, Lex mercatoria is a set of rules regarding only the merchant coming before the court.
Before carrying on with the search for a medieval Lex mercatoria on a theoretical level, it may be useful to continue with the history of the term up into early modern times. At the beginning of the seventeenth century, common law and the Lex mercatoria no longer appeared like mother and daughter, but rather like two hostile sisters. In 1622 the famous book by the merchant Gerard Malynes, entitled “Lex mercatoria or the Ancient Law-Merchant”, was published in London²⁴. Malynes penned his work as a party supporter in a contemporary dispute in judicial politics. It concerned the question whether or not mercantile affairs fell under the jurisdiction of the English Common law courts. The merchants were quite content with the court of Admiralty handling their cases, as had become common practice since the fourteenth century. At first, the court had only heard cases regarding the law of the sea, but under the protection of King Henry VIII. the court’s competence had been extended to all trade matters, in which foreigners were involved. But at the beginning of the seventeenth century, in the course of the struggle for power between the Stuarts and Parliament, the court was suspected of being too close to the king. As a consequence, the competence of the Admiralty was reduced again in favour of the common law courts. In this situation, the merchants faced the challenge that they had to convince their new judges to apply the well-tried rules that had been in use at the Admiralty court. In order to achieve this, they argued their case by giving a new interpretation to the Lex mercatoria. They reasoned that this was a legal system that had been and remained in force in all countries and at all times, regardless of the will of any national legislator. Thus, the Lex mercatoria belonged to English law, even if it was not part of common law in a stricter sense. Therefore, the judges ought to take heed of the rules of the Lex mercatoria regardless of parties relied on this set of rules a court hearing.
Malynes thus took part in a juridical debate that had been ignited when in 1610 the House of Commons had installed a committee whose aim it was to stop the king from introducing new trade duties without the consent of Parliament. If it could be proved that there existed a system of trade law which had evolved separately from common law and therefore separately from the will of Parliament, this could strengthen the king’s point of view. The most important advocates taking part in the debate were James Whitelocke on the side of parliament and John Davies on the side of the king²⁵.
This line of argument did not convince the judges, but that is not our point. It suffices to say that it was not before 1600 that the term “Lex mercatoria” was used in the sense of a system of substantive trade law – used in this sense by English merchants as an instrument against the disliked common law. Mentioning the Lex mercatoria’s respectable age in this context was quite evidently not meant to be a historical statement but an argument within a controversial legal discussion. Starting from here, the notion of the Lex mercatoria as a universal and uniformed system of law began a life of its own as became apparent in Lord Mansfield’s argumentation from the mid-eighteenth century. For him, the doctrine of a universal trade law no longer served as a weapon in a war for the competence of the court. To him, it was a fact, backed by his own investigations – a vivid example of how historical “facts” come into being. These “facts” still influence today’s discussion without ever having been examined from a critical historical perspective²⁶. Yet, Lord Mansfield is to be credited for integrating the rules of trade law into the common law and thereby fundamentally contributing to a new dynamism of the latter. For this reason, he is nowadays rightfully deemed to be the father of mercantile law in England. He has, to use the Little Red Book’s terminology, reconciled mother and daughter.
To sum it up: in the Middle Ages, the term “Lex mercatoria” is used in the context of advantages and privileges granted to merchants in the field of civil litigation. This is quite different from the modern sense of a system of substantive trade law that cannot be traced back any further than to the seventeenth century. In this sense, Lex mercatoria formed part of an English dispute about court competence in which the merchants argued that the Lex mercatoria was an integral part of the English Ius Commune, i.e. the common law. Contrary to this, in contemporary Germany, trade law was not viewed as part of continental common law (in Germany: “Ius commune – Gemeines Recht”), but as a specific legal system based upon privileges, a Ius singulare²⁷. Therefore the sources on the continent refer to “Ius mercatorum” instead of “Lex mercatoria”: a set of subjective rights, of privileges, with the merchants as the bearers of special rights, instead of a system of law with “mercantile” as its description²⁸. Investigating the history of the term Lex mercatoria thus leads to a clear result: Lex mercatoria is not a term of European or international, but of English law. In English law, it stands for certain privileges in thirteenth-century legal procedure, maybe even for a separate system of judicial procedure. Until the seventeenth century, the term Lex mercatoria does not gain any meaning beyond that.
