John Appleton of Maine and Commercial Law: Freedom, Responsibility, and Law in The Nineteenth Century Marketplace

1986 ◽  
Vol 4 (1) ◽  
pp. 55-69
Author(s):  
David M. Gold
Keyword(s):  
Nineteenth Century ◽  
Civil War ◽  
Contract Law ◽  
Commercial Law ◽  
Caveat Emptor ◽  
Recent Scholarship ◽  
American Law ◽  
The Law ◽  
Nineteenth Century United States ◽  
Growing Economy

More than half a century ago, Walton H. Hamilton recognized the dual economic and moral spirit of the nineteenth century's ‘sense of individualism’ when he wrote that the legal maxim caveat emptor ‘served well its two masters, business and justice’. However, recent scholarship has captured only half that spirit. Historians have concentrated on business and attributed the way judges shaped the law of the marketplace to their desire to promote economic growth. James Willard Hurst, in his seminal Law and the Conditions of Freedom in the Nineteenth Century United States, posits ‘the release of individual creative energy’ as the ‘dominant value’ in American law for the first half or three-quarters of the nineteenth century, pointing to such developments as the judicial embellishment of ‘procedures and instruments to promote dealing at a distance and on credit’ in response ‘to the needs of a growing commerce’. Lawrence M. Friedman states that nineteenth century contract law was ‘attuned to the needs of a growing economy, at least as the leading judges read those needs’. Harold M. Hyman and William M. Wiecek credit the content of pre-Civil War contract law to the ‘developmental, entrepreneurial bias’ of antebellum judges. According to Bernard Schwartz, the job of American law, at least through the Civil War, was ‘to furnish the legal tools necessary for effective mobilization of the community's resources’. William E. Nelson, adding a class twist to the ‘developmental’ theme, writes that the law in the nineteenth century ‘came to be a tool by which those interest groups that had emerged victorious in the competition for control of law-making institutions could seize most of society's wealth for themselves and enforce their seizure upon the losers’.

Commerce, Labor, and Taxation

2019 ◽  
pp. 513-550
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Nineteenth Century ◽  
Building Blocks ◽  
Contract Law ◽  
Legal Study ◽  
Tax Laws ◽  
American Law ◽  
Federal Taxation ◽  
The Law ◽  
State And Local ◽  
Death Taxes

This chapter discusses the development of commerce, labor, and tax laws in the second half of the nineteenth century. It covers contracts, negotiable instruments, the law of sales, usury laws, insurance, bankruptcy, admiralty, labor and law, federal taxation, state and local tax, and death taxes. The law of contract occupies a special place in American law in the nineteenth century. The dominance of contract was one of the sovereign notions of the nineteenth century. By constitutional mandate, no state could “impair” the obligation of contracts. Contract law was also one of the basic building blocks of legal study.

Blood and Gold: Some Main Themes in the Law in the Last Half of the Nineteenth Century

2019 ◽  
pp. 321-354
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Nineteenth Century ◽  
Civil War ◽  
Legal System ◽  
The West ◽  
State Constitutions ◽  
American Law ◽  
The Law ◽  
Changing Society

This chapter discusses changes in American law during the second half of the nineteenth century, covering organic law, state constitutions, and the West. The last half of the nineteenth century was crowded with events and evolutions, the most dramatic of which was the great Civil War. In many ways, wars fundamentally disrupt the operation of the legal system. The Civil War was unusually violent, and it did unusual violence to the ordinary course of justice. It was also a constitutional crisis: the Confederate states had renounced the union, declared themselves independent, and drafted their own constitution. But the war was, in a way, only an interlude. Underneath and around it and before it and after it, vast processes were changing society in fundamental ways. Changes in American law, between 1850 and 1900, were little short of revolutionary. In many fields, the law or the practice looked very different at the end of this period, compared to the beginning.

