{"id":"qld:act-1867-036","name":"Mercantile Act 1867","slug":"mercantile-act-1867","collection":"act","jurisdiction":"qld","status":"in_force","isInForce":true,"actNumber":"36 of 1867","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":105840,"registerId":"qld-act-1867-036-current","compilationNumber":null,"startDate":"2026-04-03","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"pt.1","sectionType":"part","heading":"Satisfied securities","content":"# Satisfied securities","sortOrder":0},{"sectionNumber":"sec.1","sectionType":"section","heading":null,"content":"### Section sec.1\n\ns 1 om 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":1},{"sectionNumber":"sec.2","sectionType":"section","heading":null,"content":"### Section sec.2\n\ns 2 om 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":2},{"sectionNumber":"sec.3","sectionType":"section","heading":null,"content":"### Section sec.3\n\ns 3 om 1896 60 Vic No. 6 s 60 sch","sortOrder":3},{"sectionNumber":"sec.4","sectionType":"section","heading":"A surety who discharges the liability to be entitled to assignment of all securities held by the creditor","content":"### sec.4 A surety who discharges the liability to be entitled to assignment of all securities held by the creditor\n\nEvery person who being surety for the debt or duty of another or being liable with another for any debt or duty shall pay such debt or perform such duty shall be entitled to have assigned to the person or to a trustee for the person every judgment specialty or other security which shall be held by the creditor in respect of such debt or duty whether such judgment specialty or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty.\nAnd such person shall be entitled to stand in the place of the creditor and to use all the remedies and if need be and upon a proper indemnity to use the name of the creditor in any action or other proceeding at law or in equity in order to obtain from the principal debtor or any co-surety co-contractor or co-debtor as the case may be indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him or her.\nHowever, no co-surety co-contractor or co-debtor shall be entitled to recover from any other co-surety co-contractor or co-debtor by the means aforesaid more than the just proportion to which as between those parties themselves such last mentioned person shall be justly liable.\n(sec.4-ssec.1) Every person who being surety for the debt or duty of another or being liable with another for any debt or duty shall pay such debt or perform such duty shall be entitled to have assigned to the person or to a trustee for the person every judgment specialty or other security which shall be held by the creditor in respect of such debt or duty whether such judgment specialty or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty.\n(sec.4-ssec.2) And such person shall be entitled to stand in the place of the creditor and to use all the remedies and if need be and upon a proper indemnity to use the name of the creditor in any action or other proceeding at law or in equity in order to obtain from the principal debtor or any co-surety co-contractor or co-debtor as the case may be indemnification for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him or her.\n(sec.4-ssec.3) However, no co-surety co-contractor or co-debtor shall be entitled to recover from any other co-surety co-contractor or co-debtor by the means aforesaid more than the just proportion to which as between those parties themselves such last mentioned person shall be justly liable.","sortOrder":4},{"sectionNumber":"sec.5","sectionType":"section","heading":null,"content":"### Section sec.5\n\nhdg prec s 5 om 1996 No. 73 s 11 sch\ns 5 om 1996 No. 73 s 11 sch","sortOrder":5},{"sectionNumber":"sec.6","sectionType":"section","heading":null,"content":"### Section sec.6\n\ns 6 om 1996 No. 73 s 11 sch","sortOrder":6},{"sectionNumber":"sec.7","sectionType":"section","heading":null,"content":"### Section sec.7\n\ns 7 om 1996 No. 73 s 11 sch","sortOrder":7},{"sectionNumber":"sec.8","sectionType":"section","heading":null,"content":"### Section sec.8\n\ns 8 om 1892 56 Vic No. 8 s 15","sortOrder":8},{"sectionNumber":"sec.9","sectionType":"section","heading":null,"content":"### Section sec.9\n\ns 9 om 1892 56 Vic No. 8 s 15","sortOrder":9},{"sectionNumber":"sec.10","sectionType":"section","heading":null,"content":"### Section sec.10\n\ns 10 om 1892 56 Vic No. 8 s 15","sortOrder":10},{"sectionNumber":"sec.11","sectionType":"section","heading":null,"content":"### Section sec.11\n\ns 11 om 1892 56 Vic No. 8 s 15","sortOrder":11},{"sectionNumber":"sec.12","sectionType":"section","heading":null,"content":"### Section sec.12\n\ns 12 om 1892 56 Vic No. 8 s 15","sortOrder":12},{"sectionNumber":"sec.13","sectionType":"section","heading":null,"content":"### Section sec.13\n\ns 13 om 1892 56 Vic No. 8 s 15","sortOrder":13},{"sectionNumber":"sec.14","sectionType":"section","heading":null,"content":"### Section sec.14\n\ns 14 om 1892 56 Vic No. 8 s 15","sortOrder":14},{"sectionNumber":"sec.15","sectionType":"section","heading":null,"content":"### Section sec.15\n\ns 15 om 1892 56 Vic No. 8 s 