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Nineteenth-Century Treatises on English Contract Law

07 Nov, 2015 GENERAL LAW

Nineteenth-Century Treatises on English Contract Law


STEPHEN WADDAMS*


BLACKSTONE’S COMMENTARIES ON the Laws of England (1765–69) allowed no explicit place for contracts as a distinct part of English law.1 Blackstone likened his work to a map, writing that ‘an academical expounder of the laws . . . should consider his course as a general map of the law, marking out the shape of the country, its connexions and boundaries, its greater divisions and principal cities’.2 Blackstone’s map gave no definite place to contract law, though he mentioned contracts in several places. A definition of ‘contract’ was offered in Book 2 (rights of things) as part of a chapter (entitled ‘Of title by gift, grant, and contract’) dealing with methods of acquiring rights to property.3 In Book 1 (rights of persons) contracts were mentioned as part of the law of master and servant, and of husband and wife, and in Book 3 (private wrongs) assumpsit was mentioned as providing a remedy for breaches of promises, considered as wrongs. In respect of husband and wife, Blackstone wrote that ‘our law considers marriage in no other light than as a civil contract’.4 The comment shows that Blackstone did not visualise contracts as a body of controlling principles from which legal obligations were derived: if he had thought in those terms, he would have given contract law a place on his map, and a different place from matrimonial law. It was not that Blackstone thought contracts unimportant – he referred to marriage as ‘the most important contract of any’5 – and contracts were an important means of transferring property rights, and an important aspect of the law of private wrongs. But he did not think of legal issues as ‘part of’ an independently existing contract law. It would be more accurate to say that he thought of contracts as ‘part of’ several different areas of the law – a means of effecting various legal consequences – and hence to be found in several different places on his map.


With the changing view of contracts in the nineteenth century, Blackstone’s treatment of the subject came to seem inadequate. Joseph Chitty, who published an edition of the Commentaries in 1826, wrote of Blackstone’s definition in volume 2:



It will be remarked that the observations of the learned Commentator in the text, contain but a very small part of the law of Contracts, which has so greatly increased since his work was published. The more ancient books and present abridgements are very defective in information upon this subject; and the student must therefore resort to the modern elementary works . . .6


In a note in Book 3, Chitty took the opportunity to be even more critical of Blackstone’s treatment of the subject:



This subject is not so well arranged or considered, as most parts of this work. Indeed it is observable that contracts, and the remedies for the infraction of them, are by no means, in any part of this work, well discussed. In the second volume, contracts are cursorily considered, as one of the means by which a title to personal property may be acquired. In the present volume, which professes to describe injuries and their remedies in general, it is inexpedient to consider the action of contracts more particularly.7


About 60 years before Blackstone’s Commentaries, Jeffrey Gilbert, later Chief Baron of the Exchequer, wrote an essay headed ‘Of Contracts’. This work was never printed and remains unpublished. The word ‘treatise’ has sometimes been used in connexion with Gilbert’s writings, but it is by no means clear that Gilbert intended ‘Of Contracts’ to be a free-standing work, or, if he did, that it is complete.8 It consists of 56 double-sided folios containing a detailed discussion of particular topics, notably consideration. Like Blackstone in his second book, Gilbert envisaged contracts primarily as a means of transferring property. His opening words were:



Contracts are twofold: verbal and solemn. Now contract is the act of two or more persons concurring, the one in parting with, and the other in receiving some property right or benefitt. The most notorious way of transferring of right from one to the other is this by contract for all men by their labour and industry did first acquire to themselves a property so they may by other acts of their own transferr that property where they please, and all laws have allowed it as a settled maxim that the right of disposall must of necessity follow the rights of absolute dominium, for certainly as a man may be industrious for himself he may be so also for another and therefore the establishment of the propriety must be in his hands to whom the disposition is made and no doubt as the notion of propriety was begotten from humane necessity so was also this of contract.9


Publication of an annotated edition of Gilbert’s work, when it appears, will probably shed new light on the question, but meanwhile it may be tentatively suggested that Gilbert, like Blackstone, regarded contracts as important legal instruments, but not as an independent source of obligations.


