FEME SOLE TRADER - The Law Mind Legal Dictionary

FEME SOLE TRADERAuthored

The Law Mind • 1028 words

Definition

A married woman who, by legal custom or statute, was authorized to carry on a trade or business in her own name and on her own account, independently of her husband. With respect to her commercial dealings, she was treated as if she were a feme sole — an unmarried woman — and could sue and be sued, enter into contracts, and incur debts without her husband's involvement or liability.

The doctrine operated as a legal fiction: marriage ordinarily disabled a woman from contracting in her own right under the common law doctrine of coverture, but the feme sole trader designation carved out an exception for the purposes of trade. Her husband was not liable for debts she contracted in the course of that trade, and creditors looked solely to her and her separate trading estate.

Common Confusion

FEME SOLE TRADER vs. FEME SOLE vs. FEME COVERT: These three terms are routinely conflated in historical sources and require careful separation. A feme sole is any unmarried woman — a widow, a spinster — who possessed full legal capacity at common law. A feme covert is a married woman, whose legal identity was subsumed into her husband's under coverture. A feme sole trader is a subset of feme covert: she remains legally married, but is treated as a feme sole for the specific, limited purpose of conducting trade. The designation did not make her a feme sole generally; it only suspended the disabilities of coverture within the scope of her recognized business dealings.

Recognized Forms

/SUBTYPES

Two distinct legal bases gave rise to feme sole trader status:

1. Custom of London. The oldest and most frequently cited basis. Under the ancient custom of the City of London, a married woman who traded separately from her husband — particularly in retail merchandise — could be recognized as a feme sole trader. Her husband was thereby insulated from liability for her trading debts, and she could be sued directly in her own name.

2. Desertion or absence of husband. Courts and later statutes recognized that a woman abandoned by her husband, or whose husband was absent for a substantial period, occupied a practical position indistinguishable from that of a feme sole. She required the capacity to conduct business to support herself and her household. Some American jurisdictions extended feme sole trader status on this basis by statute, independent of any mercantile custom.

Why It Matters in Research

This is principally a historical doctrine. Researchers encounter feme sole trader in three contexts: English legal history (especially London mercantile records and equity proceedings), early American case law (particularly South Carolina, Pennsylvania, and Louisiana, which expressly recognized the doctrine), and the legislative history of married women's property acts.

The critical navigational point is chronology. The feme sole trader doctrine was a patchwork remedy that preceded systematic reform. The Married Women's Property Acts — beginning with New York in 1848 and proliferating through the second half of the nineteenth century — rendered the doctrine largely superfluous by granting married women general contractual and property capacity. Researchers working in pre-reform American sources will find feme sole trader doctrine doing work that later statutes simply absorbed and displaced.

South Carolina is the jurisdiction most heavily represented in American case law on this doctrine. Bouvier's notes that the custom was recognized as common law in South Carolina but did not extend beyond trading in merchandise — a limitation researchers should flag when reading decisions from that jurisdiction. Pennsylvania had its own statutory feme sole trader framework that operated somewhat differently from the London custom.

A secondary trap: historical sources treat the husband's liability question inconsistently. Some authorities focus on insulating the husband from her trading debts; others emphasize her affirmative capacity to sue and be sued. These are related but distinct legal questions, and the sources do not always address both with equal care.

For corpus researchers, feme sole trader entries in case reporters will often appear in debt collection disputes where the threshold question is whether the woman had capacity to contract. Watch for the term appearing as a defense raised by a husband — arguing he is not liable — as much as a capacity claimed by the woman herself.

Historical Dictionary Support

Black's Law Dictionary and Bouvier's Law Dictionary are in close agreement on the core definition: a married woman who trades independently of her husband and is treated as a feme sole for purposes of that trade. Both anchor the doctrine in the custom of London.

Black's adds the practical American extension — applying the term to women deserted by their husbands who do business as femes sole, citing 1 Peters 105 — acknowledging that the doctrine's rationale had migrated from mercantile custom to economic necessity in abandonment cases.

Bouvier's is more granular on American reception, noting the South Carolina limitation to trading in merchandise and providing citations to South Carolina reports (1 Hill, S.C. 429; 2 Bay 164) that are genuinely useful starting points for researching early American common law treatment. Bouvier's entry appears to have been truncated in available sources, but the citations it provides represent the most concrete American case law footholds either dictionary offers.

Neither dictionary fully addresses the interaction between feme sole trader status and equity. Chancery courts developed parallel doctrines around a married woman's separate equitable estate that partially overlapped with feme sole trader protections, particularly in contexts involving trust property used to fund a trade. Researchers working in equity records should not assume that feme sole trader doctrine exhausts the relevant legal framework.

