Hanseatic League and Pre-Modern Commercial Law
1. The Hanseatic League and foreign trade in mediaeval Europe
Before the era of the European nation state, foreign trade was carried out in many different places and ways. There were large, specialized fairs, usually held in conjunction with religious feasts, but there were also well-known centres of foreign trade such as Lyon, Frankfurt, Champagne, Flanders, Antwerp, London and Cologne. Merchants traded as members of guilds and travelled at great personal risk. At markets, they enjoyed a special legal status as visiting merchants. Gradually, the itinerant mediaeval merchant was replaced by the local trader. In addition to the temporary markets there was extensive and sophisticated commercial activity in the city states of southern Europe. This relied on the maritime networks in the Mediterranean which dated back to Antiquity. Italian republics such as Genoa, Pisa and Venice, as well as certain cities beyond the Italian peninsula, flourished during this period. Venice, for instance, became more and more influential from the turn of the first millennium onwards. It maintained close connections with Byzantium and Alexandria and developed naval power which complemented its status as a trading hub. This power enabled it to take a leading role in the fourth crusade at the beginning of the 13th century (which culminated in the looting of Byzantium).
North of the Alps, the most influential sea trading organization of the Middle Ages was probably the Hanseatic League. It was neither a municipal body nor a republic. Rather, it was a federation of individual cities, mainly on the Baltic, a trade organization composed of cities rather than of individual merchants. Founded in the 12th century, it extended its reach across north-east Europe to cities such as Hamburg, Gdansk, Visby, Stockholm and Riga, but also beyond the Baltic. Cologne and Dortmund, Bremen and Braunschweig joined among others, and it continued to grow in the course of the colonization of eastern Europe. The league maintained major offices in cities such as Bruges, London, Bergen or Nowogròd and was represented throughout the rest of Europe. The peak of its influence came in the mid-14th century under the leadership of Lübeck, its most important city. It had 70 members and many other cities were associated with it. The members did not use the league to seek territorial power; instead, it served to secure the existing trading privileges, even by military means. Law was an essential ligament, binding the Hanseatic cities together. On the one hand, unity could emerge from the reception in one city of privileges and principles of municipal law (Stadtrechte (town laws)) of another. In many cases, a complete body of municipal law was received. (The law of Lübeck proved particularly popular in this respect.) On the other hand, it could be brought about by special agreements between individual members (the so-called Hanserezesse). Although there was certainly no comprehensive system of law common to the Hanseatic cities, there were many common legal principles and customs.
2. Pre-modern commercial law
Many of these common rules regulated commercial matters and related to legal questions which also posed themselves in other centres of trade in mediaeval Europe. Certain widespread phenomena may be noted: archaic rules on sale by delivery were increasingly replaced by consensual sale, which could be, to all intents and purposes, a credit transaction and expose the seller to the risk of the buyer’s insolvency. In response to this, the notion of reservation of title was developed. Bills of exchange began to emerge. These allowed debts against a debtor in one city to be collected in another without requiring the debtor to undertake a journey which would have been rendered very dangerous by carrying large sums of money. Civic records and registers of debts were employed to facilitate the proof of outstanding debts. These mediaeval trading centres were very different from their agricultural hinterlands: money rather than inherited land was the key to power and influence. In fact, urban property changed hands with astonishing frequency during the Middle Ages.
The leading innovators of this period were in high mediaeval Italy, where many commercial law concepts still in use today were first developed. Very early they sought to minimize the major risks associated with trading by new legal devices. From the 12th century the commenda developed into the dominant vehicle for trade, particularly in the Mediterranean: Two partners cooperated in a joint venture, which may or may not have been disclosed to third parties; one (the commendator) provided the capital with which the other (the tractator) could work. For long-term cooperation, the societas or the compagnia was employed. Several socii bound themselves together, each contributing capital and receiving a proportionate share of the profits. The societas maris was employed in maritime commerce, whilst the compagnia form was favoured in the land-based trade of north-Italian cities such as Siena, Lucca and Florence. Powerful trading houses emerged from merchant families acting as compagnia. These associations were themselves able to develop a network of related businesses with complex organizational structures and foreign branches. In later years, the largest and most powerful of them, the Medici in Florence for example, became very famous.