scholarly journals PROBLEMA PENGGANTIAN HUKUM-HUKUM KOLONIAL DENGAN HUKUM-HUKUM NASIONAL SEBAGAI POLITIK HUKUM

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
Maroni Maroni
Keyword(s):  
Human Rights ◽  
Social Life ◽  
Contract Law ◽  
National Politics ◽  
Commercial Law ◽  
Positive Law ◽  
The Law

Replacement of colonial law was committed by Indonesia since the first, but fact there are still lot of colonial law have a status as positive law. The problems, what is the problematic causing factors of replacement colonial law with national law and how the politics of law response its problematics? The results of the study describe that the causing factors consist of (a) the heterogeneity of Indonesian nation, (b) embrace the principle of unification and codification; (c) differences in views on human rights. While, the politics of law formed as guidance for the colonial laws which are difficult to change such the law that relating to social life, cultural and spiritual. In other case, the field of "neutral" law such contract law and in the field of commercial law changing by renewal or creation the law. Keywords: Problems, colonial, national, politics of law

Response to Rebecca Scott's “Discerning a Dignitary Offense”

2020 ◽  
Vol 38 (3) ◽  
pp. 571-583
Author(s):  
Laura F. Edwards
Keyword(s):  
Nineteenth Century ◽  
Civil War ◽  
Legal System ◽  
Legal Change ◽  
The Law ◽  
Civil War Era

I applaud Scott's contributions. In this comment, I would like to take them up and push them further. Doing so points to a very different understanding of people's relationship to law and the legal system in the nineteenth century than is now current in much of the historiography. That perspective, I argue, can transform our understanding of the law and legal change in the Civil War era and in the nineteenth century more broadly.

The Law of Commerce and Trade

2019 ◽  
pp. 241-262
Author(s):  
Lawrence M. Friedman
Keyword(s):  
United States ◽  
Nineteenth Century ◽  
The United States ◽  
Marine Insurance ◽  
Commercial Law ◽  
History Of ◽  
Commercial Paper ◽  
International Body ◽  
The Law ◽  
Law Merchant

This chapter discusses the history of American commercial law covering the admiralty and general commerce, sale of goods, bankruptcy and insolvency, and contract. American commercial law was deeply and persistently in debt to England. Theoretically, even national sovereignty was no barrier. The laws of admiralty, marine insurance, commercial paper, and sale of goods were not, supposedly, parochial law, English law; they were part of an international body of rules. The law of sales of goods developed greatly in the first half of the nineteenth century. Many, if not most, of the leading cases were English and were adopted in the United States fairly rapidly. Two strains of law—contract and the law merchant—each with a somewhat different emphasis, were more or less godparents of the law of sales.

scholarly journals Sales and Conformity of Goods: A Legal Discourse

2020 ◽  
Author(s):  
Djieufack Roland
Keyword(s):  
Economic Development ◽  
Secondary Data ◽  
Legal Discourse ◽  
Contract Law ◽  
International Standards ◽  
Commercial Law ◽  
Caveat Emptor ◽  
Depth Analysis

This chapter is primarily concerned with the fact that the concept of conformity is dynamic and amorphous as it is recognised as an impetus to economic development and plays a major role in matters of sale of goods within an economy. In making an assessment of the seller’s duty of conformity to a contract of sale of goods as governed by the OHADA Uniform Act on General Commercial Law, this study argues that the concept of conformity is limited rather than broad that should appropriately encapsulate the physical and non-physical things that could form the object of a contract of sale. It therefore explores other aspects that could be considered as part of the ‘goods’ for the purposes of the conformance duty in establishing the limits of the seller’s liability. Thus, adopting an empirical and in-depth analysis of primary and secondary data, this study therefore holds that the question of conformity of goods can conveniently be addressed from a number of different angles: contract law, consumer patterns, local and international standards, and the principles of caveat venditor and caveat emptor.

