12 J. Mar. L. & Com. 1 (1980-1981)
The Evolution of the Law Merchant: Our Commercial Heritage - Part I: Ancient and Medieval Law Merchant

handle is hein.journals/jmlc12 and id is 7 raw text is: Journal of Maritime Law and Commerce, Vol. 12, No. 1, October, 1980

The Evolution of the Law Merchant: Our
Commercial Heritage
LEON E. TRAKMAN*
PART I: ANCIENT AND MEDIEVAL LAW MERCHANT**
That commonwealth of merchants hath always had a peculiar and
proper law to rule and govern it; this law is called the Law Merchant
whereof the law of all nations do take special knowledge.-Sir John
Davies, The Question Concerning Impositions 10 (1656).
INTRODUCTION'
Thoughout the centuries the principle of consensuality appears as the
bastion of international commerce.' As Bewes explains in his Romance
* B. Comm., LL.B. (Cape Town); LL.M., S.J.D. (Harvard). Professor of Law, Dalhousie
University.
This article was written under the auspices of the Humanities and Social Sciences Research
Council. Useful comments on a preliminary draft were offered by Professor Harold Berman of the
Harvard Law School, while able research assistance was provided by the author's law students,
Messrs. D. Hyndman and A. Griffin. Nevertheless, the author alone accepts full responsibility for
all ideas expressed herein.
** Part II, on the Modem Law Merchant, will appear in the January, 1981 issue of the Journal.
'On the Law Merchant in general see Mitchell, An Essay on the Early History of the Law
Merchant (New York, 1904); Bewes, The Romance of the Law Merchant (London, 1923); Malynes,
Lex Mercatoria (3rd ed., 1686); Honnold, The Influence of the Law of International Trade on the
Development and Character of English and American Commercial Law, in Colloquium on the Sources
of the Law of International Trade 70 (Schmitthoff, editor, 1964); Thayer, Comparative Law and the
Law Merchant, 6 Brook. L. Rev. 139 (1936); Scrutton, General Survey of the History of the Law
Merchant, in 3 Select Essays in Anglo-American Legal History 7 (1909); Burdick, Contributions of
the Law Merchant to the Common Law, in 3 Select Essays in Anglo-American Legal History 34
(1909); Brodhurst, The Merchants of the Staple in 3 Select Essays in Anglo-American Legal History
16 (1909); Jones, An Inquiry into the history of the Adjudication of Mercantile Disputes in Great
Britain and the United States, 25 U. of Chi. L. Rev. 445 (1958); Plucknett, A Concise History of the
Common Law, 657 et seq. (5th ed., 1956); Radcliffe and Cross, The English Legal System (4th ed.,
1964); Goldstajn, The New Law Merchant, [1961] J.B.L. 12; Lopez, The Commercial Resolution of
the Middle Ages, 950-1350 (1971); Lopez and Raymond, Medieval Trade and the Mediterranean
World (1968) (hereinafter cited as Lopez and Raymond); Berman and Kaufman, The Law of
International Commercial Transactions (Lex Mercatoria), 19 Harv. I.L.J. 221 (1978).
2 On this evolving concept of good faith, see supra note I and infra note 5. This reliance upon

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