commercial

Custom is another law.

Consuetudo est altera lex.

Source: Coke, 4 Co. 21; Co. Litt. 113; Weisman, 27d; Weisman, 27e; Weisman, 27n

Custom operates with the force of enacted law — a party who violates an established custom faces the same consequences as one who violates a statute.

Custom is to be construed strictly.

Consuetudo stricte interpretatur.

Source: Jenk. Cent. 83

A custom that departs from the general law must be proved precisely as alleged — it will not be extended by inference to cover cases not clearly within its terms.

An alternative petition is not to be heard.

Alternativa petitio non est audienda.

Source: 5 Co. 40; Jackson; Weisman, 65bb; Weisman, 87f

A party must state his claim with certainty — a petition that asserts one thing or another in the alternative lacks the definiteness the law requires.

The meeting of minds — i.e. mutual consent.

Assensio mentium.

Source: Jackson

No binding agreement exists without a genuine meeting of minds — both parties must understand and agree to the same terms for a contract to form.

A human body is not susceptible of appraisement.

Corpus humanum non recipit aestimationem.

Source: Hob. 59; Jackson

The body of a free person cannot be reduced to a monetary value — this principle forbids treating human beings as commodities and underlies the prohibition against involuntary servitude.

Whosoever is skilled in his profession is to be believed.

Cuilibet in sua arte perito est credendum.

Source: Co. Litt. 125; Jackson

Expert testimony is given credit in matters within the expert's field — but the same expert has no special authority outside his area of competence.

A luxurious debtor is odious in law.

Delicatus debitor est odiosus in lege.

Source: 2 Bulst. 148; Jackson

A debtor who lives extravagantly while refusing to pay his creditors receives no sympathy from the court — the law disfavors those who indulge themselves at the expense of those to whom they owe.

The act is governed by the law of the place where it is done.

Locus regit actum.

Source: Jackson

The validity and effect of a legal act are determined by the law of the jurisdiction where the act occurs — a contract made in one state is governed by that state’s law as to its form and execution.

A mandatory cannot exceed the bounds placed upon himself.

Mandatarius terminos sibi positos transgredi non potest.

Source: Jenk. Cent. 53; Jackson

An agent or officer acts only within the limits of his mandate — any act beyond those bounds is unauthorized and void as to the principal. (Duplicate maxim — see also 4.4.16.)

To lie is to go against the mind.

Mentiri est contra mentem ire.

Source: 3 Buls. 260; Jackson

A lie is a deliberate contradiction of what the speaker knows to be true — it is an act against one’s own conscience, and the law punishes it because it corrupts the foundations of justice. (Duplicate maxim — see also 9.5.16.)

Nobody need be wiser than the laws.

Neminem oportet esse sapientiorem legibus.

Source: Co. Litt. 97; Jackson

No individual is expected to exceed the wisdom of the law — a party who acts in conformity with the law has done all that can be required of him.

Every privation presupposes former enjoyment.

Omnis privatio praesupponit habitum.

Source: Co. Litt. 339; Jackson

Before a right can be taken away, it must first have existed — a claim of deprivation requires proof that the claimant once possessed the thing of which he says he has been deprived.

Agreements founded upon a base consideration are not to be observed.

Pacta quae turpem causam continent non sunt observanda.

Source: D. 2, 14, 27; Jackson

When the consideration for an agreement is immoral or illegal, the entire agreement is unenforceable — the law will not lend its aid to an unconscionable bargain.

Many partners are as one body, inasmuch as they have one right, and it is necessary that the body be perfect, and that there be defect in no part.

Participes plures sunt quasi unum corpus, in eo quod unum jus habent, et oportet quod corpus sit integrum et quod in nulla parte sit defectus.

Source: Co. Litt. 164; Jackson

Joint owners or partners must act as a single body with respect to their shared right — a defect affecting any one partner may defeat the interest of all.

He adds one offence to another who, when he commits an offence, joins the protection of a defence.

Peccatum peccato addit qui culpae quam facit patrocinium defensionis adjungit.

