This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The assistance which was given to the development of contract law by such legislation as in consimili casu was most valuable; but it was intended to affect procedure and jurisdiction primarily; and its effect upon the substantive law of contracts was only secondary. Occasional legislation was found where the standards of morality of the old common law had been modified or outgrown and where their rules as to the subject-matter no longer corresponded to the actual standards of the community. The statute of frauds restricted the use of oral evidence whether for good or ill. Forms of actions were abolished in many jurisdictions; and the common-law rules on the subject of parties were so changed that the real party in interest was authorized and required to bring the action in his own name. This legislation, however, was very fragmentary; and for the most part it dealt primarily with procedure and only incidentally with the substantive law of contracts.
In the last few decades, however, legislation of a different type has begun to appear. The attempt is being made to reduce part or all of the law of contracts to definite and complete statutory form. Part of this legislation has been due to the experience of modern society with public contracts. In order to protect the public and to eliminate graft as far as possible, legislation has been enacted in many jurisdictions to secure competitive bidding upon definite plans and specifications. These statutes, however, for the most part, presuppose the general law of contracts and merely regulate the manner in which the government or the public corporation may enter into contracts.
2 Pollock & Maitland, History of English Law, Vol. II, 674.
Trade and business have also demanded law which should be as nearly uniform as possible without regard to state boundaries. In medieval times this was secured by the international character of the law-merchant. The reception of the law-merchant by the common-law courts and its incorporation into the common law destroyed this uniformity; and the appearance of a great number of independent courts in the United States, each applying its own rules of the common law and of the law-merchant, broke up the original law-merchant into a number of systems of law which agreed for the most part upon fundamental principles, but which differed widely in specific details. Local legislation increased this divergence rather than diminished it. The demand for uniformity finally asserted itself in a series of codes in which it has been sought to put different subjects of commercial and business law into statutory form and to secure the enactment of uniform legislation throughout as much of the United States as is possible. In this way we have in force in a great many states uniform statutes on the subjects of negotiable instruments, sales, bills of lading, warehouse receipts, stock certificates, partnerships, and the like. Insurance contracts have been standardized by legislation. The success of this movement and the wisdom of attempting to extend it further is a question which is under discussion at the present time.1
1 Upon the general subject of codification, see Uniformity of Commercial Law on the American Continent, by Roscoe Pound, 8 Michigan Law Review, 91; Commercial Aspect of Uniform State Laws, by Francis B. James, 5 Michigan Law Review, 509; The Promotion of Uniform Legislation, by Lyman D. Brewster, 6 Yale Law Journal, 132; Unifying Tendencies in American Legislation, by Ernest Freund, 22 Yale Law Journal. 96.
Upon the subject of negotiable instruments, see Bills of Exchange and International Codification, by W. J. Barnard Byles, 8 Journal of Comparative Legislation (N.S.) 112; Dr. Meyer's Bills of Exchange Draft Code, by Dr. E. J. Schuster, 11 Journal of Comparative Legislation (N.S.) 143; Unification of the Law of Bills of Exchange, by J. Dove Wilson, 2 Law
Quarterly Review, 297; The Negotiable Instruments Law, by James Barr Ames, 14 Harvard Law Review, 241; The Negotiable Instruments Law: A Rejoinder to Dean Ames, by Lyman Denison Brewster, 15 Harvard Law Review, 26; The Negotiable Instruments Law: A Word More, by James Barr Ames, 14 Harvard Law Review, 442; The Negotiable Instruments Law: Necessary Amendments, by James Barr Ames, 16 Harvard Law Review, 255; An Ambiguity in the Negotiable Instruments Law, by Samuel Willis-ton, 23 Harvard Law Review, 603; Some Necessary Amendments of Negotiable Instruments Law, by J. D. Brannan, 26 Harvard Law Review, 493, 588; The Uniform Negotiable Instruments Law, by John C. Rich-berg, 1 Illinois Law Review, 305; Some Suggestions on the Proposal to
In some states an attempt has been made to reduce a part or all of the substantive law, including the law of contracts, into the form of a code. In Georgia the attempt was made in 1858, to prepare a code "which should as near as practicable embrace in a condensed form the laws of Georgia whether derived from the common law, the constitution, the statutes of the state, the decisions of the supreme court, or the statutes of England in force in this state."2 In 1866, Dakota adopted a civil code which was based on the Field code and which among other topics included obligations and contracts; and this code is now in effect in North Dakota and South Dakota.3 In 1872, California adopted its civil code which was based on the Field code and on the Dakota code, and which includes obligations as well as persons and property.4 These codes have been enacted in other jurisdictions.5 In other states, legislation on the subject of contracts is found arranged in definite system, but covering only a few points and too meager to be called a code.6 Possibly these attempts were too ambitious. Before general codification is attempted, it might be well to follow Justinian's example, and to settle the points which are in dispute by adopting one of the different solutions therefor. This would be far easier than attempting to reduce the entire mass of law to its ultimate principles and to state these in definite and final form; and it would result in the gradual unification of the law.
