Consuetudo, vel lex mercatoria, or The ancient law-merchant Diuided into three parts: according to the essentiall parts of trafficke. Necessarie for all statesmen, iudges, magistrates, temporall and ciuile lawyers, mint-men, merchants, marriners, and all others negotiating in all places of the world. By Gerard Malynes merchant.

CHAP. X. Of Suretiship and Merchants Promises.

HAuing intreated of the ordinarie buying and sel∣ling of commodities, either for money to be paied at some daies of payment, or for wares to be deliuered by way of permutation, (wherein many times a third person is interposed, or it doth meerely depend vpon the parties promise) it may seeme conuenient to handle the point of Suretiship and Promises.

For albeit as the Ciuilians say, that Nudae pactio obligationem non pa∣rit, exceptionem parit, a bare or naked couenant bindeth not, but bree∣deth exceptions; this is to be vnderstood vpon contracts, and where no sureties haue made any promise: But otherwise if any merchant do passe his word for another; it maketh him liable, as fide inssor to performe the same, and the act done before is a sufficient good consi∣deration, and they all agree that bona fides inter mercatores est seruanda, Faith or trust is to be kept betweene merchants, and that also must be done without quillets or titles of the law, to auoid interruption of trafficke, wherein his Suretiship is to be considered according to the promise; for if it be conditionall, if such a man do not pay, then the other to pay the same within a time, or to saue him harmelesse: it is first to be demaunded of the Principall, and if he do not pay, then the Suretie is to pay it without any course of law, vnlesse he be orde∣red by the Court of Merchants to performe the same, because that thereby he may also the sooner recouer the same of the Principall for whom he did giue his promise. It is also a custome amongst Mer∣chants, that if a Merchant be indebted vnto another, and thereupon intreateth another merchant to desire the creditor to respit him some time for the paiment of it; if then the said merchant the debtor do not pay accordingly at the time, he shall be taken pro confesso, and sen∣tence

shall be giuen by the Merchants Court for the paiment there∣of, onely vpon proofe made, that he did will another to craue the said respite of time for the paiment. The like is done by the Com∣mon law of England by triall of Iuries of 12 men, vpon proofe made by euidence produced before them, that the debtor did craue day of paiment, so that they will thereupon deliuer their verdict, and iudge∣ment and execution may be of course had for the same. But if the promise be not conditionall, then is he an absolute Suretie, and is to pay the same accordingly, as merchants of credit alwaies haue done.

A merchant may also be come in the nature of a Suretie vnawares, or vnknown vnto him, as befell vnto a friend of mine not may yeres since at Frankford in Germanie, who during the Mart or Faire, went into a merchants Ware-house to conferre of some businesse with him, where hee found another merchant of his acquaintance to cheapen some parcel of silke wares with the said other merchant, to whom this man (as it seemed) was vnknowne; whereupon the seller of the said silk wares tooke occasion to aske my friend whether he were a good man and of credit, and he answered he was, so the bargaine was made, and goods were deliuered vnto the said merchant the buy∣er, to the value of 460 ll, for the which he made a bill obligatorie, payable the next Faire following: at which Faire (the partie not ap∣pearing) demand was made of my friend to make payment of the said 460 ll, because the partie was absent, and withall some doubt was made of his sufficiencie; my friend had not so much as remembred that any such question was demanded of him, but the partie did put him in mind of it by circumstances, and would be paied of him, he in defence did alleage it to be nudum pactum ex quo non oritur actio, and so not bound to pay the same, as hauing had no consideration for it. The opinion of merchants was demaunded, wherein there was great diuersitie, so that the Ciuile Law was to determine the same; and by the said Law according to the title de mandato consilij, he was adiudge to pay the said 460 ll, and to haue the debtors bill obliga∣torie made ouer vnto him, whereof he could neuer recouer one pen∣nie, although he did pay the whole debt and dammages, for the par∣tie became insoluent. This may be a good caueat for merchants and all men; for if he had said, He is taken or reputed to be a good man of credit, or, I take him to be so; he had beene cleered by the law, and the custome of merchants.

Some promises are considerable, according to reason, as if a man vpon a penaltie do promise another not to molest or trouble him; if the other giue him cause of offence to breake the same, he incurreth not the penaltie; and a promise made to do a thing is alwaies vnder∣stood to be for the first time. So to make a promise that a pawne shall not be alienated, yet it is held by diuers that the same may be hipo∣thecated vnto another, so the pawne be preserued. Againe on the con∣trarie, if a ship-wright do promise to build a ship for a merchant, and hee causeth the same to be done by another, here the promise is

broken by the Law, albeit this question is not materiall, for it is not like that the building of Ships can be done without contracts in wri∣ting, and onely by bare promises. And the like may bee said to the greatest part of all the questions, wherewith the Bookes of Ciuilians are fraighted; so that for Merchants vnderstanding, the ancient or∣dinarie Customes obserued in the course of the said Essentiall Parts of Trafficke, is plainely to bee declared and distinguished from liti∣gious questions.

Notes

• A bare or na∣ked couenant.
• To become a suretie vna∣wares.
• A caueat for merchants &c.
• Considerable promises.