This chapter explores some of the current and future pressures on contract law that are likely to reinforce its formalist and commercialist tendencies. The first of these is the recasting of contract law as a commodity that should primarily serve the interests of commercial contractors (usually by upholding the terms of the contract) at the expense of doctrinal development. The second is the declining use of adjudication to resolve disputes, rooted in lack of support for litigation and the emphasis on non-adjudicative dispute resolution within courts themselves. The third factor is the increasing automation of contract processes, manifest in the development of ‘smart contracts’ and algorithmic contracting. These innovations are likely to require revision of the foundational understandings upon which contract law is built, notably around how contracts are created, by whom and for what purposes.

In this chapter, I look at the development of Jewish and Islamic commercial law over the early Islamic centuries to argue that the Islamic "commercial revolution" may be found in the eleventh rather than the eighth century. I argue, therefore, that any migration of Jews westward in the early Islamic centuries was not the result of such a commercial revolution.

England’s commercial expansion in the late 17th and 18th centuries was based on its navigation laws that reserved maritime carrying trade to British operators. Massive use of privateers and imposition of rules of neutrality in maritime war effectively destroyed the ability of Britain’s enemies (Spain, Netherlands and France) to profit from their colonies or long-distance trade. The union of private interest and sovereign policies that underlay Britain’s rise was theorised by David Hume and Adam Smith: private actors knew best where sources of profit could be found in a theory of commercial society that recast the state as facilitator of private investment. Benthamite utilitarianism proposed to do away with the view that modern government had anything to do with natural rights or other abstractions. Empiricism, the predominance of political economy and the authoritarianism of British government in the 1830s were summarised in John Austin’s theory of sovereignty and relegation of international law into private morality. Until the mid-19th century, there was virtually no space in the British world for imaginative thinking about the law of nations.

Trying to find intellectual space between theology and raison d’état, the Protestant Hugo Grotius aimed to derive an autonomous sphere of legality from the natural inclination of humans to follow rules even when that might appear against their immediate self-interest. The rules he wrote into De iure belli ac pacis (On the Rights of War and Peace) combined a contractual justification of absolutism with a system of individual rights that he believed underwrote the spectacularly successful commercial practices of his native Holland. This rule-system would accommodate the actual practices of European warfare and government while also appealing to the better natures of European rulers. Unlike Gentili, Grotius viewed law as a moral science that engaged both the external behaviour as well as the conscience of those who govern.

Unlike privacy law discourse, which has primarily explored questions related to others’ knowledge, access, and use of information about us, commercial law’s central focus has been on issues related to trade involving persons, merchants, and entities. In the commercial law context, questions about knowledge and information are primarily connected to the exchange and disclosure of information needed to facilitate transactions between parties.1 This distinct historical focus has likely contributed to commercial law’s failure to adequately account for and address privacy, security, and digital domination harms. In some cases, commercial law also defers to corporate commercial practices as well.

We now live in a world where we can obtain current information about a global pandemic from our smartphones and Internet of Things (IoT) devices.1 The recent novel coronavirus (COVID-19) outbreak is not just a public health emergency. The pandemic has forced us to further evaluate the extent to which privacy should give way to public health threats and resulting technological innovations.2 It directly raises questions about whether legal frameworks governing our privacy should be relaxed to address public health concerns, and if any such relaxation will continue post pandemic to permanently undermine our privacy.3

As we have seen, the law wields considerable influence over the rights and remedies available to us as consumers. Several areas of commercial law are ill-equipped to sufficiently protect our consumer interests in the IoT age. This is because various legal frameworks governing commercial practices have not been sufficiently reformulated to account for the growing connections between the world of privacy and the world of commercial law. As earlier sections of this book have demonstrated, there are multiple legal frameworks impacting commercial practices at the federal and state level that are ripe for significant legal reform. These sources of law include contract law, the FAA, products liability law, the CDA, debt collection law, the Bankruptcy Code, and secured financing laws.

