{"id":"mercantile-law-amendment-act-1856-imp","name":"Mercantile Law Amendment Act 1856 (Imp)","slug":"mercantile-law-amendment-act-1856-imp","collection":"act","jurisdiction":"wa","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":92334,"registerId":"wa-mercantile-law-amendment-act-1856-imp-current","compilationNumber":null,"startDate":"2026-04-02","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Mercantile Law Amendment Act 1856 (Imp)","content":"![Crest]()Western Australia\n\nMercantile Law Amendment Act 1856 (Imp)\n\nWestern Australia\n\nMercantile Law Amendment Act 1856 (Imp)\n\nContents\n\n3. Consideration or guarantee need not appear by writing 1\n\n5. A surety who discharges the liability to be entitled to assignment of all securities held by the creditor 2\n\n6. Acceptance of a bill inland or foreign to be in writing on it, and signed by the acceptor or his agent 2\n\n7. What are to be deemed ‘inland bills’ 3\n\n8. With reference to the repairs of ships, every port within the United Kingdom, etc., a home port 3\n\n16. Short title 3\n\n17. Extent of Act 3\n\nNotes\n\nCompilation table 4\n\n  \n\nWestern Australia\n\nMercantile Law Amendment Act 1856 (Imp)\n\nAn Act to amend the Laws of England and Ireland affecting Trade and Commerce. 3\n\n  **Preamble**\n\nWhereas inconvenience is felt by persons engaged in trade by reason of the laws of England and Ireland being in some particulars different from those of Scotland in matters of common occurrence in the course of such trade, and with a view to remedy such inconvenience is it expedient to amend the laws of England and Ireland as hereinafter is mentioned:\n\nBe it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—\n\n[**1‑2.** Deleted: WA by 59 Vict. No. 41 s. 58.] 4\n\n##### 3. Consideration or guarantee need not appear by writing\n\nNo special promise to be made by any person after the passing of this Act to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith or some other person by him thereunto lawfully authorised, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document.\n\n[**4**. Deleted: WA by 59 Vict. No. 23 s. 4.] 5\n\n##### 5. 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 of 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 him, or to a trustee for him, 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, 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:\n\nProvided always, that 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\n##### 6. Acceptance of a bill inland or foreign to be in writing on it, and signed by the acceptor or his agent 6\n\nNo acceptance of any bill of exchange, whether inland or foreign, made after the thirty‑first day of December one thousand eight hundred and fifty‑six, shall be sufficient to bind or charge any person, unless the same be in writing on such bill, or, if there be more than one part of such bill, on one of the said parts, and signed by the acceptor or some person duly authorised by him.\n\n##### 7. What are to be deemed ‘inland bills’ 6\n\nEvery bill of exchange or promissory note drawn or made in any part of the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Aldernay, and Sark, and the island adjacent to any of them, being part of the dominions of Her Majesty, and made payable in or drawn upon any person resident in any part of the said United Kingdom or islands, shall be deemed to be an inland bill; but nothing herein contained shall be deemed to be an inland bill; but nothing herein contained shall alter or affect the stamp duty, if any, which, but for this enactment, would be payable in respect of any such bill or note.\n\n##### 8. With reference to the repairs of ships, every port within the United Kingdom, etc., a home port\n\nIn relation to the rights and remedies of persons having claims for repairs done to, or supplies furnished to or for, ships, every port within the United Kingdom of Great Britain and Ireland, the Islands of Man, Guernsey, Jersey, Alderney, and Sark, and the islands adjacent to any of them, being part of the dominions of Her Majesty, shall be deemed a home port.\n\n[**9‑15.** Deleted: No. 35 of 1935 s. 2.] 7\n\n##### 16. Short title\n\nIn citing this Act it shall be sufficient to use the expression ‘The Mercantile Law Amendment Act, 1856.’\n\n##### 17. Extent of Act\n\nNothing in this Act shall extend to Scotland.\n\nNotes\n\n1 This is a compilation of the *Mercantile Law Amendment Act 1856 (Imp)*. The following table contains information about that Act and any previous reprints.