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104 U. Pa. L. Rev. 927 (1955-1956)
Origin of the Negotiable Promissory Note

handle is hein.journals/pnlr104 and id is 953 raw text is: 1956] THE ORIGIN OF THE NEGOTIABLE PROMISSORY NOTE Jacob J. Rabinowitzt The origin of the negotiable promissory note has been widely dis- cussed by legal historians. Brunner, who has devoted a number of articles to the subject,1 maintains that the principles underlying the negotiable promissory note are traceable to Germanic law and that the main elements of the negotiability clause are discernible in Lombard documents of the eighth, ninth and tenth centuries.' Under the Ger- manic law of procedure, Brunner asserts, the emphasis was upon the validity or invalidity of the defendant's defense and not upon the validity of the plaintiff's claim. In other words, it was incumbent upon the defendant to show why he was not liable to the plaintiff. There- fore, he says, when the promise ran to the person in whose hands the instrument would appear, the defendant had no valid defense against the holder of the instrument who was not required to show how the defendant became liable to him.3 It seems, however, that Brunner's so-called principle of the Ger- manic law of procedure, which supposedly lays stress upon the validity of the defendant's defense-a most peculiar principle indeed-is but a product of his own imagination. He cites no evidence whatsoever for this principle, except the facts which he seeks to explain by it. Further- more, Brunner would apparently have us believe that the spirit of the Germanic law of procedure, having asserted itself through the Lom- t Professor of Law, The Hebrew University, Jerusalem. Member of the New York Bar. 1. See the following articles by Brunner: Das franwoesiche Inhaberpapier des Mittelaters, in F.SSCHRIFT FUER H. THoEL 7 (Germany 1879), reprinted in 1 BRuNERa, ABHANDLUNGr ZUR RECHTSGESCICaHTE 458 (1931); Carta und Notitia, in Com- MENTATIONES PHILOLOGICGA IN HONOREm TH. MOmSmENi 570 (1877), reprinted in 1 BRUNNER, op. cit. supra at 458; Zur Geschichte des Inhaberpapiers in Deutsch- land, 23 ZEITSCHRIFT F. D. GES. HANDELSRECHT [hereinafter ZEITSCHRiFT] 225 (Ger- many 1878); Die Fraeukisch-romaniscle Urkunde, 22 ZEITSCHrFT 59, 105 (Germany 1877). 2. Brunner, Die fraenkisch-romanische Urkunde, 22 ZEITscHRIFT 59, 105 (Germany 1877). Brunner's theory of the origin of negotiable instruments is followed by Jenks, The Early History of Negotiable Instrnents, in 3 SELEC EssAys iN ANGLo-A-MER- icA-N LEGAL HIsToRY 51 (1909) and by Holdsworth, The Origin and Early History of Negotiable Instruments, 31 L.Q. Rsv. 12 (1915). 3. 1 BRUNNER, op. cit. supra note 1, at 539-40. See also Holdsworth, supra note 2, at 20. (927)

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