THE GROWTH OF MERCANTILE LAW

The integration of mercantile law, its structural unity, was closely connected with its organic growth. It was conceived as a developing system. Its development was quite rapid, not only in its formative period but also thereafter, in the thirteenth, fourteenth, and fifteenth centuries.

354- contractual opportunities expanded; adjudication of commercial disputes became increasingly regularized; and the degree of integration of commercial law increased. In other words, as in the case of the other legal systems that formed the Western legal tradition, the characteristic features of commercial law became also tendencies of its organic growth in time.

The conscious development of the system of commercial law was greatly facilitated by the existence of institutions responsible for its development. The rulers of Europe, especially the ruling authorities in the various leading commercial cities, helped to develop the system of mercantile law by codifying the commercial customs. Examples are the Customs of Genoa of 1056, the Constitutum Usus of Pisa of 1161, and the Book of Customs of Milan of 1216. Growth was facilitated also by the keeping of records of mercantile court decisions, including courts of the fairs as well as city courts and maritime courts.

In addition, the creation of an elaborate system of notaries in the late eleventh and twelfth centuries made it inevitable that commercial custom would be consciously adapted to new conditions. The notaries not only registered commercial documents but also drew up contracts and other notarial instruments.

In addition to notarial records, bank ledgers and cartularies of ships also had legal force, and even merchants' accounts were admissible in evidence. Thus there was a vast system of recording commercial operations, and while this undoubtedly exerted some restraint upon change it also channeled change and gave it continuity and direction.

Whatever the factors were that made for growth, there can be no doubt that growth took place. The development of the sea loan and the invention of the bottomry loan were used as indirect means of insuring overseas shipments in the twelfth century; in the fourteenth century the first documents of marine insurance made their appearance, and by the fifteenth century marine insurance was a thriving business. ⁴² Again, in the twelfth and thirteenth centuries merchant bankers issued letters for their customers assuring prospective creditors that the banker would honor obligations that the customer incurred; in the fourteenth and fifteenth centuries such letters developed into commercial letters of credit

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in which the banker assured particular sellers that he would pay for particular goods the customer wished to purchase. 43 In the twelfth century the capacity to enter into commercial contracts was extended to former peasants and to the feudal nobility; thereafter it was gradually extended to others, including women and minors. These were not merely changes but developments, and not merely automatic developments but conscious adaptations of preexisting legal institutions and ideas to new situations a conscious expansion of their range of application to meet new needs. 44

Thus there took place throughout the system of mercantile law a process of differentiation, which had the appearance of an unfolding of the past into the future, an autonomous growth over centuries. There was an illusion, at least, not only of the basic unity of the body of law which the merchants made to govern their activities, but also of the continuous cooperation of successive generations of merchants in making that body of law live and grow.

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