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Enforcing Virtue: Social Norms and Self-Interest in an Eighteenth-Century Merchant Court

Published online by Cambridge University Press:  28 October 2011

Amalia D. Kessler
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Recent scholarship on law and norms has emphasized that important social values are at work in the law. But nothing could prepare us for the “Red Ink Case.” Decided by an eighteenth-century French merchant court, the suit was brought by a young woman driven by poverty to prostitute herself in return for a bill of exchange, written with her lover's blood. When the person on whom the bill was drawn refused to accept it for payment, the women sued her lover, demanding that he honor it instead. Although the applicable law required the defendant to pay the bill, the merchant-court judge declined to enforce payment on the ground that “humanity is the primary law.” Instead, the judge ordered the defendant to marry the plaintiff and thereby restore the virtue he had taken. With virtue thus saved, “[t]hese poor children withdrew satisfied.”

What are we to make of this case? It appears in Le négotiant patriote, an account of Old Regime commercial life and merchant-court practice penned by a successful eighteenth-century merchant named Bedos, who claimed to have served as a merchant-court judge and president of a chamber of commerce. Although Bedos' depiction of the Red Ink Case may well be exaggerated, his professional experience suggests that it must be taken seriously—if only as an expression of what contemporary merchants believed merchant-court litigation should be like. Yet, as familiar as we have become with the notion that law shapes and expresses social values, the case remains puzzling. What commercial interests are served, we might ask, by enforcing norms of sexual virtue? And how does a court order of marriage promote the transactional efficiency that bills of exchange, as a defining feature of merchant-court jurisprudence, were presumably intended to facilitate?

By examining the workings of a merchant-run court in eighteenth-century Paris, this article seeks to make sense of the Red Ink Case and its place in merchant-court jurisprudence.

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Law and History Review , Volume 22 , Issue 1 , Spring 2004 , pp. 71 - 118
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Copyright © the American Society for Legal History, Inc. 2004

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References

1. [Bedos], Le négociant patriote, contenant un tableau qui réunit les avantages du commerce, la connoissance des spéculations de chaque nation; et quelques vues particulieres sur le commerce avec la Russe, sur celui du Levant, et de l'Amérique Angloise; Ouvrage utile aux négociants, armateurs, fabriquants et agricoles (Amsterdam, 1779).

2. See, for example, Charny, David, “Illusions of a Spontaneous Order: ‘Norms’ in Contractual Relationships,” University of Pennsylvania Law Review 144, no. 5 (May 1996): 1841–58CrossRefGoogle Scholar; Kraus, Jody S., “Legal Design and the Evolution of Commercial Norms,” Journal of Legal Studies 26 (June 1997): 377–411CrossRefGoogle Scholar, http://www.journals.uchicago.edu/JLS/journal/issues/v26n2/JLSv26p377/JLSv26p377.web.pdf; Posner, Eric A., “Law, Economics, and Inefficient Norms,” University of Pennsylvania Law Review 144, no. 5 (May 1996): 1697–1744.CrossRefGoogle Scholar

3. Bedos, 264.

4. Ibid.

5. Ibid., 80.

6. Ibid., 39.

7. See, for example, the account of merchant-court practice provided by Louis-Sébastien Mercier, a contemporary commentator on life in Paris, quoted below, 92–93.

8. As of 1789, there were sixty-seven merchant courts in France. Szramkiewicz, Romuald, Histoire du droit des affaires (Paris: Montchrestien, 1989), 143.Google Scholar

9. Officially, parties in disputes before the merchant court were prohibited from using lawyers and were instead required to appear on their own behalf. See the discussion of “Ordonnance de procédure civile de 1667,” titre XVI, article 1, in Denisart, Jean Baptiste, Bayard, Jean-Baptiste-François, and Camus, Armand-Gaston, s.v. “Consuls des Marchands,” Collection de décisions nouvelles et de notions relatives à la jurisprudence, donnée par Me. Denisart, mise dans un nouvel ordre et augmentée par MM. Camus et Bayard, 8th ed., 11 vols. (Paris: Chez la veuve Desaint, 1786), 5:391.Google Scholar Nonetheless, merchant courts regularly appointed lawyers, known as agrées, or “the approved,” to represent litigants (Denisart, s.v. “Consuls des Marchands,” 5:391–95; Guyot, Pierre Jean Jacques Guillaume, s.v. “Consul,” Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et bénéficiale, 64 vols. (Paris: chez Panckoucke, 1777), 15:151–52).Google Scholar

10. It must be recognized, of course, that many commercial practices deemed usurious by medieval Church thinkers had come to be accepted as legitimate by their eighteenth-century counterparts. (For an extensive discussion of how Church thinkers gradually modified usury doctrine over the centuries in order to permit commercial exchange, see Noonan, John T. Jr, The Scholastic Analysis of Usury [Cambridge: Harvard University Press, 1957].)Google Scholar Nonetheless, over the course of the eighteenth century, at least 200 books were devoted to the topic of usury (McManners, John, Church and Society in Eighteenth-Century France, ed. Henry, and Chadwick, Owen, 2 vols. [Oxford: Clarendon Press, 1998), 2:265]Google Scholar, and many of these continued to adhere to the hard-line, antiusury stance adopted by the Counter-Reformation Church in its efforts to distinguish itself from Protestantism (McManners, Church and Society in Eighteenth-Century France, 2:263–68; Quéniart, Jean, Les hommes, l'église et Dieu dans la France du XVIIIe siècle (Paris: Hachette, 1978), 167–72, 237–40Google Scholar; Taveneaux, René, Le catholicisme dans la France classique, 1610–1715, 2 vols. (Paris: Sedes, 1994), 2:441–45).Google Scholar

11. Bedos, 66.

12. Ibid., 252.

13. Ibid., 259.

14. Ibid.

15. Ibid., 261.

16. Sargentson, Carolyn, Merchants and Luxury Markets: The Marchands Merciers of Eighteenth-Century Paris (London: Victoria and Albert Museum, 1996), xi.Google Scholar Sargentson lists the estimated annual income of various social groups from 1726–1790.

