Saturday, August 16, 2014

The Banking Contract in 19th Century US Law

This is how it was explained and understood in a mid-19th century American legal text (from 1856):
“The relation which subsists between a banker and his customer seems to be this—‘The customer lends money to the banker, and the banker promises to repay that money, and, whilst indebted, to pay the whole or any part of the debt to any person to whom his creditor, the customer, in the ordinary way requires him to pay it.’ (l) The ordinary mode of paying off the debt due from the banker is by honouring cheques and bills made payable at the bank, where he has authority from his customer for that purpose.

(l) Per Alderson, B., 16 Q. B. 575, (Eng. Com. Law Reps., vol. 71.) See Pott v. Clegg 16, M. & W. 321*; Thompson v. Bell, 10 Exch. 10*; Tassell v. Cooper, 9 C. B. 509, (Eng. Com. Law Reps., vol 67).”
(Broom 1856: 339, § 467).
That is, the bank client lends money to the bank as a mutuum loan.

Now American law was based on British law, and we have seen how British law had understood money loans as mutuum contracts since the 12th century.

There is, furthermore, no evidence that English judges “legalised” the alleged theft of bailments of money by bankers in cases like Carr versus Carr, despite libertarian myths and their ignorant reading of legal history.

Broom, Herbert. 1856. Commentaries on the Common Law, Designed as Introductory to its Study (The Law Library v. 91, July, August, September and October, 1856). T. & J. W. Johnson & Co. Philadelphia.

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