The Sanctity of Contracts in English Law - College of Social ...

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AUSTRALIAThe Law Book Co. of Australasia Pty Ltd.Sydney : Melbourne : BrisbaneCANADA AND U.S.A.The Carswell Company Ltd.TorontoINDIAN. M. Tripathi Private Ltd.BombayNEW ZEALANDS^veet & Maxwell (N.Z.) Ltd.WellingtonPAKISTANPakistan Law HouseKarachi


THE SANCTITY OFCONTRACTSINENGLISH LAWBYSIR DAVID HUGHES PARRY,Q.C., M.A., LL.D., D.C.L.An Honorary Bencher of the Inner Temple,Professor of English Law in the University of LondonPublished under the auspices ofTHE HAMLYN TRUSTLONDONSTEVENS & SONS LIMITED1959


First published in 1959 byStevens & Sons Limited of119 & 120 Chancery LaneLondon — Law Publishersand printed in Great Britainby the Eastern Press Ltd.of London and ReadingStevens A Sons, Limited1959


CONTENTSThe Hamlyn Trust . . . . . page vii1. GROWTH OF SANCTITY OF CONTRACTS . . 1The Moral Basis of Contract—The Influence ofthe Ecclesiastical Courts—Contracts in the Courtof Chancery—Enforceability of Contracts atCommon LawThe Influence of Benthamism—Nineteenth Century Views of Contracts: TheHistorical School—The "Will Theory" of Contracts—Conclusion2. ENCROACHMENTS ON SANCTITY OF CONTRACTS 19Contracts which Equity Declined to Enforce—Curtailment of Freedom of Contract by theLegislature—Contracts entered into on Sunday—Wagering Contracts—Infants' Contracts—TruckActs—Moneylenders Acts—Hire-Purchase Acts—Labour Legislation—Trade Union Legislation3. CURTAILMENT OF FREEDOM OF CONTRACT BYTHE COMMON LAW COURTS . . . 39Implied Terms—Impossibility of Performance—Contracts Contrary to Law or Morality—Contractsin Restraint of Trade—Monopolies andRestrictive Practices—Executive Arrangements4. A COMPARISON AND CONCLUSIONS . . . 67The Obligation of Contracts Clause in theAmerican Constitution—Conclusions


HAMLYN LECTURERS1949 The Right Hon. Lord Denning1950 Richard O'Sullivan, Q.c.1951 F. H. Lawson1952 A. L. Goodhart, K.B.E., Q.C, F.B.A.1953 Sir Carleton Kemp Allen, Q.c, F.B.A.1954 C. J. Hamson1955 Glanville Williams, LL.D.1956 The Hon. Sir Patrick Devlin1957 The Right Hon. Lord MacDermott1958 Sir David Hughes Parry, Q.C, M.A., LL.D.,D.C.L.VI


THE HAMLYN TRUSTTHE Hamlyn Trust came into existence under thewill of the late Miss Emma Warburton Hamlyn, ofTorquay, who died in 1941, aged 80. She came ofan old and well-known Devon family. Her father,William Bussell Hamlyn, practised in Torquay as asolicitor for many years. She was a woman ofdominant character, intelligent and cultured, wellversed in literature, music and art, and a lover of hercountry. She inherited a taste for law, and studiedthe subject. She travelled frequently on the Continentand about the Mediterranean and gathered impressionsof comparative jurisprudence and ethnology.Miss Hamlyn bequeathed the residue of her estatein terms which were thought vague. The matter wastaken to the Chancery Division of the High Court,which on November 29, 1948, approved a scheme forthe administration of the Trust. Paragraph 3 of theScheme is as follows: —" The object of this charity is the furtheranceby lectures or otherwise among the CommonPeople of the United Kingdom of Great Britainand Northern Ireland of the knowledge of theComparative Jurisprudence and the Ethnology ofthe chief European countries, including the UnitedKingdom, and the circumstances of the growthof such jurisprudence to the intent that theCommon People of the United Kingdom mayrealise the privileges which in law and customthey enjoy in comparison with other Europeanvii


viiiThe Hamlyn TrustPeoples and realising and appreciating suchprivileges may recognise the responsibilities andobligations attaching to them."The Trustees under the Scheme number nine, viz.:/ \ •»*• r. T7- /-. ( Executors of(a) Mr. S. K. COLERIDGE „. TT , ,••«• -r T. TIT ( Miss Hamlyn SMr. J. R. WARBURTON(b) Representatives of the Universities ofLondon, Wales, Leeds, Glasgow andBelfast, viz.:Professor G. W. KEETON,Professor D. J. LI. DAVIES,Professor P. S. JAMES,Professor D. M. WALKER,Professor J. L. MONTROSE.(c) The Vice-Chancellor of the University ofExeter, ex officio (DR. J. W. COOK).(d) DR. JOHN MURRAY(co-opted).The Trustees decided to organise courses of lecturesof high interest and quality by persons of eminenceunder the auspices of co-operating Universities witha view to the lectures being made available in bookform to a wide public.The tenth series of lectures was delivered by SirDavid Hughes Parry, at the University of Exeter inFebruary and March, 1959.March, 1959JOHN MURRAY,Chairman of the Trustees.


CHAPTEK 1GROWTH OF SANCTITY OF CONTRACTSINTRODUCTIONWHEN we read the arguments of counsel and theopinions of judges in actions for breaches of contractduring the last three or four centuries we findfundamental changes in the views held with respectto the nature of contracts, the purpose of enforcingcontracts and the relation of breaches of contract tomorality generally. In other words, even in moderntimes, the juristic conceptions of the nature of acontract and of the place of a law of contract in thescheme of things have varied to a remarkable degree.It will be my aim in these lectures to make ageneral study of these changing conceptions: changeswhich are to be seen and felt in the field of legislationas well as in that of judge-made law. But I shalllimit my study, for the most part, to the reports ofcases during these last four hundred years and shallmake only a brief review of relevant legislation andthe works of text writers. My object is to drawattention to the different changes and to try andoutline their causes and general effects.THE MORAL BASIS OF CONTRACTIn the 1953 Hamlyn Lectures, English Laiv and theMoral Law, 1 Professor Goodhart stated that " the1 p. 10.


2 Growth of Sanctity of Contractsmoral basis of contract is that the promisor has byhis promise created a reasonable expectation that itwill be kept." He could have found support for thisview in the words of a former Oxford professor, SirThomas Erskine Holland; for Holland (writing in1916) in his book on Jurisprudence 2 declared that" when the law enforces contracts it does so toprevent disappointment of well-founded expectations,which, though they usually arise from expressionstruly representing intention, yet may occasionallyarise otherwise." In fact, however, Professor Goodhart,not unnaturally, sought confirmation of his viewon the American continent and found it in thefollowing quotation from an American legal classic,namely, Professor Corbin's eight-volume work on theLavo of Contracts 3 : " That portion of the field of lawthat is classified and described as the law of contractsattempts the realisation of reasonable expectationsthat have been induced by the making of a promise.Doubtless, this is not the only purpose by which menhave been motivated in creating the law of contracts;but it is believed to be the main underlying purpose,and it is believed that an understanding of manyof the existing rules, and a determination of theireffectiveness require a lively consciousness of theirunderlying purpose."There are at least three good reasons which can beadvanced in support of Professor Goodhart's view ofthe moral basis of contract in English law. One is2 12th ed. (1916) at p. 262.3 Law of Contracts, 1950, Vol. 1, p. 2.


The Moral Basis of Contract 3historical, another commercial or economic and thethird equitable.Our early common law had no general theory ofcontract in the sense that, provided they satisfiedcertain legal tests, promises or agreements generallyshould be enforceable by the courts. All that it hadwas a system of writs designed to protect rightsderiving from a few transactions giving rise to whatwe would now describe as contractual, but which werethen regarded as proprietary, interests. When inthe fourteenth, fifteenth and sixteenth centuries theKing's courts of common law were evolving new andmore general remedies for breaches of contracts, anall-important new departure consisted in the extensionof an " action on the case " 4 to cover instances ofnon-feasance—in less technical language, when a writbecame available against a promisor who had madea binding promise and never performed it. Thepromisor had by his deceit in undertaking to dosomething for another and then failing to carry outhis promise caused injury to that other (generallyknown to lawyers as the " promisee"), for whichinjury the promisee was entitled to recover damages.This form of action on the case, which ultimatelybecame the normal remedy for breaches of contractgenerally, was evolved as a method of redressing thedamage suffered by a promisee who had been disappointedby the failure of his promisor to redeemhis promise.4See on this generally, Pluoknett, Concise HistoryCommon Law, 5th ed., pp. 372-373, 637 et seq.of the


4 Growth of Sanctity of ContractsThe second reason, as I have said, is commercialor economic. In the fifteenth and sixteenth centuriestrade and commerce, national and international, werefast becoming important in the economic life of thecountry and they have remained of the greatestimportance to us ever since. Credit has always playeda vital part in trade and commerce. Merchants andtradesmen do not give credit unless they can relyupon their debtors to fulfil their promises and paytheir debts; or failing payment, can enforce thosepromises in the courts of the land. As Sir GeorgePaton has so well put it, 5 " Credit depends essentiallyon ability to rely on the promises of others and thuscan flourish only where there is a fully developedlaw of contract." Economic self-interest cannotafford the general disappointment of creditors'expectations.The fact that all persons whose interests are affectedby an arrangement have freely and with full knowledgeagreed on that arrangement is, in general,cogent evidence in favour of its justice. When allpersons interested in a particular transaction havegiven their consent to it and are satisfied, the lawmay safely step in with its sanctions to guarantee thatright be done by the fulfilment of reasonable expectations.This constitutes a third clear reason why thelaw should enforce agreements or promises.But reasons other than that advanced by ProfessorGoodhart have at different times been put forward to5 Jurisprudence, 2nd ed., p. 350, citing Cairna, Law and theSocial Sciences, p. 82.


The Moral Basis of Contract 5justify the legal enforcement of promises; and some ofthose reasons have in their day had wide currencyand considerable influence. Indeed traces of theseinfluences may be discerned even into modern times.As a distinguished American scholar has observed, 6" Even when a new generation of judges no longerholds the same philosophic and economic views, it ishard to escape the authority of previous decisions,and previous grounds of decision. The change takesplace more slowly."Before entering upon a consideration of otherreasons put forward in their day, it may not be withoutinterest to mention a fact noted by Holland 7 : "Ithas been paradoxically maintained," he writes, " bymore than one writer of eminence that no assistanceshould be given by law to the enforcement of agreementson the ground that they should be entered intoonly with those whose honour can be trusted; and thelaws of Charondas and the ancient Indians are statedto have proceeded on this principle."THE INFLUENCE OF THE ECCLESIASTICAL COURTSBefore the common law courts had evolved ageneral remedy for breaches of simple contracts, boththe ecclesiastical courts and the Court of Chanceryhad, in some measure, tried to fill the wide gap in thelaw left open by the common law writ system. Wherea promisor had pledged his faith to perform hispromise—that is to say, had made a promise or« Williston, 6 Cornell L.Q. 365.7 Holland's Jurisprudence, 12th ed., p. 260.


