Overview
From the sixteenth century onwards, both professional jurists and increasingly centralised states across Europe started to show a greater interest in commercial and maritime law.
1 Italo Birocchi, Alla ricerca dell’ordine: fonti e cultura giuridica nell’età moderna (Turin: Giappichelli, 2002), pp. 246–53; Francesco Galgano, Lex mercatoria, 5th edn (Bologna: Il Mulino, 2010), p. 78. Their involvment was not entirely new. Doctors of the
ius commune had touched upon commercial and maritime questions in the past, while municipal statutes or municipally sponsored collections of maritime customs are well known.
2 Rodolfo Savelli, ‘Modelli giuridici e cultura mercantile tra XVI e XVII secolo’, in Franco Angiolini and Daniel Roche (eds), Cultures et formations négociantes dans l’Europe moderne (Paris: Editions de l’école des hautes études en sciences sociales, 1995), 403–20; Giuseppe Speciale, ‘Diritto e mercato. Il “diritto che viene dalle cose”. Dallo ius mercatorum al mercato in blockchain’, in Aldo Andrea Cassi (ed.), Le danze di Clio e Astrea. Fondamenti storici del diritto europeo (Turin: Giappichelli, 2023), 459–512. However, the increased level of engagement by these actors, sparked not least by a growing awareness of the importance of commerce to political economy, signals a new phase in the history of maritime law. This chapter will consider the development of GA in formal sources of law with a focus on those sources that might conceivably have regulated GA in early modern Tuscany.
During this period, learned jurists increasingly began to publish printed works dedicated exclusively to maritime and commercial law, drawing on the
Corpus Iuris Civilis (the texts of Roman law), authoritative collections of maritime customs, and the work of other jurists across the continent, as well as their own experience as lawyers who specialised professionally in maritime litigation. This historical development furnishes us with a range of printed evidence, ostensibly describing how GA functioned. In actual fact, as we will see, these texts more often were prescriptive rather than descriptive in nature, outlining how GA ought to have functioned according to the author in question. This chapter examines this evidence and charts the changing taxonomy of risk sharing that emerges, especially from the work of learned jurists, paying particular attention to the material relevant to the Tuscan situation. Tuscany itself, somewhat unusually, did not itself produce anything in the way of normative material on GA in the early modern period: neither statutes, state-sponsored collections, nor native jurists who dealt with GA, at least until the work of Ascanio Baldasseroni in the late eighteenth century.
3 Ascanio Baldasseroni, Delle assicurazioni marittime, 5 vols (Florence: Bonducciana, 1786–1803). From this survey, and a comparison with operational practice to take place in the next chapter, three things become clear. Firstly, the word Average (avaria) was not in wide use in formal sources of law until the sixteenth century, at which point it seems to have gained currency very quickly. As for late medieval practices in the Western Mediterranean, some form of collective contribution for jettison remained a constant, but this existed alongside a range of different arrangements for risk- and cost-sharing, and the word ‘Average’ was rarely used to describe them. It is therefore in a strict sense quite difficult to talk of a history ‘Average’ before the early modern period. Secondly, a principle of ‘General Average’ which grouped all damages incurred for the general benefit together and mandated the same modality of contribution to make them good, did not emerge until the early modern period. Though this had largely emerged in the Low Countries in the sixteenth century, it was not articulated elsewhere until the late seventeenth century and not convincingly theorised by Italian jurists until the eighteenth. To this should be added the caveat that the modality of contribution towards extraordinary or semi-regular expenses made for the general benefit – sometimes grouped under ‘Small’ or ‘Common’ Average – remained a point of uncertainty.
Finally, as we will see in the following chapter, all of these developments were anticipated in practice, with the jurists trying to theorise in its wake. Even by the beginning of the eighteenth century, contemporary Italian jurists schooled in the ius commune had not fully managed to reconcile the sometimes anachronistic inheritance of earlier and discordant authoritative collections – the Lex Rhodia and especially the Llibre del Consolat de Mar – with the risk-sharing institution that they observed on the ground in a way that they found satisfactory. Earlier collections did not articulate a clear legal principle of GA but presented a range of situations in which collective or group contribution was required. As early modern Italian jurists attempted to crystalise a theory of ‘Average’, they were clearly unsettled by the lack of support which merchant practice found in existing authoritative texts. At the turn of the eighteenth century, there was no unified response to these dissonances, and Italian jurists attempted to rationalise them in different ways. Only the work of Giuseppe Casaregi, influenced in particular by juridical discussion emerging out of the Netherlands, pointed the way to a taxonomy that more closely resembles our modern theory of Average.