In 1761 the great French jurist, Robert Joseph Pothier, published his treatise on obligations, which appeared in an English translation by Sir William Evans in 1806.10 So unfamiliar to English readers was the idea of a law of obligations that the translator found it necessary to add to the title, calling it A Treatise on the Law of Obligations or Contracts.11 The modern reader might naturally suppose that the purpose must have been to enlarge the meaning of ‘contracts’, but the translator explained that his purpose was rather to enlarge the meaning of ‘obligations’ beyond the restricted meaning (ie penal bonds) that it had in contemporary English legal usage:



To an English reader the name of the principal treatise would have conveyed a more extensive idea, if the term Contracts had been substituted for that of Obligations, as we are familiar with the latter term, in a more confined application of it; but the object of the treatise is, to comprize the general doctrines which relate to the obligations between one individual and another, as well for the reparation of injuries, as for the performance of engagements. The principles applicable to obligations resulting from contracts, however, constitute the leading subject of the author’s attention, and the reference to other topics may be considered as subordinate and incidental.12


Pothier did indeed devote the vast bulk of the treatise (573 pages of 578 in Evans’ translation) to contractual obligation, but he was concerned that his account should be conceptually complete. He divided obligations into ‘contracts’ and ‘other causes of obligations’, and though he devoted only five pages to these ‘other causes’, he took care to divide them in their turn into ‘quasi contracts’ (one page and a half), ‘injuries and neglects’ (two pages and a half) and a residual class called ‘of the law’ (one page), consisting of obligations derived directly from natural or positive law. Pothier’s works were greatly admired in England.13 Sir William Jones, in his Essay on Bailments, had given high praise to Pothier, writing:



[At this time] the learned M Pothier was composing some of his admirable treatises on all the different species of express and implied contracts; and here I seize, with pleasure, an opportunity of recommending those treatises to the English lawyer, exhorting him to read them again and again; for if his great master Littleton has given him, as it must be presumed, a taste for luminous method, apposite examples, and a clear manly style, he will surely be delighted with works, in which all these advantages are combined, and the greatest portion of which is law at Westminster as well as at Orleans.14


This praise was echoed by Best J (later Chief Justice of the Common Pleas), who went so far as to say, in 1822:



The authority of Pothier is . . . as high as can be had, next to the decision of a Court of Justice in this country. It is extremely well known that he is a writer of acknowledged character; his writings have been constantly referred to by the Courts, and he is spoken of with great praise by Sir William Jones in his Law of Bailments and his writings are considered by that author equal, in point of luminous method, apposite examples, and a clear manly style, to the works of Littleton on the laws of this country.15


Addison, in the preface to his Treatise on Contracts (1847), took a similar view, comparing English writings, to their disadvantage, with ‘the elaborate and elegant works of Pothier’.16 Later in the century, however, Pothier’s opinion on an important point of contract formation was severely criticised by three English writers (Leake, Benjamin and Pollock) and was decisively rejected by two judicial decisions in 1880.17 In the twentieth century, Pothier was rarely cited as an authoritative source of English law.18


The first published book on English contract law (Powell, 1790) had given some measure of conceptual unity to contracts as a subject,19 and this conceptual unity was extended by Evans’ translation of Pothier, and by at least 12 nineteenth-century English books.20 The demarcation of contract law had far-reaching implications, including a division between property and obligations, and divisions among various classes of obligations. Some writers also implied, as we shall see, that English contract law was a manifestation of a universal order.


Lord Mansfield had said that precedents served to illustrate principles,21 but he did not say that precedents could be dispensed with as mere surplusage. Precedents may illustrate principles, but the interrelation of the ideas runs in both directions: the principles of English contract law could not themselves be formulated, or articulated, without reference, express or implicit, to decided cases. Cases have been both a source of principle and evidence of it; principle has been simultaneously derived from past cases, and imposed upon them as a criterion of their authenticity and validity. Any advocate, addressing Lord Mansfield or his successors on a point of contract law, would have been ill-advised to dispense entirely with reference to past cases, and the same may be said of students seeking to satisfy examiners, and of writers purporting to offer an accurate account of the law at any point in its history.