17. Bedos, 261.

18. Ibid. It bears emphasis that bottomry loans were available to Old Regime négociants who sought to insure themselves against the many perils of maritime transport. According to the leading contemporary jurist, Robert Joseph Pothier, bottomry loans—which were sanctioned by the Maritime Ordinance of 1681—were key to the practice of overseas commerce, because “‘few people [were] rich enough or brave enough to dare to run the risks of the sea on their own’” (Pothier, Robert Joseph, Traité du contrat à la grosse aventure et du contrat d'assurance [Paris, 1777]Google Scholar, quoted in Ducoin, Jacques, Naufrages, conditions de navigation et assurances dans la marine de commerce du XVIIIe siècle: le cas de Nantes et de son commerce colonial avec les iles d'Amérique, 2 vols. [Paris: Libraire de l'Inde, 1993], 1:156.Google Scholar See also the discussion of the Maritime Ordinance of 1681 in Ducoin, 1:173–79). That Bedos' merchant-court judges undertook to assist with losses that could have been insured against—and, indeed, went to the extraordinary length of drawing on their own individual resources—is a measure of the extent to which the court defined itself as a charitable institution.

19. As a general rule, the jurisdiction of the French merchant courts was limited to disputes between merchants over merchandise-related matters. However, the Commercial Ordinance of 1673 provided for merchant-court jurisdiction over all disputes concerning bills of exchange, even when none of the litigants were merchants. “Ordonnance du commerce du mois de mars 1673,” titre XII, article 2, in Bornier, Philippe, Ordonnance de Louis XIV, sur le commerce, enrichie d'annotations et de décisions importantes (Paris: Libraires-Associés, 1767), 570.Google Scholar

20. Bedos, 263.

21. Ibid.

22. Ibid.

23. Ibid.

24. Lévy-Bruhl, Henri, Histoire de la lettre de change en France aux XVIIe et XVHIe siècles (Paris: Recueil Sirey, 1933), 103Google Scholar; Roover, Raymond de, L'Evolution de la lettre de change: XIVe-XVIIIe siècles (Paris: A. Colin, 1953), 113.Google Scholar

25. See, for example, Berman's argument that the rise of a law of negotiable instruments is a prime example of the capitalist nature of merchant law, as developed in the merchant courts. (Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition [Cambridge: Harvard University Press, 1983], 334, 350–52Google Scholar).

26. The requirement of causa was developed by jurists of the canon law, as a means of ensuring that parties to a contract undertook their contractual obligations for a reason, or cause—thus, of their own free will—and that this cause was morally legitimate (Berman, 245–47).

27. Bedos, 264.

28. Ibid., 263–64.

29. Ibid., 264.

30. Ibid., 266.

31. See the discussion of the relationship between the merchant court's judge and consuls below.

32. Bedos, 267–68.

33. Ibid., 268–69.

34. These “snapshots” are based largely on court documents now stored in the Archives de Paris (henceforth “AP”)—and, in particular, on a review of reports written by the court-appointed arbiters, who are discussed below. The surviving arbiters' reports run from 1703 through 1791, but the collection is very thin until roughly midcentury, with the greatest number dating from 1770 onward. Although the official records of the court's decisions are fairly thorough and date back to 1680, these are not of much analytical value. This is because, unlike the arbiters' reports, which explain the reasoning underlying a decision, the official records contain little more than the litigants' names and the party in whose favor the court found.

35. Szramkiewicz, 143.

36. Derrière, G., La Juridiction consulaire de Paris, 1563–1792: Sa création, ses luttes, son administration intérieure, ses usages et ses mœurs (Paris: Henri Pion, 1872), 44–15, 50–55.Google Scholar

37. Ibid., 7; Leclerc, Georges, La Juridiction consulaire de Paris pendant la Révolution (Paris: Pion, 1909), 2–3.Google Scholar

38. Unlike the law of contract, which the court derived from its long equitable practice and from generally accepted principles of the learned legal tradition (such as the related requirements of cause, consent, and good faith), other elements of commercial law, including the law of negotiable instruments and business associations, were codified in the Commercial Ordinance of 1673. Likewise, the court relied on the customs of Paris, as codified in the Coutume de Paris, for two common causes of action: (1) the saisie et revendication, which was a form of replevin for sellers who sold goods on credit to buyers whom they then discovered were insolvent; and (2) the action redhibitoire, which permitted buyers of horses and other draft animals to demand the return of their money if the animal had certain defects (Kessler, Amalia Deborah, “From Virtue to Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France” [Ph.D. Diss., Stanford University, 2001], 152–55Google Scholar).

Because principles of contract were not codified, they were particularly susceptible to the influence of shared communal norms—including, most importantly, the Christian norms of virtue discussed in this article. Even when the applicable legal principle was codified, however, the court frequently ignored it, turning instead to communal norms. In these codified areas of the law, however, the norms applied by the court shifted over the course of the eighteenth century. Norms of Christian virtue gave way to new norms of the social good, which permitted individual misdeeds and misfortunes for the sake of the overall well-being of the social order, now self-consciously theorized as an association of individuals interconnected through the division of labor. Thus, to give but one example, the court regularly declined to enforce a rule in the Commercial Ordinance of 1673 prohibiting the blank endorsement of bills of exchange—namely, the negotiation of a bill by means of a signature alone, without recording the date, the name of the endorsee, and the value paid—because it recognized the social utility of the blank endorsement, and in particular, the role such endorsements played in facilitating the circulation of credit (ibid., 259–72).

39. After it was first created in 1563, and before it had collected the taxes levied for the purpose of establishing its own space, the merchant court sat in the Abbey of Saint-Magloire. In 1570, the court finally obtained enough money to purchase its own building and it selected one located in the cloister of Saint-Merry (Denière, 167).

40. Ibid., 178.

41. Ibid., 90. On Tuesdays, Thursdays, and Saturdays, the court deliberated those cases that had already been heard. Sunday was, of course, a holiday (ibid., 92).

