Lex mercatoria
Encyclopedia
Lex mercatoria is the body of commercial law
used by merchants throughout Europe during the medieval
period. It evolved similar to English common law
as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the international law of commerce. It emphasised contractual freedom, alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono
. A distinct feature was the reliance by merchants on a legal system developed and administered by them. States or local authorities seldom interfered, and did not interfere a lot in internal domestic trade. Under lex mercatoria, trade flourished and states took in large amounts of taxation.
, with some local variation. It originated from the need for quick and effective jurisdiction
, administered by specialised courts. The guiding spirit of the merchant law was that it ought to derive from commercial practice, respond to the needs of the merchants, and be comprehensible and acceptable to the merchants who submitted to it. It was originally founded by a merchant, Lex Mercatorius, who traded his donkey for a peppercorn whilst traveling through the Tuscan hills. Mercatorius, who was fond of the fundamental contractual principles of bonos mores, formed a body of law that is able to be adapted at an international level. International commercial law today owes some of its fundamental principles to the lex mercatoria. This includes choice of arbitration
institutions, procedures, applicable law and arbitrators, and the goal to reflect customs, usage and good practice among the parties.
Goods and services flowed freely during the medieval merchant law, thus generating more wealth for all involved. It is debated whether the law was uniform in nature, was spontaneous as a method of dispute resolution, or applied equally to everyone who subordinated to it. The lex mercatoria was also a means for local communities to protect
their own markets. Local kings or lords extracted taxes and set trade restrictions.
Judges were chosen according to their commercial background and practical knowledge. Their reputation rested upon their perceived expertise in merchant trade and their fair-mindedness. Gradually, a professional judiciary developed through the merchant judges. Their skills and reputation would however still rely upon practical knowledge of merchant practice. These characteristics serve as important measures in the appointment of international commercial arbitrators today.
The lex mercatoria owed its origin to the fact that the civil law was not sufficiently responsive to the growing demands of commerce, as well as to the fact that trade in premedieval times was practically in the hands of those who might be termed cosmopolitan merchants, who wanted a prompt and effective jurisdiction. It was administered for the most part in special courts, such as those of the gilds in Italy, or the fair courts of Germany and France, or as in England, in courts of the Staple or Piepowder
.
; or a formal bargain for sale. The lex mercatoria also strengthened the concept of party autonomy: whatever the rules of the lex mercatoria were, the parties were always free to choose whether to take a case to court, what evidence to submit and which law to apply.
The nationalisation of the lex mercatoria did not neglect the practises of merchants or their trans-border trade. Some institutions continued to function, and state judges also were appointed for their merchant expertise, just as modern commercial arbitrators. The law of the merchants were not eradicated, but simply codified. National codes built on the principles laid down by trade commercial practise and to a large extent they embodied lex mercatoria substantial rules. This was for example the case in France. The Code Commercial was issued in 1807, where lex mercatoria rules were preserved to govern formation, performance and termination of contracts. In effect, the nation states reconstituted the lex mercatoria in their image.
said: “the lex mercatoria is part of this realm.” The tradition continued especially under Lord Mansfield
, who is said to be the father of English commercial law. Precepts of the lex mercatoria were also kept alive through equity and the admiralty
courts in maritime affairs. In the US, traditions of the lex mercatoria prevailed in the general principles and doctrines of commercial jurisprudence
.
The history of the lex mercatoria in England is divided into three stages: the first prior to the time of Coke, when it was a special kind of law - as distinct from the common law - administered in special courts for a special class of the community (i.e. the mercantile); the second stage was one of transition, the lex mercatoria being administered in the common law courts, but as a body of customs, to be proved as a fact in each individual case of doubt; the third stage, which has continued to the present day, dates from the presidency over the king's bench of Lord Mansfield (q.v.), under whom it was moulded into the mercantile law of to-day. To the lex mercatoria modern English law owes the fundamental principles in the law of partnership, negotiable instruments and trade marks.