This last proposition was put to the test by Henry Colebrooke, who published in 1818 a remarkable book entitled (echoing Pothier and Evans) Treatise on Obligations and Contracts.22 Colebrooke, like Sir William Jones, had spent much of his life in India. He was an eminent Sanskrit scholar, had written a digest of Hindu law, and had held office as a judge in India.23 His book on contract law contains no preface, but the whole approach shows that it was founded on the assumption that the law of contracts depended on and manifested universal principles, and that a satisfactory account could be offered of English contract law without reference to English cases. A note stated that ‘the preface, with other preliminary and introductory matter, will be published with the second part of the volume’, but the second part never appeared. The book is replete with references to Roman law, to the French Civil Code, to Hindu law and to civilian writers, including Barbeyrac, Pufendorf, Godefroy, Grotius, Domat, Pothier and Erskine. Marginal notes refer also to English writers, including Blackstone, Powell, Comyns and Newland, but there is scarcely a reference to any decided English case.


The book was not a success, either commercially or intellectually. It was privately printed, and the projected second part never appeared. ‘The second portion’, his son wrote in his biography, ‘was considerably advanced; but he received little encouragement to pursue his task’.24 His son offered an explanation for the failure, which probably reflected comments made to him and to his father by English lawyers and judges, or rather, the Colebrookes’ perception of the significance of those comments, that ‘the work is perhaps too succinct, and it is wanting in practical examples and illustrations’25 – probably a polite way of suggesting that an account of English law required reference to decided cases. Colebrooke’s approach had the effect of abstracting, or detaching, his account from the English law of contracts as a real historical and social phenomenon, and his book, interesting as it is from several perspectives, offered little usable guidance to the actual content of English law in 1818. That such a book was unlikely to succeed in the legal marketplace may seem obvious in retrospect, but to Colebrooke himself it was evidently a disappointment. In 1823 he wrote in a private letter:



Nothing has been published by me on the law of Contracts, nor any other topic of jurisprudence, since the treatise on Obligations, which I published a few years ago, as the first part of a larger work. Shortly afterward, while I was preparing the sequel of it for the press, I became involved in [a troublesome lawsuit] . . . I have neither health nor spirits for the undertaking, and cannot bring myself to make the effort of setting about it . . . I have it in contemplation to prepare a preface and introduction to the Treatise on Obligations, as a single work, and give it with the notice of my final relinquishment of the greater work. The treatise is complete in itself, wanting nothing but a preface.26


Colebrooke’s son wrote of the Treatise,



Testimonies to its value have been repeatedly given by those who have followed the same path, and I think it was a matter of some disappointment to its author that it was not more generally appreciated. He had devoted to the subject much time and attention, and had compressed into the space of 250 closely printed pages an elaborate compendium of legal principles derived chiefly from the Roman jurisprudence, and had made considerable progress in a second volume.27


The fate of Colebrooke’s book must have been known to every subsequent nineteenth-century writer on English contract law. Chitty (1826), though he referred at several points to the civil law, gave priority to English cases. Addison wrote in his preface (1847) that English contract law was founded ‘upon the broad and general principles of universal law’ and that ‘the law of contracts may justly indeed be said to be a universal law adapted to all times and races, and all places and circumstances, being founded upon those great and fundamental principles of right and wrong deduced from natural reason which are immutable and eternal’. He went on, as has been mentioned, to compare English writings on contract law, to their disadvantage, with ‘the elaborate and elegant works of Pothier’.28 Following such a preface, the reader might have expected a book like Colebrooke’s, but the text of Addison’s treatise turned out to consist almost entirely of somewhat pedestrian discussion of decided English cases, reflecting in part, no doubt, commercial considerations, but also the genuine impossibility of attempting to formulate principles of English contract law without regard to their formulation and reformulation in past judicial decisions.