15","sortOrder":15},{"sectionNumber":"sec.16","sectionType":"section","heading":null,"content":"### Section sec.16\n\ns 16 om 1892 56 Vic No. 8 s 15","sortOrder":16},{"sectionNumber":"sec.17","sectionType":"section","heading":null,"content":"### Section sec.17\n\ns 17 om 1892 56 Vic No. 8 s 15","sortOrder":17},{"sectionNumber":"sec.18","sectionType":"section","heading":null,"content":"### Section sec.18\n\ns 18 om 1892 56 Vic No. 8 s 15","sortOrder":18},{"sectionNumber":"sec.19","sectionType":"section","heading":null,"content":"### Section sec.19\n\ns 19 om 1892 56 Vic No. 8 s 15","sortOrder":19},{"sectionNumber":"sec.20","sectionType":"section","heading":null,"content":"### Section sec.20\n\ns 20 om 1891 55 Vic No. 23 s 19","sortOrder":20},{"sectionNumber":"sec.21","sectionType":"section","heading":null,"content":"### Section sec.21\n\ns 21 om 1891 55 Vic No. 23 s 19","sortOrder":21},{"sectionNumber":"sec.22","sectionType":"section","heading":null,"content":"### Section sec.22\n\ns 22 om 1891 55 Vic No. 23 s 19","sortOrder":22},{"sectionNumber":"sec.23","sectionType":"section","heading":null,"content":"### Section sec.23\n\ns 23 om 1891 55 Vic No. 23 s 19","sortOrder":23},{"sectionNumber":"sec.24","sectionType":"section","heading":null,"content":"### Section sec.24\n\ns 24 om 1891 55 Vic No. 23 s 19","sortOrder":24},{"sectionNumber":"sec.25","sectionType":"section","heading":null,"content":"### Section sec.25\n\ns 25 om 1891 55 Vic No. 23 s 19","sortOrder":25},{"sectionNumber":"sec.26","sectionType":"section","heading":null,"content":"### Section sec.26\n\ns 26 om 1891 55 Vic No. 23 s 19","sortOrder":26},{"sectionNumber":"sec.27","sectionType":"section","heading":null,"content":"### Section sec.27\n\ns 27 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":27},{"sectionNumber":"sec.28","sectionType":"section","heading":null,"content":"### Section sec.28\n\ns 28 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":28},{"sectionNumber":"sec.29","sectionType":"section","heading":null,"content":"### Section sec.29\n\ns 29 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":29},{"sectionNumber":"sec.30","sectionType":"section","heading":null,"content":"### Section sec.30\n\ns 30 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":30},{"sectionNumber":"sec.31","sectionType":"section","heading":null,"content":"### Section sec.31\n\ns 31 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":31},{"sectionNumber":"sec.32","sectionType":"section","heading":null,"content":"### Section sec.32\n\ns 32 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":32},{"sectionNumber":"sec.33","sectionType":"section","heading":null,"content":"### Section sec.33\n\ns 33 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":33},{"sectionNumber":"sec.34","sectionType":"section","heading":null,"content":"### Section sec.34\n\ns 34 om 1955 4 Eliz 2 No. 16 sch 1","sortOrder":34},{"sectionNumber":"sec.35","sectionType":"section","heading":null,"content":"### Section sec.35\n\ns 35 om 1899 63 Vic No. 9 s 3(2)sch 3","sortOrder":35},{"sectionNumber":"sec.36","sectionType":"section","heading":null,"content":"### Section sec.36\n\ns 36 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":36},{"sectionNumber":"sec.37","sectionType":"section","heading":null,"content":"### Section sec.37\n\ns 37 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":37},{"sectionNumber":"sec.38","sectionType":"section","heading":null,"content":"### Section sec.38\n\ns 38 amd 1896 60 Vic No. 10 s 12\nom 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":38},{"sectionNumber":"sec.39","sectionType":"section","heading":null,"content":"### Section sec.39\n\ns 39 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":39},{"sectionNumber":"sec.40","sectionType":"section","heading":null,"content":"### Section sec.40\n\ns 40 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":40},{"sectionNumber":"sec.41","sectionType":"section","heading":null,"content":"### Section sec.41\n\ns 41 om 1955 4 Eliz 2 No. 16 s 4sch 1","sortOrder":41},{"sectionNumber":"sec.42","sectionType":"section","heading":null,"content":"### Section sec.42\n\ns 42 om 1899 63 Vic No. 9 s 3(2)sch 3","sortOrder":42},{"sectionNumber":"pt.2","sectionType":"part","heading":"Gaming securities","content":"# Gaming securities","sortOrder":43},{"sectionNumber":"sec.43","sectionType":"section","heading":"All notes etc. mortgages etc. Where the consideration is for money won by gaming. Or for repayment of money lent at such gaming etc. shall be deemed made etc. for illegal consideration","content":"### sec.43 All notes etc. mortgages etc. Where the consideration is for money won by gaming. Or for repayment of money lent at such gaming etc. shall be deemed made etc. for illegal consideration\n\nAll notes bills bonds judgments mortgages or other securities or conveyances whatsoever given granted drawn or entered into or executed by any person or persons whatsoever where the whole or any part of the consideration of such conveyances or securities shall be for any money or other valuable thing whatsoever won by gaming or playing at cards dice tables tennis bowls or other game or games whatsoever or by betting on the sides or hands of such as do game at any of the games aforesaid or for the reimbursing or repaying any money knowingly lent or advanced for such gaming or betting as aforesaid or lent or advanced at the time and place of such play to any person or persons so gaming or betting as aforesaid or that shall during such play so play or bet that shall be deemed and taken to have been made drawn accepted given or executed for an illegal consideration to all intents and purposes whatsoever any statute law or usage to the contrary thereof in anywise notwithstanding.