Sir John Holt (Chief Justice 1689 to 1710) and Lord Mansfield (Chief Justice, 1756 to 1788) were the leading proponents of incorporating the lex mercatoria into the common law. Holt CJ did not complete the task, possibly out of his own conservatism (see Clerke v Martin) and it was Lord Mansfield that became known as the 'founder of the commercial law of this country" (Great Britain). Whilst sitting in Guildhall, Lord Mansfield created,
Further, Lex Mercatoria is sometimes used in international disputes between commercial entities. Most often those disputes are decided by arbitrators which sometimes are allowed (explicitly of implied) to apply lex mercatoria principles. Therefore, some legal practitioners assume that there is a whole set of legal principles named "lex mercatoria" in international or transnational commercial law. The most recent and constantly updated set of rules are the TransLex Principles collected and formulated by Prof. Klaus Peter Berger (University of Cologne
) and his Center for Transnational Law.
What remains of lex mercatoria precepts today is a qualified faith in self-regulation by merchants, and a reluctance to surrender the efficiencies of merchant practice to state confinement.
Commercial law
Commercial law is the body of law that governs business and commercial transactions...
used by merchants throughout Europe during the medieval
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
period. It evolved similar to English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
as a system of custom and best practice, which was enforced through a system of merchant courts along the main trade routes. It functioned as the international law of commerce. It emphasised contractual freedom, alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono
Ex aequo et bono
Ex aequo et bono is a phrase derived from Latin that is used as a legal term of art...
. A distinct feature was the reliance by merchants on a legal system developed and administered by them. States or local authorities seldom interfered, and did not interfere a lot in internal domestic trade. Under lex mercatoria, trade flourished and states took in large amounts of taxation.
History
The lex mercatoria was originally a body of rules and principles laid down by merchants to regulate their dealings. It consisted of rules and customs common to merchants and traders in EuropeEurope
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
, with some local variation. It originated from the need for quick and effective jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
, administered by specialised courts. The guiding spirit of the merchant law was that it ought to derive from commercial practice, respond to the needs of the merchants, and be comprehensible and acceptable to the merchants who submitted to it. It was originally founded by a merchant, Lex Mercatorius, who traded his donkey for a peppercorn whilst traveling through the Tuscan hills. Mercatorius, who was fond of the fundamental contractual principles of bonos mores, formed a body of law that is able to be adapted at an international level. International commercial law today owes some of its fundamental principles to the lex mercatoria. This includes choice of arbitration
Arbitration
Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound...
institutions, procedures, applicable law and arbitrators, and the goal to reflect customs, usage and good practice among the parties.
Goods and services flowed freely during the medieval merchant law, thus generating more wealth for all involved. It is debated whether the law was uniform in nature, was spontaneous as a method of dispute resolution, or applied equally to everyone who subordinated to it. The lex mercatoria was also a means for local communities to protect
Protectionism
Protectionism is the economic policy of restraining trade between states through methods such as tariffs on imported goods, restrictive quotas, and a variety of other government regulations designed to allow "fair competition" between imports and goods and services produced domestically.This...
their own markets. Local kings or lords extracted taxes and set trade restrictions.
Administration
The lex mercatoria was the product of customs and practices among traders, and could be enforced through the local courts. However, the merchants needed to solve their disputes rapidly, sometimes on the hour, with the least costs and by the most efficient means. Public courts did not provide this. A trial before the courts would delay their business, and that meant losing money. The lex mercatoria provided quick and effective justice. This was possible through informal proceedings, with liberal procedural rules. The lex mercatoria rendered proportionate judgements over the merchants’ disputes, in light of “fair price”, good commerce, and equity.Judges were chosen according to their commercial background and practical knowledge. Their reputation rested upon their perceived expertise in merchant trade and their fair-mindedness. Gradually, a professional judiciary developed through the merchant judges. Their skills and reputation would however still rely upon practical knowledge of merchant practice. These characteristics serve as important measures in the appointment of international commercial arbitrators today.
