Table Of ContentCapitalism Before Corporations
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Capitalism Before
Corporations
The Morality of Business Associations and the
Roots of Commercial Equity and Law
ANDREAS TELEVANTOS
1
3
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First Edition published in 2020
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Acknowledgements
This monograph began as a doctoral thesis completed at the University of
Cambridge, and the research was made possible by a generous scholarship and
travel expenses from the F.W. Maitland Fund and its managers. I’m also thankful to
the Zilkha Fund for supporting a visit to Georgetown Law Library to examine the
Lord Eldon Collection.
I am also very grateful to Dr David Foster, Professor David Fox, Dr Perry Gauci,
Professor Joshua Getzler, Professor David Ibbetson, Dr Lorenzo Maniscalco,
Professor Charles Mitchell, Professor Richard Nolan, Professor James Oldham, Mr
Jeffrey Thomson, and Dr Peter Turner for exceedingly helpful criticism and en-
couragement. I am especially indebted to my doctoral supervisor, Dr Neil Jones,
for all his help.
I owe a further debt of gratitude to Ms Hannah Miller, the Curator of the Lord
Eldon Collection, for her kindness to me during my visit to Georgetown Law
Library, as well as to Mr Astron Douglas for allowing me to inspect his collection of
books from Lord Eldon’s own library.
Contents
List of Figures ix
Table of Cases xi
Table of Statutes xxi
List of Abbreviations xxiii
Introduction 1
1. Dramatis Personae 7
2. Structure 11
PART I REGENCY ERA BUSINESS STRUCTURES
1. Partnership as Organisational Law 15
1. When Did Partnership Rules Apply? 16
2. How Did Partnership Law Partition Assets? 18
3. The Instability of Partnerships 24
4. How Effective Was the Law of Partnership? 28
2. The Use of Trusts in Business Structures 31
1. The Traditional View of Regency Era Trusts 31
2. The Deed of Settlement Company 35
3. Testamentary Trading Trusts 53
4. Conclusion 60
PART II BINDING BUSINESSES ASSETS
3. Ostensible Authority and the Ordinary Course of Business 63
1. Traders and Fault 63
2. The Authority of Agents 70
3. Set- off between Principals, Agents, and Third Parties 77
4. The Authority of Partners 80
5. Conclusions 86
4. Judicial Resistance to Merchant Demands: Factors and
Paternalism in the King’s Bench 88
1. The Rule in Paterson v Tash 88
2. Challenging the Rule in Paterson in the Courts 91
3. Statutory Reform of the Paterson Rule and Judicial Backlash 95
5. The Authority of Trustees and Executors 101
1. The Authority of Trustees 102
viii Contents
2. The Authority of Executors 106
3. Conclusions 116
PART III BUSINESS FAILURE, RISK, AND
INSOLVENCY DISTRIBUTION
6. Trusts and the Risk of Bankruptcy 121
1. Reputed Ownership, the Changing Bankruptcy System, and
Non- possessory Security of Personalty 123
2. Trusts and the Doctrine of Reputed Ownership 128
3. Commercial Uses of Specific Purpose Trusts 132
4. Conclusions 141
7. Partnership Dissolution and Bankruptcy 143
1. Rule I: The ‘Jingle’ Rule 145
2. Rule II: Partners Cannot Compete with their Creditors 146
3. Rule III: Joint Creditors Can Claim against Partners who
Withdraw Joint Funds without Authority 149
4. Rule IV: Joint Creditors Have Rights against the Partners’
Jointly, not a Firm 149
5. Conclusions 167
Conclusion 171
Appendix: Notes on Archival Sources 179
1. Lord Eldon’s Judicial Notebooks and other Papers 179
2. Chancery Order Books 180
3. Bankruptcy Order Books 181
4. Other Archival Materials 182
Glossary 183
Bibliography 187
Index 197
List of Figures
2.1 The Bubble Burst or the Ghost of an Old Act of Parliament 40
3.1 Fact pattern: Set-off cases involving hidden principals 79
4.1 Fact pattern: cases concerning a factor’s course of business 93
6.1 Relativity of title: factors as trustees 134
