MERCANTILE LAW AMENDMENT BILL. (Hansard, 29 April 1856)

LORD BROUGHAM
said, that this Bill and the Mercantile Law Amendment (Scotland) Bill had resulted from the Conference of Delegates of the Chambers of Commerce and other mercantile bodies of all parts of the United Kingdom which had been held at the instance of the Law Amendment Society in 1852. In consequence of that Conference—over which he presided the first day, but the Lord Privy Seal on the second—a deputation under his Lordship had caused the Government of the Earl of Derby to issue a Commission to inquire into the practicability of assimilating the laws of England and Scotland upon many points on which they were in conflict. As that Government went out of office soon after, nothing was done; but the Government which succeeded, that of the Earl of Aberdeen, issued a Commission, and it had made a Report, in which they unanimously recommended the assimilation of the laws of the two countries in many respects, and in particular of certain practical parts of the mercantile law. The result was the introduction of these two Bills, which were founded on that Report. In his (Lord Brougham's) opinion, however, it was to be regretted that this object should be attempted to be effected by two Bills instead of one; for there would be an obvious practical inconvenience in having one statute applying to one part of the United Kingdom and another to the other. In each were provisions which equally applied to both countries, and yet at the end of each Bill was a clause in which it was declared that the measure should not apply to the other. However, the improvement effected by these two Bills was so valuable, that he would rather accept them with all the inconvenience that attached to them than throw any obstruction or delay in the way of so great an improvement of the law; and he believed he spoke the sense of his colleagues in the Law 1694 Amendment Society, and of the great Conference to which he had referred, in making this statement.

THE LORD CHANCELLOR
said, it had been much considered whether the necessary alterations should be made by two Bills or by one, and on the whole it was thought that it would be much more convenient to have the two enactments in two separate Bills. After all, the longer of the two Bills would only be about six pages, and the shorter only four pages; there would be no difficulty in understanding them; they consisted of very short clauses. The first Bill would alter the English law and assimilate it to the Scotch law in those points on which it was thought that the Scotch law was the best; the second Bill, vice versâ would alter the Scotch law in those points where the English law was the best. Nothing could be more simple than that; and he thought that by this division into two Bills they attained greater brevity as well as clearness. There would have been a difficulty in effecting the assimilation by one common statute, because the legal terms used in Scotland were not familiar to English lawyers.

LORD CAMPBELL
expressed the satisfaction with which he saw these Bills before the House, to do away with the discrepancies between the laws of England and Scotland; they were two steps in the right direction, and he trusted they would pass into a law during the present Session. But he observed that his noble and learned Friend (Lord Brougham), in respect to the law of marriage and divorce, had been willing to allow that discrepancy to remain, and only to mitigate its evil consequences; it would, in his opinion, be far better to follow out the principle on which these Bills were framed and to make the law of England and Scotland in that respect substantially the same. He would take this opportunity of observing that from the petitions from merchants and bankers of London against the provisions of the Bill that proposed to repeal a certain clause of the Statute of Frauds, that great misapprehension prevailed as to the objects of that proposition. It was supposed that it was intended to abolish written contracts. Now, that alteration would do nothing of the kind; it would simply permit parol proof of a contract to be received in evidence in the courts of law; whereas, at present, under the Statute of Frauds, no contract could be proved in a court of jus- 1695 tice unless a written memorandum of such contract could be produced. He sincerely trusted that when this Bill became law, parties would continue to give and to require written memoranda of their contracts, for nothing could be better than such a practice, litera scripta manet. From his experience, he could confidently state that the clause in the Statute of Frauds, which required written evidence of a contract, had encouraged instead of repressed fraud, for under it fraudulent people, who obtained goods on credit, without having given a written memorandum, could defy their creditors in any action for the recovery of the value of the goods, although there was frequently abundance of viva voce evidence ready to be tendered in proof of the contract. He was quite ashamed of the subtleties which had been resorted to before him and his learned brothers, in consequence of this discreditable state of the law. It was necessary therefore to get rid of those exceptions, which could not be done without repealing that clause of the Statute of Frauds altogether.

THE LORD CHANCELLOR
stated that the Mercantile Law Commission, having carefully taken into consideration all the representations made to them, had come to the conclusion that the clause of the Statute of Frauds must be repealed, in order to get rid of those exceptions by which, instead of preventing frauds, it was so often made the means of committing frauds. In contracts affecting landed property and some other cases, it was quite right that a written contract should always be required; but in the bargains of ordinary everyday business, for the sale of any goods above the value of £10, it was evident such a rule could not be universally enforced; and the evidence taken by the Commission distinctly proved that it was totally disregarded in most of the commercial transactions of London, Liverpool, Manchester, 1696 and Dublin, while in Glasgow it was not the law, and the want of it caused no inconvenience. The Commission, therefore, guided by the opinions of Mr. Justice Cresswell and Mr. Baron Bramwell, who as lawyers might rather have been supposed to have a prejudice in favour of existing law, had come to the conclusion that this clause of the old statute of Charles II. produced no good, and recommended its abolition.

LORD BROUGHAM
said, that his own opinion was certainly against so extensive a change in the law as was proposed by this clause of the Bill, though, according to his experience, he could not deny that very subtle, and perhaps not very creditable, constructions, were often put upon that provision of the Statute of Frauds, and that it was used as a refuge to which fraudulent persons would betake themselves in a manner the very opposite of what the authors of that statute had intended.