This period also saw the blossoming of Italian banking, which affected the whole of Europe. This development stimulated a growth in the importance of bills of exchange as a surrogate for money. Account transfers and promissory notes were devised within banks, further displacing physical delivery of cash (banking law). Many of the large northern Italian trading companies conducted their own banking operations. One of the important innovations of this period was the development of insurance for merchants based on payment of premiums rather than on reciprocity (insurance contracts). In order to spread the risks associated with sea travel, Mediterranean merchants insured each other in return for payment of premiums. This led, for instance, to the growth of the insurance market in Genoa from the second half of the 14th century.
In comparison, the situation north of the Alps was less impressive. However, some similar devices can be found, such as the northern European trade associations. Also, the law of the Hanseatic League provided basic types of legal cooperation. Its sendeve carriage associations were widely used for maritime transport. They allowed one trader to carry out individual transactions on behalf of his fellow trader in a manner similar to modern sale on commission. There were also trading associations in the strict sense of the term, particularly the so-called wedderlegginge, an association with two members whose structure was similar to the commenda. The wedderlegginge was characterized by division of business responsibilities, but both parties contributed capital. In contrast to these short-term Hanseatic joint ventures, northern European non-maritime commerce also saw the emergence of a structure for longer term business cooperation. Apparently it was influenced by the similar devices in southern Europe, although the idea took some time to make its way across the Alps. The major trading houses, such as the Große Ravensburger Handelsgesellschaft and the Fugger, were characterized by a family-tree like structure, with a Regierer (governor) at the head and many profit-sharing Gesellen (assistants) acting as representatives of the company. Like their Tuscan forerunners, they had many local branches across Italy, France and Spain, as well as in Bruges and Antwerp. Although their structure was not that of a modern limited company, they did not conform to the old model of an unincorporated partnership either.
The members of all these mediaeval trade associations were, in principle, solidarily liable for all of its debts. They were de facto guarantors. However, an alternative to this emerged in the late Middle Ages. In the early 15th century, limitations on members’ liability became more and more common in Florence. These may have served as an inspiration for other cities. In 1464, the Emperor granted a privilege to Nuremberg which allowed the constitution of trading companies whose members’ liability was limited to their capital contribution to the company. Such a rule would have been unthinkable in previous ages but, as trade became more and more risky, it came to be widely accepted and spread across Europe.
3. The absence of a universal lex mercatoria
The various systems of commercial law around the Mediterranean and in northern Europe dealt with similar questions. Similar economic circumstances led to comparable legal developments, although developments in the north always lagged behind those in southern Europe, particularly in Italy. However, the details varied considerably; there was no universal commercial law in the sense of a quasi-natural mediaeval lex mercatoria. The idea of a great uniform commercial law, which spread out from Italy and autonomously conferred the blessings of commercial pragmatism, is a figment of political romanticism. Reference to a universal lex mercatoria reflects an agenda rather than careful history, for the sources contain no evidence of such a system. The term (in translation: law merchant), was invoked in England, but it is not found anywhere else. On the contrary, mediaeval merchants sought to secure particular privileges which would give them an advantage over other traders and nations. Mediaeval and early modern trade and the rules that surrounded it were closely tied up with the political aims of the various governments, be they of expansive city states or warring kingdoms. Although we cannot speak of a comprehensive system of commercial law in the pre-modern period, but rather of leges mercatorum, many ideas about commercial law were widely held throughout Europe. Many instances of legal transplants and reception of law can be identified. This is not surprising in the light of the ongoing trade across Europe, and these common legal customs arose in the course of commercial practice rather than in learned disputations.