42. Ibid., 167–70, 175–82; Leclerc, 3–5, 26–29.

43. The court archives appear to contain no documents relating to the appointment of arbiters, and as discussed below at n. 50, secondary sources on the Old Regime merchant courts are oddly silent on the topic of arbitration. Given, however, that the judge and consuls heard about two hundred cases on each of the days the court was in session, their ability to send the more complicated disputes to arbiters was probably an important tool for managing the docket. My estimate of the number of cases the court heard at each sitting is based on an informal sampling of the notarial records of the court's decisions (Registres des sentences, AP D2B6).

44. One arbiter wrote somewhat critically in a report to the judge and consuls, “I cannot imagine what claims were alleged at oral argument which convinced you to send this matter to arbitration; there has perhaps never been a more simple one….” (Leclerc, Arbiter's Report in Picol et fils v. Bonveyron, Posnel et cie, 12 juillet 1783, AP D6B6/13 [104]).

45. The dual function of the arbiters as both conciliators and magistrates paralleled the distinction in the continental legal tradition between “arbitrators” and “arbiters.” The “arbitrator,” also known as l'amiable compositeur, or amicable restorer, was supposed to reconcile the parties by proposing a compromise which they voluntarily chose to embrace, and in so doing, he was free under principles of equity to ignore the letter of the law. In contrast, an “arbiter” was to decide the dispute strictly according to the law, and his judgment was binding (Zimmermann, Reinhard, The Law of Obligations: Roman Foundations of the Civilian Tradition [Oxford: Clarendon Press, 1996], 528–30CrossRefGoogle Scholar). As explained in Antoine Furétière's Dictionaire universel, first published in 1690, and then reissued repeatedly throughout the following century, “arbiters must judge strictly according to the law, just as much as other judges,” but an “amicable restorer… resolves a litigation into friendship, and … uses more gentleness than an arbiter, because he can set aside to some extent the legal rights of each of the parties” (Furétière, Antoine, Dictionnaire universel, contenant generalement tous les mot françois tant vieux que modernes, et les termes de toutes les sciences et des arts, 3 vols., s.v. “arbitre” and “amiable,” vol. 1 (Hague and Rotterdam: Chez Arnout et Reinier Leers, 1690; reprint, Paris: SNL—Le Robert, 1978).Google Scholar

46. Ratification was required in the special case of arbitration of partnership disputes, in which the parties were forced to accept the arbiters' decision. (“Ordonnance du commerce du mois de mars 1673,” titre IV, article 9, in Bornier, Philippe, Conferences des ordonnances de Louis XIV, Roi de France et de Navarre, avec les anciennes ordonnances du royaume, le droit écrit et les arrêts, enrichies d'annotations et de décisions importantes, 2 vols. [Paris: Chez les associés choisis par ordre de sa Majesté, 1760], 2:388Google Scholar; Lévy-Bruhl, Henri, Histoire juridique des sociétés de commerce en France aux XVIIe et XVIIIe siècles [Paris: Domat-Montchrestien, 1938], 275).Google Scholar

47. Numerous arbiters' reports begin with the almost identical refrain, “You asked me to try to reconcile the parties and, if I could not, to send you my report.” See, for example, LeBenarc, Arbiter's Report in Barré v. Chalons, 29 décembre 1785, AP D6B6/14 (359); Salong, Arbiter's Report in Aie v. Delamotte, 7 septembre 1785, AP D6B6/14 (95); Rousseau, Arbiter's Report in Florentin v. Grelet, 16 août 1785, AP D6B6/14 (n.a.); Timothin, Arbiter's Report in Le Serteur et Guérin, associés v. Texier, 18 décembre 1783, AP D6B6/12 (112). In the case of Paupe v. Bertin, the arbiter cited this standard refrain, adding the revealing phrase that he was to do all of this “in the accustomed manner” (Lepitre, Arbiter's Report in Paupe v. Berthin, 18 juillet 1785, AP D6B6/14 [4]).

48. This conclusion is based on cross-referencing a number of arbiters' reports with the notarial records of the court's decisions (Registres des sentences, AP D2B6). It should be recognized, moreover, that this procedure followed by the arbiters created something of a documentary lacuna since reports were written only when arbiters failed to reconcile the parties. Presumably many cases were successfully concluded by reconciliation, and there is now no way to determine the relative numbers or the nature of the compromises reached.

49. The practice of selecting arbiters who knew the disputants in some ways paralleled the use of jurors in the English common-law tradition, who were also presumed to know the disputants and to bring that knowledge to bear (Thayer, James B., A Preliminary Treatise on Evidence at the Common Law [Boston, 1898], 99–133Google Scholar).

50. The one work that explores the significant role of arbitration in the Parisian Merchant Court merely mentions in a footnote that priests were generally selected as arbiters in disputes arising in the villages outside Paris (Lafon, Jacqueline-Lucienne, “L'arbitre près la juridiction consulaire de Paris au XVIIIe siècle,” Revue Historique de Droit Français et Étranger 51 [1973]: 220 and n. 18).Google Scholar The two book-length authorities discussing the institutional structure of the Parisian Merchant Court refer briefly to the fact that the judge and consuls sought help from merchants and lawyers in deciding the more complicated disputes that came before them, but make no mention of priests (Denière, 79–80; Leclerc, 59–60, 400–5). Similarly, more general accounts of the commercial law and merchant courts of the Old Regime refer to the existence of arbiters only briefly, if at all, and never note the crucial role played by the parish priests (see, for example, Hilaire, Jean, Introduction historique au droit commercial [Paris: Presses Universitaires de France, 1986], 74Google Scholar; Szramkiewicz, 143).

