reason contained in those express provisions, and it is to be feared that the law will not reach the unfair practices it seeks to condemn.

The state laws call for fines and imprisonment and do not contain all of these exceptions; they are, therefore, more drastic.

While these exceptions may provide a door of escape for any party charged with illegal discrimination in prices, it is the firm opinion of the writer that it is to the interest of both sellers and buyers, and to the interest of the public, that this section be lived up to in letter and in spirit.

Unfair discrimination is not made a criminal offense. The enforcement of this section is left to the Trade Commission (see section II), but in section 4 remedy is given any person who may be damaged in his business by anything forbidden in the anti-trust laws.

SEC. 3. That it shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies or other commodities, whether patented or unpatented, for use, consumption or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of

commerce.

The enforcement of this section is also committed to the Trade Commission (see section 11), but section 4 which follows gives a remedy to any person who may be damaged. The acts described in this section 3 are not made criminal offenses.

This section does not forbid the exclusive contracts therein described where the effect does not substantially lessen compe

tition, or does not tend to create a monopoly, but whether such acts do lessen competition or tend to create a monopoly would be a question of fact, hence the business world will be exceedingly cautious in making such contracts.

SEC. 4. That any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.

This is an extension of section 7 of the Sherman law.

SEC. 5. That a final judgment or decree hereafter rendered in any criminal prosecution or in any suit or proceeding in equity brought by or on behalf of the United States under the antitrust laws to the effect that a defendant has violated said laws shall be prima facie evidence against such defendant in any suit or proceeding brought by any other party against such defendant under said laws as to all matters respecting which said judgment or decree would be an estoppel as between the parties thereto: Provided, This section shall not apply to consent judgments or decrees entered before any testimony has been taken: Provided further, This section shall not apply to consent judgments or decrees rendered in criminal proceedings or suits in equity, now pending, in which the taking of testimony has been commenced but has not been concluded, provided such judgments or decrees are rendered before any further testimony is taken.

Whenever any suit or proceeding in equity or criminal prosecution is instituted by the United States to prevent, restrain or punish violations of any of the antitrust laws, the running of the statute of limitations in respect of each and every private right of action arising under said laws and based in whole or in part on any matter complained of in said suit or proceeding shall be suspended during the pendency thereof.

SEC. 6. That the labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital

When these statistics were made up, it was understood that about 12,000 establishments were members of syndicates. The following recapitulation shows the variety of industries covered by commercial combinations in 1905:

Germany has a statute 2 prohibiting unfair competition. It provides that whoever is guilty in industrial deals of transactions which offend against good morals, may be held liable in damages. The courts have so interpreted the law that it not only covers unfair actions, but if a party refrains from doing something he ought to do, he is liable.

The German Courts go much further than the courts of this country in carefully weighing transactions to determine whether or not they are contrary to good morals and fair play, and in enforcing the laws against practices and actions which are not looked upon as decent and reputable. Individuals are protected against oppression by parties who are greedy for gain. Damages are awarded where things are done to influence a man's business prospects or his connections with his customers. If a man, in the exercise of a technical legal right, damages a third person, he may find himself liable under the very broad statute. Prevailing standards of good morals and commercial ethics are taken into consideration. In mercantile affairs the views of customers and of honorable merchants in their commercial intercourse are used to measure the guilt or innocence of specific acts.

A member of a combination wrote a certain customer that unless such customer refrained from making purchases from

'Daily Consular and Trade Reports September 15, 1911, p. 1222. 'A translation of this statute is on file at Washington in the Bureau of Manufactures.

firms outside of the combination, the combination would refuse to sell him goods. An outsider caused the arrest of the member, and he was convicted. The court held the combination legal, but it also held that in threatening a customer unless he ceased dealing with parties outside the combination, the threat amounted to oppression. The spirit of this decision is directly opposed to that of the Mogul Steamship case, referred to on page 349.

"The German Civil Code, paragraph 138, says that a transaction which offends against good morals is void. The forming of a cartel, or syndicate, is not held to come under this paragraph, but, when formed, it may bring itself under the operation of this provision by the means which it may choose to attain its purposes, such as, for instance, boycotting, the cutting of prices with competitors to such an extent as to bring about the financial ruin of the latter, misuse of their monopoly and franchises, and the like. Concerning boycotting, there are decisions of the Imperial Supreme Court in the years 1903 and 1906 on this point.

"The German Civil Code contains certain paragraphs touching 'treu und glauben,' or truth and good faith, and perhaps these paragraphs may be designated as containing equitable principles in contradistinction to the more fixed legal rules, there being in Germany no system of equity law and no equity courts. The Supreme Court at Leipzig decided in the year 1904 that a stricter moral standard must be applied to cartels and syndicates; that is, that they must be held to a stricter accounting for the moral quality of their acts, because of the preponderance of economic interest which they represent." 1

The German law to remedy the abuses of unfair competition came into force October 1st, 1909. The law contains both a general principle which supplies a weapon against unfair practices generally and an enumeration of a number of unfair practices specifically.2

1 Daily Consular and Trade Reports. January 25, 1911, p. 310. 2 The summary of this law is taken from an admirable report made by Sir Francis Oppenheimer, England's Commercial Attache for Germany; the report was presented in January, 1913, and is printed in Diplomatic and Consular Reports, No. 683, Miscellaneous Series.

This is in line with advanced thought, and in accord with the principles of the New Competition.

The law is a step in advance of older laws in that it extends to the employer, under certain circumstances, the liability for unfair practices by his employee.

Furthermore, the law has increased the maximum fines; it has added the possible punishment of imprisonment and payment of compensations to a maximum of 10,000 marks.

Remedies are by way of civil as well as criminal procedure. The civil remedies are actions for damages and for injunction. Criminal actions may be instituted either officially or privately.

Foreigners doing business within the German Empire are entitled to the benefits of this law only in so far as the laws of their own country give German merchants similar protection against unfair competition.

One of the most notorious cases of foreigners using the law of unfair competition for the protection of their business interests is connected with the famous Pilsen brewery. The original Pilsen brewery is an Austro-Hungarian firm. It has, under paragraph 16, succeeded before the German courts in a claim to the exclusive right to use the word "Pilsen for the beer brewed at its own brewery. Where the name "Pilsen" is to be used as a trade designation of a beer lightly brewed and in taste like the original "Pilsen," but brewed outside the original Pilsen brewery, the word "Pilsen" must be accompanied by some visible word or words clearly indicating the "non-Pilsen" origin of the beer.

In some cases the law treats acts committed abroad as offences committed within the German jurisdiction, e. g., letters containing offences against the law posted abroad, but received in Germany, or advertisements inserted in the foreign Press circulating in Germany.

The following is a schedule of paragraphs against unfair competition.

1. General clause; acts in course of business committed contra bonos mores.