SHYLOCK'S BOND

Terms of the bond

Shakespeare’s sources provided almost no legal details about the bond. On the other hand, Shakespeare provided specific legal details: he employed a common sixteenth century English legal instrument—the conditional bond—and fit the pound–of–flesh aspect from his sources into the framework of such an instrument.

Conditional bonds were the basis for the most common kind of lawsuit in the English courts for hundreds of years before and after Shakespeare’s time. A bond was an acknowledgment of indebtedness under seal. In Shakespeare’s time, the forfeiture or penalty provision of such a bond relating to a loan of money was usually twice the amount of the principal. The debtor could avoid the forfeiture by satisfying the condition on or before a certain day, at the creditor’s principal place of business. These bonds were called common money bonds.

The most commonly used medieval contract action was the Writ of Debt, available on both formal and informal transactions, so long as they bound a man to pay a debt; that is, a definite sum of money owed. (Simpson,
Rise of Assumpsit)

The existence of a seal placed the transaction in the formal category, and such an instrument was usually called a
bond or an obligation. By virtue of the seal, such an instrument was all that a creditor needed in order to prove entitlement to the forfeiture.



Shakespeare set the terms out in Act 1:

Shylock:
This kindness will I show,
Go with me to a Notary, seal me there
Your single bond, and in a merry sport
If you repay me not on such a day,
In such a place, such sum or sums as are
Exprest in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body it pleaseth me.

Antonio:
Content infaith. I'll seal to such a bond,
And say there is much kindness in the Jew
.



Shylock’s bond, ordinary case:


KNOW ALL MEN BY THESE PRESENTS that I,
Antonio Merchant, have bound myself to Shylock
Jew to pay him £6,000 at any time after the
expiration of 90 days from the date shown below.

The condition of this obligation is that if Antonio
Merchant pays to Shylock Jew at his principal
place of business the sum of £3,075 [£3,000
plus £75 interest for 3 months] at any time before
the expiration of 90 days from the date shown
below, then this obligation shall become void, or
else it shall stand at full strength.

Dated: the 30th day of May, in the year of our Lord, 1593.



———————————

(seal)

Antonio Merchant,
his seal

Shylock’s bond, actual case:


Shylock loaned Antonio £3,000 for 90 days, interest free. Antonio signed and sealed a conditional bond in substantially the following form:

KNOW ALL MEN BY THESE PRESENTS that I,
Antonio Merchant, have bound myself to Shylock
Jew to pay him an equal pound of my flesh, to be
by him cut off nearest my heart, at any time after
the expiration of 90 days from the date shown below.

The condition of this obligation is that if Antonio
Merchant pays to Shylock Jew at his principal
place of business the sum of £3,000 at any time
before the expiration of 90 days from the date shown
below, then this obligation shall become void, or else
it shall stand at full strength.


Dated: the 30th day of May, in the year of our Lord, 1593.

__________________________
(seal)

Antonio Merchant,
his seal


Problems with Shylock’s bond


Antonio failed to pay the £3,000 on time. However, Shakespeare presented Shylock with several separate and insuperable obstacles to maintaining a lawsuit in any English court to enforce the forfeiture.

Strike One

The obligation was unenforceable in any court. As of Shakespeare’s time, the English common law had been settled for centuries that its courts would not enforce an illegal contract, illegal being broadly defined. (Simpson, Assumpsit, pp. 507-08.) However one might characterize the forfeiture in Shylock’s bond, it was patently illegal—murder, homicide, grievous bodily harm—and this illegality was apparent on the face of the bond.

Strike Two

In Shakespeare’s time, the Court of Common Pleas was the only court with jurisdiction over lawsuits between private citizens, and its jurisdiction could be invoked only by a writ issued from the Chancellor’s Office. However, Shylock’s complaint was unable to fit within any of the existing forms of action recognized by the Chancellor’s Office as a basis for issuing a writ.


A form of action was much like what it sounds: a Plaintiff had to word the complaint according specific formulae required for that kind of complaint. In Shylock’s case, his complaint would have fallen into the general categories of Debt, Covenant, or Assumpsit, and he would have had to fit his claim into the technical pleading requirements for such a lawsuit.

A Plaintiff filing an action for Debt, Covenant, or Assumpsit was restricted to three categories of relief: money, chattels (goods or personal property), or real estate. These categories covered almost every kind of debt. However, Shylock’s particular claim could fit none of them: Antonio’s pound of flesh was not money, nor was it goods or personal property, nor was it real estate.

Strike Three

A Plaintiff like Shylock, who could not fit his claim into any of the established forms of action recognized by the Chancellor’s Office, could still apply to the Court in Chancery. However, Shylock neither wanted to, nor could he, file his suit in Chancery. By the fifteenth century, the Chancellor had held that even the usual kinds of forfeitures were unconscionable, and the Chancery courts would not enforce them.

Summary



Shylock’s chances for getting Antonio into court appear to be bleak. He cannot get his lawsuit into the Court of Common Pleas because the Chancellor’s Office would have refused to issue a writ for the first two reasons (illegality; not fit within recognized forms of action). He cannot apply directly to the Court in Chancery for both the first reason (illegality) and the third (the Chancellor’s refusal to enforce forfeiture provisions).
But Shylock somehow did get Antonio into court. How Shakespeare managed that feat of legal legerdemain is the subject of the next page.


Next Page