51. Masson, Philibert-Joseph, Instruction sur les affaires contentieuses des négociants, la manière de les prévenir, ou de les suivre dans les tribunaux (Paris: Chez LeClerc, 1786), 350.Google Scholar That priests served as arbiters in the merchant court is particularly surprising since, according to Jean-Baptise Denisart, one of the era's most influential jurists, “clergy may not be arbiters” (Denisart, Jean Baptiste, Collection de décisions nouvelles et de notions relatives à la jurisprudence actuelle, 4 vols., s.v. “arbitrage, arbitres” [Paris: Chez la veuve Desaint, 1771], 1:146Google Scholar). Denisart, however, was an expert of the learned law and thus had little familiarity with the distinctive practices of the merchant court. In contrast, Masson, who acknowledged that priests regularly served as merchant-court arbiters, was a practicing merchant, who spent two years as a judge in the Parisian Merchant Court (Masson, iii). That the merchant courts were apparently willing to ignore the learned-law rule against priests serving as arbiters may be a further reflection of the importance they placed on incorporating Christian norms and practices into merchant-court adjudication.

52. The most likely explanation for why parish priests from within Paris were never used as arbiters is that parishes in Paris had grown so large that, for most of the eighteenth century, it was no longer possible for the priest to know even by reputation all of his parishioners. In eighteenth-century Paris, the role of the parish priest as the community adjudicator—the person to whom everyone went to make complaints and seek advice regarding family, friends and neighbors—had been increasingly usurped by the officers of the police (Garrioch, David, Neighborhood and Community in Paris, 1740–1790 [Cambridge: Cambridge University Press, 1986], 156–57Google Scholar).

53. Ibid., 155–56. See also the discussion of the parish priest's role in the village community in McManners, 1:358–83 and Tackett, Timothy, Priest and Parish in Eighteenth-Century France: A Social and Political Study of the Curés in a Diocese of Dauphiné, 1750–1791 (Princeton: Princeton University Press, 1977), 166–69.Google Scholar

54. McManners, 1:358–83; Tackett, 166–69.

55. A. Jean, Arbiter's Report in Viennes v. Launoy, 29 juillet 1747, AP D6B6/2 (n.a.).

56. Ibid.

57. F. Regnault, Arbiter's Report in Jolle v. Moreau, 5 septembre 1741, AP D6B6/2 (n.a.).

58. Ibid. In addition to relying on his assessment of the plaintiff's moral character, the arbiter-priest in this case based his decision on the defendants' repeated failure to appear when summoned. Arbiters' reports suggest that the Parisian Merchant Court usually followed the traditional Roman-canon law rule (Lefebvre-Teillard, Anne, Les Officialités à la veille du Concile de Trente [Paris: Libraire Générale de Droit et de Jurisprudence, 1973], 48–49Google Scholar) that when a party fails to appear after being properly summoned three times, a default judgment could be entered. See, for example, Belus, Arbiter's Report in Guillaume v. LaTour, 10 septembre 1785, AP D6B6/14 (36); Report, Florentin v. Grelet. The default itself seems to have served as a presumption of bad faith.

59. In the canon-law tradition, the strong were supposed to care for the weak. Furthermore, reciprocity was ideally supposed to be at the heart of any agreement. The perfect contract was the one in which people exchanged things of equal value so that both would benefit equally and neither would be any the worse (Berman, 344–45). Thus, when one party to a contract was much poorer than the other and was having a hard time paying, the extent to which the contract was truly a reciprocal exchange became questionable—and enforcing it, therefore, morally distasteful.

60. F. M. de Villeval, Arbiter's Report in Simon v. Dubreuil, 7 septembre 1747, AP D6B6/2 (n.a.).

61. Ibid.

62. Adrien Bailié, Arbiter's Report in Meusnier v. Meusnier, 26 mai 1785, AP D6B6/14 (194).

63. Ibid.

64. Ibid.

65. Ibid.

66. Ibid.

67. Pinchauf, Arbiter's Report in le comte de Colincour v. Bequet, 1 juillet 1785, AP D6B6/ 14 (369).

68. Many reports dealing with disputes over horse sales were written by this arbiter—a man named Leonard Pinchaud, who does not appear to have been sent cases concerning any other kind of merchandise. This suggests that he probably was—or had been—a horse merchant himself.

69. Report, le comte de Colincour v. Bequet.

70. Ibid.

71. Nicholas, Barry, The French Law of Contract (Oxford: Clarendon Press, 1992), 138.Google Scholar

72. Ibid., 138–39; Bourjon, François, Le droit commun de la France et la coutume de Paris, réduits en principes, tirées des loix, des ordonnances, des arrêts, des juriconsultes et des auteurs, et mis dans l'ordre d'un commentaire complet et méthodique sur cette coutume, contenant dans cet ordre, les usages du châtelet sur les liquidations, les comptes, les partages, les substitutions, les dîmes, et toutes autres matières, 2 vols. (Paris: Chez Brunet, 1775), 1:460Google Scholar; Jannés, Michel Prévost de la, Les principes de la jurisprudence française, exposés suivant l'ordre des diverses espéces d'actions qui se pursuivent en justice, 2 vols. (Paris: Chez Barroisaine, 1780), 2:220.Google Scholar In Napoleon's Code Civil, articles 1674 ff., sales of land remained the only contracts based on which a suit for lésion could be brought (Nicholas, 137).

73. de la Jannés, Les principes de la jurisprudence française, 2:220.

74. Hés, Arbiter's Report in Bas v. Grapin, 24 août 1785, AP D6B6/14 (n.a.).

75. Ibid.

76. Unfortunately, the name of the guild is illegible.

77. J. C. Le Coufles, Arbiter's Report (parties unnamed), 31 août 1741, AP D6B6/2 (n.a.).

78. Ibid.

79. Pierre Chénon, Arbiter's Report in Boullan v. Michel 31 octobre 1785, AP D6B6/15 (299).

80. Why Boullan decided to use Michel as his broker rather than a licensed agent de change is not explained in the report. Presumably, however, Boullan was under the impression that Michel could get him more money and/or that he would charge a lower fee, or perhaps he knew Michel personally and, thus, felt he could trust him more.

81. Boullan claimed that it was Michel's decision to negotiate the bill in this indirect manner, but Michel, in contrast, insisted that “Boullan hounded him to negotiate his bill of exchange for merchandise” (ibid.). Unfortunately, the arbiter never determined which party was telling the truth nor why either one might have found it advisable to negotiate the bill in this way.