6 Growth of Sanctity of Contractsentered into an agreement ratified by an oath—andthen failed to fulfil that promise or agreement, hisfailure constituted an ecclesiastical offence for whichhe was answerable in the Church courts as a sinnerin need of correction. The King's courts, however,seem to have steadfastly refused to enforce contractsmade or ratified only under such a pledge of faith:and the Constitutions of Clarendon, 1164, 8 discouragedthe ecclesiastical courts from attempting to enforcethem. Nevertheless these latter courts, in spite ofmany prohibitions, continued from time to time toexercise jurisdiction over persons who had pledgedtheir faith to perform contractual obligations andthen failed to honour their word. 9 Professor Plucknettsums up the situation in these words: " TheChurch very early took a strong view of the sanctityof contractual relationships, insisting that in consciencethe obligation of a contract was completelyindependent of writings, forms and ceremonies, andtried so far as she could to translate this moral theoryinto terms of law." 10The point I want to make is that although "sin,"on the one hand, and " crime" and " breach ofcontract " on the other are to us today quite distinctconceptions, this was not always so; for the obligationsof religion and of law in the field of promiseswere in medieval times almost indistinguishable.Throughout the medieval period, a pre-eminently8 See generally Plucknett, A Concise History of the CommonLaw, 5th ed., p. 17.9 See generally on this Holds. H.E.L. Vol. Ill, pp. 414-415.10 Plucknett, op. cit. at p. 627.


The Influence of the Ecclesiastical Courts 7formative period in English law, there was an insistenceby canon lawyers that it was a religious duty to keepfaith, and notwithstanding the discouragements of theConstitutions of Clarendon the influence of theecclesiastical conception of breaches of contracts musthave been considerable at a time when the foundationsof contract law were being discussed.CONTKACTS IN THE COURT OF CHANCERYDuring this same medieval interregnum, in theabsence of an adequate common law remedy forbreach of contract, the Court of Chancery, as wellas the ecclesiastical courts, was approached bypetitioners seeking redress for breaches of contract;and as the great majority of the medieval chancellorswere ecclesiastics it was only natural for them tofollow much the same lines as the Church courts. 11Accordingly they offered remedies in cases where goodfaith and honest dealing demanded enforcement ofpromises. Sir William Holdsworth observes 12 thatthis might well have brought the whole of the law ofcontract under the jurisdiction of the Court ofChancery, had not the common law courts awakened11 See Plnoknett, op. cit. at p. 627. For a contrary view, seeAmes, Select Essays in Anglo-American Legal History, Vol.Ill, p. 309, where it is stated that there seema to be noreason to suppose that the chancellors, in giving relief, wereinfluenced, even unconsciously, by any recollection of ecclesiasticaltraditions in regard to fidei laesio. " It was soobviously just that one who had intentionally misled anotherto his detriment should make good the loss, that we neednot go further afield for an explanation of the chancellor'sreadiness to give a remedy upon such parol agreements."Op. cit.12 History of English Law, Vol. 1 (7th ed.), p. 456.


8 Growth of Sanctity of Contractsin time to the necessity of providing a remedy forthe breach of simple contracts.There is no doubt but that the association of abreach of contract with the sin of breach of faith inthe ecclesiastical courts and the readiness of theCourt of Chancery to regard failure to perform one'spromises as tantamount to bad faith and dishonestdealing, combined to give to contracts a measure ofreligious blessedness and to breaches of contract amark of sinful or unethical aberration.ENFORCEABILITY OF CONTRACTS AT COMMON LAWThroughout the seventeenth and eighteenth centurieswhen the writ of assumpsit had opened the doorwider to provide a general remedy for the breach ofan agreement and before the doctrine of considerationhad been fully defined as a workable criterionfor determining what agreements should be legallyenforceable, there was much discussion among thejudges of the duty to enforce moral obligations. Thusin Button v. Poole 13 a promise, made by a son to hisfather, to pay £1,000 to his sister, was held enforceableby the sister. Chief Justice Scroggs expressed theview that " there was such apparent consideration ofaffection from the father to his children, for whomnature obliges him to provide, that the considerationand promise to the father may well extend to thechildren." 13 Mr. Fifoot's apt commentary on thecase is that " the warmth of natural affection and therecollection of paternal care sufficed to generate legal13 (1677) 2 Lev. 210, 211-212.


Enforceability of Contracts at Common Law 9obligations between the members of a family." 14Conveyancers had already recognised that such" good" family consideration (as opposed to whatlater became known as " valuable" consideration)was sufficient for their purposes.In Dutton v. Poole 14a and similar cases the judges,while feeling their way, in manner characteristic ofthe development of judge-made law, towards asatisfactory test of enforceability of promises, edgedtowards the establishment of morality as that test.As Mr. Fifoot has observed, 15 " the pressure ofmorality had long been felt upon the practice of thecourts, and it needed only courage to transform itsmaxims into a general principle of liability." 16 Andso it was not surprising that Lord Mansfield " withhis flair for rationalisation" should launch theprinciple of moral obligation " upon a career whichpromised to be triumphant." 15 Thus in Atkins v.Hill, 17 a successful action in assumpsit by a legateeupon a promise by an executor with sufficient assetsto pay a legacy, the learned Chief Justice observed:". . . in the present case there is not only an assentto the legacy, but an actual promise and an undertakingto pay it: and that promise founded on agood consideration in law; ... it is the case of a14Lord Mansfield at p. 135.u a (1677) 2 Lev. 210.15 Op. cit. at pp. 136, 137.16 Compare the position in the U.S.A. as regards liability toa beneficiary on a third-party promise made for his benefit."It is just and practical to permit the person for whosebenefit the contract is made to enforce it against one whosediitv it is to pay ": Pound .T. in Seavey v. Ransom, 224 N.Y.233. 237. ' 1' (1775) 1 Cowp 284. 288.H.L. 2


10 Growth of Sanctity of Contractspromise made upon a good and valuable consideration,which in all cases is a sufficient ground to support anaction. It is so in cases of obligations which wouldotherwise only bind a man's conscience, and whichwithout such promise, he could not be compelled topay." 18In a similar action brought seventeen years laterin Hawkes v. Saunders, 19 Lord Mansfield restated hisview even more forcibly in these words 20 : " Wherea man is under a moral obligation, which no court oflaw or equity can inforce, and promises, the honestyand rectitude of the thing is a consideration. As if aman promise to pay a just debt, the recovery ofwhich is barred by the Statute of Limitations: or ifa man, after he comes of age, promises to pay ameritorious debt contracted during his minority . . .or if a bankrupt, in affluent circumstances after hiscertificate, promises to pay the whole of his debts;or if a man promises to perform a secret trust, or atrust void for want of writing, by the Statute ofFrauds."Lord Mansfield's advocacy of the doctrine of moralobligation was so constant and pressing that we arein some danger today of regarding him as almost its18 Compare Lord Coleridge C.J.'s observation in a case of manslaughterby neglect to provide food or medical attendancefor an aunt helplessly ill in the same house : "It wouldnot be correct to say that every moral obligation involves alegal duty; but every legal duty is founded on a moralobligation. A legal common law duty is nothing else thanthe enforcing by law of that which is a moral obligationwithout legal enforcement " : The Queen v. Instan, [1893]1 Q.B. 450, 453.i» (1782) 1 Cowp. 289.2" At p. 290.


Enforceability of Contracts at Common Law 11sole protagonist. 21 That would be quite wrong, forthe reports show that many of the other judges of histime shared his partiality for it; thus, to give onlyone example, Buller J., also in Hawlces v. Saunders,observed 22 : "I agree with my Lord, that the rulelaid down at the Bar, as to what is or is not a goodconsideration, is much too narrow. The true rule is,that wherever a defendant is under a moral obligation,or is liable in conscience and equity to pay, that isa sufficient consideration."But the tide of judicial opinion had already begunto flow against this general doctrine. In Rann v.Hughes 23 Skynner L.C.B. had already declared hisattitude in the following unmistakable terms :" It is undoubtedly true that every man is bythe law of nature bound to fulfil his engagements.It is equally true that the law of this countrysupplies no means, nor affords any remedy, tocompel the performance of an agreement madewithout sufficient consideration."And as the technical doctrine of consideration wasmore closely denned the more general test of moralitybecame less and less acceptable to the judges and theprofession. Thus in Littlefield v. Shee Zi Lord TenterdenC.J. observed that " the doctrine that a moralobligation is a sufficient consideration for a subsequent21Sir William Holdsworth describes him as having " wrestedthe meaning of the cases to justify his view that a moralobligation was a sufficient consideration": Holdsworth, SomeMakers of English Law, p. 152.2 2 At p. 294. See also Trueman v. Fenton (1777) 2 Cowp. 544.23(1765) 4 Brown, P.G. 27; 7 T.E. 350, n.2* (1831) 2 B. & Ad. 811, 813.


12 Growth of Sanctity of Contractspromise, is one which should be received with somelimitation."But that it did not completely disappear beforenearly the middle of the nineteenth century is obviousfrom the cases of Lee v. Muggeridge 25 and Eastwoodv. Kenyon. In the former case, the Chief Justice "of Common Pleas observed 28 : "... it has been longestablished, that where a person is bound morallyand conscientiously to pay a debt, though not legallybound, a subsequent promise to pay will give a rightof action. The only question, therefore, is whetherupon this declaration there appears a good moralobligation."It was in the well-known case of Eastwood v.Kenyan 29 that the doctrine received its death blow,for it was in that case that Lord Denman declaredthat " the doctrine would annihilate the necessityfor any consideration at all, in as much as the mereact of giving a promise creates a moral obligation toperform it. The enforcement of such promises bylaw, however plausibly reconciled by the desire toeffect all conscientious engagements, might be attendedwith mischievous consequence to Society; one ofwhich would be the frequent preference of voluntaryundertakings to claims for just debts."Mr. Fifoot sums up 30 the influence and ultimate25 (1813) 5 Taunt. 36.26(1840) 11 Ad. & E. 438.27 It is not without interest that the Chief Justice's name wasMansfield (but not of course, Lord Mansfield).28 5 Taunt, at p. 46.29(1840) 11 Ad. & E. 438, 450.3 » Op. cit. at pp. 140-141.


