Monday, January 28, 2019

An International Workshop on the History of Commercial Law

[We have the following report of a conference held at the University of Bergen (Norway) last August]

Conference Report: International Workshop on the History of Commercial Law: Approaches and Methodological Challenges, University of Bergen Faculty of Law, August 24th and 25th, 2018

On August 24th and 25th, 2018, the International Workshop on the History of Commercial Law was held at the Law Faculty of the University of Bergen (Norway), hosted by prof. Søren Koch of the Research Group for Legal Culture, Legal History and Comparative Law. Many experts in the field of commercial law and its history, from Scandinavia, the United Kingdom and the rest of the European continent participated in the conference.

The event was divided into five sessions: an introductory session was followed by separate sessions on the history of commercial law in the Middle Ages, the Early Modern period and the 19th century. A session on comparative methodology concluded the event, in which a total number of 12 papers were presented.

1. Introductory session

Prof. Matthias Schmoeckel (University of Bonn) opened the conference with a paper highlighting the positive role played by canon law and the church in the development of Medieval Europe's economy and commercial law. A survey of the works of medieval canonists and moral theologians, in particular concerning contracts and usury, lead to the conclusion that these learned authors tried to harmonize church doctrine and the practice of the marketplace rather than to hinder commercial development and innovation. Schmoeckel pled for an abandonment of Max Weber's 'ghost doctrine', which associated the rise of capitalism and the mercantile spirit of the Early Modern period with a protestant working ethos. He also pled for continued comparative research on the diverse and nuanced economical thought of both catholic and protestant theologians, as well as on the general impact and treatment of usury in the Early Modern period.

2. Middle Ages

In his paper, Brage Hatløy, a PhD Candidate (University of Bergen), whose research focuses on the Norwegian Code of the Realm (enacted in 1274) and the  impact of various older sources, discussed the multiple kinds of securities which are present in the code of 1274. A specific kind of security was the seller's right to repurchase a property (e.g., a farm). This security should probably be interpreted as a method to circumvent the prohibition on usury.

After the previous discussion on the different types of securities in the 1274 Code, prof. Jørn Øyrehagen Sunde (University of Bergen) presented a paper analysing Magnus' law of pledges in action. He presented the results of an empirical study of fifty-six diplomas and contracts registering pledges from the 14th century. Both movable and immovable property could be pledged as securities for many kinds of contracts. Several remarkable observations could be made from the documents. For instance, the code unsuccessfully prohibited married women to pledge goods of considerable value and tried to ban the use of pledges as a wager by stipulating that in case the pledge was lost, the fruits of the pledge had to be given back to the pledgee. Although the code required large contracts to be written down, no special types of contracts existed and there were almost no formal restrictions regarding the content of security agreements. He therefore concluded that the code's attempts to limit the freedom of contract were not always successful.

3. Early modern period

In his paper, prof. Søren Koch (University of Bergen) assessed the impact of the Hanse on credit-security law in Norway. His findings were based on a thorough study of records from the courts in Bergen, Oslo and other major Norwegian trading hubs. The evidence seemed to indicate that the presence of a large German merchant population in Bergen greatly contributed,
among others, to the adaptation of securities in property without actual transfer of possession (unterpant) as a preferable method of securing contracts, superseding in the 16th century the until then predominant form of security by transferring possession (brukspant). In Oslo, where the Hanse was less influential, this evolution took place much later. This seems to indicate that the Hanse played a major role in the development of credit-security law in Norway, even though purely Norwegian factors and circumstances also contributed greatly.

Dr. Paolo Astori (KU Leuven) demonstrated the complementary roles played by jurists and theologians in the Early Modern Period using the Regensburg case disputed in the Consistorium in 1587 as an illustration. The commonplace acceptance of mutually redeemable annuities exceeding the principal sum of an investment, for instance in a specific type of Zinskauf, was heavily criticized by a zealous group of clerics from Regensburg, who followed the traditional canonist approach towards usury. A controversy ensued in which both theologians and jurists, including Jakob Andreae, a professor of theology at the University of Tübingen, and the lawyers of the Law Faculty of Tübingen, contributed and collaborated in condemning the proposals of the traditionalists. In the end, judgement was given against the five ministers. The case clearly shows how intertwined the professions of law and theology were in the early modern period, when the legitimacy of certain contracts had to be assessed from a moral point of view.

4. The 19th century

Prof. Dirk Heirbaut (University of Gent) discussed the 2018 abolition of the Belgian commercial code, which he described as 'a slow, unremarkable death'. The commercial code of Belgium was inherited from the Napoleonic era and officially survived for more than 200 years. Commercial law and commercial courts did, however, not play a major role in the Belgian legal system. Many of the code's provisions were replaced by a later legislation.  On several occasions, plans to unify the courts and to abolish the commercial code were proposed, but it's only under the current Minister of Justice Koen Geens that these plans and ideas are actually being carried out. As a result of the gradual abolition of the commercial code, Belgian private law will undergo a process of commercialization.