82. Ibid.

83. Ibid.

84. Ibid.

85. Ibid. The arbiter seems to have made an error in calculating the amount of the lésion. Boullan sold the bill for 3/7 of its face value and, thus, lost 4/7 of this value.

86. The important role of good faith in contractual exchange originated in Roman law, but took on a distinctively Christian meaning in the medieval and early-modern eras. Good faith emerged in Roman law as a requirement for certain “consensual contracts” —including the commercially crucial contracts of sale and partnership—which were based entirely on the parties' consent, rather than on any procedural formalities, and were therefore unenforceable if they had arisen through error, fraud, or duress. (Nicholas, Barry, An Introduction to Roman Law [Oxford: Clarendon Press, 1962], 171, 175–76.Google Scholar) Subsequently, under the canon-law tradition, good faith came to mean literally a pledge of faith to God, made at the risk of one's immortal soul (Berman, 344–45). While commercial contracts formed in eighteenth-century France were generally not established on the basis of such a formal pledge of faith, the concept of good faith—particularly as applied by a merchant court that was so focused on norms of Christian virtue—continued to be imbued with distinctively Christian overtones.

87. Mercier, Louis-Sébastien, Tableau de Paris, nouvelle édition, 12 vols. (Amsterdam, 1782; reprint, Geneva: Slatkine Reprints, 1979), 2:26–27.Google Scholar

88. Toubeau, Jean, Les institutes du droit consulaire ou les elemens de la jurisprudence des marchands, d'un tres-grand secours au palais, utiles à tous marchands et négociants, et necessaires aux juges et consuls, 2 vols. (Bourges, 1700), 1:29.Google Scholar

89. The decisory oath is officially still an element of French procedure today, but it is rarely used (Raymond, Guy, Droit Civil [Paris: Litec, 1993], 67).Google Scholar

90. Toubeau, 1:249.

91. For example, even the deeply anticlerical eighteenth-century merchant, Jacques-Louis Ménétra, whose autobiography is discussed below, openly professed his faith in God. According to Ménétra, it was precisely because he believed in God that he was critical of priests: “Who tells you that I'm not a good Christian I'm a better Christian than those who moralize I love God” (Ménétra, Jacques-Louis, Journal of My Life, trans. Goldhammer, Arthur [New York: Columbia University Press, 1986], 93).Google Scholar

92. For a discussion of the history of the decisory oath in the Roman and canon-law traditions, see Helmholz, R. H., The Spirit of Classical Canon Law (Athens, Ga.: University of Georgia Press, 1996), 156–57Google Scholar; Lefebvre-Teillard, 56–57.

93. For a general discussion of standards of proof in the Roman-canon system, see Macnair, Michael R. T., The Law of Proof in Early Modern Equity (Berlin: Duncker and Humblot, 1999), 93–94, 249.Google Scholar

94. Not only the judge, but also a litigant could ask an opponent to take the decisory oath. A litigant was always free to make this request, but this tactic was risky, because a person asked to take the decisory oath could always refer the oath back to the original requester. If a party requested by the judge or by the opposing litigant to take the decisory oath refused to do so, he automatically lost the lawsuit. Similarly, if a party who had been asked to swear the oath referred it back to his opponent, this opponent would lose if he refused to take the oath. If a party took the oath as requested—and if, as was presumably the usual case, the party affirmed his or her claims—then he won the lawsuit. (Lefebvre-Teillard, 56–57).

95. Bourjon, François, Le droit commun de la France et la coutume de Paris, réduits en principes, tirées des loix, des ordonnances, des arrêts, des juriconsultes et des auteurs, et mis dans l'ordre d'un commentaire complet et méthodique sur cette coutume, contenant dans cet ordre, les usages du châtelet sur les liquidations, les comptes, les partages, les substitutions, les dîmes, et toutes autres matières, 2 vols. (Paris: Chez Grange, 1770), 2:412.Google Scholar

96. Ibid.

97. Toubeau, 1:29.

98. Ibid.

99. Pierre Guyot, for example, the author of a contemporary legal dictionary and a prominent jurist of the Roman- and canon-law traditions, was clearly confused about what evidentiary weight to accord accounting books: “Accounting books when they are kept in good order become … a beginning of written proof, and in some sense a half-proof” (Guyot, s.v. “Consul,” 15:126).

100. Vancquetin, Arbiter's Report in Chapuy v. d'Hauteville, 10 octobre 1765, AP D6B6/4 (n.a.) (paraphrasing and almost quoting Masson, Philibert-Joseph, Instruction des négociants: tirée des ordonnances, edits, déclarations, arrêts, et des usages reçus [Blois, 1748], 110).Google Scholar Likewise, Rogue, a commercial lawyer at the Merchant Court of Angers, stated, “In choosing to which party to defer the oath, the judge must consider the status of the litigants, [and also] which is the party who is worthier of faith or who is likely to have greater knowledge of the facts” (Rogue, , Jurisprudence consulaire et instruction des négociants, ouvrage utile aux marchands, banquiers, commissionnaires, receveurs, gens d'affaires, procureurs des juridictions ordinaires où on juge consulairement, huissiers, à tous ceux qui vendent les bestiaux et denrées provenants de leurs biens, fermiers et autres, etc., 2 vols. [Angers: Chez A. J. Jahyer, 1773], 1:99).Google Scholar

101. Bornier, 2:378.

102. Magunes, Arbiter's Report in Colon v. De Sainte Beuve, 18 juin 1785, AP D6B6/14 (222).

103. Ibid.

104. Ibid.

105. See generally Brooks, Peter, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode of Excess (New York: Columbia University Press, 1985).Google Scholar

106. Le Roulx de la Ville, Arbiter's Report in Blaincourt v. Dubois et Dubuisson, entrepreneurs, 29 novembre 1773, AP D6B6/6 (n.a.).

