Order within Law, Variety within Custom: The Character of the Medieval Merchant Law

Abstract

The discussion will proceed in three parts. Section I makes the case that a distinct set of merchant laws appeared because the character of medieval law forced merchants to acquire special legal protections. Section II develops the argument that merchant custom functioned within a framework of non-customary police power so fundamental that the customs potentially would not have succeeded in regulating commerce absent this assistance. Section III focuses on those customs, suggesting the sorts of transactions in which trade usages came into play and sketching their application in litigation. The conclusion asks what impact this alternative description of the historical merchant law might have on current thinking about commercial law.

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