Almost all the nineteenth-century writers claimed to discern principles, but principle is an elusive concept, varying in meaning according to what is contrasted with it. Sometimes it appears to mean a stringent legal rule that demands absolute obedience, but at other times the word seems to signify an ideal objective, desirable in general terms, but liable to be outweighed by countervailing considerations, which are themselves apt to be called principles.29


Attempts were made to discern principles in tort law, as well as in contracts. Addison, in addition to his treatise on contracts, also published a treatise on torts. He wrote in the preface, perhaps rather too confidently, that with the abolition of the forms of action ‘the pathway to legal science . . . has been rendered comparatively easy and inviting’.30 Arthur Underhill, who himself wrote a book on torts in 1873,31 was not favourably impressed. He said of Addison’s book that it was ‘a huge volume, a compendium of case law, a “wilderness of single instances” with no attempt to distinguish principles from examples’.32 Of his own book, Underhill said: ‘My object, on the other hand, was to trace out the principles of the law and to use decided cases merely as examples of comparatively few principles’.33 Pollock also wrote a treatise on torts, invoking the concept of principle, saying in the preface that ‘the really scientific treatment of principles begins only with the decisions of the last fifty years’, and of his own book that ‘this is a book of principles if it is anything’.34 But the object proved elusive. He wrote of the strict liability torts that ‘as a matter of history such cases cannot be referred to any definite principle’.35 About 20 years later he wrote that ‘the classification of actionable wrongs is perplexing, not because it is difficult to find a scheme of division, but because it is easier to find many than to adhere to any one of them’.36


Contract law appeared to offer a more promising area for the discernment of principles. As we have seen, Pothier was cited by many nineteenth-century English writers. Pollock (1876), though mentioning Pothier at several points in his treatise, gave even greater prominence to the German writer Friedrich Carl von Savigny (1779–1861), calling him ‘a man of true scientific genius’.37 In a footnote to the second paragraph of the first chapter, he explained the fundamental concept (in Pollock’s account of English law) of ‘agreement’ as equivalent to ‘vertrag as used by Savigny, whose analysis . . . we follow almost literally in this paragraph’, quoting Savigny in German because ‘a perfectly literal translation is not practicable’.38 This is remarkable. Pollock was writing a book for English readers on English law, but on the most fundamental concept at the very beginning of his book he found it necessary to give such deference to a German writer that the German text (the subtleties and nuances of which can hardly have been thoroughly understood by most of Pollock’s readers – the crucial word seems to have been Willenserklaerung) was given priority over any possible English translation. In the third edition (1881), this passage disappeared, and Pollock began gently to distance himself from Savigny, saying in the Introduction that the treatment, in Pollock’s earlier editions, of offers in advertisements ‘was the result of overmuch deference to a passing opinion of Savigny’s, which must be allowed to have been hardly worthy of his usual judgment and insight’.39


In his first edition, Pollock gave a central place to the concept of consent: ‘A contract is before all things a transaction in which two or more parties consent’.40 In the preface to the third edition, however, and more prominently in subsequent editions, Pollock emphasised the idea of reasonable expectations. In a letter to Holmes in 1920, Pollock, commenting on recent American writings, said, ‘It is rather amusing to see your new lights trumpeting reasonable expectation as the real fundamental conception in contract. I agree, of course, having put it in my 3d edition, ad init, nearly forty years ago, only without a trumpet obligato’.41 This comment reveals that Pollock was conscious that his views of ‘the real fundamental conception in contract’ had altered in the five-year period between the dates of the first and third editions (1876 and 1881). It also shows that reasonable expectation was, in Pollock’s mind, an aspect of reliance, and that protection of the one was the natural corollary of protection of the other.42


It is doubtful whether Pollock would have used the phrase ‘real fundamental conception’ in this context in 1881, the date of his third edition, but it is significant that, when he looked back 40 years later, he then thought that his insight on this point dated from that time. The fact that a concept seen later as ‘the real fundamental conception’ should have eluded the author during the years of work he put into the first edition of a treatise on general principles is revealing. Also revealing is Pollock’s reference to the absence of ‘trumpet obligato’. It certainly is true that the passages in question were introduced without fanfare. Buried as they were in a long introduction (not exactly, therefore, ad init