\nHowever, nothing herein contained shall prejudice or affect any note bill or mortgage which would have been good and valid if this Act had not been passed.\n(sec.43-ssec.1) All notes bills bonds judgments mortgages or other securities or conveyances whatsoever given granted drawn or entered into or executed by any person or persons whatsoever where the whole or any part of the consideration of such conveyances or securities shall be for any money or other valuable thing whatsoever won by gaming or playing at cards dice tables tennis bowls or other game or games whatsoever or by betting on the sides or hands of such as do game at any of the games aforesaid or for the reimbursing or repaying any money knowingly lent or advanced for such gaming or betting as aforesaid or lent or advanced at the time and place of such play to any person or persons so gaming or betting as aforesaid or that shall during such play so play or bet that shall be deemed and taken to have been made drawn accepted given or executed for an illegal consideration to all intents and purposes whatsoever any statute law or usage to the contrary thereof in anywise notwithstanding.\n(sec.43-ssec.2) However, nothing herein contained shall prejudice or affect any note bill or mortgage which would have been good and valid if this Act had not been passed.","sortOrder":44},{"sectionNumber":"sec.44","sectionType":"section","heading":null,"content":"### Section sec.44\n\ns 44 om 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":45},{"sectionNumber":"sec.45","sectionType":"section","heading":null,"content":"### Section sec.45\n\ns 45 om 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":46},{"sectionNumber":"sec.46","sectionType":"section","heading":null,"content":"### Section sec.46\n\ns 46 om 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":47},{"sectionNumber":"sec.47","sectionType":"section","heading":null,"content":"### Section sec.47\n\ns 47 amd 1899 63 Vic No. 9 s 3(2)sch 2; 1908 8 Edw 7 No. 18 s 2sch 1\nom 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":48},{"sectionNumber":"sec.48","sectionType":"section","heading":null,"content":"### Section sec.48\n\ns 48 amd 1908 8 Edw 7 No. 18 s 2sch 1\nom 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":49},{"sectionNumber":"sec.49","sectionType":"section","heading":null,"content":"### Section sec.49\n\ns 49 amd 1899 63 Vic No. 9 s 3(2)sch 3\nom 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":50},{"sectionNumber":"sec.50","sectionType":"section","heading":null,"content":"### Section sec.50\n\ns 50 amd 1908 8 Edw 7 No. 18 s 2sch 1\nom 1974 No. 76 s 3 (2) sch 6 pt 3","sortOrder":51},{"sectionNumber":"sec.51","sectionType":"section","heading":"Lands first conveyed with condition of revocation or alteration and after sold for money or other good consideration","content":"### sec.51 Lands first conveyed with condition of revocation or alteration and after sold for money or other good consideration\n\nIf any person or persons having heretofore made or who shall hereafter make any conveyance gift grant demise charge limitation of use or uses or assurance of in or out of any lands tenements or hereditaments with any clause provision article or condition of revocation determination or alteration at his, her or their will or pleasure of such conveyance assurance grants limitations of uses or estates of in or out of the said lands tenements or hereditaments or of in or out of any part or parcel of them contained or mentioned in any writing deed or indenture of such assurance conveyance grant or gift and after such conveyance grant gift demise charge limitation of uses or assurance so made or had shall or do bargain sell demise grant convey or charge the same lands tenements or hereditaments or any part or parcel thereof to any person or persons bodies politic and corporate for money or other good consideration paid or given (the said first conveyance assurance gift grant demise charge or limitation not by him, her or them revoked made void or altered according to the power and authority reserved or expressed unto him, her or them in and by the said secret conveyance assurance gift or grant) that then the said former conveyance assurance gift demise and grant as touching the said lands tenements and hereditaments so after bargained sold conveyed demised or charged against the said bargainees vendees lessees grantees and every of them their heirs successors executors administrators and assigns and against all and every person and persons which have shall or may lawfully claim anything by from or under them or any of them shall be deemed taken and adjudged to be void frustrate and of none effect by virtue and force of this present Act.