(2) This outcome leads to another question: if the use of “Lex mercatoria” in the sense of a body of substantive trade law can not be traced back to the Middle Ages, did a widespread, cross-border legal system of this kind nevertheless exist, perhaps under another name or without any denotation at all – a system which may well have served as an example to the modern international trade law? Has there been a Lex mercatoria avant la lettre? The Lex mercatoria has occasionally been called a universal trade law ²⁹ but this is not very convincing. Only two areas of medieval law could claim to be universal (in the eurocentric sense of the word of before 1492): canon law and imperial law, the law of the catholic church and the law of the Roman Emperor³⁰. From the late eleventh century, both were treated scholarly at Bologna and other northern Italian and French universities. As for the sphere of trade law, opinions differ greatly. It is even discussed whether a body of objective rules of law could have existed at all before 1100³¹. Be that as it may, there is a consensus concerning one point: a theoretical concept of a substantive law of trade did not come into existence before the beginning of the twelfth century³². On the continent, the famous foundation charter of the market of Freiburg im Breisgau, located at the foot of the Black Forest, most likely from the year 1120, may well be one of the earliest examples for the term “Ius mercatorum” to be used in the sense of a body of law³³.
Have elements of a juridical system of trade law developed from a practice of granting homogenous privileges to merchants by kings, dukes and bishops? Have other such elements emerged through a constant use in contracts through which they established themselves as custom³⁴? For each of these two possible sources of trade law one example will be given. The merchants striving for privileges from the medieval rulers must have had distinct expectations, ideas and hopes as regards their content. Amongst other things, they referred to the legal position of other groups of merchants. For example, the Christian merchants asked the Emperor Louis the Pious, grandson of Charlemagne, to grant them the same privileges as their Jewish competitors. Thus, the status previously obtained only by Jewish merchants may have established itself as a standard expected by all groups of merchants³⁵. The second example leads us to Northern Italy. As early as the tenth and eleventh centuries, notaries in Genoa and Pisa drew up certain contracts in company law, namely the commenda contracts, in a fully standardized form.³⁶ Those formulas had most likely proved their practical merit; at the same time all participants must have become acquainted with them and have learned to conduct business using these standardized contracts. It is crucial in this context, though, that there is not the slightest hint that a privilege had to be granted in a certain way or that a contract had to be drafted with those standard formulas. This would have been a precondition for a fixed body of law. What was common were not the sets of rules but the interests and claims of the merchants, such as speedy trials, a more rational law of evidence, freedom of trade, a similar treatment of all groups of merchants, an established and reliable practice as regards the drawing up of contracts. There may have existed a widespread consensus that these patterns were useful, but there is no proof of a common conviction that they were legally binding.
We could finish our reflections at this point with the conclusion that we have detected yet another example of a superficial use of history, motivated by an attempt to back a certain line of argument in favour of one side in a current juridical discussion, but not supported by evidence from historical sources. But this discovery does not bear any fruits for the discussion about the future of international trade law. The question whether an old Lex mercatoria existed 350 or 700 years ago can do little to influence the outcome of a dispute about the theoretical basis and practical value of a 21^st century law of merchants as a separate body of law which is not linked to any domestic law.³⁷ But to finish here solely for the reason that the historical arguments prove to be of little value in this modern debate, would mean to allow today’s law to dictate the topics and limits of historical research. If indeed legal historians would restrict themselves to questions which are of direct use for contemporary jurisprudence, they would loose sight of the most interesting and significant spheres of those legal ideas which the merchants themselves contributed to before modern times. To overcome the dogma of a widespread and uniform Lex mercatoria is like breaking free from a chain. The perspective then broadens; the loss of a clear pattern is counterbalanced by a gain of colourful details that have been suppressed before. Phenomena can now be observed which, due to their strangeness, complexity and lack of contours, may puzzle a jurist who is simply searching for the dogmatic roots of a system of law.
(3) When examining further the medieval law of merchants and trade, one would have to go deeper into the different aspects of life and law that were influenced by these merchants, such as the law of shipping and of transport, of fairs and of transfer of payments, of trade guilds and societies. As became apparent when examining the English Lex mercatoria, procedural law would play an important role in commercial courts. All these questions would merit to be examined on a comparative basis. Great care should be taken in establishing a method of comparison³⁸ as the uncritical application of the Lex mercatoria doctrine has often led to uncertain assumptions of uniformity, frequently made by exaggerating similarities and diminishing differences³⁹. In this new approach, fundamental differences between the European regions would have to be taken into account. One would have to distinguish clearly between influences based on relations on the one hand and similar but independent developments on the other. Such comparative studies could then become the nucleus of the search for a medieval Lex mercatoria. However, until today, only few detailed works that fulfil these requirements have been published. To cover the entire subject would be too much work for one person alone. It should serve as a warning that Levin Goldschmidt made three such attempts, all of which remained unfinished. It will therefore be necessary to limit individual research to particular sectors of the law, concentrating on those essential themes and on the chief legal institutes, of which the availability of sources and the work already done raises hopes for a fruitful comparison.