The lex mercatoria owed its origin to the fact that the civil law was not sufficiently responsive to the growing demands of commerce, as well as to the fact that trade in premedieval times was practically in the hands of those who might be termed cosmopolitan merchants, who wanted a prompt and effective jurisdiction. It was administered for the most part in special courts, such as those of the gilds in Italy, or the fair courts of Germany and France, or as in England, in courts of the Staple or Piepowder
Court of Piepowders
A Court of Piepowders was a special tribunal in England organised by a borough on the occasion of a fair or market. These courts had unlimited jurisdiction over personal actions for events taking place in the market, including disputes between merchants, theft, and acts of violence...
.
Legal concepts
The lex mercatoria was composed of such usages and customs as were common to merchants and traders in all parts of Europe, varied slightly in different localities by special peculiarities. Less procedural formality meant speedier dispensation of justice, particularly when it came to documentation and proof. Out of practical need, the medieval lex mercatoria originated the “writing obligatory”. By this, creditors could freely transfer the debts owed to them. The “writing obligatory” displaced the need for more complex forms of proof, as it was valid as a proof of debt, without further proof of; transfer of the debt; powers of attorneyPower of attorney
A power of attorney or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter...
; or a formal bargain for sale. The lex mercatoria also strengthened the concept of party autonomy: whatever the rules of the lex mercatoria were, the parties were always free to choose whether to take a case to court, what evidence to submit and which law to apply.
Reception
Merchant Law declined as a cosmopolitan and international system of merchant justice towards the end of medieval times, to the disappointment of Lex Mercatorius. This was to a large extent due to the adoption of national commercial law codes. It was also connected with an increasing modification of local customs to protect the interests of local merchants. The result of the replacement of lex mercatoria codes with national governed codes was the loss of autonomy of merchant tribunals to state courts. The main reason for this development was the protection of state interests.The nationalisation of the lex mercatoria did not neglect the practises of merchants or their trans-border trade. Some institutions continued to function, and state judges also were appointed for their merchant expertise, just as modern commercial arbitrators. The law of the merchants were not eradicated, but simply codified. National codes built on the principles laid down by trade commercial practise and to a large extent they embodied lex mercatoria substantial rules. This was for example the case in France. The Code Commercial was issued in 1807, where lex mercatoria rules were preserved to govern formation, performance and termination of contracts. In effect, the nation states reconstituted the lex mercatoria in their image.
Common law development
English courts applied merchant customs only if they were “certain” in nature, “consistent with law” and “in existence since time immemorial.” English judges also required that merchant customs were proven before the court. But even as early as 1608, Chief Justice Edward CokeEdward Coke
Sir Edward Coke SL PC was an English barrister, judge and politician considered to be the greatest jurist of the Elizabethan and Jacobean eras. Born into a middle class family, Coke was educated at Trinity College, Cambridge before leaving to study at the Inner Temple, where he was called to the...
said: “the lex mercatoria is part of this realm.” The tradition continued especially under Lord Mansfield
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...
, who is said to be the father of English commercial law. Precepts of the lex mercatoria were also kept alive through equity and the admiralty
Admiralty law
Admiralty law is a distinct body of law which governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities which operate vessels on the oceans...
courts in maritime affairs. In the US, traditions of the lex mercatoria prevailed in the general principles and doctrines of commercial jurisprudence
Uniform Commercial Code
The Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...
.
The history of the lex mercatoria in England is divided into three stages: the first prior to the time of Coke, when it was a special kind of law - as distinct from the common law - administered in special courts for a special class of the community (i.e. the mercantile); the second stage was one of transition, the lex mercatoria being administered in the common law courts, but as a body of customs, to be proved as a fact in each individual case of doubt; the third stage, which has continued to the present day, dates from the presidency over the king's bench of Lord Mansfield (q.v.), under whom it was moulded into the mercantile law of to-day. To the lex mercatoria modern English law owes the fundamental principles in the law of partnership, negotiable instruments and trade marks.