\ns 51 amd 1908 8 Edw 7 No. 18 s 2sch 1","sortOrder":52},{"sectionNumber":"sec.52","sectionType":"section","heading":"Mortgages lawfully made","content":"### sec.52 Mortgages lawfully made\n\nHowever, no lawful mortgage made or to be made bona fide and without fraud or covin upon good consideration shall be impeached or impaired by force of this Act but shall stand in the like force and effect as the same should have done if this Act had never been had or made anything in this Act to the contrary in anywise notwithstanding.","sortOrder":53},{"sectionNumber":"sec.53","sectionType":"section","heading":null,"content":"### Section sec.53\n\nhdg prec s 53 om 1996 No. 73 s 11 sch\ns 53 om 1996 No. 73 s 11 sch","sortOrder":54},{"sectionNumber":"sec.54","sectionType":"section","heading":null,"content":"### Section sec.54\n\ns 54 om 1996 No. 73 s 11 sch","sortOrder":55},{"sectionNumber":"sec.55","sectionType":"section","heading":null,"content":"### Section sec.55\n\ns 55 om 1996 No. 73 s 11 sch","sortOrder":56},{"sectionNumber":"sec.56","sectionType":"section","heading":null,"content":"### Section sec.56\n\ns 56 om 1996 No. 73 s 11 sch","sortOrder":57},{"sectionNumber":"sec.57","sectionType":"section","heading":null,"content":"### Section sec.57\n\ns 57 om 1996 No. 73 s 11 sch","sortOrder":58},{"sectionNumber":"sec.58","sectionType":"section","heading":null,"content":"### Section sec.58\n\ns 58 om 1996 No. 73 s 11 sch","sortOrder":59},{"sectionNumber":"sec.59","sectionType":"section","heading":null,"content":"### Section sec.59\n\ns 59 om 1996 No. 73 s 11 sch","sortOrder":60},{"sectionNumber":"sec.60","sectionType":"section","heading":null,"content":"### Section sec.60\n\ns 60 om 1996 No. 73 s 11 sch","sortOrder":61},{"sectionNumber":"sec.61","sectionType":"section","heading":null,"content":"### Section sec.61\n\ns 61 om 1996 No. 73 s 11 sch","sortOrder":62},{"sectionNumber":"sec.62","sectionType":"section","heading":null,"content":"### Section sec.62\n\ns 62 om 1996 No. 73 s 11 sch","sortOrder":63},{"sectionNumber":"sec.63","sectionType":"section","heading":null,"content":"### Section sec.63\n\ns 63 om 1996 No. 73 s 11 sch","sortOrder":64},{"sectionNumber":"sec.64","sectionType":"section","heading":null,"content":"### Section sec.64\n\ns 64 om 1996 No. 73 s 11 sch","sortOrder":65},{"sectionNumber":"sec.65","sectionType":"section","heading":null,"content":"### Section sec.65\n\ns 65 om 1996 No. 73 s 11 sch","sortOrder":66},{"sectionNumber":"sec.66","sectionType":"section","heading":null,"content":"### Section sec.66\n\ns 66 amd 1899 63 Vic No. 9 s 3(2)sch 3\nom 1996 No. 73 s 11 sch","sortOrder":67},{"sectionNumber":"sec.67","sectionType":"section","heading":null,"content":"### Section sec.67\n\ns 67 om 1996 No. 73 s 11 sch","sortOrder":68},{"sectionNumber":"sec.68","sectionType":"section","heading":null,"content":"### Section sec.68\n\ns 68 om 1996 No. 73 s 11 sch","sortOrder":69},{"sectionNumber":"pt.3","sectionType":"part","heading":"Commencement and short title","content":"# Commencement and short title","sortOrder":70},{"sectionNumber":"sec.69","sectionType":"section","heading":"Commencement of Act. Short title","content":"### sec.69 Commencement of Act. Short title\n\nThis Act shall commence on 31 December 1867 and may be referred to as the Mercantile Act 1867 .","sortOrder":71}],"analysis":{"flash_summary":{"complexity_score":5,"scope_assessment":{"changed":false,"description":"The text sets out a defined set of rules: (1) rights of a surety who pays to be assigned creditor securities and to pursue recovery (s.4); (2) treatment of instruments arising from gaming as made for illegal consideration with a saving clause (s.43); (3) that later bona fide purchasers for value defeat earlier conditional conveyances with reserved revocation (s.51); and (4) preservation of lawful, bona fide mortgages (s.52). The Act itself frames these as operative rules and exceptions; the statutory text does not, within the passages provided, indicate an expansion or contraction of scope beyond thosemechanical provisions."},"complexity_factors":["Multiple interacting parties and relationships (surety, creditor, principal debtor, co-sureties, purchasers, mortgagees) (s.4, s.51, s.52).","Long, archaic statutory sentences and conditional wording that require parsing (s.4, s.43, s.51).","Fact-intensive legal determinations required (whether consideration arose from gaming; whether a mortgage was bona fide and without fraud) (s.43, s.52).","Procedural prerequisites and discretionary conditions (use of creditor’s name subject to a proper indemnity) (s.4(2)).","Interaction of assignment, enforcement and indemnity mechanics (assignment of securities, standing in creditor’s place, use of remedies) (s.4).","Apportionment among co-sureties limited to \"just proportion\", requiring further factual and possibly court determination (s.4(3)).","Overlap between conveyancing protection for purchasers and prior conditional interests (s.51) creating potential title disputes.","Saving clause for instruments otherwise valid creates an exception that must be