Procedural law in mercantile cases is the most ancient and most important of these subjects. As has been mentioned above, the oldest evidence for the use of the term Lex mercatoria pointed to this context, but the most ancient privileges for merchants regarding court procedure date even back to the Carolingian era. A merchant’s legal position and his position before the courts are hardly to be separated in terms of the medieval notion of law. Within a population predominantly consisting of peasants and knights, the merchant is a stranger – not only metaphorically because of his different way of life, but also literally, since he had to seek justice and defend his rights before foreign courts, especially in the earlier, orally organized phases of trade history⁴⁰. In this field, the law of evidence played the most important role. What kinds of privileges the merchants desired depended significantly on the civil procedure of the courts in the area in which the merchants were conducting their trade. Within the rigid common law system of actions based on fixed writs, their main goal was to extend their options as plaintiffs to submit evidence, in particular for claims for money debts under the writs of debt and covenant. On the continent, we see merchants who mainly strive to be allowed to defend an action by their oath without having to resort to other parties to confirm that oath.
An important topic in substantive law concerns the history of trade companies. Willy Silberschmidt, a pupil of Levin Goldschmidt, devoted a monograph to this topic in the early twentieth century⁴¹. This remained the only attempt to apply Goldschmidt’s universal approach to a distinct topic, and to verify this approach through time and space, starting with Germanic sources and ending in contemporary Malaysia. He chose the Italian commenda contract whereby one partner of a joint venture travels over sea and trades the common goods while the other stays at home and is involved only as an investor. Silberschmidt generalized both the outline of the contracts and the definition of commenda and, not surprisingly, “rediscovered” these in all the regions he examined. When one takes a closer look, certain doubts arise whether Silberschmidt has not just oversimplified the matter⁴². As subsequent research has established what, hopefully, can be described as a reasonably firm foothold on the Hanseatic trade ventures, a renewed comparative study with also extends to the Mediterranean types of trade companies would probably make a promising field of research.
Similar results are to be expected regarding many fields of maritime law, e.g. the legal treatment of jettison. Is it not obviously a classic example of unchanging law that the group on board of a ship, forged together by a common danger of life, also become a group which bears joint liability in case of peril, if the goods belonging to one member are sacrificed for the sake of the others? But who exactly is part of that community? Is it limited to the merchants or does it extend to the skipper? And what about the ship owner? Does he have to reimburse part of the value of the goods which were sacrificed, on the ground that his ship was saved in the process? Can he, conversely, claim part of his damage from the merchants whose goods were saved when the mast was cut down to save the ship in heavy weather? The various maritime laws in Europe provided very different answers to these questions⁴³; again, one encounters that there at least two different ways to solve such conflicts of interests.
The same applies more or less to the opening example from the law of freight. Lord Mansfield’s comparative study was not entirely correct, at least not as concerns the law of Lübeck. It was not the principle of dividing the freight to correspond to fraction of the journey that was covered (“Teilfracht” – proportional freight) which was applied in Lübeck, but rather the simple principle of halving the freight ( “Halbfracht” – half freight). In August 1488, almost 300 years before Lord Mansfield’s judgement, the council of Lübeck decided the case of skipper Poppe Claussen against the two merchants Hans van Ryme and Hans Leyfferd. The skipper had sued the two defendants for his freightage. His journey from Kampen⁴⁴ in the Netherlands to the Hanseatic Kontor in Bergen had gone well, but on his way back, Claussen’s ship burned through no fault of his own. Half of the goods could be saved, and for the lost goods the merchants were not obliged to pay any freightage – as the case of Luke v. Lyde. But, as opposed to Lord Mansfield, the council of Lübeck did not relate to the fraction of the journey which had been covered when the accident took place. Instead, the council decided on the basis of a more rigid principle: “(For that reason) the merchant is obliged to pay half⁴⁵ of the freightage.”⁴⁶ It cannot be ruled out that this is an earlier stage of the development of the law of freightage. Perhaps there existed a general tendency to abandon the more rigid, but also more usable principle of half freight in favour of the more flexible and in a way fairer principle of proportional freight⁴⁷. But Lord Mansfield’s “one and the same law” that according to him existed in all countries and at all times in an identical form, did not even exist in the field of the maritime law of freight, which is a central field of the alleged “Lex mercatoria”. A body of international rules of law as postulated by Harold Berman can be detected only by choosing to focus on overly general issues. When taking a closer look at the institutes of commercial law, one will in most cases discover at least two competing legal concepts and solutions. If the search for the medieval roots of the term Lex mercatoria led to quite clear results, the search for the laws shaping the merchants and their trade still lies before us. Its outcome is open.