Jurisdictional Note

The doctrine was most formally developed in England (City of London custom) and in South Carolina and Pennsylvania among American jurisdictions. Louisiana's civil law tradition addressed the same practical problem through different doctrinal machinery. In most American states, the question became moot with the enactment of married women's property legislation in the latter half of the nineteenth century, though the statutory details of those acts varied considerably by state.

FEME SOLE TRADERmain

Black's Law Dictionary • 1891

bands. Mozley & Whitley; 2 Steph. Comm. 250.

FEME SOLE TRADERmain

Black's Law Dictionary • 1891

In English law. A married woman, who, by the cus- tom of London, trades on her own account, independently of her husband; so called because, with respect to her trading, she is the same as a feme sole. Jacob; Cro. Car. 68. The term is applied also to women desert- ed by their husbands, who do business as femes sole. 1 Pet. 105.

FEME SOLE TRADERmain

Bouvier's Law Dictionary • 1928

A married woman, who, by the custom of London, trades on her own account, independently of her husband; so called, because, with respect to her trading, she is the same as a feme sole. Jacob, Dict.; 1 Cro. 63; 3 Keb. 902; 2 Bish. M. W. § 528. The custom was recognized as common law in South Caro- lina, but did not extend beyond trading in merchandise; 1 Hill, S. C. 429; 2 Bay 164; under it a woman could not be a feme sole carrier; 1 McMullan 50. By statute in several states a similar custom is recog- nized; thus in Pennsylvania, by act of Feb. 22, 1718, the wives of mariners who had gone to sea were recognized as feme sole traders when engaged in any work for their livelihood, and by act of May 4, 1855, the benefits of this act are extended to all those wives whose husbands, from drunk- enness, profligacy, or other cause, neglect or refuse to provide for them, or desert them; 2 P. & L. Dig. 2895. By the latter act she may make application to the court of common pleas and obtain a decree and certificate that she is authorized to do busi- ness under said act; id. It is not neces- sary that there should be a decree in order that a wife may have the benefit of the act; it is remedial, and to be construed be- nignly; 59 Pa. 18; 131 id. 241; mere non- support does not entitle her to the privi- leges of the act; there must be profligacy, drunkenness, or wilful absence or neglect; 110 Pa. 486; but if, deserted by her husband, she engages in business, she cannot be held liable as a feme sole trader unless she has been decreed such: 34 Leg. Int. 5. She may convey her real estate by deed in which her husband does not join; 95 Pa. 472; and the title passes free from any claim of the husband as tenant by the curt- esy; 104 Pa. 298; in which the act was de- clared constitutional. The husband is liable for necessaries, notwithstanding the wife has been declared a feme sole trader; 9 Phila. 236; and actual residence with her husband does not take away her privileges under the act; 101 Pa. 371; and so in South Carolina; 2 Bay 163; 2 Bish. M. W. § 528. As her powers are in some respects greater than those of a married woman under the act of June 8, 1893, there is no reason for regarding the early Pennsylvania acts as superseded by the later act; 2 P. & L. Dig. 2895, note. In North Carolina the doctrine that a feme covert may be a sole trader was con- sidered with deliberation, and it was held that it did not obtain in that state; 1 Jones, Eq. 1. In an appeal from the Dis- trict of Columbia it was said by the su- preme court that "the law seems to be settled that when a wife is left by her hus- band, without maintenance and support, has traded as a feme sole, and has obtained credit as such, she ought to be liable for her debts," whether the husband was ban- ished for crime or abandoned her; but by Maryland law a deed of real estate acquired by her while a feme sole trader, abandoned by her husband, was held void; 1 Pet. 105. In California under a sole trader act, ex- cluding from the benefits of the act a mar- ried woman carrying on business in her own name, but managed by her husband, it was held that she could not escape liabil- ity as sole trader on the ground that she permitted such management; 43 Cal. 105. See 24 Miss. 416. A married woman by statute authorized to carry on trade and perform labor or ser- vices on her sole and separate account, is personally liable on a note given for prop- erty purchased for business purposes; in such a case the court said: "The power of a married woman to make contracts relat- ing to her separate business is incident to the power to conduct it. The power to engage in business would be a barren and useless one disconnected with the right to conduct it in the way and by the means usually employed." 53 N. Y. 422; id. 93; 106 id. 74. ... See, generally, Husb. Married Women, c. xi.; 2 Bish. M. W. c. xlii.

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