Page:Harvard Law Review Volume 32.djvu/73

39 LETTERS OF CREDIT 39 "Why is the door to be now shut to the admission and adoption of [commercial] usage, as though the law had been formally stereotyped and settled by some positive and peremptory enactment? . . . Why is it to be said that a new usage which had sprung up under altered cir- cumstances, is to be less admissible than the usages of past time? " Let us hope that New York, where most of these questions are likely to arise, will prove capable of finding another Kent upon her bench in this twentieth century — when her commercial interests and the commercial development of the country at large call for him no less than did the opening years of the nineteenth century. Lord Mansfield sought to establish a doctrine that no promise in writing made by a business man in the course of business could be held nudum pactum}^ Is it not time that business transactions in our law should stand as such and be entitled to legal protection because they are such, without the necessity of continually giving them artificial forms in order to comply with historical require- ments of consideration, and without the risk that they will fail because business has chosen to grow along its own lines instead of hewing eternally to some fixed line of common-law doctrine or tradition. Commerce is able to function safely on the theory that "a business man's word is as good as his bond." Our courts can afford to make this plain theory of business an effective theory of law. Omer F. Hershey. Baltimore, Md. "Usage of trade and commerce are acknowledged by courts as part of the common law, although they may have been unknown to Bracton or Blackstone. And this malleability to suit the necessities and usages of the mercantile and commercial world is one of the most valuable characteristics of the common law."
 * Pillans V. Van Mierop, 3 Burr. 1663 (1765).