The Federation Press

Historical Foundations of Australian Law - Volume II

Commercial Common Law


Questions arising in commercial law require an understanding of legal history, no differently from any other area of law, and, as the High Court observed in Andrews v ANZ [2012] HCA 30 at [14], what is needed is more than a “brief backward glance”. These essays provide a suite of materials to enable a sophisticated and informed understanding of basic questions throughout commercial law. Their range extends to many aspects of commercial practice, often viewed through more than one prism. Thus, there are chapters on money and bills of exchange, and cheques and banking, and on the actions often associated with them (notably debt and conversion), and on Lord Mansfield’s contribution to commercial law. There are chapters on how the basic elements of the law of torts and contract came into existence, from a variety of perspectives. There are valuable analyses of privilege, defamation, assignment and implied terms. There are chapters on corporations, agency and insolvency. The chapter on restitution poses a challenge to thinking which has become orthodox outside Australia, as well as learnedly and deftly exposing the conceptual and practical difficulties accompanying that approach. The collection as a whole is introduced by James Watson, who demonstrates how each essay informs and influences commercial law in Australia in the 21st century.

These essays, once again by distinguished judges, practitioners and academics, complement those in the first volume. They provide insight and a deep understanding for students, practitioners and academics of fundamental issues in commercial law.


“More importantly, each of its essayists is a person whose contribution is worth reading. … [The volumes] create an important and valuable resource and make accessible to Australian lawyers, students and judges, in a convenient way, an array of materials which would otherwise require resort to a range of disparate texts and law review articles. “This book is a rich source of reference … I venture to say it is unique. I certainly hope that it will find its place among legal history courses in more than one law school and in more places than Sydney.”

Chief Justice Robert French launching both volumes, 22 August 2013

Table of Contents

Sketch of Writs
Editors’ Notes
Selected Legal Texts
Table of Cases
Table of Statutes

A Sketch II: Praecipe to Negligence & Contract
J A Watson
A Note on the Curious Incidents of Debt
C J R Duncan & J A Watson
Trespass, The Action on the Case and Tort
M Lunney
Detinue, Trover and Conversion
J Randall & B Edgeworth
The Sources of Defamation Law
D Rolph
Legal Professional Privilege
P Brereton
Milestones in Negligence in the 19th and Early 20th Century
B McDonald
Contract Development Through the Looking-Glass of Implied Terms
E Peden
Why the History of Restitution Matters
I M Jackman
Lord Mansfield
B R Kremer
Money and Bills of Exchange
A McNaughton
The History of Cheques and Banking
A McNaughton
G J Tolhurst
R A Dick
M Wibisono
The History of Bankruptcy and Insolvency Law in England and Australia
J L B Allsop & L Dargan


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