Source: 5 Co. 49; Jackson

Using legal process as a shield for wrongdoing compounds the original offense — the law views the abuse of defensive procedure as an aggravation, not a mitigation.

Money (pecunia) is so called from cattle (pecus), because the wealth of our ancestors consisted in cattle.

Pecunia dicitur a pecus, omnes enim veterum divitiae in animalibus consistebant.

Source: Co. Litt. 207; Jackson; Weisman, 35w

This etymological maxim reminds us that “money” in law is not limited to coined currency — historically and legally, any medium of exchange recognized by the community may serve as money.

Money refused frees the debtor.

Reprobata pecunia liberat solventem.

Source: 9 Co. 79; Jackson

A lawful tender of payment that is refused by the creditor discharges the debt — the debtor who offers what he owes in good faith cannot be held liable for the creditor’s refusal to accept.

It is according to nature that the advantages of anything should attach to him to whom the disadvantages attach.

Secundum naturam est, commoda cujusque rei eum sequi, quem sequuntur incommoda.

Source: D. 50, 17, 10; Jackson

He who bears the burdens of ownership is entitled to its benefits — risk and reward travel together, and the law does not separate them.

If anything is owed to an entire body it is not owed to the individual members, nor do the individual members owe what is owed by the entire body.

Si quid universitati debetur singulis non debetur nec quod debet universitas singuli debent.

Source: D. 3, 4, 7, 1; Jackson; Weisman, 28o

A corporation or body politic is a legal person distinct from its members — debts owed to or by the entity are not the debts of the individuals who compose it.

If the suggestion be not true, the letters patent are void.

Si suggestio non sit vera, literae patentes vacuae sunt.

Source: 10 Co. 118; Jackson

A patent or royal grant obtained upon false representations is void — the sovereign’s grant is conditional upon the truth of the facts stated in the petition.

In default of the law, the maxim rules.

Regula pro lege, si deficit lex.

Source: Bouvier, Max.

Where no statute or precedent directly governs, the maxims of law fill the gap — they are the distilled wisdom of the common law and the court's guide when all else is silent.

Money being restored does not set free the party offering.

Liberata pecunia non liberat offerentem.

Source: Co. Litt. 207; Jackson; Weisman, 94r

The return of money does not discharge a person from the obligation that gave rise to the payment — the underlying duty survives the refund.

A corporation is not said to do anything unless it has been deliberated upon collectively.

Universitas vel corporatio non dicitur aliquid facere nisi id sit collegialiter deliberatum.

Source: Warner v. Beers, 23 Wend. (N.Y.) 103, 144; Broom, Max. 694

A municipal corporation or body politic acts only through its formal collective deliberation — individual members acting alone do not bind the body.

A thing is named from its principal part.

Res denominatur a principaliori parte.

Source: 5 Co. 47; Weisman, 81f

When classifying a transaction or instrument, the law looks to its predominant character — not to an incidental feature.

Ignorance of those things which one is bound to know does not excuse.

Ignorantia eorum quae quis scire tenetur non excusat.

Source: Hale, P.C. 42; Broom, Max. 267; 4 Bl. Comm. 27; Weisman, 57a

Where a duty to know exists — as with an officer of the court or a fiduciary — ignorance is treated as negligence, not as innocence.

Want of skill is reckoned as fault.

Imperitia culpae adnumeratur.

Source: Dig. 50, 17, 132; 1 Bouv. Inst. n. 1004; 2 Kent, Comm. 588; Weisman, 44q

One who holds himself out as possessing a skill — a physician, attorney, or artisan — is liable for the consequences of his incompetence. His ignorance is his negligence.

Let the master answer.

Respondeat superior.

Source: 4 Inst. 114; Broom, *Legal Maxims* (1874), p. 843; Wharton, *Legal Maxims* (1878), Max. LXXXV; Jackson, *Latin for Lawyers* (1915), Max. 939

The master is liable for injuries caused by his servant acting within the scope of employment — authority carries responsibility.

