Page:Harvard Law Review Volume 32.djvu/43

9 LETTERS OF CREDIT 9 useful analysis at the end of Ames' "Cases on Bills and Notes" ^ he treats the letter of credit precisely on this theory. But this type of letter of credit does not meet the requirements of international business to-day. What does meet it squarely is the French theory of the letter of credit as testifying to an opening of a credit between the holder and the issuer of the letter, so that the letter is really an authorization to the addressee to draw upon the money deposited by the holder with the issuer. That fits in with the requirements of international business to-day exactly, and fits well with our com- mon-law doctrine of money received to a third party's use. It is worth noting also that the development of the continental law on this subject has been hindered if not warped by two condi- tions which are paralleled in our own experience. The civilians, fa- miliar with the earliest and simplest or so-called tourist form of letter, could not escape its analogy when confronted with the newer forms, and proceeded on the assumed necessity of fitting every form of letter, including those developed by present-day commerce into a legal theory of third-century Rome. That is to say, the doctrine of mandate being at hand to explain one form of letter, it was as- sumed that all other forms must be made to fit into that doctrine. So our courts, in the development of the subject, also suffer from this same analogy of the tourist letter and the same assumed ne- cessity of fitting a present-day transaction of commercial usage into some common-law theory of a day that is past. The noticeable disposition of the more recent continental writers,^^ in the lan- guage of Maitland,^^ to "face modern times with . . . modern weapons," to distinguish the new from the old and to regard the letter of credit we are here considering as a self-sufficient trans- action of the commercial law and as part of the growing law mer- chant, deserves thoughtful consideration at the hands of common- law lawyers. II Common-law categories have never willingly conceded a place in the sun to the novelties developed by the exigencies of modern business. It required a long struggle culminating in an act of Par- ^ 2 Cases on Bills and Notes, 783. ^ CosACK, supra.
 * ^ 3 Collected Papers, 485.