Enforceability of Contracts at Common Law 13fate of the conception of morality as a general testof actionability in these words :" The invocation of morality had the virtue ofpresenting a definition, which, if comprehensive,was without a coherent competitor and whichcould be used to discipline a quantity of refractoryprecedent. It escaped serious challenge fora generation and was not expelled from the lawuntil the middle of the nineteenth century."THE INFLUENCE OF BENTHAMISMLong before Lord Mansfield and the judges of histime had made their effort to press the claims ofmorality upon the courts, political philosophers suchas Bodin and Hobbes had publicised their rationalisticspeculations on government, sovereignty and thenature of law. The new gospel of reason movedforward hand in hand with varying conceptions ofnatural law, many of them based upon a cleardistinction between law and morality. The generaltrend of the movement proved in due course to be inthe direction of recognising utility rather than moralityas the justification for the enforcement of obligations.David Hume provided the philosophical backgroundby his teaching that everything which contributes tothe happiness of society " recommends itself directlyto our approbation and goodwill."Jeremy Bentham propagated and elaborated thisnew philosophy of utilitarianism, concentrating inparticular on its application to government and constitutionaland legal reforms. Nature, he proclaimed,


14 Growth of Sanctity of Contractshas placed mankind under the governance of twosovereign masters, pain and pleasure. They governus in all we do, in all we say, in all we think.John Austin worked out the juristic implications ofthis new school, starting with his emphasis onsovereignty, which he proceeded to analyse at somelength, and his treatment of law as a command ofthe sovereign. For our immediate purposes we cansafely generalise that he separated jurisprudence frommorals and specialised in the scientific and philosophicalstudy of established legal institutions andleading legal concepts such as rights, duties, property.The purpose of the school of Analytical Jurisprudencefounded by Austin is well and succinctly described inthe current edition of Salmond on Jurisprudence 31 as" to analyse without reference either to their ethicalorigin or development or to their ethical significanceor validity, the first principles of the law."Austin's followers, 32 for example, Holland, Salmondand Gray, followed suit; and their conclusion is thatcontracts should be enforced so as to prevent disappointmentof well-founded expectations.NINETEENTH CENTUEY VIEWS OF CONTRACTS :THE HISTORICAL SCHOOLSide by side with the analytical school's conceptionof contract there flourished from time to time otherphilosophical and economic doctrines which had theirinfluence on contemporary ideas of the nature and31 11th ed. at p. 4.32 For a full list of his followers and their works, see Salmondon Jurisprudence, 11th ed., p. 13, note (r).


Nineteenth Century Views of Contracts 15purpose of the law of contract. There was forexample the historical school with its emphasison the gradual evolution of legal institutions, itsappreciation of the social and economic backgroundof those institutions and its great respect for thenational and individual characteristics in which legalsystems developed. Thus Maine declared that " thejurist, properly so called, has nothing to do with anyideal standard of law or morals." 33 Its outlook wasmarkedly traditionalist and it was on the wholepassive in its general attitude to law. Neverthelessfor this school the law of contract was speciallyimportant; for it was at the same time a mediumwhereby different communities and individuals gavenatural spontaneous expression to their convictionsand aspirations, and part of a process inevitable inthe general march of the spirit in history, evolvingliberation from the bonds of status. To use the wordsof Sir George Paton in a somewhat different context,since contract was the legal category which gave thegreatest means of self-expression its sphere was notonly increasing, but ought to be increased. The dictum"status to contract" became not merely a convenientgeneralisation of certain aspects of legal history butan external principle the onward march of whichcould not be stayed. 34THE " WILL. THEORY " OF CONTRACTSAnother theory that had considerable influenceduring the latter part of the nineteenth century was33 Early History of Institutions, 360-370.34 Jurisprudence, 1st ed., p. 293.


16 Growth of Sanctity of Contracts" the will theory." This was founded on the viewthat a contract was the result of a real agreementbetween two or more parties and that such a unionof wills was inherently worthy of respect; for itextended the reach of an individual's personality andthereby tended to increase his freedom and worth inthe community.The view that the essence of contract is agreement,and the essence of agreement is a union of wills, wasnot a new nineteenth-century conception. For asSir William Holdsworth has pointed out, 36 it wasclearly recognised by the lawyers of the sixteenthcentury. Thus in Broivning v. Beston se (a case whichwas much argued in 1552 and 1553) Counsel (SerjeantCatline by name) contended in his argument that " incontracts it is not material which of the parties speakthe words, if the other agrees to them, for the agreementof the minds of the parties is the only thingthe law respects in contracts, and such words asexpress the assent of the parties, and have substancein them, is sufficient."But it was throughout the nineteenth century thatthe doctrine bloomed in all its glory. Unfortunatelyits protagonists were divided over one fundamentalaspect of it. Some argued that the wills of the partieshad to be in reality at one, others that it wassufficient that the parties could be taken objectivelyto have expressed their agreement without havingbeen really ad idem. Sir William Anson writing in35 See H.B.L., Vol. VIII, p. 1.36(15S5) 1 Plowden 131, 140-141.


The " Will Theory " of Contracts 171882 stated his position in the controversy asfollows 37 :" While the consensus ad idem or agreement isthe ideal basis of contract, the court will assumethe existence as a necessary sequence of certainovert acts of the parties. Their minds mustneeds be out of reach of a court of law, but wherethey exhibit all the phenomena of agreement theexistence of agreement will be taken for granted."In the latest edition of Cheshire and Fifoot on theLaw of Contract 3S the matter is put in this way :" A contracting party ... is bound becausehe has agreed to be bound. Agreement, however,is not a mental state but an act, and, as an act,is a matter of inference from conduct. Theparties are to be judged not by what is in theirminds, but by what they have said or written ordone."While the positive school drew a sharp line betweenpositive law on the one hand and morals and ethicson the other, the advocates of the will theory saw inlaw a rational means of attaining a spiritual endthrough the freedom of the will. So they threw intosome confusion once more the place of the moral andthe ethical elements in legal conceptions.CONCLUSIONThe conclusion at which I have arrived during mystudy of the development of the general law of37 Principles of the English, Law of Contract, 2nd ed., p. 13.38 4th ed. at pp. 21 22.


18 Growth of Sanctity of Contractscontract in England and of the remedies providedby English law for the- redress of breaches of contractis that throughout the greater part of that developmentthe giving of a promise or the conclusion of anagreement involved a solemn undertaking the breachof which amounted in the eyes of the Church to a sinand in the eyes of the general body of contemporarylawyers to an immoral or unethical act. With thespecial emphasis placed by the nineteenth-centuryphilosophers and jurists on the importance of freedomand the manifestation and extension of an individual'sfreedom through contract, it was not surprising thatcontracts developed a juristic blessedness or halo andwere so often regarded as sacred. Their sanctity isdirectly traceable to their early religious and ecclesiasticalassociations, their protection by the Court ofChancery as a court of conscience, their importanceto international merchants as the foundation ofcredit, and the prominent place that the individualfreedom which they fostered held in the eyes ofnineteenth-century jurists and political philosophers.


CHAPTER 2ENCROACHMENTS ON SANCTITYOF CONTRACTSCONTRACTS WHICH EQUITY DECLINED TO ENFORCENOTWITHSTANDING the rejection by the courts of themoral obligation test of actionability of contracts andthe evolution and adoption by them, in preference,of the indifferent or neutral technical test of consideration,ethical or moral as well as social andeconomic problems have kept intruding into the fieldof enforceability of contracts. The intrusions havecome from courts of equity, from the legislature andfrom the common law courts. We are so used to theoperation of the Court of Chancery as a Court ofConscience that its refusal in certain instancespositively to assist a promisee by making an orderdirecting a promisor to fulfil a positive undertaking,or by an injunction to restrain the breach of anegative stipulation, seems natural. And even whereEquity gives its aid to cancel a formal agreement orto rescind a parol one, the intrusion on moral orethical grounds for the purpose of treating a contractas voidable or invalid which would otherwise seemvalid, causes no juristic qualms.From what I have already said in my first lecture,one would be ready to assume that even though theCourt of Chancery was during the seventeenth andeighteenth centuries ready to assist in the enforcementof contractual undertakings, it could not very19


20 Encroachments on Sanctity of Contractswell be expected to do so where the petitioner whosought its aid had not acted honestly or fairly. Therelief or aid which that court has extended in practiceto a petitioner has at all times been of a discretionarycharacter; and so it has been natural for it to refuseits discretionary remedy in any case where theconduct of the petitioner is shown to be the result ofdishonesty or sharp practice. A note in EquityCases Abridged J (an Abridgment of Cases in Equityargued and adjudged in the Court of Chancery between1667 and 1744), sums up the position as follows:" But now the power of Chancery and other courtsof equity, in enforcing the execution of articles andagreements, is so well established, that in manycases, money agreed to be laid out in lands shall beconsidered as lands and lands as money; Vide. 1Chan.Ca. 39, and though a losing bargain will sometimesbe decreed, as well as a beneficial one 2 Vern.b%3, yet it must ever be observed that articles oragreements, out of which an equity can be raisedin specie, ought to be obtained with all imaginablefairness, and without any mixture tending to surpriseor circumvention; and that they be not extremelyunreasonable in any respect; or otherwise a court ofequity will according to the circumstance of the case,either set the agreement quite aside, send the partyto law, or direct a trial in a quantum damnificat." 21 Eq.Ca.Abr. 17.2 It is interesting to compare this statement with that in thelast edition (6th) of Fry on Specific Performance. " If thedefendant can show any circumstances dehors, independentof the writing, making it inequitable to interpose for thepurpose of a specific performance, a Court of Equity, having


Contracts which Equity Declined to Enforce 21Three eases are cited in illustration of the statementwhich I have quoted from Equity Cases Abridged.In all three, Equity refused to decree specific performanceof the contract. In one, 3 A had contractedto purchase B's estate, pretending that he was buyingit " for one whom B was willing to oblige," andthereby got it " somewhat the cheaper, when intruth he bought it for another." " There had notbeen fair and open dealing " in the matter. In thesecond case, 4 before Lord Chancellor Thurlow, therewas an agreement to purchase an estate. Afterwardsit transpired that the vendor had concealed asubstantial annual outgoing on an obligation torepair a wall to protect the estate from the riverThames. The third case 5 was concerned with anagreement by an attorney to buy property from anold lady of ninety years of age and there were severalsuspicious circumstances appearing. In this last casethe Lord Chancellor would neither decree specificperformance of the agreement against the heir, nor,in a cross suit, order it to be delivered up.A later case illustrative of the same attitude isWebster v. Cecil.'' There a plaintiff claimed specificperformance of a contract to sell property to him for£1,250. The defendant had in the first instancerefused to sell certain property to the plaintiff for£2,000, and then had by mistake written offering thesatisfactory information upon that subject, will not interpose."See also Holliday v. Lockwood [1917] 2 Ch. 50.3 Phillips v. Duke of Bucks (1682) 1 Vern. 227.* Shirley v. Stratton (1785) 1 Bro.Chan.Cas 440.* Green v. Wood (1708) 2 Vern. 632.6(1861) 30 Beav. 62.