The act of a servant in those things in which he is ordinarily employed is held to be the act of the master.

Factum a servo in iis in quibus opera ejus communiter adhibita est, factum domini habetur.

Source: Lofft, 227; Weisman, 96a

When a servant does what he is usually directed to do, the master cannot disclaim the act — habitual employment is implied authority.

Whatever is acquired by the servant is acquired for the master.

Quicquid acquiritur servo acquiritur domino.

Source: Dig. 41, 1, 10, 1; Co. Litt. 117; Weisman, 96g

The acquisitions of a servant acting in that capacity belong to the master — the servant's hand is the master's hand.

The master must answer for the acts of his servant.

Dominus respondeat de factis servi sui.

Source: Lofft, 229; 4 Inst. 114; 2 Bouv. Inst. n. 1337; Weisman, 96e

The master cannot direct the work and disclaim the consequences — the liability follows the authority.

Personal services follow the person.

Servitia personalia sequuntur personam.

Source: 2 Inst. 374; Fleta, lib. 1, c. 3, § 11; Weisman, 96f

Obligations of personal service are attached to the individual and cannot be transferred to another without consent — a man's labor is his own.

The lord (owner) suffers the loss.

Damnum sentit dominus.

Source: Jackson

The risk of loss falls on the owner — the master who holds dominion over property bears the burden when it is damaged or destroyed.

Use is the master of things; experience the mistress of things.

Magister rerum usus; magistra rerum experientia.

Source: Co. Litt. 229; Jackson; Weisman, 95oo

Practical use and lived experience are the truest teachers of the law — abstract theory yields to the lessons of actual practice and custom.

He who acts through another acts himself.

Qui facit per alium facit per se.

Source: Co. Litt. 258; Broom, *Legal Maxims* (1874), pp. 817-818; Wharton, *Legal Maxims* (1878), Max. LXV; Jackson, *Latin for Lawyers* (1915), Max. 859

A principal is bound by the acts of his agent done within the scope of authority — he cannot delegate the act and disclaim the consequence.

A delegate cannot delegate.

Delegatus non potest delegare.

Source: 9 Co. 77; Broom, *Legal Maxims* (1874), p. 840; 2 Kent, Comm. 633; Jackson, *Latin for Lawyers* (1915), Max. 180; Weisman, 4e

One entrusted with authority by another cannot sub-delegate that authority without express permission — confidence is personal, not transferable.

Every ratification relates back and is equivalent to a prior command.

Omnis ratihabitio retrotrahitur et mandato priori aequiparatur.

Source: Co. Litt. 207; Jackson, *Latin for Lawyers* (1915), Max. 766

When a principal ratifies an unauthorized act of his agent, the ratification is treated as though the principal had originally commanded it — approval after the fact binds as fully as instruction before.

Ratification is equivalent to a command.

Ratihabitio mandato comparatur.

Source: Dig. 50, 17, 60; Jackson, *Latin for Lawyers* (1915), Max. 916

To ratify is to adopt — once the principal assents to what was done in his name, he is as bound as though he had ordered it from the beginning.

Whatever is acquired by the agent is acquired for the principal.

Quicquid acquiritur ab agente acquiritur principali.

Source: Story, *Agency* § 403

The agent's acquisitions within the scope of his authority vest immediately in the principal — the agent holds as the principal's hand, not as his own.

The same person cannot be both the doer and the one to whom the thing is done.

Idem agens et patiens esse non potest.

Source: Jenk. Cent. 40; Weisman, 4a

An agent cannot deal with himself on behalf of his principal — one cannot be both buyer and seller, grantor and grantee, in the same transaction.

Faith must be kept; the simplicity of the law of nations must prevail.

Fides servanda est; simplicitas juris gentium praevaleat.

Source: Story, *Agency* § 192; Dig. 2, 14, 1

Good faith is the foundation of all dealings — both between private parties and between nations. An agent is bound by the confidence reposed in him, and in the law of nations, simplicity and directness of dealing must prevail over technical evasion.

A mandatary cannot exceed the bounds of his authority.