Prof. Sverre Flatten (University of Oslo)
presented a paper discussing the role of Levin Goldschmitt, Oscar Platou and others in the regulation of the stock market in late 19th century Norway. In the middle of the 19th century, joint stock companies had little responsibility to inform their shareholders on the condition of their businesses. Since, eventually, the existing confidence-based honour culture turned out to be unable to prevent fraud and corruption, famous Norwegian jurists such as Platou proposed stricter regulations. However, substantial changes only came about after the Norwegian and international credit crisis of 1866 and the revelation of multiple financial scandals. Criticism remained: regulation would, for instance, lead to a lack of credit, but a change in business mentality after the crisis made legal reforms inevitable: on the one hand, fraud was criminalized, whilst, on the other hand, bankruptcy was decriminalized and seen as part of a normal negative business cycle. Although the reforms intended to reinforce bourgeois business morals, they actually created a new divergence between business and civil morals.

Prof. Dag Michalsen (University of Oslo) discussed the remarkable appeal made to Roman law in Oscar Platou's plea for a new approach to tort law in late 19th century Norway. One of his aims was to introduce contributory negligence to Norwegian law. The concrete case of a law student's dog which caused severe damage to a shop in Oslo led to several lawsuits and much scholarly debate. Roman law was invoked by scholars such as Platou, who was influenced by Jhering, as an authoritative instrument of legal innovation and inspiration in Norway, even though Roman law had historically only played a secondary role in Norway's legal history. In the end, Platou attained a high position in the Norwegian Supreme Court and was thus able to implement his views by dramatically changing the case-law on this field of law.

Senior lecturer Andrew Simpson (University of Aberdeen)
discussed the short, but remarkable rise of limited liability in the 18th century Scottish legal system. Scottish merchants were in need of investors, but those interested did not want to be liable for more than the sum of their investment. Given the extensive liability of the customary partnership contract in Scottish law, when the Fishing Company was set up, it was established as a joint stock company using the 'copartnery'-contract. When this company incurred serious debts, a law case became inevitable. The creditors argued that every partner in the company was fully liable, but Dalrymple, the counsel for the defence, successfully argued in the Court of Session that limited liability should be applied. Every partner would not be liable for more than what he had contributed. His arguments concerning the nature and development of the partnership contract have been preserved and clearly reflect the Zeitgeist of the Scottish Enlightenment in which Dalrymple operated. They present limited liability for financiers as a logical next step in the progressive development of human society, away from the old Roman law.

5. Comparative research perspective

In his paper, dr. Guido Rossi (University of Edinburgh) presented the challenges posed by the comparative study of commercial legal history using examples from maritime trade. He presented cases from the 16th, 17th and 18th century from English and Italian courts to show the evolution from customs to law in both the civil and the common law tradition. Following a comparative methodology, blameworthiness and liability of shipmasters within their contractual shipping operations were analysed.

Prof. Heikki Pihlajamäki (University of Helsinki)
discussed the birth of commercial law in Early Modern Sweden by first laying out three basic models: a southern model based on consulates (Spain), a northern model with no special courts (England and the Netherlands) and a French model which made use of commercial courts. The paper assessed the applicability of the different models by reviewing several Swedish court cases of the 17th and 18th century. Commercially, Sweden was dominated by the Hansa, and, from the 17th century onwards, by Dutch merchants, highly affecting Swedish commerce and the legal solutions which were applied in maritime trade.

The final paper was delivered by Dr. Anna Klimaszewska (University of Gdańsk) and discussed the great number of methodological challenges which researchers of the commercial law of the 19th century Polish territories have to confront. In particular, the paper explored the reception of the Napoleonic commercial code in Poland, highlighting the fact that the French commercial code was adopted without considering the particularities of the French and Polish legal traditions and commercial law cultures. Anna Klimaszewska's paper focused on three aspects: the Polish adoption of the code, the reaction of Polish legal scientists and the practical application in Poland. She provided many concrete examples from different types of historical sources. However, the fact that many Polish court and state records have been lost during the Second World War, forces researchers interested in the topic to take a careful and flexible scientific approach.

The International Workshop on the History of Commercial Law was closed by the final remarks of professors Koch and Sunde. It was concluded that a single general theme, meaningfully embracing all the workshop's papers might be difficult to identify. Rather, they all seemed to demonstrate the fact that commercial law has a long history and is based on a wide variety of possible sources, the necessity of an interdisciplinary approach and the great methodological challenges posed by the research into the history of commercial law. For us as young researchers in legal history, the International Workshop in Bergen opened up fascinating perspectives on the legal history of Scandinavia and in particular Norway, which was both uniquely positioned with its independent jurisdiction and legal system, while at the same time continuously interacting with the rest of the European continent. The workshop clearly demonstrated that developments in continental European commercial law did not remain unnoticed in Northern Europe, and invites to further research into the reception of ideas and rules, their implementation into national law and the interaction between the different European countries, their laws and legal cultures.

Authors of the report (in alphabetical order):
Michał Capierzyński - PhD-candidate at the Faculty of Law and Administration, University of Gdańsk;
Tomasz Królasik, Ph.D. - Institute of History of Law, Faculty of Law and Administration, University of Warsaw;
Joost Possemiers - PhD-candidate at the FWO / Research Unit for Roman Law and Legal History of the KU Leuven F

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