107. Ibid.

108. Written in 1773, this arbiter's report may initially appear to be a perfect example of the literary style recently identified by both Sarah Maza and David Bell as characteristic of late eighteenth-century French legal writing. (Maza, Sarah, Private Lives and Public Affairs: The Causes Célèbres of Prerevolutionary France [Berkeley: University of California Press, 1993]Google Scholar; Bell, David A., Lawyers and Citizens: The Making of a Political Elite in Old Regime France [New York: Oxford University Press, 1994]Google Scholar). According to these authors, lawyers writing trial briefs, or mémoires judiciaires, in the 1770s, which they then published as pamphlets for public distribution, began self-consciously to borrow elements of the melodramatic rhetorical style employed in contemporary theatre and novels. In the view of both Maza and Bell, lawyers adopted this melodramatic style for a variety of reasons, but primarily as a means of galvanizing public opinion in response to the Maupeou coup of 1771, which abolished the parlements and thereby threatened their livelihoods.

The argument that lawyers at this time were seeking to foment public opinion and that they employed a particular rhetorical style for the purpose of doing so is both fascinating and persuasive. (See, for example, Aricó, Santo L., Note, “A Lawyer's Defense of a Wine Merchant Against a Carpenter's Deposition: A Story About Friendship and Betrayal,” Law and Humanities Review 17 (Summer 1999): 365–84Google Scholar, which describes a mémoire judiciaire from 1770, penned by the avocat général, or king's advocate, of the Parlement of Paris in a highly sentimental, narrative-driven style.) Yet, as James Whitman suggests, a sentimental mode of legal reasoning dates back at least as far as the early seventeenth century and is, thus, not a product solely of late eighteenth-century political events and literary styles (Whitman, James Q., “From Cause Célèbre to Revolution,” Yale Journal of Law and the Humanities 7 [Summer 1995]: 467–70Google Scholar). Indeed, Sarah Hanley demonstrates that, beginning in the early 1600s, French jurists published legal briefs and decisions in which they presented sensationalist narratives on such topics as adultery and divorce in a highly dramatic rhetorical style (Hanley, Sarah, “Social Sites of Political Practice in France: Lawsuits, Civil Rights, and the Separation of Powers in Domestic and State Government, 1500–1800,” American Historical Review 102 [February 1997]: 32–40CrossRefGoogle Scholar).

Unfortunately, the archives of the Parisian Merchant Court contain arbiters' reports dating only as far back as 1703, and the collection for the years prior to 1770 is particularly thin. Thus, there is no way to compare the style of the report written in 1773 for the case of Blaincourt v. Dubois et Dubuisson, entrepreneurs with the style of reports written in earlier periods. It is certainly possible that one reason the arbiter in this case adopted a melodramatic tone was because he was influenced by the rhetorical style prevalent in contemporary theatre and literature on the one hand, and the published mémoires judiciaires on the other. At the same time, however, it is clear that this style served its own distinctive purposes in the Parisian Merchant Court.

109. Mercier, 2:26–27.

110. Kessler, 84–98.

111. Cooraaert, Emile, Les Corporations en France Avant 1789, 2d ed. (Paris: éditions ouvrières, 1968), 223Google Scholar; Poitrineau, Abel, Ils travaillaient la France: Métiers et mentalités du XVIe au XIXe siècles (Paris: Armand Colin, 1992), 59–61Google Scholar; Sewell, William H. Jr, Work and Revolution in France: The Language of Labor from the Old Regime to 1848 (Cambridge: Cambridge University Press, 1980), 32–37.CrossRefGoogle Scholar

112. Chartier, Roger, The Cultural Origins of the French Revolution, trans. Cochrane, Lydia G. (Durham: Duke University Press, 1991), 106–8.Google Scholar At the same time, it should be emphasized, the Enlightenment's own view of the eighteenth century as a fundamentally anti-Christian age—a view that was adopted largely without challenge by succeeding generations of historians—has recently come under sustained criticism (Linton, Marisa, The Politics of Virtue in Enlightenment France [Hampshire, England: Palgrave, 2001], 179–84CrossRefGoogle Scholar; Van Kley, Dale K., The Religious Origins of the French Revolution: From Calvin to the Civil Constitution, 1560–1791 [New Haven: Yale University Press, 1996]Google Scholar). Certain regions and populations in France remained profoundly devoted to the Catholic Church and its clergy throughout the eighteenth century—a devotion that may account in no small part for the loci of Counter-Revolution in the years after 1789 (Chartier, 106–8; Van Kley, 370–71). Likewise, as recent scholarship has also demonstrated, Jansenism was a religious movement of profound intellectual and political influence in eighteenth-century France. (See generally Linton and Van Kley.)

113. It appears that Ménétra composed his autobiography intermittently between 1764 and 1803 (Daniel Roche, introduction to Ménétra, Journal of My Life, 7–8).

114. That Ménétra wrote at least portions of his autobiography after the Revolution—and thus at a time when deep anticlerical sentiment pervaded large parts of the French population—raises the question whether his anticlericalism took on greater force in the years after 1789 and thereby colored to some extent his description of his earlier, pre-Revolutionary attitudes.

115. Ménétra, Journal of My Life, 19.

116. Ibid., 37. Ménétra chose to write without punctuation. For a discussion of this choice, see Roche, introduction to Ménétra, Journal of My Life, 4–6.

117. Denière, 69–70; Kessler, 95–98.

118. Pocock, J. G. A., Virtue, Commerce, and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge: Cambridge University Press, 1988).Google Scholar

119. Marisa Linton's recent book, The Politics of Virtue in Enlightenment France, explores the multivalent meaning and uses of the term “virtue” —both religious and civic—in late seventeenth- through late eighteenth-century France.