Endnotes

* Revised version of a paper previously published in German (Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung, Vol. 118, 2001, p. 168-184) and French (Pierre Monnet and Otto Gerhard Oexle (eds), Stadt und Recht im Mittelalter / La ville et le droit au Moyen Âge, 2003, 117-132). Translated with the help of Bernd Kannowski, Edda Frankot and Gerhard Dannemann. I am very grateful to all three for this invaluable support. However, I alone bear the responsibility for all flaws in language and content.

1 Luke v. Lyde (1759) 2 Burr 882. It is obvious that the privateer’s reward was based on an established action, since Counsel for plaintiff argued that the privateer should have received a reward of only one third of the value because he had had the cargo in his possession for less than 96 hours. It is unclear why this argument was not taken up by either the other party or the court.

2 Kent Lerch ‘Murray, Sir William, Lord Mansfield’, in: Michael Stolleis (ed) Juristen. Ein biographisches Lexikon. Von der Antike bis zum 20. Jh., (1995), 448 f. (2nd ed. 2001), including references to recent literature on Lord Mansfield. See in particular James Oldham The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (1993).

3 Luke v Lyde (n. 1), 888.

4 Götz Landwehr ‘Prinzipien der Risikotragung beim Seefrachtvertrag’, in: Gerhard Köbler and Hermann Nehlsen (eds) Wirkungen europäischer Rechtskultur. Festschrift für Karl Kroeschell zum 70. Geburtstag (1997), 595-615 (598 f.), traces this older principle (half of the freightage for saved goods no matter where the accident took place) back to old Icelandic law. Today’s German commercial law, § 630 Handelsgesetzbuch (HGB, Commercial Code), enacts the principle of “Distanzfracht – distance freightage”. According to this, the charterer also has to pay a fraction of the freightage for the saved cargo. However, this is calculated not only in regard of the fraction of the journey covered but also in regard of the proportion of the costs and perils the carrier took upon him up to the point of the accident, § 631 HGB.

5 Heinrich Marx Die juristische Methode der Rechtsfindung aus der Natur der Sache bei den Göttinger Germanisten Johann Stephan Pütter und Justus Friedrich Runde (1967), 27 f.; Karl Kroeschell Deutsche Rechtsgeschichte 3 (seit 1650) (3^rd ed. 1989), 65-67, 109, 116; Klaus Luig ‘Schäfchen zählen – mit gesundem Menschenverstand’, in: Köbler and Nehlsen (n. 4), 687-693.

6 2 Burr 890 f.