Mandatarius terminos sibi positos transgredi non potest.

Source: Jenk. Cent. 53; Bouvier, *Law Dictionary* (1856)

An agent or officer who acts beyond the limits of his commission acts without authority — his excess is void and binds no one. (Duplicate maxim — see also 1.5.133.)

No one is compelled against his will to remain in a partnership.

Nemo invitus compellitur ad communionem.

Source: Dig. 10, 3, 28; Jackson, *Latin for Lawyers* (1915); Selden v. Vermilya, 2 Sandf. (N.Y.) 568, 593

Partnership rests on mutual consent — the moment any partner withdraws that consent, the association is dissolved.

When any partner renounces the partnership, the partnership is dissolved.

Cum aliquis renunciaverit societati, solvitur societas.

Source: Tray. Leg. Max. 118; Weisman, 85b

A single partner's withdrawal ends the partnership for all — the law will not bind a man to an association he has repudiated.

The partner of my partner is not my partner.

Socii mei socius meus socius non est.

Source: Dig. 50, 17, 47, 1; Jackson, *Latin for Lawyers* (1915), Max. 984; Weisman, 85e

Partnership is a personal relation — it does not extend by implication to persons with whom one has no direct agreement.

A partnership is dissolved by the death of a partner.

Morte socii solvitur societas.

Source: Inst. 3, 26, 5; Dig. 17, 2; Weisman, 85h

Because partnership rests on personal trust and consent, the death of any partner extinguishes the relationship — the survivor carries on alone or not at all.

Several partners are as one body, inasmuch as they hold one right.

Participes plures sunt quasi unum corpus, in eo quod unum jus habent.

Source: Co. Litt. 164; Jackson, *Latin for Lawyers* (1915), Max. 787; Weisman, 85g

Partners are united by their shared interest in the common property — as to third parties, they act and are treated as a single entity.

When the subject is extinguished, the incident ceases.

Extinctione subjecti, tollitur adjunctum.

Source: Inst. 3, 26, 6; Kent, Comm. 52, n.; Weisman, 85c

When the business for which a partnership was formed is completed or destroyed, the partnership itself ceases — the incident cannot survive the principal.

In a common matter the condition of the one forbidding is the stronger.

In re communi potior est conditio prohibentis.

Source: Dig. 10, 3, 28; 3 Kent, Comm. 45

Where partners disagree about the use of common property, the one who says no prevails over the one who says yes — in co-ownership, the veto rules.

He who receives the advantage ought also to bear the disadvantage.

Cujus est commodum ejus debet esse incommodum.

Source: Dig. 50, 17, 10; Jackson, *Latin for Lawyers* (1915), Max. 962; Weisman, 12f

Benefit and burden are inseparable — the man who takes the profit must bear the risk.

No one ought to be enriched by another's loss.

Nemo debet alterius jactura locupletari.

Source: Dig. 6, 1, 48, 65; 2 Kent, Comm. 336; Jenk. Cent. 4; Weisman, 61a

The principle of unjust enrichment gives rise to restitution — what is gained at another's expense must be restored.

Let the buyer beware; the buyer ought not to be ignorant that he is purchasing the rights of another.

Caveat emptor; qui ignorare non debuit quod jus alienum emit.

Source: Hob. 99; Co. Litt. 102a; Broom, Max. 690; 1 Bouv. Inst. 383; Barnard v. Kellogg, 10 Wall. (77 U.S.) 388; Weisman, 13b

The buyer purchases at his own risk — he is bound to examine the title and quality of what he buys, and ignorance is no defense.

Let the seller beware.

Caveat venditor.

Source: Lofft. 328; Hargous v. Stone, 5 N.Y. 73, 82; Weisman, 13p

The seller is equally bound to deal honestly — misrepresentation or concealment of defects lies at the seller's door.

He who has the right of giving also has the right of selling and granting.

Qui habet jus donandi habet jus vendendi et concedendi.

Source: Dig. 50.17.163; Weisman, 13c; Weisman, 77r

The right to sell flows from the right to own — if a man may give his property away, he may certainly sell it.