Enact the "Uniform Negotiable Instruments Law" in Illinois, by Julian W. Mack, 1 Illinois Law Review, 592; The New Illinois Negotiable Instruments Act, by Louis M. Greeley, 2 Illinois Law Review, 145; The Uniform Negotiable Instruments Law in the Light of Recent Criticism, by Louis M. Greeley, 10 Illinois Law Review, 265; The Adoption of the Negotiable Instruments Law in California, by Maurice £. Harrison, 6 California Law Review, 23; The Negotiable Instruments Law: Its History and Its Practical Operation, by Amasa M. Eaton, 2 Michigan Law Review, 260; On Uniformity in Judicial Decisions of Cases Arising Under the Uniform Negotiable Instruments Act, by Amasa M. Eaton, 12 Michigan Law Review, 89; The Uniform Negotiable Instruments Law: Is it Producing Uniformity and Certainty in the Law Merchant? by Crawford D. Hening, 59 University of Pennsylvania Law Review, 471, 532; Attitude of the Bench and Bar of Pennsylvania Towards the Negotiable Instruments Law, by Amasa M. Eaton, 62 University of Pennsylvania Law Review, 407; Defense of the Negotiable Instruments Act, by Lyman D. Brewster, 10 Yale Law Journal, 84; The Negotiable Instruments Law, by Charles L. Mc-Keehan, 41 American Law Register (N.S.) 437, 499, 561 (N.S.).
Upon the subject of bills of lading, warehouse receipts and sales, see Uniform State Laws Governing Negotiable Documents of Title, by Francis B. James, 4 Michigan Law Review, 41; Bills of Lading: A Mercantile Revolt, by Jas. B. Sutherland, 3 Juridical Review, 325; On Some Defects in the Bills of Lading Act, by T. G. Carver, 6 Law Quarterly Review, 289; The Adoption of a Uniform Bill of Lading, by International Conference, by Morton P. Henry, 31 American Law Register (N.S.) 633; The Effect of the Uniform Warehouse Receipts Act, by Barry Mohun, 13 Columbia Law Review, 202; Practical Suggestions on Codifying the Law of Warehouse Receipts, by Francis B. James, 3 Michigan Law Review, 282; Codifying the Law of Conditional Sales, by Francis M. Bur-dick, 18 Columbia Law Review, 103; Some Reasons Why the Code States should Adopt the Uniform Sales Act, by Lauriz Vold, 5 California Law Review, 400, 471, 6 California Law Review, 37; The Bills of Sale Acts, by E. Cooper Willis, 3 Law Quarterly Review, 300; On the Amendment of Law Relating to Factors, by Arthur Cohen, 5 Law Quarterly Review, 132; A Reply on the Factors Acts, by John R. Adams, 5 Law Quarterly Review, 311; Codification of Mercantile Law, by M. D. Chalmers, 19 Law Quarterly Review, 10.
2 Acts of Georgia, 1858, p. 95. The statutory provisions on the law of contracts are to be found in the Georgia Code of 1911, Sec. 4216 to 4402.
For the most part the courts appear to regard these uniform statutes and local codes as declaratory of the common law; and they are likely to decide cases in accordance with general common-law principles without attempting to deduce the result from the language of the code itself, except in cases in which the statutory provision was evidently intended to change the original common-law rule.
3 North Dakota Comp. Laws (1913): Obligations, Sec. 5763 to 5835; Contracts, Sec. 5836 to 5941; South Dakota Comp. Laws (1913): Obligations (Civil Code), Sec. 1114 to 1187; Contracts (Civil Code), Sec. 1188 to 1298.
4 Civil Code of California: Obligations, Sec. 1427 to 1543; Contracts, Sec. 1549 to 1701.
5 Montana, Revised Codes (1907): Obligations, Sec. 4892 to 4964; Contracts, Sec. 4965 et seq.; Oklahoma, Rev. Laws (1910): Contracts, Sec. 875 et seq.
6 Idaho, Revised Codes, Sec. 3312 et seq.; Missouri, Revised Statutes (1909), Sec. 2769 et seq.