The Law vis-à-vis Electronic Commerce

2011 ◽  
pp. 362-382 ◽  
Author(s):  
Assafa Endeshaw
Keyword(s):  
Electronic Commerce ◽  
Contract Law ◽  
Commercial Law ◽  
Trade Law ◽  
Trading Partners ◽  
The Status ◽  
On Line ◽  
The Law ◽  
To Come ◽  
The Impact

A great deal of uncertainty surrounds the impact of the continuing growth of electronic commerce (e-commerce) on existing law. While commercial law has evolved over the centuries in response to the development of trade in goods and services, within or across nations,1 the emergence of an electronic medium (‘cyberspace’) as an additional avenue for trade has pushed to the fore many questions: whether and how an adaptation of existing law would be possible, appropriate or sufficient to catch up with the problems thrown up by the new medium. For one thing, the nature and effects of transactions that would ordinarily have been taken for granted had they occurred on non-electronic media confound established notions of commercial law. Secondly, the unpredictability of the ultimate consequence of such transactions to the respective trading partners, who would be more likely to come from different jurisdictions, prompts scrutiny of pre-existing, widely accepted formulations in domestic trade law, custom and treaty among nations. A major feature of the emergent situation is that the impact of e-commerce on the law has not been across the board, simply because e-commerce has not been developing evenly. Most transactions to date relate to the purchase of computer hardware or software or the supply of information of various types: plain news, financial data, entertainment, education, travel, advertisements, health and DIY tips. These items have one characteristic, namely the buyers’ lack of interest in, or disregard of, any need to have to conduct checking or inspection prior to purchase or, at any rate, before delivery. In light of the general uncertainty surrounding the status of the online buyer and seller, the relevant law and of how it might be applied on behalf of a buyer claiming redress, the purchase of “safe” items acquires a precautionary significance. In other words, the very nature of the items involved in the transactions seems to rule out any fundamental failure that could surface at a later stage and necessitate the intervention of the law to resolve the consequences of that failure. Obviously, once money has passed from the buyer to the seller, the path to recovery of that money, let alone further damages as would be expected under normal contract law, could be too complicated for the buyer to understand or pursue. What makes the plight of an on-line buyer who seeks redress intractable is that solutions to on-line legal disputes are only just evolving in bits and pieces. New rules have begun to emerge in the form of statutory reforms in single jurisdictions or through case decisions on disputes arising from on-line transactions. However, the ambit and applicability of the evolving laws tend to be subject to time, the nature of the concrete problems they are meant to address, as well as the diverse contexts. Consequently, pre-existing laws have not undergone modification or replacement by the emergence of e-commerce in all respects, to the same extent, nor in every jurisdiction. This chapter explores the nature of legal changes that have been propelled by the onset of e-commerce and the likely course of future developments. First, we present a brief summary of the impacts on contract law followed by a discussion on the liabilities arising from on-line transactions. Then, the focus is on issues of security and privacy of transactions. Finally, we cover the incipient forms of dispute resolution in e-commerce. The conclusion affirms that the law as applied to e-commerce is still in continuous flux and will take more time to acquire a definite shape. In particular, it underscores the urgency of meeting with the ever-apparent demand for an international treaty or agreement, at least parallel to existing treaties in contracts or sales.

The Growth of the Law

2019 ◽  
pp. 661-702
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Civil Rights ◽  
First Nations ◽  
Limited Liability ◽  
Tort Law ◽  
American Law ◽  
The Law ◽  
Welfare Workers

This chapter discusses changes in American law in the twentieth century, covering welfare, workers’ compensation, tort law, civil rights, First Nations, Asian Americans, Hispanics, freedom of speech, and religion. One of the most striking developments in the twentieth century was the so-called liability explosion: the vast increase in liability in tort, mostly for personal injuries. The nineteenth century—particularly the early part—had built up the law of torts, almost from nothing; courts created a huge, complicated structure, a system with many rooms, chambers, corridors, but with an overall ethos of limited liability, and something of a tilt toward enterprise. The structure was wobbling a bit, by the end of the nineteenth century, and the twentieth century worked fairly diligently to tear the whole thing down. One of the first doctrines to go was the fellow-servant rule.

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