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

174 Theory Beneath the Surface
courts, and not by the parties at all. 43 Then again, if contract
law is based on the intention of the parties, it is strange
how often liability only seems to arise after one party has
changed his position in reliance on the other's promises or
behaviour, something which hardly seems relevant if liability
depends on intentions. The truth is that the whole role
of reliance as a basis of liability has yet to be adequately
acknowledged in modern law, and its relationship to contractual
intent also remains to be understood. There is
arguably a good deal of implicit theory governing these
matters already embedded in the law, but it has not yet
been adequately developed and made explicit in the courts.
Let me now say a little about the development of modern
tort law. The picture is similar in some respects, but differs
in other respects from that relating to contracts. It differs, in
particular, in that tort law, ancient and modern, has never
had a neat and tidy theoretical structure, like contract.
Moreover, the individual torts, and especially negligence,
have continued to play a much more important role in tort
theory than the individual types of contract play in contract
theory. On the other hand, we find that there are in the
modern law some general principles of liability, in tort no
less than in contract, and we also find some kind of structure
in the law, or at least a variety of ways in which the law
can be structured. None of these is a wholly satisfactory way
of trying to structure the law, and no single theoretical basis
for the subject has yet emerged, unless we take account of
43 Notice how Lord Scarman insists in Tai Hing Cotton Mill Ltd. v. Liu
Chong Hing Bank [1985] 2 All E.R. 947, at p. 955, that even implied
terms in a contract are not "imposed" on the parties by the courts; but
cf. Lord Wilberforce, more realistically using the language of "imposition"
in the Panalpina decision [1981] A.C. 675, at p. 696.