\n\nCompilation table\n\n| **Short title** | **Number and year** | **Assent** | **Commencement** |\n| --- | --- | --- | --- |\n| *Mercantile Law Amendment Act 1856 (Imp)* 2 | 1856 (19 and 20 Vict. c. 97) | 29 Jul 1856 | 15 Jul 1867 (adopted by *Imperial Acts Adopting Ordinance 1867*) |\n| *The Sale of Goods Act 1895* s. 58 | 1895 (59 Vict. No. 41) | 2 Oct 1895 | 1 Oct 1895 (see s. 2) |\n| *The Partnership Act 1895* s. 4 | 1895 (59 Vict. No. 23 | 12 Oct 1895 | 1 Jan 1896 (see s. 61) |\n| *Limitation Act 1935* s. 5 | 35 of 1935 | 7 Jan 1936 | 14 Apr 1936 |\n| **Reprinted as at 26 Oct 1999** | | | |\n\n\n2 Adopted in WA by *Imperial Acts Adopting Ordinance 1867*.\n\n(31 Vict. No. 8) [Assent 15 July 1867]\n\n3 For information about this Imperial Act see *Halsbury’s Statutes of England*, Second Edition, Vol 4 p 660.\n\n4 I.e. repealed in so far as they were part of the law of WA by the *Sale of Goods Act 1895* (59 Vict. No. 41) s 58 [Assent 12 October 1895; Commencement 1 January 1896].\n\n5 I.e. repealed in so far as it was part of the law of WA by the *Partnership Act 1895* (59 Vict. No. 23) s 5 [Assent 2 October 1895; Commencement 1 October 1895].\n\n6 This section is affected by the *Bills of Exchange Act 1909* (Cwlth).\n\n7 I.e. repealed in so far as they were part of the law of WA by the *Limitation Act 1935* s 5 [Assent 7 January 1936; Commencement 14 April 1936].\n","sortOrder":0}],"analysis":{"flash_summary":{"complexity_score":3,"scope_assessment":{"changed":false,"description":"The Act’s core subject‑matter — limited amendments to mercantile formalities (guaranties, surety recovery, bills of exchange, and ship‑repair claims) — remains aligned with the original, narrow purpose stated in the preamble (harmonising commercial law features). The text has been trimmed over time by later local statutes and by later, more comprehensive federal or colonial statutes that supersede particular topics (notably negotiable instrument law), but those changes are reductions or replacements rather than an expansion of the Act’s original scope."},"complexity_factors":["Short instrument: limited number of operative sections (3,5–8,16–17 retained in the compilation)","Few defined terms within the Act itself; relies on existing commercial law vocabulary (surety, specialty, bill of exchange)","Single nested proviso in s 5 (proportion among co‑sureties) is the only conditional exception","Cross‑references and interaction with external statutes (Bills of Exchange Act, Sale of Goods, Partnership, Limitation Acts) increase practical complexity despite the Act's brevity","Historical repeals and territorial adoption notes (affecting which sections operate in Western Australia) add contextual complexity for application","Some provisions require factual inquiry (e.g. whether consideration existed or whether authority to sign was given), which raises evidentiary complexity in practice"],"plain_english_summary":"**What this Act does (mechanically)\n\n- Reduces a formal writing requirement for guarantors (s 3): if someone gives a written promise (a guaranty) to answer for another person's debt and that promise is signed, the guaranty cannot be invalidated just because the reason for the promise (the \"consideration\") does not itself appear in writing. In short: a signed written guarantee is not defeated solely because the underlying consideration is not written down.\n\n- Gives a paying surety specific recovery rights (s 5): if a person who is surety (a guarantor) pays the debt or performs the obligation of the principal debtor, the surety is entitled to be assigned any judgment, security or other creditor remedies the creditor holds. The surety can take the creditor's place to sue the principal debtor or any co‑surety to recover what the surety paid. However, co‑sureties can only recover from each other their just proportion (the proviso in s 5).\n\n- Fixes formality for accepting bills of exchange (s 6): any acceptance of a bill of exchange (inland or foreign) must be written on the bill (or on one of its parts) and signed by the acceptor or an authorised agent. Oral acceptance or acceptance off the bill will not bind the acceptor.\n\n- Defines \"inland bills\" for the United Kingdom and certain islands (s 7): bills or promissory notes drawn in those places and payable to or upon a person resident there are treated as inland bills; the Act does not change stamp duty rules.\n\n- Treats every home port within the same territorial description as a \"home port\" for claims for ship repairs and supplies (s 8): this affects the remedies available to those providing repairs or supplies to ships.\n\n- Confirms a short title and limits the Act's territorial extent (ss 16–17): it may be cited as the Mercantile Law Amendment Act, 1856, and it does not extend to Scotland.\n\nWho this affects\n\n- Merchants, traders and other commercial parties involved in guarantees or suretyships.\n- Creditors who take security or rely on formalities for guarantees.\n- Guarantors and co‑sureties (people who guarantee another's performance or debt).