4. Maritime trade as the driver of early commercial law
One further idiosyncrasy of the early trade and commercial law deserves attention. The innovations and growing complexity of early commercial law were closely bound up with maritime transport and its accompanying dangers. This is evident in institutions such as the bottomry bond, the contract of carriage by sea (maritime transport (contracts of carriage of goods)) and agency on commission as well as in the development of company law and the establishment of premium-based insurance. In this period, many of these institutions were considered within the framework of maritime law. This included the law of the sea per se as well as aspects of the law which were closely tied to maritime trade. Contemporary legal records such as the Statutes of Pisa, Genoa or other centres of trade bear testimony to extensive development of maritime law at this time, specifically the Consolat del Mar from Barcelona. In northern Europe, the Rôles d’Oléron were a particularly important source. Their rules, developed on the Atlantic coast of France, influenced the maritime law of Visby and many of the Hanserezesse.
The geo-political element of maritime law became increasingly important in the early modern period and became the subject of keen disputes by the expanding and competing trading nations. These disputes, and their resolution, played a key role in the development of modern public international law. As greater expertise in navigation stretched trading boundaries so as to include the New World, new legal horizons were also opened. European colonialism and the exploitation of people and raw material from the colonies sparked new economic dynamics. Against this background, the foundations were laid for modern commercial law. The first public securities exchange was established in Bruges in 1531, London, Antwerp and other cities soon followed. The actie (share) emerged in Holland around 1600. The Dutch and English East India Companies were the forerunners of the modern stock corporation. The new colonies presented hitherto unimaginable opportunities, but a great deal of capital was required to exploit them. The transformation of commercial and economic law in this period was, for the most part, brought about by the exercise of royal power as nations sought to secure the predominance of their own merchant fleets. Commercial law was regulated and standardized at a national level, particularly through the Ordonnances of the French absolutist period, and became the object of scholarly development. Many of the former commercial centres were pushed to the periphery. Portugal and Spain began to bring goods from overseas to central Europe and were soon imitated by others. As a result, city states such as Venice gradually lost their pre-eminence in maritime trade. Venice’s experience was repeated across Italy. Similarly, the Hanseatic League saw its star fall in northern Europe as it was supplanted by the activities of Dutch and English traders. The success of modern trading organizations, which states protected for political reasons, precipitated the slow decline of the League. It had been conceived to deal with the problems of Europe before the rise of the nation state, and that rise deprived it of much of its significance.
Levin Goldschmidt, Universalgeschichte des Handelsrechts. Handbuch des Handelsrechts, vol 1/1 (3rd edn, 1891); Wilhelm Ebel, Lübisches Recht, vol 1 (1971); Enrico Spagnesi, ‘Aspetti dell’assicurazione medievale’ in L’assicurazione in Italia fino all’Unità. Saggi storici in onore di Eugenio Artom (1975) 1; John H Pryor, Commerce, Shipping and Naval Warfare in the Medieval Mediterranean (1987); Umberto Santarelli, Mercanti e società tra mercanti (2nd edn, 1992); Philippe Dollinger, La Hanse (new edn, 1998); Albrecht Cordes, Spätmittelalterlicher Gesellschaftshandel im Hanseraum (1998); Lutz Kaelber (tr), Max Weber, The History of Commercial Partnerships in the Middle Ages (2003); Vito Piergiovanni (ed), From Lex Mercatoria to Commercial Law (2005); Karl Otto Scherner, ‘Maritime Law: Medieval and Post-Medieval Roman Law’ in The Oxford Encyclopedia of Legal History, vol 4 (2009) 150.
Jean Marie Pardessus (ed), Collection de lois maritimes antérieures au XVIIe siècle, tome 1–6 (1828–45); Karl Koppmann (ed), Hanserecesse. Die Recesse und andere Akten der Hansetage von 1256–1430, 8 vols (1870–97); Germà Colon (ed), Llibre del Consolat de Mar, vols 1–4 (1981–87).