reconciled case-by-case (s.43(2))."],"plain_english_summary":"# What this law does (mechanical effects)\n\n- Surety recovery and assignment of securities: If a person (a surety) pays a debt or performs a duty for which they were standing as surety or were jointly liable, that person is entitled to have every judgment, specialty or other security that the creditor holds in respect of that debt or duty assigned to them (or to a trustee for them) (s.4(1)). The surety may “stand in the place of” the creditor and use all the creditor’s remedies; with a proper indemnity the surety may even use the creditor’s name in legal proceedings to recover from the principal debtor or other co-sureties or co-debtors (s.4(2)). A co-surety cannot recover from another co-surety more than the just proportion to which they are liable between themselves (s.4(3)).\n\n- Instruments arising from gaming treated as illegal consideration: Any note, bill, bond, judgment, mortgage or other security whose whole or part consideration is money or value won by gaming or advanced/lent for gaming (including money lent at the time and place of play) is to be treated as made for an illegal consideration (s.43(1)). The Act nevertheless says it will not prejudice any instrument that would have been valid if the Act had not been passed (s.43(2)).\n\n- Land conveyed with a reserved power of revocation then sold for value: If someone conveys land but reserves a clause allowing revocation or alteration at their will, and later (without having exercised that reserved power) sells or conveys the land for money or other good consideration, then the earlier conditional conveyance is to be treated as void and of no effect as against the later bona fide bargainee, vendee, lessee or grantee and those claiming under them (s.51).\n\n- Mortgages preserved if bona fide and without fraud: A mortgage that was lawfully and bona fide made without fraud or collusion and on good consideration is not to be impeached or impaired by the Act; it continues to have full force as if the Act had not been passed (s.52).\n\n- Administrative detail: The Act gives its commencement date and short title (commences 31 December 1867; short title Mercantile Act 1867) (s.69).\n\n# Who is affected (stakeholders)\n\n- Sureties who pay debts (they gain rights to assignment and to sue for reimbursement) (s.4).\n- Creditors (their securities can be assigned to sureties who pay; their name may be used in proceedings where indemnity is provided) (s.4(1)–(2)).\n- Principal debtors, co-sureties and co-debtors (they may be liable to indemnify the paying surety; co-sureties’ mutual liability limited to their just proportion) (s.4(2)–(3)).\n- Parties holding instruments traceable to gambling or gaming proceeds (those instruments are treated as given for illegal consideration and therefore vulnerable) (s.43).\n- Purchasers/transferees who buy land for money or other good consideration from someone who previously made a conveyance with a reserved power of revocation (they take free of the earlier conditional conveyance) (s.51).\n- Mortgagees who made bona fide, non-fraudulent mortgages on good consideration (their security remains valid) (s.52).\n\n# Why this matters (how incentives and costs change)\n\n- Transfer of enforcement power to paying surety: A surety who pays is incentivised to pursue recovery using the creditor’s remedies because they receive assignment of the creditor’s securities (s.4(1)). That creates an incentive for sureties to pay and then litigate or enforce, shifting enforcement costs and litigation risk onto the surety who pays and, indirectly, onto those from whom the surety seeks contribution (s.4(2)).\n\n- Litigation and proof burdens: The surety’s right to recover requires steps (assignment, possible indemnity to use creditor’s name, bringing actions in law or equity). Those steps create compliance and litigation costs for the surety and evidentiary burdens to prove the amount recoverable and the correct proportion among co-sureties (s.4(2)–(3)).\n\n- Enforcement uncertainty where gaming is involved: Treating instruments whose consideration arose from gaming as made for illegal consideration (s.43(1)) reduces enforceability of such instruments, but the accompanying saving clause (s.43(2)) preserves any instrument that otherwise would have been valid. Establishing whether an instrument’s consideration was \"for money won by gaming\" will be a fact-specific inquiry in disputes (s.43(1)–(2)), which creates litigation risk and evidentiary cost for parties.\n\n- Property-market certainty for bona fide purchasers: The rule that an earlier conditional conveyance (with a reserved revocation power) is void against later purchasers for value (s.51) gives purchasers for value a measure of protection and imposes a loss risk on the person who made the first conditional conveyance if they do not exercise the reserved power. That shifts the burden of protecting the earlier interest onto the original grantee (they must secure or enforce their interest earlier, or risk it being defeated when the grantor later sells for value).