22 Encroachments on Sanctity of Contractssame property for £1,250. So the plaintiff was wellaware of the error. Nevertheless he purported to acceptthe written offer; and when the defendant had withoutdelay drawn his attention to the mistake, the plaintiffsued for specific performance. Sir John RomillyM.R. in refusing this remedy observed that the courtcould not compel a person to sell property for muchless than its real value and for £1,000 less than heintended. The plaintiff, he added, might, however,bring such action at law as he might be advised.The development of the equitable doctrine of PartPerformance offers a curious example of an apparentconflict between the common law, legislation andequity. The Statute of Frauds, 1677, s. 4, providedthat, among others, a contract for the sale ofland should not be enforceable by action unless itwas in writing or evidenced by a note or memorandumin writing. That is to say, even though theexistence of a promise or agreement could in fact beproved by oral evidence and the contract wouldaccordingly have been enforceable at common law,the Statute forbade its enforcement by action if therewas no written evidence of it. But the judges of theCourt of Chancery made it clear 7 that they would notallow the Statute " to be made a cloak for fraud,"and it would be something very much like fraud onthe part of a promisor not to carry out his contract.* Halfpenny v. Botlet (1699) 2 Vern. 373; cited in Bawdes v.Amhurst (1715) Prec. in Ch. 402, aa Mollett v. Halfpenny.See also Butcher v. Stapely (1685) 1 Vern 363; Lester v.Foxcroft (1700) Collis 108.


Contracts which Equity Declined to Enforce 23So they would order specific performance of an oralagreement and this notwithstanding the absence ofwritten evidence, provided that suitable acts of partperformance of the agreement were proved.I have drawn attention to this treatment ofcontracts by the Court of Chancery because itillustrates two general trends. In the first place, itshows that although good faith and honest dealingdemanded the observance of promises and agreementsin general, circumstances might occur in individualcases where a plaintiff had obtained a promise orassent from another by unfair, dishonest or fraudulentmeans thereby disentitling him to the assistanceof equity to force the promisor to fulfil this promise.Secondly, notwithstanding the prescription by thelegislature of a minimum requirement to prove certaincontracts, fraud on the defendant's part might, againin individual cases, and in the interests of fair andhonest dealing, drive the courts to compel thepromisor to carry out his promise or agreement in spiteof the absence of the statutory, requisite, writtenevidence.I have dwelt on these perhaps rather obvious pointssimply to show how in certain circumstances althougha promise had been given, the law would not giveits aid to compel its performance, and how in othercases although the legislature might prescribe aminimum of proof for a promise, yet the Chanceryjudges might by-pass the prescription in order toprevent the promisor from getting away with his fraud.


24 Encroachments on Sanctity of ContractsCURTAILMENT OF FREEDOM OF CONTRACTBY THE LEGISLATUREThe circumstances in which the legislature has declaredthat agreements or promises however solemnlymade shall be treated as void are by now numerous;and the reasons for such declarations vary greatly.CONTRACTS ENTERED INTO ON SUNDAYIn the first place religious, ethical or moral considerationshave prompted legislative action in someinstances. One example of that is the Sunday ObservanceAct, 1677. A promise made on a Sunday appearsto have had the like validity at common law as apromise made on any other day. But under theSunday Observance Act, 1677, no tradesman, artificer,workman, labourer or other person whatsoever shalldo or exercise any worldly labour, business or workof their ordinary calling 8 on Sunday. Works ofnecessity and charity are, however, excepted. Anyperson over the age of thirteen years offending againstthe prohibition is liable to forfeit the sum of 5s. inrespect of each offence and a contract which involvesa contravention of the Statute is illegal and so cannotbe enforced.The Act applies to transactions in private as wellas in public 9 ; but it has been narrowly construed ins Thus in' Drury v. Defontaine (1808) 1 Taunt. 131, a privatesale of a horse on a Sunday by an auctioneer who exercisedhis calling as an auctioneer at public sales wag held notto be void as not having been made by him in exercise ofhis ordinary calling; while twenty years kkter a sale ofnutmegs through a broker on a Sunday was held not to beactionable: Smith v. Sparrow (1827) 4 Bing. 84.» Fennell v. Ridler (1826) 5 B. & C. 406.


Contracts Entered into on Sunday 25the sense that only those persons falling strictlywithin the categories of tradesman (a person notcarrying on the business of buying and selling thingsis not a tradesman), artificer (a person who does notactually make things is not an artificer), workman,labourer (a person who is not employed to work for. another is not a workman or labourer 10 ) or otherperson ejusdeni generis and so he is not within thestatute.Whatever may be the true reasons for the continuedretention of this enactment in the Statute-book, and,however technical and haphazard its modern applicationmay appear, I think it must be agreed that itsenactment was prompted by the puritan influenceswhich were still potent in the early days of CharlesIPs reign.WAGERING CONTRACTSAnother field in which considerations of religiousor moral welfare have been similarly operative is thatof betting or wagering.Neither the legislature nor the judiciary in thiscountry have ever been able to make up their mindsdefinitely to what extent, if any, gambling or bettingas such is immoral or contrary to the public interest.This is well borne out by the attitude of the courtsand Parliament towards wagering contracts. Thecomments of two outstanding jurists on this matterare somewhat caustic. Sir William Holdsworth's is10 See Palmer v. Snow [1900] 1 Q.B. 725.H.L. 3


26 Encroachments on Sanctity of Contractsas follows: " In 1664 the struggle of the legislaturewith the gambler began." "And this is what Sir Frederick Pollock wrote withreference to legislative action: " The tale begins asearly as the Restoration. ... it is a tale of somepermanent value as an example of blundering goodintentions and a warning (if such people could takea warning) to hasty, piecemeal reformers." 12 Withreference to the judiciary Sir Frederick observed:" If our judges had taken a larger and more courageousview in the eighteenth-century they would haveheld as a matter of principle that the concern of thelaw is to protect and uphold men's honest dealingsin matters of serious business and not to let thedecision of such matters be delayed and hamperedby the hearing of suits brought on merely sportingpromises; not to mention the ill-effects of excessiveand systematic gambling on the general welfare ofthe realm. The courts could not prevent men fromgambling or from regarding payment of gaming debtsas a ' debt of honour '—taking precedence of muchmore important commercial liabilities; but that wasno reason for allowing such debts to be sued on. Butthe judges lacked courage to break the shackles ofmere form . . ." 13Wagering contracts were not as such illegal orvoid or even unenforceable at common law; but inview of a tendency for the parties to bring frivolousand sometimes indecent matters connected therewithu Holdsworth, H.B.L., Vol. VI, p. 404.12 Pollock on Contracts, 13th ed., p. 282.13 Pollock, op. cit. at p. 279.


Wagering Contracts 27before the courts when wagers were sought to beenforced, the rule became established that it wasagainst public policy to enforce such as were provableonly by evidence which was indecent, painful to thirdparties or against public policy. 14By a statute passed in the reign of Charles II, inthe year 1664, a limit of £100 was placed on theamount recoverable on a gaming or wagering contract.And by a statute 15 passed in 1845 all contracts oragreements by way of gaming or wagering weredeclared null and void. It was further declared thatno action was to be entertained in any court torecover money won on any wager or deposited as astake except where it was a contribution towards alawful prize. 16 This did not make such agreementsillegal in the strict sense of that word; it only deprivedthem of legal effect. Henceforth they could subsistonly as " gentlemen's agreements " 17 or " contractsof honour."To complete the picture with respect to wageringdebts, it should be added that the Gaming Act, 1892,made void any promise to pay any person money paidby that person under the Gaming Act, 1845, or any14 See per Hawking J. in Carlill v. Carbolic Smoke Ball Co.[1892] 2 Q.B. 484, 491-492.!5 Gaming Act, 1845, s. 18.is On which see Ellesmere v. Wallace [1929] 2 Ch. 1.17 A gentlemen's agreement is reported to have been definedrecently in a lecture at the University of Edinburgh by alearned Chancery judge (Mr. Justice Vaisey) as "an arrangementwhich is not an agreement, between two persons,neither of whom is a gentleman, with each expecting theother to be strictly bound, while he himself has no intentionof being bound at all."


28 Encroachments on Sanctity of Contractsagreement to pay a sum of money by way of fee orreward in respect of any services relating to suchcontract. 18The statute of 1664 which I have already mentioned,as well as making all wagering debts over £100 onplayers irrecoverable, declared all securities givenfor such debts void. The statute 9 Anne, c. 14, wasmore sweeping: it declared void all securities givenfor money lost in playing at games or pastimes orin betting upon players or knowingly advanced forsuch purposes. The Gaming Act, 1835, s. 1, modifiedthat sweeping provision and introduced the modernrule whereby securities caught by the Act of Anneare deemed to have been made or accepted on anillegal consideration.The net effect of the betting legislation in the fieldof contracts was to make bets as such and securitiesgiven for lost bets unenforceable (as between theimmediate parties) in the courts, leaving them to betreated as debts of honour or gentlemen's agreements.INFANTS' CONTRACTSYet another line of country in which the legislaturehas from time to time declared contracts void iswhere, owing to the presumably inferior bargainingposition of one of the parties, the other party mighttake advantage of this weakness. The obvious exampleis that of the infant. At common law thecontracts of an infant other than those for goods18 Thua reversing the rule in Read v. Anderson (1884) 13 Q.B.D.779, which requires a principal to indemnify his agent.


Infants' Contracts 29which were necessaries or those for the infant's benefitwere voidable at the infant's option. He couldexercise his option to avoid them either beforeattaining his majority or within a reasonable timeafterwards. He could, however, himself enforce them.The Infants Relief Act, 1874, declared three classesof contracts entered into by an infant " absolutelyvoid." These were contracts to repay money loans,contracts for goods supplied or to be supplied (otherthan necessaries) and all accounts stated. Moreover,the same Act forbade an action being brought on anypromise or ratification of a contract made duringinfancy. In the words of Anson's Law of Contract 19 :" The Infants Relief Act of 1874 appears to havebeen designed to guard not merely against the resultsof youthful inexperience, but against the consequencesof honourable scruples as to the disclaimer of contractsupon the attainment of majority."TRUCK ACTSAt one time no doubt a master paid his servant'swages in kind; but the trend away from the trucksystem in the direction of a free money economyand the payment of wages in money became general.Even in the early nineteenth century, payment forservices continued in many instances to be madepartly by money and partly by the supply of goodsand services. Such a system of payment was liableto abuse; and in fact was not infrequently, directlyor indirectly, abused by the employer. Thus wages18 19th ed. at p. 126.


