Duhaime's Law Dictionary

Merchant Definition:

A person engaged in the making, buying or selling of goods or services.

A somewhat dated term of the common law to distinguish those who trade in goods.

From the Latin term mercatore.

John Bouvier, in the 8th Edition of his law dictionary (1914), defined a merchant, simply, as:

"... one whose business it is to buy and sell merchandise ... all persons who habitually trade in merchandise.... one who is engaged in the purchase and sale of goods."

A rather unusual piece of legislation was before the Supreme Court of the United States in 1904 - to provide for the deportation of Chinese nationals from the USA. In Tom Hong v US, the matter gave Justice Day occasion to iterate the definition of a merchant contained in the repugnant statute:

"A merchant is a person engaged in buying and selling merchandise, at a fixed place of business, which business is conducted in his name, and who during the time he claims to be engaged as a merchant does not engage in the performance of any manual labor, except such as is necessary in the conduct of his business as such merchant."

As exemplified in the Magna Carta (see the Legal Definition of Quam legem exteri nobis posuere, eandem illis ponemus), who is and who is not a merchant can have a significant effect on taxation and other treatment by the law, and has often led to an almost humorist set of case-law on particular occupations. For example, ice-dealers and hotel-operators have been included but not a musician or a brewer.

Merchants forced the development of commercial law such as the law of bills of exchange, of international trade, insurance law and for the most part, the entire body of contract law. Law merchant, or to defer to contemporary legal language, mercantile law or commercial law, was, historically, heavily based not on written law but customs as was passed on from generation to generation and place to place as traders sailed to the all parts of the world, slowly evolving to a general standard set of rules, to the point where they could be snapped into place and set to writing at some point in time, thus ensuring that the law was set and ascertainable. This evolution of customs to law, as it literally flowed upon the oceans and seas of the world, mirrored, supported and ran parallel to the reliance increasingly made in England as it fomented its own common law, based, at least historically, upon custom and not written or codified law.

William Blackstone's Commentaries on the Law of England, (Book 1, page 75) at least as of the date of his research, or circa 1756, held that there were four classes of merchants:

  • Merchant adventurers;
  • Merchants dormant;
  • Merchant travellers; and
  • Merchant residents.


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