\n\n- Protection for bona fide mortgages: The explicit preservation of lawful, bona fide mortgages (s.52) reduces risk to lenders who have taken non-fraudulent security on value; it curbs the effect of other rules in the Act on such mortgages.\n\n# Implementation, discretion and notable procedural points\n\n- Use of creditor’s name in proceedings requires a \"proper indemnity\" (s.4(2)), which injects a procedural condition and potential creditor discretion about granting that use.\n\n- Determinations about whether consideration is gaming-related (s.43(1)) or whether a mortgage is bona fide and without fraud (s.52) are fact-based and will normally be decided in litigation, so parties face evidentiary and cost uncertainty.\n\n- The Act limits recovery among co-sureties to the just proportion between them (s.4(3)), requiring apportionment exercises that may generate further disputes and cost.\n\n# Short citation\n\nThe Act calls itself the Mercantile Act 1867 and records its commencement date (s.69)."},"issue_detection":{"absurdities":[{"type":"self_contradicting","section":"sec.43-ssec.2","severity":"medium","reasoning":"Sec.43-ssec.1 broadly voids securities where any part of the consideration is gaming-related. Sec.43-ssec.2 then saves instruments that 'would have been good and valid if this Act had not been passed.' This is circular: the only reason such instruments are invalid is because of sec.43-ssec.1 itself. The savings clause therefore attempts to restore validity to the very instruments the main provision invalidates, effectively undermining the main provision entirely or rendering the savings clause meaningless depending on how it is read.","confidence":0.82,"description":"The savings clause in sec.43 preserves notes, bills or mortgages that 'would have been good and valid if this Act had not been passed' — but the Act is the very instrument that deems them invalid for illegal consideration. The savings clause therefore attempts to preserve instruments from the effect of the same provision in which it sits, creating a self-negating carve-out: if the instrument would have been valid without the Act, the Act makes it invalid, but then says the Act does not affect it."},{"type":"other","section":"sec.4-ssec.2 and sec.4-ssec.3","severity":"low","reasoning":"The broad grant of 'all the remedies' in ssec.2 sits uncomfortably with the proportionality cap in ssec.3. A literal reading of ssec.2 could allow a surety to pursue co-sureties using the creditor's stronger remedies (e.g. judgment enforcement) for the full debt, before ssec.3's cap is applied as a defence. The interaction is imprecise rather than strictly impossible, but creates a logical gap about the sequence and scope of remedy use.","confidence":0.6,"description":"Sec.4-ssec.2 grants a surety who has paid the debt the full suite of creditor remedies to recover indemnification. Sec.4-ssec.3 then caps recovery from co-sureties to their 'just proportion.' However, the section gives the paying surety the creditor's full rights against the principal debtor without cap, while simultaneously capping rights against co-sureties — yet does not clarify whether the paying surety can use the creditor's name and full remedies to extract more than the proportionate share from a co-surety before the cap applies, creating an enforcement ambiguity."},{"type":"other","section":"sec.4 (body text and subsections)","severity":"low","reasoning":"Where text is duplicated within the same enactment, principles of statutory interpretation require courts to give effect to all words. Having identical obligations stated twice in the same section does not strictly create a contradiction but is a structural absurdity: it is unclear whether a surety has the right once or twice, or whether a co-surety's proportional liability is capped once or doubly capped.","confidence":0.75,"description":"The substantive text of sec.4 is reproduced in full twice — once as unstructured body text and then again verbatim as subsections sec.4-ssec.1, sec.4-ssec.2, and sec.4-ssec.3. This creates two legally operative versions of identical provisions within the same section, raising a question of whether both versions have independent legal effect or whether one is mere surplusage."},{"type":"impossible_compliance","section":"sec.51","severity":"low","reasoning":"The section's protection kicks in only when the first conveyance has NOT been revoked. But if it had been revoked, the second purchaser faces no threat from it anyway. The parenthetical condition describing non-revocation as the trigger for invalidity of the first conveyance is logically redundant: the first conveyance only poses a threat precisely when it has not been revoked, so the condition adds no discriminating function.","confidence":0.65,"description":"Sec.51 voids a prior secret conveyance against a subsequent bona fide purchaser for value only if the grantor failed to revoke it 'according to the power and authority reserved.' This means the section only protects the later purchaser when the grantor had the power to revoke but did not exercise it — yet if the grantor had already revoked the first conveyance, there would be no competing interest to protect against in the first place, rendering the operative condition of the section impossible to satisfy in a practically meaningful way."