I can think of nothing truer to Commercial Law than to offer as my first post a rejoinder to Paul who added this comment to An Ode to Mercury: "Merchants were considered little better than thieves for much of the history of western civilization. . . . Until modern economic thinking, and general liberalization of religion, emerged during the enlightenment, gains from trade were commonly viewed with skepticism at best." If merchants "were [ever] considered" no better than thieves, I say, consider who's doing the considering. The possibility of gains from trade in the hands of "merchants" was and is the key driver for social and economic mobility and the political instability that comes with it. Feudal lords had much to fear and loathe at the possibility that by trading among themselves serfs might drag themselves out of hunger and ignorance. And so too the Church. Trade is possible only when people assert property rights. Assertion and exploitation of property rights by political subordinates is the beginning of the end of a social order based on birthright and violence.
On the same day I read Paul's comment, I saw that the California Court of Appeals had confronted and laid to rest an argument based on the skepticism about commerce that Paul observed,--that gains from trading property are morally inferior and, in this case, unworthy of protection by specific relief. In Real Estate Analytics LLC v. Vallas, a seller agreed to sell 14 acres of coastal California real proeprty to Real Estate Analytics, a developer, who planned to develop and resell it. The seller backed out and Analytics sued for specific performance. The seller wheeled out a steaming stack of equitable maxims before the trial court as to why the equities against specific performance tipped in his favor. The trial court agreed. The buyer was unworthy of an extraordinary remedy because to it the contract for the property "was nothing more than a vehicle to make money." (Analytics got a check for $.5 million instead). The court of appeals reversed. The buyer's purpose in entering the contract — to sell the property for a profit (gasp!) rather than holding it for the pleasure and privilege of the estate was as noble and deserving of equity as any other purpose.
Pardon my ardor. Commerce is not a cuss word.