\n- Parties to bills of exchange and promissory notes (drawers, acceptors, holders).\n- Ship repairers and suppliers claiming against ships for unpaid repairs or supplies.\n- Courts and lawyers who must apply these rules when resolving disputes about guarantees, recoveries by sureties, negotiable instruments, and ship repair claims.\n\nWhy it matters (official purpose and a brief practical test)\n\n- The preamble says the Act was intended to reduce inconvenience in trade by harmonising certain English and Irish rules with those of Scotland. That claimed purpose is to simplify commercial dealings across jurisdictions.\n\n- Practical trade effects and incentives:\n  - Section 3 lowers a formal barrier to enforcing guaranties: it reduces the risk that a signed written promise will be dismissed for lack of a written statement of consideration. That lowers transaction costs for creditors who take guaranties and for parties relying on them, and it increases the enforceability of signed guarantees. The trade‑off is modestly greater reliance on courts to determine whether an unsigned or unwritten consideration actually existed (evidence and factual inquiry), which can raise litigation costs in borderline cases.\n  - Section 5 concentrates a clear benefit on sureties who pay: they gain step‑in rights to the creditor's securities and remedies. This helps sureties recover losses and reduces their risk of uncompensated payment. It transfers the practical enforcement power (and costs) from the creditor to the surety once the surety pays. Creditors must, on payment by a surety, allow assignment of securities; the creditor loses exclusive control of those securities but is indemnified by the rule that the surety must respect the co‑surety proportions. This creates predictable remedies but requires the creditor to process assignments and may create disputes over the sufficiency of indemnities or the priority of securities.\n  - Section 6 increases formalism for negotiable instruments by insisting acceptances be written on the bill and signed. That raises certainty about who accepted a bill and in what terms, reducing fraud or later denials of acceptance; it imposes a compliance requirement on acceptors and their agents (proof of authority to sign). This may slightly raise transactional friction where informal acceptances were previously used, but reduces evidentiary ambiguity.\n  - Sections 7–8 clarify territorial rules (what counts as an \"inland bill\" and what counts as a \"home port\"), which reduces jurisdictional uncertainty for cross‑border commercial claims within the areas listed.\n\nCosts, trade‑offs and implementation risks\n\n- Evidence and litigation: by making some guaranties enforceable despite an unwritten consideration, courts may see more factual disputes about whether a valid consideration existed, increasing evidentiary hearings.\n- Administrative burden: creditors required to assign securities to paying sureties must perform assignment formalities and may require indemnities when the surety sues in the creditor's name (s 5). That shifts administrative and legal costs to creditors and sureties at different stages.\n- Risk of substitution: improved enforceability of guarantees may encourage informal guarantee practices (relying on signed promises without documenting consideration), which can increase disputes later if parties disagree about the scope of the guarantee.\n- Concentrated benefits and diffuse costs: sureties and holders of signed guarantees are the principal beneficiaries (concentrated); potential increased litigation costs and administrative frictions are borne more diffusely by commercial parties and the courts.\n\nInterplay with other law and later changes\n\n- Some parts of this Imperial Act have been superseded or repealed by later statutes in various jurisdictions (for example, negotiable instrument law is now governed in many places by later Bills of Exchange legislation). Where later statutes apply, the practical operation of the provisions described above may be limited. The Act as compiled contains historical notes about later repeals and enactments that affect specific sections.\n\nNet practical takeaway\n\n- For commercial practitioners: the Act makes signed written guarantees harder to defeat on the technical ground that the consideration is not written; it strengthens the surety's position after payment by giving assignment and step‑in rights; it insists on a written, signed acceptance on the face of a bill; and it clarifies some territorial definitions relevant to bills and ship repairs. Each change shifts when and how parties should document agreements, how they manage security assignments, and how they litigate enforcement."