"a body of substantive commercial law, logical, just, modern in character and at the same time in harmony with the principles of the common law. It was due to Lord Mansfield's genius that the harmonisation of commercial custom and the common law was carried out with an almost complete understanding of the requirements of the commercial community, and the fundamental principles of the old law and that that marriage of idea proved acceptable to both merchants and lawyers."
- Statute of Merchants 1285 (11 Edw I and 13 Edw I) aka "Statute of Acton Burnell"
International commercial law and arbitration
Lex mercatoria precepts have been reaffirmed in new international mercantile law. National trade barriers are torn down in order to induce commerce. The new commercial law is grounded on commercial practice directed at market efficiency and privacy. Dispute resolution has also evolved, and functional methods like international commercial arbitration is now available. The principles of the medieval lex mercatoria—efficiency, party autonomy, and choice of arbitrator—are applied, and arbitrators often render judgements based on customs. The new Merchant Law encompasses a huge body of international commercial law.Present and future commercial law
In summary, nation states somewhat fragmented the medieval lex mercatoria but it is far from destroyed. Local interests triumphed in the medieval ages, just as national interests do today. A modern variant of the lex mercatoria is the evolving law and dispute resolution in cyberspace. Internet traders are the fastest growing body of merchants in history. Parties can solve domain-name disputes online expeditiously and quickly. In a virtual court documents are filed and examined online, arguments are made online and decisions are published online – seldom challenged before traditional courts of law. The medieval, the modern and cyberspace merchant laws face comparable issues of enforceability. They solve the problems somewhat differently, but the reaction of the market is the main incentive to comply with a ruling.Further, Lex Mercatoria is sometimes used in international disputes between commercial entities. Most often those disputes are decided by arbitrators which sometimes are allowed (explicitly of implied) to apply lex mercatoria principles. Therefore, some legal practitioners assume that there is a whole set of legal principles named "lex mercatoria" in international or transnational commercial law. The most recent and constantly updated set of rules are the TransLex Principles collected and formulated by Prof. Klaus Peter Berger (University of Cologne
University of Cologne
The University of Cologne is one of the oldest universities in Europe and, with over 44,000 students, one of the largest universities in Germany. The university is part of the Deutsche Forschungsgemeinschaft, an association of Germany's leading research universities...
) and his Center for Transnational Law.
What remains of lex mercatoria precepts today is a qualified faith in self-regulation by merchants, and a reluctance to surrender the efficiencies of merchant practice to state confinement.
See also
- International commercial lawInternational commercial lawInternational commercial law is the body of law that governs international sale transactions. A transaction will qualify to be international if elements of more than one country are involved....
- Law of the seaLaw of the seaLaw of the sea may refer to:* United Nations Convention on the Law of the Sea* Admiralty law* The Custom of the Sea...
- UNIDROITUNIDROITThe International Institute for the Unification of Private Law, also known as UNIDROIT, is an independent intergovernmental Organisation based in Rome, Italy...
- UNCITRALUNCITRALThe United Nations Commission on International Trade Law was established by the United Nations General Assembly by its Resolution 2205 of 17 December 1966 "to promote the progressive harmonization and unification of international trade law"....
- CISG (text)
- Statute of the Staple 1353 (27 Edw III, stat 2, c 20)
External links
- The Lex Mercatoria on-line
- The ‘Law Merchant’ and the Fair Court of St. Ives, 1270-1324 by Stephen Edward Sachs
- Boudreaux on Law and Legislation Podcast on law vs. legislation, including modern applications of lex mercatoria and economic theory. EconTalk at Econlib
- Trans-Lex, a research and codification platform for transnational law / lex mercatoria