},{"type":"retroactive_impossibility","section":"sec.69","severity":"low","reasoning":"Commencing on the last day of the year named in the short title is an edge case that could produce anomalies if the Act received royal assent in 1867 before 31 December (creating a gap period) or on 31 December itself (collapsing commencement and assent). While not strictly impossible, it is a structural curiosity that could affect the validity of transactions entered into in good faith in the period between assent and commencement.","confidence":0.5,"description":"The commencement provision states the Act commences on 31 December 1867. However, the Act is titled and referred to as the 'Mercantile Act 1867' implying passage in 1867, but a commencement date of 31 December 1867 means any obligations imposed by the Act on persons acting before that date — but within 1867 — could create retroactive liability for the period between royal assent and commencement, or alternatively the Act was effectively never in force in 1867 if assented to on or after 31 December."}],"contradictions":[{"severity":"high","section_a":"sec.43-ssec.1","section_b":"sec.43-ssec.2","confidence":0.85,"description":"Sec.43-ssec.1 deems all securities with gaming consideration void 'to all intents and purposes whatsoever' and expressly overrides 'any statute law or usage to the contrary.' Sec.43-ssec.2 then saves instruments that would have been valid without the Act. These two provisions directly contradict each other: ssec.1 uses the broadest possible language of invalidity and overrides contrary law, while ssec.2 carves back instruments from that invalidity, undermining the 'all intents and purposes' sweep of ssec.1."},{"severity":"medium","section_a":"sec.51","section_b":"sec.52","confidence":0.72,"description":"Sec.51 voids prior conveyances against subsequent purchasers for value as a general proposition. Sec.52 then saves 'lawful mortgages made bona fide and without fraud or covin upon good consideration' from the Act's operation. The contradiction arises because a mortgage is a form of conveyance caught by sec.51's broad language ('charge'), yet sec.52 explicitly immunises bona fide mortgages. It is unclear whether a prior mortgage that would be voided by sec.51 is saved by sec.52, or whether sec.52 only applies to the mortgagee's position as a subsequent purchaser — the provisions do not coherently delineate which mortgages sec.51 voids and which sec.52 saves."},{"severity":"low","section_a":"sec.4-ssec.2","section_b":"sec.4-ssec.3","confidence":0.65,"description":"Sec.4-ssec.2 grants the paying surety entitlement to 'all the remedies' of the creditor against 'any co-surety co-contractor or co-debtor' without limitation. Sec.4-ssec.3 prohibits the same paying surety from recovering from any co-surety more than that co-surety's just proportion. These provisions are in tension: ssec.2's 'all remedies' language suggests uncapped recovery, while ssec.3 imposes a proportionality cap. In practice ssec.3 qualifies ssec.2, but the unrestricted language of ssec.2 is not expressly made subject to ssec.3, creating an internal contradiction in the scope of recoverable amounts."}]},"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act was originally a wide-ranging 1867 consolidation and reform of mercantile law covering satisfied securities, gaming contracts, bills of sale, stock mortgages, partnerships and land conveyancing. Successive repeals (particularly the 1891-1899 statutes, the 1955 and 1974 Acts, and the 1996 Statute Law Revision Act) have stripped away entire Parts, narrowing the scope to three isolated clusters of provisions on surety subrogation, void gaming securities, and conditional land conveyances. Its practical reach is now far narrower than the original intent of a comprehensive mercantile code."},"complexity_factors":["Archaic 19th-century drafting with long, run-on sentences and double negatives","Fragmented structure caused by dozens of repeals across multiple amending Acts from 1891 to 1996","Heavy reliance on equitable concepts (subrogation, assignment, indemnity) without modern definitions","Nested provisos and savings clauses (e.g. the 'however' proviso in s 4(3) and s 43(2))","Cross-references to repealed parts that once dealt with bills of sale, partnerships and stock mortgages"],"plain_english_summary":"**The Mercantile Act 1867** is an old Queensland law that mainly does three things:\n\n* **Protects guarantors (sureties):** If you guarantee someone else's debt and end up paying it, you get the legal right to step into the shoes of the original lender. This means you can claim any securities (like mortgages or judgments) the lender held, and chase the borrower or other guarantors for a fair share of the loss (s 4).\n* **Blocks gambling debts:** Any IOUs, mortgages or other agreements made to pay gambling losses or to repay money lent for gambling are treated as invalid and unenforceable because they are based on an 'illegal consideration' (s 43).