Home >> Cyclopedia Of Knowledge >> Minal to Or Rever Sion Life >> or Law Merchant Lex

or Law Merchant Lex Mercatoria

custom, merchants, judges, customs, reports and law-merchant

LEX MERCATORIA, or LAW MERCHANT, in a general sense, denotes the usages and customs of merchants which, having been adopted as part at the law of most countries, and particu larly of maritime states, for the proteo tion and encouragethent of trade, have been termed a branch of the law of Na tions. (Blackstone's Commentaries, vol. iv. p. 67.) In this general signification of the term, the law-merchant is at the present day extremely indefinite, as dif ferent countries have adopted different portions of it, and the mercantile usages and customs common to all are few in number. Some centuries ago, however, when the transactions of commerce were less complicated, and the rules by which they were governed were consequently simple, the provisions of the Lex Merca toria appear to have been better under stood and ascertained. Thus we find the law•merchant frequently referred to in general terms by our earlier English sta tutes and charters as a well-known system, and distinguished from the ordinary law ; as, for instance, in the stet. 27 Edw. III., 1353, it is declared " that all merchants eoming to the Staple shall be ordered ac cording to the law-merchant, and not according to the common law of the land ; " and the Charts Mercatoria, 31 Edw. I., 1304, directs the king's bailiffs, ministers, &c. " to do speedy justice to merchants, secundum legem Mercatoriam." Coke mentions the law-merchant as one of the great divisions of which the law of England is composed (Co. Litt., 11, b.), and the custom of merchants is said to be part of the law of England of which the courts are to take judicial notice. (Vanheath v. Turner, Winch's Reports, p. 24.) This, however, must be understood to apply only to general cus toms, as the rule does not comprehend particular or local usages which do not form part of any general system. The generality of the expression has caused much misunderstanding, and merchants in England have been often led to infer, that when practices or rules of trade have become established among them so as to become " customs " in the common mean ing of the term, they fbrm part of the law of the land. This misconception has fre

quently led to improper verdicts of juries in mercantile trials. It is clear, however, that the Lex Mercatoria, when used with reference to English law, like the Lex et Consuetudo Parliamenti, merely describes a general head or division of the system. What customs or rules are comprehended under that division must always be mat ter of law for the consideration of the judges ; and it is said by Chief-Justice Hobart, in the case of Vanheath v. Turner above cited, that if they doubt about it, they may " send for the merchants to know their custom, as they may send for the civilians to know their law." The principle seems to be as alluded to by Lord Hale in a case in Hardres's Reports, p. 486, that the courts are bound to take notice of the general law of merchants ; hut that, as they cannot know all the cus toms which form part of that law, they may inform themselves by directing an issue or making inquiry in some less formal manner. The latter mode has not anfrequently been adopted in modern times, and evidence of mercantile customs has sometimes been given before juries. When the custom is ascertained, the court may declare it to be legal or not according to their judgment; for the ex pression, that the court is bound to take notice of the general law of merchants, does not mean, or should not mean, that the custom, simply as such, must be re cognised as law by the judges. The re cognition of the custom by the judges makes it law. However, when the judges do recognise a general custom of trade, people are apt to consider that the custom which the judges recognise as applicable to the particular case, is itself the law, instead of considering, as they ought to do, that the judges, finding the custom to be general and a good custom, declare it to be legal. When once the custom has been thus recognised, it is law, and not before. (1 Douglas's Reports, p. 654; 1 Bingham's Reports, p. 61.)