30 Encroachments on Sanctity of Contractsmight be paid partly in cash and partly in food orclothes of inferior quality and at prices above theirproper value; or part of the wages might take theform of vouchers exchangeable for food, clothes orhousehold goods at the employer's shop at theemployer's price. To remedy these abuses there waspassed the Truck Act, 1831, which made it an offencefor an employer to contract that wages payable tohis servant should be paid otherwise than in currentcoin of the realm and declared a contract to thateffect to be illegal and void. 20 Nor must a contractof service contain a provision indicating how or wherethe wages are to be spent. 21 The entire amount ofthe wages must be paid to the worker in current coin. 22Where in contravention of the Truck Act wages havenot been paid in current coin of the realm, the workmanis entitled to recover the whole or such part ofthe wages as have not been so paid. Thus, a plaintiffemployed as a draper's packer, at 53s. a week, andsupplied in addition with dinner and tea of the valueof 10s. weekly, was held entitled to recover the valueof such meals because they represented a deductionfrom his wages. 23 MONEYLENDERS ACTSIn the present century the legislature has adoptedsomewhat different techniques in dealing with cases20 Truck Act, 1831, s. 1. Certain exceptions were allowed; seeibid., s. 23.21Ibid., s. 2.Ibid., s. 3.23 Pratt v. Cook, Son & Co. (St. Paul's), Ltd. [1940] A.C. 437.For extensions and amendments of the Truck Act, 1831, seeTruck Acts, 1887 and 1896.


Moneylenders Acts 31of economic inequality in the contracting parties;but in both instances the net effect may be to interferewith promises or agreements intended by the partiesto have full legal effect. Under the MoneylendersActs, 1900 and 1927, no contract for the repaymentof a moneylender's 24 loan or the payment of interestthereon and no security given in respect of it canbe enforced unless there is a note or memorandumin writing of the contract signed personally by theborrower, 25 and unless a copy thereof was deliveredor sent to the borrower within seven days of themaking of the contract. Furthermore, no suchcontract or security is enforceable if it is provedthat the note or memorandum was not signed by theborrower before the money was lent or the securitygiven. 26HIKE-PURCHASE ACTSAgain the Hire-Purchase Acts, 1938 and 1954,provide that hire-purchase and credit-sale agreements,to which the Acts apply, guarantees relating theretoand the right to recover the hired goods shall not beenforceable by the vendor or owner of the goodscomprised therein unless the requirements of the Actshave been observed. The Acts now apply to agreementsrelating to livestock the total price of whichdoes not exceed £1,000, and to any other agreement24 For definition of "moneylender" for the purposes of theAct, see the Money-lenders Act, 1900, s. 6, as amended byMoneylenders Act, 1927, s. 19 (3).25 Where the borrower is a company the memorandum may besigned by any person acting under its authority: Be BritishGames [1938] Ch. 240.2« Moneylenders Act, 1927, s. 6 (1).


32 Encroachments on Sanctity of Contractswhere the price does not exceed £300. The mainrequirements are (a) a pre-contract statement to thehirer of the price at which the goods could bepurchased by him for cash, (b) a note or memorandumcontaining a statement of the hire-purchase price andthe cash price of the goods, the amount of eachinstalment payable and the date for payment of it,a list of the goods, and (c) the delivery of a copy ofthe note or memorandum to the hirer within sevendays of the making of the agreement.Obviously the legislature's objective was the protectionof hire-purchasers in the lower income groups.Instead of declaring certain types of such agreements" absolutely void," it sought to provide for suchdisclosure of certain vital terms of the contract asdirectly to influence the terms of hire-purchase agreementsgenerally and to open the eyes of the hirerto see the full implications of his bargain. Restrictionswere imposed by these two sets of modernstatutes on the freedom of contract in the interestsof fair dealing between parties and to protect personswhose acquisitive instincts may be greater than theireconomic resources.LABOUR LEGISLATIONEven in the eighteenth century, Acts of Parliamentregulating the conduct of sundry trades andoccupations were strangely multiplied; but most ofthese restrictive regulations were swept away duringthe Benthamite campaign for freedom of contract.Largely, however, as the result of the Industrial


Labour Legislation 33Revolution and of the social and economic changesfollowing two World Wars, the legislature has remodelledmuch of the framework and contents of ourindustrial law. In no part of it has this been morepronounced than in the law of contracts. Examplescan be given from the fields of Factory and similarlegislation and of Trade Union law.Speaking generally English law secures to anemployed person the freedom to work and use hisskill and to decide for whom he shall work; andit secures to an employer formal freedom to determinewhom he shall employ. 27 This is the freedom to whichparticular regard is had when reference is made tothe movement from status to contract. But eventhroughout the nineteenth century the legislatureintroduced many and varied restrictions on this freedom.Thus, for social and humanitarian reasons,women were prohibited from working undergroundin mines; boys and girls (now up to the school-leavingage of 15) were debarred from employment in factories,mines, quarries and other industrial undertakings.Prohibitions or limitations have been imposed on theemployment of young persons (male and femaleemployees between school-leaving age and 18 years)in connection with dangerous machinery and thelifting and moving of heavy weights.Furthermore, during the last century and thepresent one, the legislature has imposed numerous27 The legislature has now created an important exception tothis right. Under the Disabled Persona (Employment) Act,1944, an employer of 20 or more persons must give employmentto a quota of registered disabled persons or at leastbe ready to allocate vacancies for that purpose.


34 Encroachments on Sanctity of Contractsrestrictions as part of the terms on which a personcan be employed. For example, agricultural workersand catering staffs have their minimum wages determinedby boards or councils and those wages aregiven legal force in a wages regulation order. Theminimum rate so fixed becomes binding on employerand employee as a term implied by statute in eachindividual contract of employment. The MerchantShipping Acts have established what has beendescribed as " an almost comprehensive statutorycode" prescribing the terms of employment byshipowners of the merchant seamen who man theirships.The general result is that agreements made betweenemployers and employed persons which would otherwisebe upheld in the courts will not be legallyenforced if they contravene the provisions of suchregulatory enactments.TRADE UNION LEGISLATIONThere is one field in particular where legislativeinterference with contracts has been most noteworthyand that is the field of Trade Union law. Theassociation of workmen to defend and advance theirinterests was treated by the courts of common lawas contrary to public policy. So also was theassociation of employers for similar objects, in particularwhere it was for the regulation and maintenanceof prices. With the growth of trade unions followingthe Industrial Revolution the legislature (no doubtby way of reaction to the excesses of the French


Trade Union Legislation 35Revolution) sought at first to repress them generally.The Combination Act, 1800, made illegal and voidall contracts and agreements between journeymen,manufacturers or other persons for obtaining advancesof wages, or altering hours of work, or preventingemployers from employing whom they liked, or forcontrolling the management of other persons' business.It also established machinery for the summary settlingof disputes between masters and workmen. Whenthe feared perils of the French Revolution appearedto have receded and the influence of Benthamismhad grown, a new and more tolerant set of combinationlaws replaced the older repressive measures.The Combination Act, 1824, declared that combinationsof workmen to advance or fix wages should nolonger be subject to prosecution for conspiracy or toany punishment, and that combinations of mastersshould enjoy a similar freedom. In the CombinationAct, 1825, the legislature, caught in a reactionarymood, redefined and restricted the freedom ofassociation granted in 1824. It in effect toleratedcollective bargaining over wages and hours of workbut left such bargains without sanctions for theirenforcement. The Trade Union Act, 1871, providedthat the purposes of a trade union should not, byreason only that they were in restraint of trade, betreated as unlawful either (a) so as to make membersof the association criminally liable for conspiracy or(b) so as to render void or voidable any agreemententered into by them. The same Act 2S declared»» 8. 4.


36 Encroachments on Sanctity of Contractsunenforceable as many as five types of contracts,namely:1. Agreements between trade union members concerningconditions on which they should sellor not sell their goods, transact business oremploy or be employed;2. any agreement for the payment to a trade unionof any subscription or penalty;3. any agreement to apply the funds of a tradeunion to provide benefits to members, or tofurnish contributions to any person not amember for acting in conformity with the rulesor resolutions of the union, or to discharge anyfine imposed upon a person by a court of justice;4. agreements between one trade union and another;and5. any bond to secure performance of any of thefour foregoing types of contracts.The general effect of this enactment was describedby Fletcher Moulton L.J. in the celebrated Osbornecase 29 as follows: "... if the trade union . . .chooses to refuse to make any of the stipulatedpayments, neither the aggrieved party nor any otherperson can compel it to do so. The law refuses itsassistance in the matter, and thus in effect leaves itentirely at the option of the trade union whether itwill or will not fulfil its engagement. The onlydisability therefore under which a trade union or its29 Osborne v. Amalgamated Society of Railway Servants [1911]1 Ch. 540.


Trade Union Legislation 37members lie relates to the enforcement of contractsand not to their validity."Although the courts cannot entertain proceedingsto enforce, or recover damages for breach of, theagreements which I have enumerated they are notdebarred from granting some other kind of relief orassistance, such, for example, as a declaration on theinterpretation of the rules of a union, or on thevalidity or invalidity of an expulsion from membershipof a union; and in the recent case of Bonsor v.Musicians' Union 30 the House of Lords decided thata registered trade union could be sued for breach ofcontract by the wrongful expulsion of a member andthat the union was liable in damages for such breach.The expulsion was wrongful because the power toexpel given by the union membership rules had notbeen exercised in accordance with those rules.I am not concerned to explain in detail the positionof trade unions and their members with respect totheir contractual liability. Nor am I concerned toexpress a view as to whether industrial relations andindustrial progress would be better served if groupor association regulations and agreements were giventhe full force, effect and sanctions associated withenforceable contracts. This is obviously a matteron which there can be differences of opinion. Thatquestion is discussed at some length by my colleagueProfessor Kahn Freund in an article in the BritishJournal of Sociology. 31 In that article 32 he points30[1956] A.C. 104.« Vol. V, No. 3, pp. 193 et seq.32 At p. 203.


38 Encroachments on Sanctity oj Contractsout that " the most highly developed form of intergrouprelations in Great Britain might be describedas collective administration rather than as collectivecontracting. . . . The collective agreement appearsas a 'resolution' or 'decision' of a joint institution . . .and loses its outward resemblance with a contract. . . [The] obligations and liabilities defy verbaldefinition. They are as manifold as they are subtle,and they do not lend themselves to enforcement bystate-created legal machinery. They presuppose aspirit of co-operation which cannot be engendered bythe application of legal sanctions. There is thus . . .a close connection between the largely ' dynamic'character of collective bargaining in Britain and itspraeter legem character, i.e., the insignificance of thelaw in the regulation of inter-group relations whichhave developed into a higher community. Legalnorms and sanctions are blunt instruments for theshaping of inter-group relations which have developedinto a higher community." 33What I have had in mind in my reference to thetreatment by the legislature of trade union contractsis to draw attention to the fact that for political andindustrial reasons certain classes of contracts, not byany means small in numbers, have been made by thelegislature by express statutory provisions directlyunenforceable by the courts.33 See also " Comparative Observations on Legal Effects ofCollective Agreements " by Jean de Givry, 21 M.L.E., pp.601-509.