Chapter Two examines the specific legal consequences of colonists’ decision to categorize slaves as chattels at law. Properly fit into an English law rubric, colonists in South Carolina and throughout plantation America transformed human beings into a dynamic form of capital that could be bought, sold, and financed with ease. As a practical matter, classifying slaves as chattel gave colonists access to a set a commercial forms and procedures that had coalesced to facilitate long-distance trading. Conditional bonds were among the most important of these, and I follow this legal form of debt as it became part of an expanding Atlantic commercial system. Originating in the Middle Ages, conditional bonds coalesced into a distinctive form that was easier to enforce in common law than other forms of debt. The enforceability of conditional bonds made them surprisingly portable as they travelled across the globe. Although this instrument had originated to suit the needs of an agrarian society, the conditional bond easily accommodated commercial ventures that assumed people could be property. The power of conditional bonds to hold debtors to account in colonial courts made them particularly useful in shoring up a trade that was built entirely upon credit. Ultimately, bonds became an unremarkable feature of commercial life in plantation societies like South Carolina and Jamaica, where creditors relied upon this much older instrument to secure a wide variety of commercial transactions.

My contribution intends to shed some light on the history of comparative commercial law, an issue strictly related to the general theme of the 2019 BLH Conference “Comparative legal history”. Legal historiography has pointed out the importance of a comparative approach in the history of commercial law. My point is slightly different: my research focuses on the role of comparative studies in the history of commercial law. More precisely, I focus on the comparative argument in the 19th century commercial law discourse, and I study Leone Levi (1821-1888) and his comparative commercial law works. Leone Levi was an Italian-born merchant who became jurist, statistician and economist in Victorian Britain. His eclectic personality, together with his strong commitment in a large number of juridical, economical and statistical issues is fascinating in itself. My purpose is to present Levi’s contribution to 19th century commercial law, in particular his comprehensive treatise on Commercial Law of the world published in 1850-1852. The treatise was reprinted in 1863 under a different title: International commercial law : being the principles of mercantile law of the following and other countries, viz.: England, Scotland, Ireland, British India, British colonies, Austria, Belgium, Brazil, Buenos Ayres, Denmark, France, Germany, Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, United States, etc.). In synthesis, commercial law tends naturally to comparison because trades and commerce are transnational by nature: commercial law scholars and practitioners share very often a comparative and transnational point of view. The aim of my essay is to discuss in what way and to what purpose a 19th century sui generis commercial lawyer – i.e. Leone Levi – made use of comparative law in dealing with commercial and business legal matters.

Part II - This brief introduction to Part 2 is designed to set the stage for the detailed chapters that follow, each of which examines various parts of the Australian Consumer Law of relevance to commercial law. Commercial law, unlike many other areas of law, is not driven by a single defining doctrinal idea; rather, it is driven by the relevance of selected legal topics to commercial life. There are certain ideas that are recurrent within commercial law, such as reasonableness, good faith and bad faith, the need to protect innocent parties, reliance and legitimate expectations. However, none of these ideas defines an entire area of law or forms the basis for the existence of those laws in the first place. Most areas of commercial law exist because the demands of commerce require a set of rules to regulate the interactions of the players within that field. Consumer law is no different, and its centrality to commercial life makes it a proper sub-field for study within commercial law.

This chapter deals with unconscionable conduct in the context of commercial law. There are a number of statutory schemes that regulate unconscionable conduct in the commercial sphere. The Australian Consumer Law (ACL), contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA), provides a broad-ranging scheme that covers most commercial dealings within which unconscionable conduct may occur. Financial services and financial products are regulated under the Australian Securities and Investments Commission [ASIC] Act 2001 (Cth). The ASIC Act provided a statutory scheme regulating unconscionable conduct concerning financial services in trade or commerce. This chapter primarily deals with the unconscionable conduct regime set out by the ACL. The scheme has arguably the most direct application to commercial law as it governs the interactions between corporations and consumers and small businesses. The chapter first examines the equitable doctrine of unconscionable conduct, from which all the statutory regimes are derived, before considering ss 20–22 of the ACL.