BASIC MONETARY CONCEPTIONS IN LAW

While in various periods of American legal history American courts have been confronted with problems of a monetary character, the importance and multiplicity of these questions have never been more strongly felt than within the last few years, and there is certainly no indication that this situation will change in the near future. The jural difficulties arising from monetary troubles are unusual, not only because of their financial and social implications, but also because of their theoretical intricacies. No wonder, therefore, that arguments advanced by courts in cases of a monetary nature are very often highly unsatisfactory. Again and again, monetary situations have been misinterpreted by courts, and confused doctrines advanced.

Most legal writings, particularly in the common-law countries, have been so scanty or so limited in scope as to be of little material aid to the courts in dispelling those difficulties. These conditions warrant an e:ff ort to tackle the legal problems of money at their very foundation in order to obtain a basis for a sound and consistent body of law. The task is a juridical one, but economic science, which sheds so much light upon the matter, should not be disregarded. Above all a comparative law method should be followed.

For inasmuch as monetary phenomena are everywhere of the same nature, foreign legal thought and experience will be particularly helpful in this field. Even courts, contrary to their customary attitude, have in monetary cases not infrequently referred to foreign law and to economic writings. The following discussion constitutes the first chapter of a forthcoming study which will attempt to apply the methods indicated above to a comprehensive investigation into the legal aspects of monetary theory and practice. The doctrines herein advanced will, in subsequent parts of the study, be employed in the analysis and critique of the manifold opinions of the courts.