7 2 Burr887; cited also by CHS Fifoot ‘Lord Mansfield’, (1936, reprint 1977), 87f. Among the cited authorities for the concept of a universal law of commerce is Gerard Malynes Lex mercatoria or the Ancient Law-Merchant (1622), which therefore will be discussed below. Lord Mansfield also based other decisionson the “Lex mercatoria” as e.g. in the insurance case Pelly v. Royal Exchange Assurance, Burr. 1, 341. This notion of a universal character of trade law gained considerable influence and was among others reflected in Levin Goldschmidt Universalgeschichte des Handelsrechts (3rd ed 1891). On Goldschmidt see Lothar Weyhe Levin Goldschmidt, Ein Gelehrtenleben in Deutschland; Grundfragen des Handelsrechts und der Zivilrechtswissenschaft in der zweiten Hälfte des 19. Jahrhunderts (1996). On Goldschmidt’s universal approach see the two recent articles by Karl Otto Scherner ‘Lex mercatoria – Realität, Geschichtsbild oder Vision?’, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 118 (2001), 148-167, and: ‘Goldschmidts Universum’, in: Mario Ascheri et al. (eds), “Ins Wasser geworfen und Ozeane durchquert”. Festschrift für Knut Wolfgang Nörr (2003), 859-892.

8 The new website http://www.tldb.de, founded and maintained by Prof. Dr. Klaus-Peter Berger, University of Cologne, adopts this name in its introducing remarks: “The new Lex mercatoria is online! The Transnational Law Database (TLDB) makes the new Lex mercatoria workable for every-day legal practice. It provides the hitherto missing link between the theory of transnational commercial law and international legal practice.”

9 Berthold Goldman ‘Frontières du droit et lex mercatoria’, in: Archives de philosophie du droit 1964, 177-192; Clive M. Schmitthoff ‘International Business Law. A New Law Merchant’, in: 2 Current Law and Social Problems (1961), 129-142. The flood of literature on this subject is enormous and still rising. A comprehensive bibliography can be found on the website mentioned in n. 8. A recent overview in print is offered by Klaus Peter Berger ‘Einheitliche Rechtsstrukturen durch außergesetzliche Rechtsvereinheitlichung’, in: Juristen-Zeitung 1999, 369-377, who rightfully draws a connection to a parallel problem, i.e. the utilization of the Ius commune, which shaped most continental legal systems up to around 1800 and beyond, for the shaping of the future European civil law or possibly even an European codification. Typical, however, is Berger’s use of history. He polishes his introduction with a few “historical reminiscences” which are hardly more than a decoration and to which he does not return in his further arguments. Intense discussion of the theoretical implications of the Lex mercatoria debate can be found in two articles by Hans-Joachim Mertens, ‘Lex Mercatoria: A Self-applying System Beyond National Law?’, in: Gunther Teubner (ed) Global Law Without a State (1997), 31-44, and ‘Nichtlegislatorische Rechtsvereinheitlichung durch transnationales Wirtschaftsrecht und Rechtsbegriffe’, in: Rabels Zeitschrift für ausländisches und internationales Privatrecht 56 (1992), 215-233.

10 For references to Christian von Bar and other critics of the modern Lex-mercatoria doctrine see Ursula Stein Lex mercatoria. Realität und Theorie (1995), 5-8. The question is still discussed today with a vigour which makes it look as one of the “last issues of state doctrine” – (“letzte Fragen des Staatsgefühls”), as already mocked by Hans Großmann-Doerth ‘Der Jurist und das autonome Recht des Welthandels’, in: Juristische Wochenschrift 1929, 3447-3451.

11 The website mentioned above (n. 8) tries to lift these clouds by collecting citations of such standards in trade treaties, articles and court rulings from all over the world and bringing them into a systematic order – this process of arranging of course being much more than a mere sorting of material in an obvious order. International Trade Law certainly would gain consistency if its scholars would effectively agree upon an order into which their principles should be classified.

12 Rather typical Bruce Benson ‘Customary law as a social contract: International commercial law’, in: 3 Constitutional Political Economy (1992), 2: “International law is still largely independent of nationalized legal systems, retaining many of the basic (though modernized) institutional characteristics of the medieval Law Merchant.” Alas, no examples for such a remarkable continuity are given. Benson is cited after Oliver Volckart and Antje Mangels ‘Are the roots of the Modern Lex Mercatoria Really Medieval?’, in: 65 Southern Economic Journal (1999), 427-450. This useful article adds to our legal perspective from an economic viewpoint and makes the extensive economic literature on this topic accessible.

13 Berger (n. 9) lists much of the literature on the subject; but see also the important volume by Pio Caroni and Gerhard Dilcher (eds) Norm und Tradition (1998).