120. Linton, The Politics of Virtue, 25–27; Linton, Marisa, “The Unvirtuous King? Clerical Rhetoric on the French Monarchy, 1760–1774,” History of European Ideas 25 (1999): 57.CrossRefGoogle Scholar

121. Bryant, Lawrence M., The King and the City in the Parisian Royal Entry Ceremony: Politics, Ritual, and Art in the Renaissance (Geneva: Libraire Droz S. A., 1986)Google Scholar; Giesey, Ralph E., The Royal Funeral Ceremony in Renaissance France (Geneva: E. Droz, 1960)Google Scholar; Hanley, Sarah, The Lits de Justice of the Kings of France: Constitutional Ideology in Legend, Ritual, and Discourse (Princeton: Princeton University Press, 1983).CrossRefGoogle Scholar

122. According to contemporary theorists, the Old Regime social order consisted of three estates: the first was the clergy, which was committed to serving God, the second was the nobility, which was devoted to serving the state, and the third was the vast majority of the population, which was concerned only with meeting its own self-interested, material wants and needs (Sewell, 21–25). Furthermore, as the seventeenth-century jurist Charles Loyseau explained, the three estates constituting the social order were “subdivided into subordinate degrees or subaltern orders, in accordance with the model of the celestial hierarchy” (Loyseau, Charles, A Treatise of Orders and Plain Dignities [1666; trans. & ed. Lloyd, Howell A., 1994], 7CrossRefGoogle Scholar).

123. Archival evidence from the eighteenth-century Parisian Merchant Court—in particular, reports written by court-appointed arbiters, such as those discussed in Section II—reveals the prevalence of women in commercial affairs. Most of the women who ran their own businesses were widows, but there were also many women who assisted their husbands in the operation of the family business. Women were engaged in commercial activity, however, only at the lower echelons. Bankers, négociants and, indeed, almost all guild members were always men (Garrioch, 113–14).

124. Sonnenscher, Michael, Work and Wages: Natural Law, Politics and the Eighteenth-Century French Trades (Cambridge: Cambridge University Press, 1989), 137–39.Google Scholar

125. Ibid., 135; Kaplan, Steven Laurence, Provisioning Paris: Merchants and Millers in the Grain and Flour Trade During the Eighteenth Century (Ithaca: Cornell University Press, 1984), 32.Google Scholar

126. With the rise of negotiable instruments over the course of the seventeenth and eighteenth centuries, negotiable bills of exchange and promissory notes began to compete with and complement book debt as the main form of commercial credit. Even after the development of the negotiable instrument, however, book debt remained an important source of credit, and in smaller-scale commercial activity, perhaps the primary one.

127. For an example of such a transaction, see the case of Bas v. Grapin, which appeared before the Parisian Merchant Court in 1784. Mr. Bas, a Parisian wineseller, sued the widow Grapin, a Parisian restaurateur, demanding payment of an outstanding debt of 2,808 livres for wine that he had delivered to her on credit—recorded in her accounting books—over the course of many years and which she had never paid in full (Report, Bas v. Grapin).

128. See, for example, the arbiter's report in Guerard v. LaCroix, discussing how two butchers bought and sold meat from one another on credit for some period of time and did so by means of book debt (Abouselle, Arbiter's Report in Guerard v. LaCroix, 30 juin 1785, APD6B6/14[559]).

129. For example, if buyer and seller were from different cities, a trip undertaken by one to the hometown of the other might serve as an occasion for doing an accounting. Thus, in Devaux v. Hayet, a master artisan from Paris sold and delivered some barrels on two occasions to a man who was both a merchant and a parish priest in the town of Sôse en Normandie. The artisan sold the barrels on credit, and when the buyer made a trip to Paris, he and the artisan met to do an accounting (Evignon, Arbiter's Report in Devaux v. Hayet, 30 mai 1785, AP D6B6/14 [440]).

130. Guyot, s.v. “Consul,” 15:124–25.

131. See, for example, David Garrioch's account of life in eighteenth-century Paris.

132. Recently the importance of personal ties in the credit network of eighteenth-century France has been disputed. According to Hoffman, Postel-Vinay, and Rosenthal, Parisian notaries regularly arranged loans between parties who had no connection with one another aside from their mutual acquaintance with the same notary (Philip T. Hoffman, Giles Postel-Vinay, and Jean-Laurent Rosenthal, “Information and Economic History: How the Credit Market in Old Regime Paris Forces Us to Rethink the Transition to Capitalism,” American Historical Review 104, no. 1 [February 1999]: 69–94). The sums lent and borrowed in this manner were apparently vast, leading the authors to reject what they term the “traditional story” of a shift from the preindustrial world in which financial transactions were based on personal relationships to an industrial one in which market anonymity ruled. As these authors acknowledge, however, notaries participated only in the market for what they call “longterm” debt, consisting of annuities and obligations. Thus, by focusing exclusively on notarial transactions, the authors leave unexamined the various methods of extending credit in the Old Regime that did not require notarization. Among merchants, in particular, such methods included the use of book-debt, as well as negotiable instruments. Although the authors' discovery of what was essentially an anonymous market for certain forms of longterm debt is a tremendous contribution, they overstate their case when they argue that “[n]lcedil;eglecting short-term credit … may in the end not be such a loss” (ibid., 72). On a day to day basis, most commercial transactions in the Old Regime took place on the basis of precisely those forms of credit, grounded in a web of personal relations, that Hoffman, Postel-Vinay, and Rosenthal ignore.

133. These range from the costs of establishing and running a legal system to those incurred in seeking profitable business opportunities. See, for example, North, Douglass C., Institutions, Institutional Change, and Economic Performance (Cambridge: Cambridge University Press, 1990), 27–35CrossRefGoogle Scholar; Williamson, Oliver E., The Economic Institutions of Capitalism: Firms, Markets, Relational Contracting (New York: The Free Press, 1985), 16–22.Google Scholar

134. As for human nature, the neoclassical approach assumes that people, having access to all relevant knowledge, seek rationally to promote their selfinterest and that, because they are assured complete knowledge and know that all with whom they deal are also rational selfinterest seekers, they have no incentive not to honor their word (North, 17–26; Williamson, 43–50). In line with these assumptions about human nature, the neoclassical approach posits that contractual exchange takes the form of a one-time, impersonal transaction, such that all relevant knowledge could conceivably be obtained and the identity (and thus character) of the contracting parties is of no significance (Macneil, Ian R., The New Social Contract: An Inquiry Into Modern Contractual Relations [New Haven: Yale University Press, 1980], 59–64, 72–77Google Scholar; Williamson, 68–71).

