Book Review: Capitalism before Corporations

Capitalism before Corporations, Andreas Televantos (OUP 2020), 224pp., hardback, ISBN: 9780198870340. Also available as an e-book.

This book considers the ways in which English organisational law facilitated commerce before incorporation became common. It focuses on the period 1790-1822 and is part of the Oxford Legal History series. In particular, it considers the extent to which partnership, trust and agency law developed to reflect the demands of traders and the need to protect third parties and society from the adverse effects of the behaviour of traders.

The book is divided into three broad thematic parts. The first part introduces and analyses partnership and trust structures and their use in the Regency period. Chapter 1 considers the definition of a partnership, and the ease with which a partnership could be dissolved, both of which issues continue to give rise to disputes today. It also considers the use of partnership assets and the ‘jingle rule’ whereby partnership assets are available to partnership creditors in priority to partners’ personal creditors. Although the title of Chapter 2 refers only to trusts, it includes a substantial section on joint stock companies (though labelled ‘The Deed of Settlement Company’) which the author describes as ‘unincorporated partnerships which made use of trusts to emulate some of the benefits of incorporation’, and this section examines the joint antecedents of both modern partnerships and modern companies.

The second part explains the authority of agents and trustees in relation to business assets. Chapter 3 discusses some of the economic theories and economic history underlying the development of agency law generally, and partners as agents in particular. It includes a discussion of the scope of partners’ agency, and the availability of set-off as between principal and third party, including where the principal is undisclosed. Chapter 4 considers in more detail the attitude of the courts to the development of agency law. Chapter 5, though focusing on trustees and executors, draws some interesting parallels between the rights of partnership creditors and those of trust creditors.

The third part discusses business failure and the distribution of risk. Chapter 6 focuses on trusts, but Chapter 7 considers the rules governing the distribution of a bankrupt partnership’s assets. It examines the development of the jingle rule, the priority of third-party creditors over partners in the distribution of partnership assets, the requirement for partners to return assets removed by them from an insolvent partnership, and the rights of creditors against the partners jointly rather than the partnership. Although the chapter title refers to dissolution and bankruptcy, and the early material focusses on bankruptcy, there is also an extensive discussion of the liability issues which arise when a partner leaves a continuing partnership, for both the departing and the continuing partners. While this situation is of course one of partnership dissolution, it is commonly regarded as a ‘partial’ or ‘technical’ dissolution, and very different to the complete dissolution which will occur on bankruptcy.

The substantive material finishes with a concluding chapter, although several of the other chapters also include a concluding section. The book includes an Appendix explaining the use of archival sources, and providing a glossary of terms and an extensive bibliography. There are ample footnotes throughout the chapters, directing the reader to important primary and secondary sources.

The rationale for the division of material between chapters is sometimes a little unclear, and both the chapters and the sections within them are sometimes given titles which do not fully reflect their content, with the result that this is a book to read as a narrative rather than a reference work.

However, it is a thought-provoking text which will be of interest to academics and postgraduate students in partnership law, the law of trusts, or the history of commercial and company law in England.

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