In a contract of sale, an ambiguous agreement is to be interpreted against the seller.

In contractu venditionis, ambiguum pactum contra venditorem interpretandum est.

Source: Dig. 50.17.172; Black's, 2d. 64; Weisman, 13q

The seller who drafts the terms bears the risk of unclear language — doubt is resolved in favor of the buyer.

The price stands in the place of the thing sold.

Pretium succedit in locum rei.

Source: 1 Bouv. Inst. n. 939; 2 Bulst. 312; Weisman, 13h

When goods are sold and the price paid, the seller's claim attaches to the money, not the goods — he can no longer reclaim the chattel but must pursue the price. Cite this to defeat a seller's attempt to recover goods after accepting payment, or to establish that the buyer holds full dominion once the exchange is complete.

No rule of law protects a buyer who willfully closes his ears to information, or refuses to make inquiry when circumstances of grave suspicion imperatively demand it.

Nulla juris regula protegit emptorem qui voluntarie aures claudit.

Source: Lytly v. Lansing, 147 U.S. 59, 72; Weisman, 13s

The buyer who refuses to investigate what a reasonable man would suspect forfeits the law's protection — willful blindness is no better than knowledge.

The law favors public commerce.

Lex favet commercium publicum.

Source: Wing. Max. p. 738, max. 198; Weisman, 13k

Free exchange among men is favored by the law — restrictions on trade are disfavored and narrowly construed.

There shall be no commerce in illicit or prohibited goods.

Commercium illicitarum vel prohibitarum rerum non est habendum.

Source: 3 Kent, Comm. 262, note; Weisman, 13d

Commerce is favored, but not in things that are inherently wrong — the law will not enforce a bargain in unlawful goods.

Those things which are said for the sake of commendation in sales, if they are plainly apparent, do not bind the seller.

Ea quae commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant.

Source: D. 18, 1, 43; Jackson; Weisman, 13n

Obvious sales puffery — exaggerated praise that no reasonable buyer would take as a guarantee — does not create a warranty binding on the seller.

The payment of the price stands in the place of the purchase.

Solutio pretii emptionis loco habetur.

Source: Jenk. Cent. 56; Jackson; Weisman, 13f

Payment of the agreed price is equivalent to the purchase itself — once the price is tendered, the buyer's right to the thing sold is complete.

The purchaser runs the risk of the loss of a thing sold, though not yet delivered.

Periculum rei venditae, nondum traditae, est emptoris.

Source: 1 Bouv. Inst. n. 939; 4 B. & C. 941; Bouvier, *Law Dictionary* (1856); Weisman, 13e

Once the sale is agreed upon, the risk of loss passes to the buyer even before physical delivery — the buyer's title is complete upon agreement, and the loss falls where the title rests.

The right of survivorship, for the benefit of commerce, holds no place among merchants.

Jus accrescendi inter mercatores pro beneficio commercii locum non habet.

Source: C.L.M.; Co. Litt. 182; Weisman, 58r

Among business partners, a deceased partner's share passes to his heirs, not to the surviving partner — commerce requires certainty of succession.

Things are worth what they will sell for.

Tantum bona valent, quantum vendi possunt.

Source: 3 Inst. 305; Jackson

The true value of goods is their market value — what a willing buyer will pay a willing seller, not any abstract or sentimental valuation.

Where it is unclear what was agreed, we follow the usage of the place where the agreement was made.

Si non apparet quid actum est, erit consequens ut id sequamur quod in regione in qua actum est frequentatur.

Source: Dig. 50, 17, 34

Local custom fills the gaps where the parties have been silent on a term — the law presumes they intended what is customary.

In contracts, matters of custom and usage are tacitly implied.

In contractibus tacite insunt quae sunt moris et consuetudinis.

Source: Story, Bills, s. 143; 3 Kent, Comm. 260n; Broom, Max. 842; Weisman, 24n

The parties are presumed to contract with reference to known customs of their trade or locality — these become part of the agreement by implication.