135. Macneil, 10–35; Williamson, 71–73. Scholars of the New Institutional Economics actually draw a three-fold typology, distinguishing between classical, neoclassical, and relational contracts. In this typology, the term “classical contract” refers to exchange that is purely discrete and impersonal; “neoclassical contract” designates exchange that is more longterm and nonstandardized (such as a longterm contract to supply a product of use only to that particular buyer); and “relational contract” identifies exchange that is essentially inseparable from the parties' relationship (such as a collective-bargaining agreement) (Williamson, 69–72). In this article, I employ the term “relational contract” more generically to refer to any exchange in which—in contrast to the discrete and impersonal transaction assumed by neoclassical economists—the parties' relationship itself has distinct commercial value.

136. Williamson, 72–80.

137. Bernstein, Lisa, “Merchant Law in a Merchant Court: Rethinking the Code's Search for Immanent Business Norms,” University of Pennsylvania Law Review 144 (May 1996): 1796–1802CrossRefGoogle Scholar; Bernstein, Lisa, “The Questionable Empirical Basis of Article 2's Incorporation Strategy: A Preliminary Study,” University of Chicago Law Review 66 (Summer 1999): 760–72.Google Scholar

138. Bernstein, “Merchant Law,” 1787–94; Charny, David, “Nonlegal Sanctions in Commercial Relationships,” Harvard Law Review 104 (December 1990): 391–96CrossRefGoogle Scholar; Macaulay, Stewart, “Non-Contractual Relations in Business: A Preliminary Study,” American Sociological Review 28, no. 1 (February 1963).CrossRefGoogle Scholar Strikingly, it appears that modern-day merchantrun arbitration tribunals often are not utilized primarily to promote relationship-preserving norms. Rather than engage in a flexible, compromiseoriented adjudicatory process, these tribunals instead enforce highly formal, inflexible trade rules (Bernstein, “Merchant Law,” 1775–82). According to Lisa Bernstein, merchantrun arbitration tribunals may prefer formal rules because merchants generally turn to thirdparty dispute resolution, including arbitration, only when they have decided to terminate their relationship—at which point, they no longer embrace relationship-preserving norms premised on compromise and flexibility, but instead adopt endgame norm geared toward the aggressive pursuit of formal rights (ibid., 1787–94). As Bernstein also observes, however, merchantrun arbitration tribunals that enforce formal rules often promote relationship-preserving norms by issuing opinions that note what the parties should have done as a matter of basic fairness or good business practice—even though not required by formal rule (Bernstein, “The Questionable Empirical Basis,” 772–74).

139. Bernstein, Lisa, “Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry,” Journal of Legal Studies 21 (January 1992): 138Google Scholar (arguing that “the [diamond] industry is able to use reputation/social bonds at a cost low enough to create a system of private law enabling most transactions to be consummated and most contracts enforced completely outside the legal system”); Fafchamps, Marcel, “The Enforcement of Commercial Contracts in Ghana,” World Development 24, no. 3 (1996): 427CrossRefGoogle Scholar (arguing that in Ghana, “compliance with contractual obligation is mostly motivated by the desire to preserve personalized relationships based on mutual trust”); Simon Johnson et al., “Contract Enforcement in Transition” (October 1990) 2, available from http://www.ebrd.com/english/region/WORKINGP/wp45.pdf (arguing that in the postcommunist nations of Eastern Europe, “relational contracting works as a substitute for the courts”); Landa, Janet T., “A Theory of the Ethnically Homogeneous Middleman Group: An Institutional Alternative to Contract Law,” Journal of Legal Studies 10 (1981): 349–50CrossRefGoogle Scholar (arguing that where legal framework is less developed than in the modern Western world, “traders personalize or particularize exchange relations as a way of coping with contract uncertainty”); McMillan, John and Woodruff, Christopher, “Interfirm Relationships and Informal Credit in Vietnam,” The Quarterly Journal of Economics 114, no. 4 (November 1999): 1285, 1315CrossRefGoogle Scholar (describing “how relational mechanisms work in allowing contracting without law in Vietnam”); Woodruff, Christopher, “Contract Enforcement and Trade Liberalization in Mexico's Footwear Industry,” World Development 26, no. 6 (1998); 979CrossRefGoogle Scholar (arguing that in the pre-1987, closed Mexican economy, contract enforcement in the footwear industry was achieved largely through the “geographic agglomeration of manufacturing[, which] allowed the manufacturers' trade associations to maintain information about the behavior of retailers and gave retailers strong incentives to maintain reputations”).

140. The merchant court had neither a prison, nor bailiffs authorized to arrest those it sentenced to imprisonment. Instead, it relied on the prisons and personnel of the ordinary, nonmerchant courts (Szramkiewicz, 148).

141. The Commercial Ordinance of 1673 and contemporary jurists distinguished between mere insolvency, or faillite, which happened as a result of bad luck and human error, and the immoral bankruptcy, or banqueroute, which followed from dishonesty and greed. For the insolvent, imprisonment was viewed as a way to encourage them or their family members to pay their debts and to prevent them from hiding any remaining money. In contrast, for the bankrupt, imprisonment was deemed one of several available punishments, ranging from such shame sanctions as requiring the wearing of a green hat to execution (Szram-kiewicz, 181–83). See also Weisberg, Robert, “Commercial Morality, the Merchant Character, and the History of the Voidable Preference,” Stanford Law Review 39 (November 1986): 5–10CrossRefGoogle Scholar (discussing a similar distinction between insolvency and bankruptcy in early-modern England).

142. See n. 137 above.

143. This is not to suggest, however, that the merchant court never enforced formal rules. See discussion below.

144. Derrière, 8–9; Kessler, 13–17, 380–420; Szramkiewicz, 144–48.

145. See, for example, Berman's argument that “[t]the principle of speedy, informal, and equitable procedure in the commercial courts was, of course, a response to mercantile needs” (Berman, 348).

146. See the studies described in n. 138 above.

147. Bernstein, “Opting Out,” 140–41.

148. Bedos, 264.