14 Thus citing the title of the renowned and influential article by Theodor Mayer-Maly, ‘Die Wiederkehr von Rechtsfiguren’, in: Juristen-Zeitung 1971, 1-3.

15 Klaus Luig ‘Was kann die Rechtsgeschichte der Rechtsvergleichung bieten?’, in: Zeitschrift für Europäisches Privatrecht 1999, 521-530, shows the ambiguity of the historical argument by using the textbook by Hein Kötz Europäisches Vertragsrecht, vol. 1 ( 1996) (also available in English translation by Tony Weir as European Contract Law, Vol. 1 (1998)) as example. Kötz uses historical evidence only to explain, illustrate or strengthen his points, and never to refute arguments derived from other forms of reasoning.

16 Harold Berman ‘Law and revolution: The formation of the western legal tradition’ (1983).

17 Karl Kroeschell ‘Universales und partikulares Recht in der europäischen Rechtsgeschichte’, in: Karl Kroeschell and Albrecht Cordes (eds) Vom nationalen zum transnationalen Recht. Symposium der Rechtswissenschaftlichen Fakultäten der Albert-Ludwigs-Universität Freiburg i.Brsg. und der Städtischen Universität Osaka (1995) 265-278.

18 HG Richardson and GO Sayles (eds) Fleta, 4 vols., 1955-1984.

19 The complete citation reads: “In paritate […] iuris prius admittatur defensor quam pars actrix in probacione. […] Et quod dicitur de secta ad vocem probandam dici poterit de secta producta ad tallias probandas, contra quas sine secta prolatas simplici sacramento negans erit credendum. Secus tamen erit in civitatibus et nundinis et inter mercatores, quibus ex gratia principis conceditur ob favorem mercatorum, quod parti affirmative secundum legem mercatoriam erit probacio concedenda, et ipsis conceditur tallias dedictas probare per testes et per patriam”, Fleta (n. 18), vol. 2, 1955, 211 f. The greatest disadvantage to the legal position of the merchants were the rigid conditions which the common law laid down for actions for debts for which no formal charter could be produced.

20 A first example of this dispute between church and merchants can be found in the early report of the monk Alpert of Metz to his principal, the famous bishop Burkhart of Worms (1018), in which he described the customs of the merchants of Tiel, the Carolingian trading post on the lower Rhine; Albrecht Cordes Spätmittelalterlicher Gesellschaftshandel im Hanseraum (1998), 55-70. It would merit further reflection whether it is indeed a question of two contrary solutions for one and the same problem, or whether the problems, i.e. the procedural situations, differ. At any rate, it is worth stating that even for this crucial issue in civil procedure, it is by no means evident that a similar doctrine had developed all over Europe under the rule of the “Lex mercatoria”.

21 There are three editions of this source: Francis B. Bickley (ed) The Little Red Book of Bristol (1900), reviewed by L. Toulmin Smith, in: 17 The English Historical Review (1902), 353-357; Daniel R. Coquillette Incipit Lex Mercatoria, que, quando, ubi, inter quos et de quibus sit. El Tratado de Lex Mercatoria en el Little Red Book de Brístol (ca.1280 AD), in: Carlos Petit (ed) Del ius mercatorum al derecho mercantil (1997) 143-205; Mary Elizabeth Basile et al. (eds) Lex mercatoria and Legal Pluralism. A Late Thirteenth-Century Treatise and its afterlife (1998), reviewed by Christopher McNall, in: 20 The Journal of Legal History (1999), 135-137.

22 Coquillette (n. 21), 215f.

23“Lex mercati differt a communi lege regni tribus modis…”; ibid., Cap. 2, 208. The same intention, i.e. to satisfy the merchants’ need for swift court procedure, appears a few decades earlier in the treatise ‘De legibus et consuetudinibus Regni Angliae’, traditionally attributed to Henricus de Bracton and dated into the first third of the 13th c. Although there appears to be no mention of “Lex mercatoria”, legal rules which reflect particular interests of merchants play a certain role in Bracton’s treatise, which is conveniently accessible through the Internet edition of the Harward Law School, http://hlsl.law.harvard.edu/bracton/index.htm (9th Dec. 2003). The roughly twenty mentions of merchants deserve further examination.

