Definition
Forestalling the market was a common law offense consisting of conduct designed to interfere with the ordinary operation of a public market by intercepting goods before they arrived, discouraging sellers from bringing goods to market, or manipulating prices once goods were there. The offense had three recognized forms:
(1) Buying or contracting for merchandise or provisions while still in transit to the market, with the intent to resell at a higher price;
(2) Dissuading persons from bringing their goods or provisions to market at all; or
(3) Persuading sellers to raise their prices once at market.
The gravamen of the offense was the interference with open, competitive market exchange — a disruption of the natural price-setting process that English law long regarded as harmful to the public. At common law, forestalling was an indictable criminal offense in England. It was abolished as a crime by statute (7 & 8 Vict. c. 24, 1844), reflecting the shift toward free-market ideology in the mid-nineteenth century. In the United States, the doctrine survived in some jurisdictions as a common law offense into the nineteenth century, though prosecutions were rare and the offense was never uniformly adopted across American states.
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Common Language
Modern common usage (Wiktionary): To forestall means to prevent or hinder something by taking action in advance; to get ahead of.
Historical common usage (Webster's 1913): To forestall is to buy up goods before they reach market, so as to sell at higher prices; also, to obstruct or prevent.
Webster's 1913 definition reflects the legal sense with unusual fidelity, which itself signals how central this doctrine once was to everyday commercial regulation. The legal term is narrower than the modern common usage: in law, forestalling the market was not simply any anticipatory action but a specifically defined course of conduct aimed at market price manipulation, actionable as a public offense rather than a private wrong.
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Common Confusion
Forestalling the market is one of a cluster of three related common law market offenses that are routinely conflated in historical sources and must be distinguished:
FORESTALLING: Intercepting goods before they reach the market, or otherwise manipulating the market process from the outside.
REGRATING: Buying goods at a market or fair and reselling them at a profit in the same or a nearby market. The distinction from forestalling is that regrating involves completed market transactions, not interception in transit.
ENGROSSING: Buying up large quantities of commodities in bulk with the intent to resell at inflated prices — essentially what modern law would call cornering the market or monopolistic accumulation.
All three were historically treated as cognate offenses, often charged together, and the same conduct could satisfy elements of more than one. Historical legal dictionaries and treatises sometimes use the terms interchangeably or imprecisely. Researchers should not assume that a source using one term excludes the others.
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Why It Matters in Research
This term requires careful attention to historical context. Several research traps are worth flagging:
ANACHRONISM TRAP: Forestalling the market looks, to a modern reader, like an antitrust or competition law concept. It is not — or rather, it is a direct ancestor of those concepts, and the resemblance is genuine but the legal frameworks are entirely different. Do not read modern antitrust doctrine backward into forestalling cases, and do not assume forestalling cases will yield useful precedent for modern market manipulation claims.
ABOLITION DATE AND JURISDICTION: The English statutory abolition in 1844 is a hard line for English sources. Material before that date treats forestalling as active criminal law; material after treats it as historical. American sources require independent analysis — the offense was recognized in some early American jurisdictions, but its status was always uncertain and its abolition, where it occurred, was typically by disuse rather than by statute.
CORPUS PLACEMENT: Because the offense blends criminal law, market regulation, and what would now be consumer protection, it appears across multiple areas of the Law Mind corpus. Criminal law treatises address it as an indictable offense. Early commercial law materials treat it alongside trade regulation. Constitutional and regulatory history materials connect it to the intellectual lineage of market oversight that eventually produced administrative regulation of utilities and commodities.
MODERN RESONANCE: The conceptual core of forestalling — using superior market position or information to intercept supply and manipulate prices before ordinary buyers can access the market — is directly echoed in modern FERC market manipulation rules, commodity market manipulation law, and some securities fraud theories. Researchers tracing the intellectual history of market manipulation law should treat forestalling as a foundational node.
TREATISE RELIABILITY: Coke (3 Inst. 196) and Blackstone (4 Comm. 158) are the authoritative primary sources. Later dictionary entries largely follow Blackstone. Bouvier adds useful detail on the "device or practice" formulation — notably extending the offense to words and news as instruments of market manipulation, which is a meaningful expansion beyond simple physical interception.
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Historical Dictionary Support
The three dictionary sources here are in substantial agreement on the core definition, all tracing to Blackstone's formulation at 4 Bl. Comm. 158. Bouvier's entry is the most expansive and most useful, extending the offense beyond physical interception to include "every device or practice, by act, conspiracy, words, or news, to enhance the price of victuals or other provisions" — a broader formulation drawn from Coke (3 Inst. 196) that anticipates modern informational theories of market manipulation.
Black's (2nd Ed.) adds the citation to Barton v. Morris, 10 Phila. (Pa.) 361, which is among the few American cases to engage directly with the offense — useful for researchers tracing American reception of the common law doctrine.
What the historical dictionaries do not address: none of the entries engage with the 1844 statutory abolition's significance or the post-abolition treatment of forestalling's conceptual legacy. None connect the doctrine to the emerging framework of statutory market regulation that followed abolition. This is the research gap that modern secondary sources must fill.
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Jurisdictional Note
Forestalling the market was never uniformly absorbed into American common law. Some early state courts recognized it as a common law offense; others declined. Where American courts did recognize it, the offense was typically confined to provisions and victuals rather than extended to commercial goods generally. By the late nineteenth century, the doctrine had effectively disappeared from American criminal law, displaced first by disuse and later by statutory frameworks governing trade restraints.
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Encyclopedia Cross-Reference
admin_138: Energy Regulation — FERC, Public Utilities, and Electricity Markets (The Law Mind Administrative Law & Government Encyclopedia) — for the modern regulatory heir to forestalling's conceptual framework, particularly FERC market manipulation rules.
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