CHAPTEE 3CURTAILMENT OF FREEDOM OF CONTRACTBY THE COMMON LAW COURTSIMPLIED TERMSTHE emphasis during the nineteenth century onindividual freedom and the role of agreements inextending that freedom would seem to have requiredthat no obligation in the nature of a contract shouldbe enforced unless willed by the parties; yet thejudges were ready to import terms into contracts anddevelop and enlarge restrictions in the public interestalthough the parties themselves had not expressedthose terms or established those restrictions. Thereis no doubt but that the early common law ruleswhereby a man was held strictly to his promise, nomore and no less, might operate harshly and unfairlyin many instances. In consequence the lot of aperson who, for some good reason, found himselfunable to secure all that he thought he had bargainedfor, or to discharge his contractual obligation as hehad conceived it, might be a hard one. The somewhatexaggerated endeavours of the courts to find a fairsolution to such cases is most interesting. One of themost popular techniques utilised by the courts forthis purpose was " the implied term."As Sir Frederick Pollock has written, our courtsformerly " were averse to going beyond the strict39


40 Curtailment of Freedom by the Courtsletter of instruments, and would only in extremecases imply terms that were not expressed or at leastimported by some generally understood custom."*Parties, however, often enter into many wellestablished types of contracts, such as contracts forthe sale of goods, or for the sale or lease of land, orfor the hire of goods, against a background of previousdealings between them, and of common trade usage,or of local custom, or of conveyancing practice. Theytake that background for granted and do not troubleto provide expressly for it in their contract. If disputesarise between them as to the exact nature or extentof their commitments under the contract, the courtshave been ready to respond to counsels' invitationsto imply terms giving effect to the understood, butunexpressed, intention of the parties.One example will, I think, suffice to make the pointclear. The owner of a horse might agree to sell it toa person at a particular price and a dispute might arisebetween the parties as to the full rights and obligationsof the parties. The courts, having regard to previousdealings between the parties, local usages in the horsetrade, and possible other factors in the case, wouldimply terms for giving full commercial efficacy to thecontract. " In business transactions such as this,what the law desires to effect by the implication is togive such business efficacy to the transaction as musthave been intended at all events by both parties whoare business men; not to impose on one side all the1 Pollock on Contracts, 13th ed., p. 227, citing Paradine v.Jane (1647) Aleyn 26.


Implied Terms 41perils of the transaction, or to emancipate one sidefrom all the chances of failure, but to make eachparty promise in law as much, at all events, as itmust have been in the contemplation of both partiesthat he should be responsible for in respect of thoseperils or chances." 2In due course these implied terms contained in contractsfor the sale of goods, introduced and developedin the common law courts, were codified in the Sale ofGoods Act, 1893. Their evolution and exact definitionwas a slow process; and it is important to realise thatthis kind of implied term is not a recent development.Indeed Baron Parke referred to it in these words asfar back as 1836 3 : "It has long been settled that incommercial transactions extrinsic evidence of customand usage is admissible to annex incidents to writtencontracts in matters with respect to which they aresilent. The same rule has also been applied to contractsin other transactions of life in which known usageshave been established and prevailed; and this hasbeen done upon the principle of presumption that, insuch transactions, the parties did not mean to expressin writing the whole of the contract by which theyintended to be bound, but to contract with referenceto those known usages."I must make it quite clear that the courts in theirevolution of implied terms and, of course, the legislaturewhen it codified those relating to the sale of2 Per Bowen L.J. in The Moorcock (1889) 14 P.O. 64, 68.See also Set.hia, f,td. v. Partabmull Ramenhtrar F19511 2 AllB.B. 352.•' In Hutton v. Warre.n (1836) 1 M. & W. 466. 475.s.i.&


42 Curtailment of Freedom by the Courtsgoods in the Sale of Goods Act, were endeavouringto give effect to the intention or will of the parties.So long as there was a background of trade usage,or past professional dealings between the partiesthe implication of unexpressed but understood intentionswas reasonable and not too difficult. Butin the absence of such background the position wasnot so simple. Indeed in ascertaining the impliedintention or will in those latter circumstances thecourts often went far beyond " the regular process ofjudicial construction." 4 In effect they proceeded toestimate what provision the parties would have made,as reasonable people, if they had contemplated factswhich had proved to be beyond their prevision. Theprocess was described by Lord Watson in thesewords 5 : "I have always understood that, when theparties to a mercantile contract such as that ofaffreightment have not expressed their intentions ina particular event, but have left these to implication,a court of law, in order to ascertain the impliedmeaning of the contract, must assume that the partiesintended to stipulate for that which is fair and reasonable,having regard to their mutual interests and tothe main objects of the contract. In some cases thatassumption is the only test by which the meaning ofthe contract can be ascertained. There may be manypossibilities within the contemplation of the contractof charterparty which were not actually present to theminds of the parties at the time of making it, and,when one or other of these possibilities becomes a4 See Pollock on Contracts, 13th ed., at p. 224.•* Dohl v. Nelson, DonVin


Implied Terms 43fact, the meaning of the contract must be taken to be,not what the parties did intend (for they had neitherthought nor intention regarding it), but that whichthe parties, as fair and reasonable men, would presumablyhave agreed upon if, having such possibilityin view, they had made express provision as to theirseveral rights and liabilities in the event of itsoccurrence."A long catalogue could be compiled of cases inwhich the legislature, as well as the courts, has indifferent circumstances and in many and varioustypes of agreements added to the list of impliedterms. Examples of statutory implied terms arefound in the Bills of Exchange Act, 1882, Sale ofGoods Act, 1893, Merchant Shipping Act, 1894,Marine Insurance Act, 1906, Landlord and Tenant Act,1927, Housing Act, 1936, Hire-Purchase Act, 1938,to name only a few of the better known enactments.And the common law courts continue to add to thelist as new circumstances and facts demand.So long as the courts adhered to the view that theobject of implying a term was to give effect to theparties' intention, they had of necessity to recognisethat they could not imply a term which would contradictor vary the express terms of a contract. Inother words, positively, a term could only be impliedif it was necessary in the business sense to giveefficacy to the contract as intended by the parties andit could confidently be said that the term left to beimplied, though unexpressed, was so clear and


44 Curtailment of Freedom by the Courtsobvious that it went without saying. 6 And, negatively,no term could be implied if it would conflict or beinconsistent with the intention of the parties asexpressed in their agreement. 7The doctrine of implied terms has not been uniformlypopular; yet in recent times the circumstances in whichterms will be judicially implied seem to have been extendedand the justification for their imputation in thosecircumstances has been stated somewhat differently.In a recent note in the Law Quarterly Review 8 itis observed that: " It is obvious that no contractcan ever be drawn in so complete a form that itmay not become necessary, if unforeseen circumstancesarise, for the court to imply terms which were nevercontemplated by the parties when the contract wasmade." Denning L.J. went a good deal further inhis famous judgment in the Movietonews case 9 whenhe declared that " the day is gone when we can excusean unforeseen injustice by saying to the sufferer ' Itis your folly. You ought not to have passed thatform of words. You ought to have put in a clauseto protect yourself.' We no longer credit a partywith the foresight of a prophet or his lawyer withthe draftmanship of a Chalmers."In recent cases a tendency has appeared to makewider use of the doctrine so as to enable the courts6 See per Scrutton L.J. in Reigate v. Union Manufacturing Co.[1918] 1 K.B. 592, 605; and per MacKinnon L.J. in Shirlawv. Southern Foundries, Ltd. [1939] 2 K.B. 206.7 See per Lord Parker in Tamplin SS. Co. v. Anglo-MexicanPetroleum Products Co., Ltd. [1916] 2 A.C. 397, 423.8 Vol. 71, p. 457.9 British Movietonews v. London & District Cinemas, Ltd.[1951] 1 K.B. 190, 202.


Implied Terms 45to adjust the rights and obligations of the partieshaving regard to circumstances not provided for bytheir contract. Thus a company engaged in themanufacture of valves to be used in the constructionof " aids for the deaf " discovered that some of itsworkmen were secretly working in their spare timefor another company engaged in the production ofsimilar appliances. It successfully sued for an injunctionto restrain the workmen from so working.The court considered that there should be impliedinto the contract of employment a term that theservant undertakes to serve his master with goodfaith and fidelity. 10 In another case lx there wasimplied into a contract of manufacturing agencywhich contained no provision for its determinationa term to the effect that the contract could be determinedon the serving of a reasonable notice of twelvemonths' duration. Perhaps the most far-reachingimplication was made in Romford Ice and Cold StorageCo., Ltd. v. Lister, 12 where the House of Lords(affirming a majority decision of the Court of Appeal)held that a term could be implied into a lorry driver'scontract of service that he would carry out his dutieswith reasonable skill and care, and so would be liablefor damages for negligence in the performance of hisduties. The defendant in that case was employed todrive a lorry and he had backed it in a private yard10 Hivac, Ltd. v. Park Royal Scientific Instruments, Ltd. [1946]Ch. 169.11 Martin-Baker Aircraft Co., Ltd. v. Canadian Flight Equipment,Ltd. [1955] 2 Q.B. 556.12 [1957] A.C. 555.


46 Curtailment of Freedom by the Courtsinto his father, another employee of the same employers,and injured him.Despite quite a number of cases in which thedoctrine of implied terms has been applied by thecourts, it can be stated that the prevailing judicialattitude towards it is still one of some caution. 13For example, MacKinnon L.J. in 1939 13 observed asfollows: "I recognise that the right or duty of acourt to find the existence of an implied term orimplied terms in a written contract is a matter to beexercised with care; and a court is too often invitedto do so upon vague and uncertain grounds." Theattempt to make use of it to enable the courts toreview generally and entirely readjust the rights orobligations of the parties to a bargain when they haverun into some unexpected difficulties has met with arebuff. 14 Had it been so extended, the consequencedescribed by Denning L.J. would have ensued, i.e.,the courts would have "seriously damaged the sanctityof contracts." 15IMPOSSIBILITY OF PERFORMANCEThe implied term doctrine proved a most usefulinstrument in the hands of the judges in developingmeasures of relief in cases of supervening impossibilityof performance or the frustration of contracts.At common law if a person bound himself by contract,13 Shirlaw v. Southern Foundries, Ltd. [1939] 2 "K.B. 206, 227.14 See British Movietonews, Ltd. v. London District Cinemas,Ltd. [1952] A.C. 166; Davis Contractors, Ltd. v. FarehamU. D. C. [1956] 1 Q.B. 302.16[1956] 1 Q.B. 302, at p. 308.