\n* **Handles certain old land deals:** It sets rules about land that was given away with a hidden right to cancel the transfer later. If that land is then sold to an innocent buyer for proper value, the original conditional transfer becomes void (s 51), but honest mortgages are protected (s 52).\n\nIt affects guarantors, creditors, gamblers, borrowers and anyone dealing with historical land titles in Queensland. The law matters because it gives practical remedies to people who honour guarantees and stops courts from helping enforce gambling-related debts, while providing certainty in old-fashioned property transactions. Most of the original 69 sections have been repealed over the years, leaving only these core rules in force."},"summary":{"complexity_score":6,"scope_assessment":{"changed":true,"description":"The Act originally covered a broad range of commercial law topics across 69 sections, including bills of sale, bills of exchange, factors and agents, gaming, satisfied securities, and property conveyancing. Through successive repeals between 1891 and 1996, the scope has been dramatically narrowed to just three substantive areas: guarantor/surety rights (s.4), gaming securities (s.43), and fraudulent secret conveyances of land (ss.51–52). The Act has effectively been reduced to a narrow residual instrument covering a fraction of its original commercial law purpose."},"complexity_factors":["Archaic Victorian-era legal language with extremely long unpunctuated sentences","Most sections have been repealed, making it difficult to understand the original structure and scope","Section 4 involves layered legal concepts: subrogation, contribution between co-sureties, and assignment of securities","Section 51 uses highly technical conveyancing (property transfer) language from 16th–17th century English law traditions","The interaction between surviving sections and the many laws that repealed other sections requires cross-referencing multiple pieces of legislation spanning over 130 years","Legal terms like 'specialty', 'hereditaments', 'covin', and 'bona fide' are used without definition","The gambling provisions in section 43 require understanding of what constitutes 'illegal consideration' in contract law"],"plain_english_summary":"## Mercantile Act 1867 — What's Left of It?\n\nThis is a very old Queensland law from 1867 that originally covered a wide range of commercial (mercantile) topics. Over the past 150+ years, **almost every section has been repealed** (deleted) by later legislation. What remains active is surprisingly slim.\n\n### What Still Applies\n\n**1. Rights of Guarantors/Sureties (Section 4)**\nThis is the most important surviving provision. It protects people who act as a **guarantor or surety** — that is, someone who agrees to pay another person's debt if that person doesn't pay.\n\nIf you pay off someone else's debt as their guarantor, you have the right to:\n- **Take over** any security (e.g. a mortgage, court judgment, or other guarantee) that the original lender held — even if that security is technically considered 'paid off'\n- **Step into the lender's shoes** and use the lender's legal remedies to recover your money from the main debtor or from other co-guarantors\n- **Sue to recover** your losses without the original payment being used against you as a defence\n\n⚠️ Important limit: If there are multiple guarantors, none of them can recover more than their fair share from the others.\n\n**2. Gambling Debts Are Unenforceable (Section 43)**\nAny financial instrument — such as a promissory note, mortgage, bond, or other security — is **legally void (worthless)** if the debt behind it arose from:\n- Money won through gambling (cards, dice, bowls, tennis, betting, etc.)\n- Money lent specifically to fund gambling\n\nIn plain terms: **you cannot legally enforce a debt that came from gambling winnings or gambling loans.**\n\n⚠️ Exception: If the note or mortgage would have been valid for other reasons unrelated to gambling, it remains valid.\n\n**3. Secret Conveyances of Land (Sections 51–52)**\nIf someone secretly transfers land with a hidden 'take-back' clause, and then **sells that same land to an innocent buyer** for genuine payment, the secret earlier transfer is **void** — the honest buyer wins.\n\n⚠️ Exception: A genuine, honest mortgage made without fraud is protected and remains valid.\n\n### Who Does This Affect?\n- **Guarantors and co-signers** on loans — your rights to recover money after paying someone else's debt\n- **Lenders and borrowers** where gambling is involved — those debts are unenforceable\n- **Property buyers** who may be affected by hidden prior dealings in land\n\n### The Big Picture\nMost of this Act is a historical relic — the vast majority of its 69 sections have been repealed and replaced by more modern laws. The surviving sections are narrow but still legally significant, particularly for anyone acting as a guarantor."}},"importantCases":[],"_links":{"self":"/api/acts/mercantile-act-1867","history":"/api/acts/mercantile-act-1867/history","analysis":"/api/acts/mercantile-act-1867/analysis","conflicts":"/api/acts/mercantile-act-1867/conflicts","importantCases":"/api/acts/mercantile-act-1867/important-cases","documents":"/api/acts/mercantile-act-1867/documents"}}