Under the term "creditors" are included not only those who have lent money, but all to whom, from any cause, a debt is owed.

Sub nomine creditorum veniunt non tantum qui pecuniam crediderunt, sed omnes quibus ex qualibet causa debetur.

Source: Dig. 50, 16, 11; Weisman, 28c

The word "creditor" extends beyond lenders to every person who holds a lawful claim — including the People as beneficiaries of the public trust.

No one is considered solvent unless he can pay all that he owes.

Nemo solvendo esse intelligitur nisi qui solidum potest solvere.

Source: Dig. 50, 16, 114; Weisman, 28f; Weisman, 59j

Partial ability to pay is not solvency — the debtor's entire obligation determines his status.

Whatever is paid is applied according to the intention of the payer.

Quicquid solvitur, solvitur secundum modum solventis.

Source: 2 Vern. 606; Bouv. 152; Weisman, 28s; Weisman, 35d; Weisman, 48j

The payer directs the application of his payment — the creditor cannot redirect it to a different obligation without the payer's consent.

A privilege avails not against the commonwealth.

Privilegium non valet contra rempublicam.

Source: Bacon, Max. 25; Broom, Max. 17; Noy Max. 34; Weisman, 12c

No private privilege can override the public interest — the rights of the People as a body always prevail over grants to individuals.

What right is, and in what consists injury, is the business of the law to declare.

Quid sit jus et in quo consistit injuria, legis est definire.

Source: Co. Litt. 158; Jackson; Weisman, 59t

The definition of rights and wrongs belongs to the law, not to private opinion — no man may unilaterally declare what constitutes his right or another's injury.

Commerce ought to be common, and not to be converted into a monopoly and the private gain of a few.

Commercia debent esse communia, non in monopolium et privatum paucorum quaestum convertenda.

Source: 3 Inst. 181, in marg.; Weisman, 35a

The right to trade is a common right — its restriction to favored parties for their private enrichment is contrary to the public good and the common law.

Money is the just medium and measure of commutable things.

Pecunia est justum medium et mensura rerum commutabilium.

Source: Dav. Ir. K.B. 18; 1 Bouv. Inst. n. 922; Weisman, 35e

Money provides the neutral standard by which unlike goods and services can be compared and exchanged — it is the common denominator of commerce.

It is called a monopoly when one person alone buys up the whole of one kind of commodity, fixing a price at his own pleasure.

Monopolium dicitur, cum unus solus aliquod genus mercaturae universum emit, pretium ad suum libitum statuens.

Source: 11 Co. 86; Weisman, 35f

Monopoly is identified by its two marks: exclusive control and arbitrary pricing — wherever both are present, the law recognizes an injury to the public right of commerce.

Goods are worth as much as they can be sold for.

Res merx valet quantum vendi potest.

Source: Shep. Touch. 142; 3 Inst. 305; Weisman, 35g

Market value is determined by the willing buyer — the law measures worth not by sentiment, cost, or aspiration, but by what the marketplace will actually pay.

A workman for hire promises the skill of his art; he who receives payment for his art must deliver workmanlike performance.

Artifex debet esse peritus artis suae; qui mercedem pro arte sua accipit, peritiam artis praestare debet.

Source: 2 Kent, Comm. 588; Story, Bailm. s. 428; Weisman, 35j

Every hired craftsman impliedly warrants competence — payment for professional services carries with it the obligation of professional quality.

It is inequitable to permit some to trade, and to prohibit others.

Iniquum est alios permittere, alios inhibere mercaturam.

Source: 3 Co. Inst. 181; Bouvier; Weisman, 35o

The right to engage in commerce belongs equally to all — selective enforcement that allows some to trade while barring others from the same market is a species of injustice the law will not countenance.

Usury is odious in law.

Usura est odium in lege.

Source: Bouv. 161; 3 Inst. 151; Weisman, 35s

The exaction of excessive interest is condemned at common law as a species of oppression — the lender who extracts more than a just return perverts the purpose of money.