12 J. Mar. L. & Com. 153 (1980-1981)
The Evolution of the Law Merchant: Out Commercial Heritage - Part II: The Modern Law Merchant

handle is hein.journals/jmlc12 and id is 159 raw text is: Journal of Maritime Law and Commerce, Vol. 12, No. 2, January, 1981

The Evolution of The Law Merchant: Our
Commercial Heritage
LEON E. TRAKMAN*
PART II: THE MODERN LAW MERCHANT**
The medieval Law Merchant did not die in the post-medieval times.
Rather, it was transformed in character during the sixteenth and sev-
enteenth centuries to blend in with local influences, to reflect the policies
and interests, and the procedural rules of the forum. The merchant
system still maintained its influence upon the development of domestic
law. In Europe, the British Isles, and later the United States, the form
of merchant law which arose reflected the needs of trade in each local
community of merchants and in the international community at large.
Mercantile law in England evolved differently than did commercial law
in Continental Europe. Yet the Law Merchant itself remained the source
in both legal systems. What happened in each case was the embodiment
of Law Merchant values within domestic legal systems that were in line
with state policy, national interests and domestic mores. Only certain
attributes of the medieval Law Merchant changed. For instance, do-
mestic laws, by definition, were not universal in their application. Such
laws varied from jurisdiction to jurisdiction. They altered in accordance
with forum concerns, especially indigenous business demands. Yet the
foundations of the Law Merchant-flexibility of approach and com-
mercial orientation-remained intact in both civil and common law
systems.'04
The localization of the Law Merchant produced these alterations.
National law influences meant that merchant practice was no longer the
sole determinant of acceptable behaviour in business affairs. Novel
* B. Comm., LL.B. (Cape Town); LL.M., S.J.D. (Harvard); Professor of Law, Dalhousie
University.
** Part I, on the Ancient and Medieval Law Merchants appeared in the October issue, 12 J.
Mar. L. & Com. 1 (1980).
o4 In fact, the writings on the Law Merchant (e.g. supra note 102) repeatedly indicate that the
Law Merchant did not die in post-medieval times. It was merely transformed in character to suit
the needs of the forum, in particular its public policy. The primary change in the Law Merchant
was therefore formal, rather than a matter of substantive law.
153

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