Impossibility of Performance 47without any qualification, to perform an act, he couldnot excuse himself from the obligation to pay damagesfor failing to carry out his promise merely by provingthat his failure was due to physical or legal impossibilityof performance. 16 Where there is a positivecontract to do a thing the contractor must performit or pay damages for not doing so, although inconsequence of unforeseen accident the performanceof his contract has become unexpectedly burdensome,or even impossible. But during the last one hundredyears the courts have been evolving a doctrine tothe general effect that if there should occur someintervening event or change of circumstances sofundamental as to strike at the root of the agreement,the contract should be treated as brought to an endforthwith, quite apart from the expressed volition ofthe parties themselves. 18Whatever may be the correct way of expressingthe justification for the doctrine today, I believe thatits theoretical basis in its early stages was the impliedterm. A term was implied by the courts discharginga contract in the events which had happened on theground that the court found itself able to " inferfrom the nature of the contract and the surroundingcircumstances that a condition which was not expressedwas the foundation upon which the partiescontracted." 1916 See, for example, Paradine v. Jane (1647) Aleyn 26.is Taylor v. Caldwell (1863) 3 B. & S. 826; Krell v. Henry[1903] 3 K.B. 740; Joseph Constantine SS. Line, Ltd. v.Imperial Smelting Corporation [1942] A.C. 154.19 Per Lord Loreburn in Tamplin SS. Co., Ltd. v. Anglo-MexicanPetroleum Products Co., Ltd. [1916] 2 A.G. 397, 404.


48 Curtailment of Freedom by the CourtsThe following passage from Lord Russell ofKil'owen's speech in Re Badische Co. 20 contains aclear exposition of the doctrine: "The doctrine ofdissolution of a contract by the frustration of itscommercial object rests on an implication arising fromthe presumed common intention of the parties. Ifthe supervening events or circumstances are such thatit is impossible to hold that reasonable men couldhave contemplated that event or those circumstancesand yet have entered into the bargain expressed inthe document, a term should be implied dissolving thecontract upon the happening of the event or circumstances.The dissolution lies not in the choice ofone or other of the parties, but results automaticallyfrom a term of the contract. The term to be impliedmust not be inconsistent with any express term ofthe contract."In at least two types of cases the implied termdoctrine seemed inadequate and restrictive. If thecontracting parties had adverted to the possiblehappening of the frustrating event and had neverthelessdecided to do nothing about it, the implicationof a term was not easily justified. This was madeclear by Lord Wright when delivering the opinion ofthe Judicial Committee of the Privy Council inMaritime National Fish, Ltd. v. Ocean Trawlers,Ltd., 21 when he said: "The authority [of Krell v.Henry 22 ] is certainly not to be extended; it is2 » [1921] 2 Ch. 331, 379.21 [1935] A.C. 524, 529.22 [1903] 2 K.B. 740. In the case of Krell v. Henry thecontract wag for the hire of a window on a particular day.It was not expressly stated in the contract, but was mutually


Impossibility of Performance 49particularly difficult to apply where, as in the presentcase, the possibility of the event relied on as constitutinga frustration of the adventure . . . wasknown to both parties when the contract was made,but the contract entered into was absolute in termsso far as concerned that known possibility." Again,in Tatem v. Gamboa 23 Goddard J. (as he then was)expressed the view that the cases " show in effectthat, although the parties may have had or must bedeemed to have had the matter in contemplation,the doctrine of frustration is not prevented fromapplying."Similarly, where the parties to a contract hadprovided in general terms what was to happen if thefrustrating event did occur, a term could not beimplied if it would conflict or be inconsistent with theparties' express provision. Yet the House of Lordsin Bank Line, Ltd. v. Capel 24 actually decided thatthe doctrine of frustration was not rendered inapplicableby the express terms of a charterparty andthat the contract was discharged notwithstandingthat the parties had provided generally what was tohappen on the occurrence of the contemplated event.In those cases, therefore, the implied term theorywas not easy to apply; and so it must now be takento be the law that the contract is frustrated by theoccurrence of the frustrative event immediately andunderstood, that the window was required to view KingEdward VII's coronation procession. When the coronationwas postponed by reason of the King's illness, the contractwas he!d to be avoided.23 [1939] 1 K.B. 132, 140.'« [1919] A.C. 435.


50 Curtailment of Freedom by the Courtsirrespective of the volition or the intention of theparties or their knowledge as to that particular event. 25"Their own belief and their own intention is evidence,and evidence only, upon which the court can form itsown view whether the changed circumstances wereso fundamental as to strike at the root of the contractand not to have been contemplated by the parties." 2SConsequently, other juristic justifications for thedissolution of certain contracts by impossibility havehad to be explored. The conclusion I have reachedis that the doctrine of the implied term has serveda useful purpose: it has enabled the courts, as itwere by a legal fiction, to assume the jurisdiction, tomodify or dissolve contractual obligations so as todispense justice to the parties having regard tofundamental changes in circumstances outside theircontrol. The doctrine of frustration is now so wellrecognised and established that it no longer needs thefiction of an implied term to support it. So it isgenerally, but gradually, being displaced by thetheory that a change of circumstances that fundamentallystrikes at the root of a contract justifies theimposition by the court of a solution that is just andreasonable in the new circumstances. 26 The truth is,as Lord Wright has written in one of his Essays, 27" that the court or jury as a judge of fact decidesthe question in accordance with what seems to be« See per Streatfeild J. in Morgan v. Manner [1948] 1 K.B. 184,191.26See Joseph Constantine SS. Line, Ltd. v. Imperial SmeltingCorporation [1942] A.C. 154, 183.27Legal Essays and Addresses, p. 259.


Impossibility of Performance 51just and reasonable in its eyes. The judge findshimself the criterion of what is reasonable. Thecourt is in this sense making a contract for the parties,though it is almost blasphemy to say so."CONTRACTS CONTRARY TO LAW OR MORALITYALMOST contemporaneously with the evolution bythe courts of common law by means of decided casesof the doctrine of general enforceability of promisesor agreements, limits to this enforceability were, aswe have seen, being established by the Courts ofChancery and by the legislature and, as we shall nowsee, by the common law courts themselves. Thosewere the days when moral obligation was regardedas the primary factor making promises enforceable;and the general climate—social, economic and legal—favoured freedom of contract and the enforcement ofall contracts freely entered into. Yet bounds werebeginning to appear beyond which the freedom wouldnot be legally recognised. Mr. Fifoot has describedthe position in this way:" The intention of the parties, while it wasthe basis of the law of contract, was not conclusive.The judges could not be expected tosanction an agreement opposed to the interestsof the State, 1 and they were already reconciled1 It is a noteworthy fact that when the doctrine of publicpolicy or State interest was being developed in the courtsthe judges had already ceased to be appointed during theKing's pleasure. They had, by the Act of Settlement, beengiven statutory independence through security of tenure intheir office and so there was no longer any pressure on themto support government measures or policy. " They were no


52 Curtailment of Freedom by the Courtswithout evident reluctance, to the necessity ofchoosing the obligation which they were preparedto enforce." laIt seems almost paradoxical that whilst emphasiswas laid in the courts on the sanctity and freedom ofcontracts, a doctrine was introduced in the samecourts and as a corollary of contractual freedomwhich could well be used to its destruction.This implication was obviously in the mind ofLord Mansfield in the celebrated case of Holman v.Johnson, 2 when he observed that:" The objection, that a contract is immoral orillegal as between plaintiff and defendant, sounds atall times very ill in the mouth of the defendant. Itis not for his sake, however, that the objection isever allowed; but it is founded in general principlesof policy, which the defendant has the advantage of,contrary to the real justice, as between him and theplaintiff, by accident, if I may so say. The principleof public policy is this: ex dolo malo non oritur actio.No court will lend its aid to a man who founds hiscause of action upon an immoral or an illegal act.If, from the plaintiff's own stating or otherwise, thecause of action appears to arise ex turpi causa, orthe transgression of a positive law of this country,there the court says he has no right to be assisted.It is upon that ground the court goes; not for thelonger jackals of government, but independent umpires betweenthe Crown and the subject": Trevelyan, English SocialHistory, p. 350.la C. H.' S. Pifoot, Lord Mansfield, at p. 122.2(1775) 1 Cowp. 341.


Contracts Contrary to Law or Morality 53sake of the defendant, but because they will not lendtheir aid to such a plaintiff. So if the plaintiff anddefendant were to change sides, and the defendantwas to bring his action against the plaintiff, the latterwould then have the advantage of it; for where bothare equally in fault, potior est conditio defendentis."Three things are implied in this general expositionof the attitude of the common law courts. In thefirst place, it is more often than not distasteful for thejudge to have to listen to a person who has promisedto do something and then finds it inexpedient to fulfilthat promise, plead that what he promised to do wasillegal or immoral and so he need not perform it. Thiswas made clear in a recent case in these words 2a :" We are all familiar with the many cases which arosewhen building work was found to have been donewithout a building licence under the defence regulationshaving been obtained. Although it was notalways other than distasteful, it enabled a defendant,who had had work done and who had enjoyed thebenefit of it, to say that he was not bound to pay forit; because he and the builder had been party towhat was in effect an illegal contract."In the second place Lord Mansfield only contemplatedcontracts that were " immoral or illegal asbetween plaintiff and defendant." The immorality orunlawfulness of the contract itself weighed moreheavily against the plaintiff in the scales of justicethan the lack of faith shown by the defendant by his2 » Per Lord Evershed M.E. in Town-iend (Builders), Ltd. v.Cinema News, etc., Ltd. [1957] 1 W.L..E. 119, 124; and seeStrongman v. Sincock [1955] 2 Q.B. 525.


54 Curtailment of Freedom by the Courtsfailure to discharge his obligation. In the third placeit was the principle of public policy that justified thecourt in refusing its aid. The interests of the Statein agreements involving crimes, immorality andbreaches of positive law are obvious. For as Mr.Justice Cardozo observed in an American case 3 : "Ifthe moral and physical fibre of its manhood andwomanhood is not a State concern, the question iswhat is ? "Moreover it was not (particularly during theeighteenth or nineteenth centuries) imposing an unusual,or perhaps a very difficult, duty upon a judgeto decide what was or was not contrary to positivelaw or morality. But when account had to be takenof the advantages and disadvantages to the communityof competing social and economic policies in arrivingat legal decisions the task of the judge was morecomplex and difficult. Though this is seen mostclearly in the field of contracts in restraint of tradewhere economic interests are affected, it is alsomanifest in cases such as Fender v. Mildmay i andBeresford v. Royal Insurance Co., 5 where the implicationsare predominantly domestic or social.In Fender v. Mildmay 6 a promise by a married man,after a decree nisi of divorce had been pronouncedin his case, to marry a spinster after the decree hadbeen made absolute, was enforced by a majority ofthree to two in the House of Lords, as not being3 Adler v. Deegan 251 N.Y. 467, 484.4[1938] A.C. 1.5[1938] A.C. 586.6[1938] A.C. 1.