24 Of equal interest is a later follower of Malynes, Wydham Beawes Lex mercatoria rediviva, or the Merchant’s directory, being a compleat guide to all men in business (3rd ed London 1771).

25 Their reasoning is described and explained thoroughly by Basile et al. (n. 21), 125-154, esp. 132f and 139f.

26 Through the work of Levin Goldschmidt (on this connection see n. 7), this thesis continues to influence today’s debate about the modern Lex mercatoria – without ever having been tested thoroughly. The state of research on the medieval commercial societies may serve as an example: on the one hand there are comparative studies which do not prove the dogma of universal trade law but take it for granted and use it as a starting point. On the other hand, we have local or regional studies which are not aimed to lead to results on a larger scale. Typically, one pillar of the comparison is know well, the other one much less. On this problem and the very convincing exception of John Pryor’s studies on Mediterranean trade companies in the Jewish, Muslim Byzantine and catholic societies see Cordes (n. 20), 10-51.

27 Quite telling is the use of the plural “iura” mercatorum indicating that it was not a question of a single legal order but of a multitude of merchants’ rights; Heinz Mohnhaupt ‘ ‘Jura mercatorum’ durch Privilegien, Zur Entwicklung des Handelsrechts bei Johann Marquard (1610-1686)’, in: Gerhard Köbler (ed) Wege europäischer Rechtsgeschichte, Festschrift für Karl Kroeschell zum 60. Geburtstag (1987).

28 This difference between English and continental concepts of integrating trade law into the general legal system would also merit deeper reflection than can be offered here.

29 Goldschmidt (n. 7).

30 On the latter see Gerhard Dilcher ‘Kaiserrecht. Universalität und Partikularität in den Rechtsordnungen des Mittelalters’, in: Rivista internazionale di diritto comune 5 (1994), 211-245.

31 Karl Kroeschell Deutsche Rechtsgeschichte 1 (bis 1250) (11th ed 1999), 272.

32 Gerhard Dilcher ‘Marktrecht und Kaufmannsrecht im frühen Mittelalter’, in: Untersuchungen zu Handel und Verkehr der vor- und frühgeschichtlichen Zeit in Mittel- und Nordeuropa 3, 1985, 392-417; Karl Kroeschell ‚‘Bemerkungen zum ‚Kaufmannsrecht’ in den ottonisch-salischen Markturkunden’, ibid., 418-430; reprinted in: Karl Kroeschell Studien zum frühen und mittelalterlichen deutschen Recht (1995), 381-398.

33 Karl Kroeschell ‘Ius omnium mercatorum, precipue autem Coloniensium’ in: Festschrift für Berent Schwineköper (1982), 283-290; reprinted in: Kroeschell (n. 32), 335-346. On the other hand, in the Early and High Middle Ages – e.g. in the Ottonian market privileges – “Ius mercatorum” is used in the sense of a personal right granted by the emperor or a prince, Kroeschell (n. 32) ibid. As around the year 1000 even the word “lex” can have this subjective connotation, it cannot be ruled out that the continental “Ius mercatorum” and the English “Lex mercatoria” both underwent this change from right to law, from an individual claim to an objective, supra-individual legal system. But this is only an assumption, as no evidence is available for a use of “Lex mercatoria” in the sense of an individual right.

34 Kroeschell (n. 17), 273, cites examples from three different areas, i.e. the law of sale, corporate law and maritime law. In Germany, it has recently become common to prefer the term “legal custom” (Rechtsgewohnheit) to “customary law” (Gewohnheitsrecht) in this context, following Kroeschell (n. 31), 212. The term “legal custom” may indeed be preferable, as it does not evoke any inappropriate connotations to learned doctrine (such as duratio longa and opinio necessitatis). Still, the shift in terminology has hardly led to a real breakthrough. The new term does not express much more than the fact that the phenomenon had not yet been grasped fully in terms of legal theory. A collection of articles on the subject has been published recently: Albrecht Cordes and Bernd Kannowski (eds) Rechtsbegriffe im Mittelalter (2003).

