Pragmatism and Theory in English Law - College of Social Sciences ...

172 Theory Beneath the Surface
of the contract, conditions, warranties and the like; we think
of the termination of contracts, by performance, frustration
or breach; and we think of remedies. All this comes from
Pollock and Anson, and today it is not only academics who
think in these ways: the practitioners and the judges do so
too, and so, indeed do the modern practitioners' books
which finally abandoned the hopeless lack of shape and
rational basis which they had obstinately hung onto long
after the modern law had become firmly established. 40 Now
although I have argued in my Rise and Fall of Freedom of Contract
that the judges had been heavily influenced by the
theories of political economy since the late eighteenth century,
it is not at all easy to see how much of the law which
Anson and Pollock put into canonical form was already
implicit in the cases, and how much of it was actually their
own devising, based on preconceptions about the rational
shape of a system of contract law, drawn perhaps from
Roman and civil law and perhaps even natural law sources.
Certainly some of it was clearly drawn from their own ideas
with virtually no support in the case law of the time. Pollock,
for instance, virtually invented the doctrine—so far as
English law is concerned—that an agreement is not a contract
unless the parties intend to create legal relations,
though he borrowed the idea from Savigny. 41 And Anson
may well have been responsible for inventing the modern
doctrine of privity, which he thought he saw in the cases,
but which was really not there at all. 42 Beyond examples
40 See the Preface to the 22nd edition of Chitty on Contract, (1961) by J. H.
C. Morris.
41 See Simpson, loc. tit. at pp. 264-265.
42 See my review of the centenary edition of Anson's Contract in (1981) 1
Legal Studies 100, at p. 102.