READING: AJ + BR: understanding CL

What is the overall arguement about the rules of contract law?

The rules of contract law are not natural or inevitable. They are historically contingent, shaped by procedural changes, academic theory, Roman law influences, and nineteenth-century legal thinking. Many modern commercial arrangements fit awkwardly within these traditional doctrines

COMMERCIAL TRANSACTIONS: why don’t they fit into contract law?

• Commercial reality frequently forces exceptions to ordinary contract rules

• SUGGESTS - traditional rule book is not always well suited to commerce

COMMERCIAL TRANSACTIONS: documentary credits

• used in international trade

• traditional CL: promise requires consideration

• ISSUE - beneficiaries under documentary credits often give no consideration to the bank while receiving enforceable rights

COMMERCIAL TRANSACTIONS: third party insurance claims

• tradition: only parties to a contract can enforce it (privy doctrine)

  • people injured by a insured person are not parties to the contract and can’t claim directly against insurers

COMMERCIAL TRANSACTIONS: Bills of lading

• goods are sold while being transported

• buyer - receives the bill of lading not originally a party to the carriage contract

• CL - struggle to explain their rights and obligations

EMERGENCE OF MODERN CONTRACT LAW: What are the three features of its emergence

1. law merchant

2. marginalisation of formal contract s

   1. contracts originally viewed as unilateral

What are the characteristics of the ‘law merchant’

• developed through merchant customs

• used across Europe

• applied in special commercial courts

• practical and responsive

What were the important courts involved with the law merchant?

• fair courts

• town courts

• staple courts

  • court of admiralty

why was the court of admiralty efficient

used principles derived from roman civil law which merchants were familiar with

what Is the law merchants connection to modern commercial law?

modern commercial law principles came from the law merchant rather than common law

helps explain why some commercial rules remain exceptions to contract doctrine

MARGINALISATION OF FORMAL CONTRACTS: What was the problem with proof historically?

• struggled to determine the truth

What was the solution

wager of law

what was the ‘wager of law’ and what was it reliant on

• defendant can only deny liability and bring oath helpers to support credibility

• relied on small communities, religious belief and personal reputation

how did the emergence of deeds arise?

1290-1320 - royal courts began requiring promises to be evidenced by deeds in covenant actions, providing reliable evidence of the agreement

how did ‘assumpsit’ rise

developed into action for a breach of promise

used jury trials rather than a wager of law

How is the SLADES CASE 1602 reflective of the marginalisation of formal contract?

• landmark case

• court allowed plaintiffs to use assumpsit where they previously needed to use debts

• helped make assumpsit the general action for enforcing informal agreements

VIEWED AS UNILATERAL: What was the early concept of consideration?

more concerned with determining whether a promise was seriously intended, didn’t require a bargain

How is the lampleigh C braithwait 1615 relevant to the early concept of consideration

• claimant obtained a royal pardon at defendants request

• AFTER: defendant promised to pay £100

• COURT - enforced the promise because the claimant acted at the defendants request

• RELEVANCE - consideration originally focused on the circumstances surrounding the promise, not the bargain requirement

what does the BILATERAL CONTRACT THEORY struggle to explain

• guarantees

• documentary credits

• requirement contracts

what is the OVERALL VIEW of consideration

the modern doctrine of consideration is not inevitable, its a result of historical development

ORIGINS OF THE RULE BOOK: What are the three factors that contributed to its origin?

1. continental influence

2. rise of the textbook and academic contract law

3. contract law drifting away from commerce

CONTINENTAL INFLUENCE: What was POTHIER’s writing about

presented contract law as a rational subject

began with broad principles and built the law around them

What was Poltheir’s 3 core ideas

1. mutuality - reciprocal obligations

2. consensus ad idem - meeting of the minds

3. offer and acceptance

How does ADAMS V LINDSELL 1818 reflect English judges using polthier’s ideas to solve legal issues

• defendants misdirected an offer letter, claimants received it late and posted acceptance immediately while the defendants sold the goods elsewhere

• ISSUE - WHEN WAS the contract formed

• DECISION - contract was formed when the acceptance letter was posted (postal rule)

TEXTBOOK + ACADEMIC LAW: Which victorian writers turned contract law into a systematic academic subject

Sir William Anson

frederick pollock

what were their four main goals

1. general principes

2. coherence

3. logical structure

4. predictable rules

what are the benefits that came from an increase in academia?

1. certainty

2. legal education

   1. consistent decision making

What were the drawbacks from the rise in academia?

1. less flexibility

2. abstract reasoning

3. distance from commercial reality

What does the textbook/rulebook reflect?

academic attempts to rationalise law, not commercial practice

RULE BOOK TODAY: what is its purpose

• teaching tool

• framework for legal education

• way to organise principles