35 Cordes (n. 20), 64f.

36 Max Weber, Zur Geschichte der Handelsgesellschaften im Mittelalter. Nach südeuropäischen Quellen (1889, reprint 1964); John H. Pryor Commerce, Shipping and Naval Warfare in the Medieval Mediterranean, (1987); Albrecht Cordes ‘Gewinnteilungsprinzipien im hansischen und oberitalienischen Gesellschaftshandel des Spätmittelalters’, in: Köbler and Nehlsen (n. 4), 141f.

37 Legal history also has a disappointment in store for those believing law cannot come into existence without state power. This is easily falsified by the fact that the state as historical phenomenon is much younger than law. Amongst the fields of research in medieval and early modern legal history, state-made law is rather a secondary phenomenon.

38 The methodical preconditions for such a historical comparison of law were discussed at the German Congress of Legal Historians (Deutscher Rechtshistorikertag) at Regensburg in 1998; the six presentations on this topic were published together with an introduction by the section’s president, Mathias Reimann, in: Zeitschrift für Europäisches Privatrecht 1999, 494-569.

39 Apparently, comparative law scholars are willing to accept such a “praesumtio similitudinis”, Konrad Zweigert ‘Die “praesumtio similitudinis” als Grundsatzvermutung rechtsvergleichender Methode’, in: Mario Rotandi (ed), Buts et méthodes du droit comparé (Inchieste di diritto comparato 2), (1973), 735; Konrad Zweigert and Hein Kötz Einführung in die Rechtsvergleichung (3rd ed 1996), 39 (translated by Tony Weir as An Introduction to Comparative Law (3rd edn. 1998); Berger (n. 9) 370. For medieval legal history such an assumption is to be judged as highly problematic since it may influence the results of a comparative study. See Albrecht Cordes ‘Was erwartet die (mittelalterliche) Rechtsgeschichte von der Rechtsvergleichung und anderen vergleichend arbeitenden Disziplinen?’, in: Zeitschrift für Europäisches Privatrecht 1999, 544-552 (548 f.).

40 Claudia Seiring Fremde in der Stadt (1300-1800). Die Rechtsstellung Auswärtiger in mittelalterlichen und neuzeitlichen Quellen der deutschsprachigen Schweiz (1999) (reviewed by A Cordes, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 117 (2000) 720-722), dedicates the extensive second chapter of her book to the merchants (15-79).

41 Willy Silberschmidt Beteiligung und Teilhaberschaft. Ein Beitrag zum Rechte der Gesellschaft (1915).

42 Cordes (n. 36), 146f.

43 These question and their solutions for the North Sea and the Baltic Sea in the Middle Ages are discussed by Götz Landwehr Die Haverei in den mittelalterlichen deutschen Seerechtsquellen (1985), in particular at 44. According to Landwehr, the older North European law did not include the skipper in the risk-bearing community. However, by the thirteenth century, the opposite principle appears to have been established, possibly under Mediterranean influence. A connection could be assumed between this change on the one hand and the tendency to replace the older principle of half freight by the more modern one of proportional freight on the other; Landwehr (n. 4), 599. The most recent account of Hanseatic maritime law is given by Antjekathrin Graßmann and Carsten Jahnke (eds) Seerecht im Hanseraum des 15. Jahrhunderts. Edition und Kommentar zum Flandrischen Copiar Nr. 9 (2003).

44 Kampen owes its crucial importance for the system of Hanseatic trade routes to its strategic location at the mouth of the IJssel river, the northernmost branch of the river Rhine, into the Zuiderzee. Here the goods were unloaded from barges and loaded onto seagoing vessels.

45 Landwehr (n. 4). The concept of the division into equal parts, which is of major importance for the legal thinking in the Hanseatic world, finds another application in this context. Other examples are the halving of gains in commercial societies, Cordes (n. 36), the duty to give half the gain of stranded goods to the lord in England, and also the name which Hanseatic pirates gave to themselves: “Likedeeler – equal dividers”.

46 Wilhelm Ebel Lübecker Ratsurteile, Vol. 1 (1955), 205, Nr. 321.

47 I am grateful to Götz Landwehr for this information, which is based on his yet unpublished work on the history of the carriage contract. See Landwehr, above (n. 4 and 43), and his article on ‘Seerecht’, in: Handwörterbuch zur deutschen Rechtsgeschichte, Vol. 4 (1990), 1596-1614.

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