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31 Am. J. Legal Hist. 322 (1987)
Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning Caveat Emptor

handle is hein.journals/amhist31 and id is 332 raw text is: Legal Protection for Slave Buyers in the U.S. South: A Caveat Concerning Caveat Emptor by ANDREW FEDE* I. INTRODUCTION The doctrine of caveat emptor-let the buyer beware-achieved its real triumph in the sales law of the antebellum United States, according to Walton Hamilton's seminal article on the history of that ancient maxim.' Hamilton's interpretation is only half correct, however, because caveat emptor's conquest of the law of the antebellum South was not as resounding as in the North. Both statutes and cases of the nineteenth century South protected slave buyers during caveat emptor's antebellum heyday. The reason for this distinction is suggested by Karl Llewellyn, who called antebellum sales law common law 'made by the Ellenboroughs-and the horse.'2 Like Hamilton, however, Llewellyn omitted southern sales law from his study, and this is a significant omission. By ignoring southern law, these great scholars failed to see that the law in the common law South differed, and that it was different because it was made by judges, horses, and slaves. * Associate, Contant, Contant, Schuber, Scherby, and Atkins, Hackensack, N.J.; Instruc- tor, Center for Legal Studies, Montclair State College, Upper Montclair, N.J. This article is a revised version of a paper presented at the Annual Meeting of the American Society for Legal History (Toronto, Canada, October 24, 1986). 1. See, Hamilton, The Ancient Maxim of Caveat Emptor, 40 Yale L. J. 1133, 1178 (1931). 2. Llewellyn, Across Sales on Horseback, 52 Harv, L. Rev. 725, 746 (1939) (hereinafter Across Sales); see also, id. at 726-728, 736-745 and Llewellyn, On Warranty of Quality, and Society, 36 Colum. L. Rev. 699, 723-724 (1936) (hereinafter Llewallyn 1). By quoting this seemingly simple-minded motto, the reader should not be led to believe that Llewellyn, or this author, endorse an uncomplicated relationship between the development of law and the social context. See, Llewellyn, On Warranty of Quality, and Society: 1, 37 Colum. L. Rev. 341, 348-353, 368-372 (1937) (hereinafter Llewellyn 11). Rather, Llewellyn's maxim focuses on the need to account for both law and society when studying the law of sales. See, text and note at note 32 infra. It is evident from Llewellyn's axiom that the civil law was not an object of his study. And so it is not here; Louisiana is not a common law state and its law is not discussed in this piece. Nevertheless, it is worth noting that the law in Louisiana was very protective of buyers of all personalty, including slaves. See, J. Wheeler, A Practical Treatise on the Law of Slavery 107-152 (1837) (reprint ed. 1968); J.K. Schafer, Guaranteed Against the Vices and Maladies Prescribed by Law: Consumer Protection, the Law of Slave Sales, and the Louisiana Supreme Court, 1809-1862, 31 Am. J. of Legal Hist. 306 (Oct. 1987).

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