Page:Harvard Law Review Volume 32.djvu/72

38 38 HARVARD LAW REVIEW withdraw and induces the issuer to try to cancel after the seller- addressee has begun to perform his contract; is inadequate where the buyer-holder seeks to pull out or break the contract by antici- pation, before the seller-addressee has done anything thereunder; is unsatisfactory in case of business changes and gives rise to doubt- ful questions in situations where the issuer may need the protec- tion of a bill of interpleader. In all these cases the theory of money held to the use of the addressee proves much more satisfactory, and if we must have a strictly common-law theory, it is much to be preferred. But all the requirements of the situation are met and on the whole are better met by treating the letter of credit as a self-sufficing instrument of the law merchant. In the end nothing will do so well as a frank and full recognition by law of the universal under- standing of the commercial world. To bring this about, bankers should agree on a simple, uniform letter, and the courts should give effect to it for what it is intended to be. Perhaps the timid, not to say false, conservatism of the courts may compel business men to turn to the Commissioners on Uniform State Laws and invoke the aid of the legislator. But legislation cannot come in time to take care of the litigation that is almost certain to flow presently from the enormous volmne of business done under these letters in the last four years. The courts may, if they will, do all that is needed; for, I repeat, it is a false conservatism that stands in their way. Courts are properly cautious in abandoning rules or doctrines, since to do so may endanger the stability of our economic order by disturbing the transactions of the past and unsettling acquisitions; but there is nothing truly conservative in adhering to conditions of uncertainty in the laws governing commerce, or in defeating or unsettling business transactions, carried on in large volume, by insisting on applying to them doctrines or theories developed for earlier and different conditions of trade, or in disturbing credit by making it uncertain whether the deliberate promises of business men made in the course of business as business transactions, and in practice relied upon with confidence in the every day course of our commerce, are to be legally enforceable. In the words of Cockbum, C. J.,^^ " Goodwin v. Robarts, L. R. lo Ex. 337 (1875). Cf. 2 Machen, Corporations, §§ 1734/-; Mercer County v. Hacket, i Wall. (U. S.) 83 (1863); White v. Vermont, 21 How. (U. S.) 575 (1858). In Mercer County v. Hacket, Grier, J., says (page 95):