},"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"content_quality":"ok","complexity_score":3,"scope_assessment":{"changed":true,"description":"The original 1856 Imperial Act was a comprehensive statute amending mercantile law across England and Ireland. However, this Western Australian compilation shows massive scope reduction through deletion. Sections 1-2, 4, and 9-15 have been deleted/repealed by subsequent WA legislation (Sale of Goods Act 1895, Partnership Act 1895, and Limitation Act 1935). What remains is a fragmentary shadow of the original Act, dealing only with guarantees, surety rights, bills of exchange definitions, and ship repair ports. The scope has narrowed from broad mercantile law amendment to a handful of specific surviving provisions."},"complexity_factors":["Short statute (only 8 substantive sections remaining in WA)","Straightforward conditional logic ('if X, then Y') without deep nesting","Limited cross-references (primarily to other repealing Acts in the notes)","19th century legislative drafting style (verbose but structurally simple)","Most complex provisions (sections 1-2, 4, 9-15) deleted/repealed in WA","Only one proviso (exception) in the remaining text (Section 5)"],"plain_english_summary":"This is an old British law from 1856 that was later adopted into Western Australian law. It made several technical fixes to commercial (trade) law to bring England and Ireland into line with Scotland.\n\n**What it does:**\n\n*   **Guarantees (Section 3):** If you sign a written promise to pay someone else's debt (a 'guarantee'), that promise remains valid even if the written document doesn't explicitly state what you got in return (the 'consideration'). Previously, English law required the consideration to be written down, which caused problems.\n\n*   **Surety's rights (Section 5):** If you pay off someone else's debt because you guaranteed it (you're a 'surety'), you can take over the creditor's legal rights against the original debtor. This means you can sue the original debtor to get your money back, using the same securities (like mortgages or judgments) the creditor held. However, if there are multiple guarantors, you can only recover your fair share from the others, not the whole amount.\n\n*   **Bills of exchange (Sections 6-7):** It sets rules for 'bills of exchange' (a type of written payment order, like a cheque or promissory note). An acceptance of a bill must be written on the bill itself and signed. It also defines what counts as an 'inland bill' (one drawn and payable within the UK and certain islands) versus a foreign bill.\n\n*   **Ship repairs (Section 8):** For the purpose of claims for ship repairs or supplies, all ports in the UK and specified islands are treated as 'home ports'.\n\n**Who it affects:**\nBusiness people, banks, guarantors, and anyone dealing with bills of exchange or ship repairs in the mid-19th century commercial world. Much of it has since been replaced by newer laws (as noted in the compilation table).\n\n**Why it matters:**\nIt harmonised commercial law across the UK and removed technical traps that could invalidate business agreements. Today, it survives in WA only in fragments, with most sections repealed by modern statutes like the Sale of Goods Act 1895 and the Bills of Exchange Act 1909."},"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"summary":{"complexity_score":2,"scope_assessment":{"changed":false,"description":"No scope assessment is possible. The content provided is a broken webpage notice, not the legislation itself. Any analysis of scope change from original intent would require the actual text of the Act."},"complexity_factors":["No actual legislative text is available to analyse — the page is a 404-style removal notice","The Imperial origin of the Act adds a layer of historical legal complexity that cannot be assessed without the text","Uncertainty about whether the Act is still in force, repealed, or superseded by modern WA legislation"],"plain_english_summary":"This broken/removed page refers to the Mercantile Law Amendment Act 1856, an Imperial Act applied in Western Australia that historically regulated commercial dealings between merchants and businesses. The WA legislation site no longer hosts the text at this URL.\n\nIf you need the Act’s actual text, contact the Parliamentary Counsel’s Office or search the WA legislation database via the site menu or updated navigation."}},"importantCases":[],"_links":{"self":"/api/acts/mercantile-law-amendment-act-1856-imp","history":"/api/acts/mercantile-law-amendment-act-1856-imp/history","analysis":"/api/acts/mercantile-law-amendment-act-1856-imp/analysis","conflicts":"/api/acts/mercantile-law-amendment-act-1856-imp/conflicts","importantCases":"/api/acts/mercantile-law-amendment-act-1856-imp/important-cases","documents":"/api/acts/mercantile-law-amendment-act-1856-imp/documents"}}