56 Curtailment of Freedom by the Courts" Opinions may differ whether the suicide of a manwhile sane should be deemed to be a crime, but it isso regarded by our law. . . . While the law remainsunchanged the court must, we think, apply thegeneral principle that it will not allow a criminal orhis representative to reap by the judgment of thecourt the fruits of his crime."CONTRACTS IN RESTRAINT OF TRADEA contract is said to be in restraint of trade when itsperformance would limit competition in any trade orbusiness or profession or would restrict one of theparties in the exercise of his trade or occupation. Itappears from a case " decided in the reign of QueenElizabeth I, that all such restraints were even thenregarded as void having regard to their tendency tocreate monopolies. This has throughout remainedthe general reaction of the courts. The justificationfor this attitude was expressed in modern termsby Lord Macnaghten in the celebrated Norde.nfeltcase 12 in these words: " The public have an interestin every person's carrying on his trade freely: so hasthe individual. All interference with individual libertyof action in trading, and all restraints of trade ofthemselves, if there is nothing more, are contrary topublic policy, and therefore void. That is the generalrule."" Colgate v. Batchelor (1596) Cro.Eliz. 872.12 Nordenfelt v. Maxim NordenfeH, etc., Co. [1894] A.C. 535,565.


Contracts in Restraint of Trade 57But the justification advanced in the Tailors ofIpsivich case 13 is in more picturesque, seventeenthcenturyterms: "At the common law no man couldbe prohibited from working in any lawful trade, forthe law abhors idleness the mother of all evil . . .and especially in young men who ought in theiryouth ... to learn sciences and trades which areprofitable to the Commonwealth, and whereof theymight reap the fruit in their old age . . . ; andtherefore the common law abhors monopolies whichprohibit any from working in any lawful trade."The court if it is satisfied that the restraint wasreasonably necessary to protect the interest of thepromisee and was not inimical to the interests of theState, will treat it as valid. Section 21 of the RestrictiveTrade Practices Act, 1956, is in line with thecommon law tradition. It enacts that all registrable,restrictive agreements within the Act are presumed tobe contrary to the public interest unless and untilthey are justified in manner described by the Act.In giving effect to the foregoing principles governingcontracts on restraint of trade the courts have hadto surmount many difficulties. The first and obviousone is the difficulty of defining what is meant bypublic policy. As is so often the case, it is mucheasier to say what it is not than what it is. "Certainspecific classes of contracts," observed Asquith L.J.in 1951, ll "have been ruled out by authority to becontrary to the policy of the law, which is, of course,13(1615) 11 Co.Eep. 53b." In Monklands v. Jack Barclay, Ltd. [1951] 2 K.B. 252, 265.H.I. 5


58 Curtailment of Freedom by the Courtsnot the same thing as the policy of the government,whatever its complexion."On the whole one must agree with Kekewich J. thatthe expression does not admit of precise definition 15 :" All authorities," remarked the learned judge," from first to last, concur in one thing—viz., thatthe doctrine on this subject is founded on ' publicpolicy '; and I cannot but regard the jarring opinionsas exemplifying the well-known dictum of Mr. JusticeBurrough in Richardson v. Mellish 16 that publicpolicy is a very unruly horse, and when you onceget astride it you never know where it will carryyou. Public policy does not admit of definition andis not easily explained." One must, in the circumstances,be satisfied with a general description ratherthan a definition. Sir Percy WinfieM described publicpolicy as "a principle of judicial legislation orinterpretation founded on the current needs of thecommunity." 17 Lord Truro in Egerton v. Brownlow 1 *described it as: " that principle of law which holdsthat no subject can lawfully do that which has atendency to be injurious to the public, or against thepublic good—which may be termed the policy of thelaw, or public policy in relation to the law."In its application to the field of contract LordWright has described it as " considerations of publicinterest which require the courts to depart from« Davies v. Davies (1887) 36 Ch.D. at p. 364.16(1824) 2 Bing. 229, 252." 42 Harv.Law Bev. 76, 92.18(1853) 4 H.L.C. 1 at p. 196.


Contracts in Restraint of Trade 59their primary function of enforcing contracts andexceptionally refuse to enforce them." 19The unsatisfactory nature of such a vague, indefinabletest of invalidity of contracts has often beencritically commented upon. 20 Lord Lindley oncedescribed 21 it as: "a very unstable and dangerousfoundation on which to build, until made safe bydecision." 22Another criticism of it is that it must inevitablybe a variable quantity 23 —influenced by the judge'straining, outlook and philosophy, 24 varying with theprevailing fashions in moral, economic or socialprinciples, 25 or even with changing economic or socialpractices. As Lord Wright observed in Fender v.Mildmay 26 " certain rules of public policy have tobe moulded to suit new conditions of a changingworld."Public policy in its application to legal situationsgenerally has in its effects been disabling and prohibitive.This is most clearly illustrated in the field1 9 See Fender v. Mildmay [1938] A.C. 1, 38; Legal Essays,pp. 66-96.2° See Cheshire and Fifoot, 4th ed., p. 277.21 In Janson v. Driefontein Consolidated Mines, Ltd [1902]A.C. 484, 507.22And see per Burrough J. in Richardson v. Mellish (1824) 2Bing. 229, 252. See also E. E. Megarry, Miscellany at Law,pp. 270 et seq. See Davies v. Davies (1887) 36 Ch.D. at p. 364.M See Fender v. Mildmay [1938] A.C. 1; Hill v. Wm. Hill(Park Lane), Ltd. [1949] A.C. 530.25See Art., "Economic Theories and English Case Law," 47L.Q.B. 183-202; and see Friedmann Legal Theory, 3rd ed.,pp. 335-342.»« [1938] A.C. 1.


60 Curtailment of Freedom by the Courtsof contracts as is brought out strikingly in the quotationwhich I have already made from Lord Mansfield'sjudgment in Ilolman v. Johnson. 27 Where a contractis invalidated by considerations of public policy theresult is simply to disable a plaintiff from enforcingit. There are very few circumstances (though thenumber now tends to increase) where the courtassumes to adjust the rights of the parties havingregard to the respective degrees of blameworthiness.The loss and gains generally remain where theyhappened to be at the time when the defendantrefused to carry out his promise.The negative, prohibitive character of public policytends to have a cumulative effect since a contract asan institution is necessarily a static and not a dynamicpiece of machinery for the government and guidanceof complex, fast-moving and ever-changing modernbusiness, industrial and human relations. That nodoubt accounts in large measure for the practice ofTrade Unions and Trade Associations in relying upontheir own arrangements and not to seek legal sanctionsfor them.It is interesting, therefore, to consider the newmachinery set up in recent years to protect the publicfrom restrictive and monopolistic practices.MONOPOLIES AND RESTRICTIVE PRACTICESThe Monopolies and Restrictive Practices Act, 1948,provided for the setting up of an independent MonopoliesCommission to investigate and report on such" (1775) 1 Cowp. 341.


Monopolies and Restrictive Practices 61restrictive trading agreements as were expresslyreferred to it by the Board of Trade. After examiningthe agreements or arrangements factually and objectivelythe Commission was to say whether or not inits opinion they were against the public interest. Ifthey were, Orders could be made by Ministers toterminate them. This machinery was found to beslow in operation in the main because it had toascertain the facts for itself without any speciallyprovided assistance, and had to break new ground inwide and complex fields.So after a trial period of some eight years provisionwas made by the Restrictive Trade Practices Act,1956, for setting up a new piece of machinery. Themachinery consists of two main parts. The first isa Registrar of Restrictive Trade Practices whosefunctions are twofold, namely, (a) to compile andmaintain a Register of agreements registrable underthe Act, and (b) to take proceedings before theRestrictive Practices Court in respect of agreementsentered or filed in the Register. The other part ofthe machinery consists of a new kind of court, theRestrictive Practices Court, consisting of five judgesand not more than ten other persons appointed bythe Queen, on the recommendation of the LordChancellor, and qualified by virtue of their " knowledgeof or experience in industry, commerce orpublic affairs."The agreements to be registered are those betweenpersons carrying on business in the United Kingdomin the production or supply or manufacture of goods


62 Curtailment of Freedom by the Courtsunder which restrictions are accepted in respect ofsuch matters as prices and control of supplies ormanufactures. Jurisdiction is conferred on the RestrictivePractices Court to declare whether or notany restrictions contained in any registered agreementare contrary to the public interest. Where any suchrestrictions are found to be contrary to the publicinterest the agreement is by the Act made void inrespect of such restrictions.An article in the Financial Times recently 28 drewattention to the fact that the Restrictive PracticesCourt (which had then delivered judgment in only onecase) has assumed an importance to British industryout of proportion to the work that it has so far done." It has caused a re-examination amounting to amajor shake-up in almost every section of industry."The result has been that since the Register wascompiled a total of 146 agreements have been terminatedor varied so as to remove them from the scopeof the Act. Even before the Register was compiledquite a number of firms decided as a matter of policyto withdraw from registrable agreements; and agreements" that might not look well in public " 28 werenot proceeded with; and then, as I have mentioned,146 (out of about 2,000 in all) were abandoned.All this goes to show that the new machinery hasbegun its operations effectively. Whether it willcontinue to do so time and events will show. Fromthe point of view of my special study three things areof special importance in this experiment in the control28 Wednesday, January 7, 1959.


Monopolies and Restrictive Practices 63of agreements. The first is the underlying assumptionby the legislature when establishing the machinerythat all restrictive trade practices were not necessarilyeconomically undesirable 29 or that the agreementscombining them were necessarily void on the groundof illegality or immorality. The second is the natureof the machinery, the Register and the court consistingof High Court judges and men of knowledge orexperience in industry, commerce or public affairs.And the third is the power given by the legislature tothis mixed court to declare agreements freely enteredinto void in whole or in part on the ground that theyare contrary to the public interest.The newly reported decision 30 of the RestrictivePractices Court in Re Yarn Spinners' Agreement isof very great general interest. It shows how thecourt of seven persons, three High Court judges andfour laymen of varied experience, sought to dischargethe complex and difficult problems prescribed for itby the Act. One judgment was delivered by thePresident of the Court, Devlin J. The registeredagreement under consideration provided for minimumprices to be charged for various kinds of cotton yarnmanufactured and supplied by members of the association.Under the provisions of section 21 of the Actthe agreement was prima facie contrary to the publicinterest, and it was for the association to satisfy thecourt that it was justifiable on some of the statutorygrounds. This the association failed to do. Thecourt decided that although the removal of the29Contrast in this respect the U.S.A. Sherman Act, 1890.30The Times, January 27, 1959.


64 Curtailment of Freedom by the Courtsrestrictions imposed by the agreement would have aserious effect on the general level of employment inthe manufacturing area, that did not outweigh thedetriment to the public generally by the preservationof excess capacity in the industry resulting in wasteof national resources. " The court was required toact without certainty and on the balance of probabilitiesand to arrive at a general conclusion in theterms used by the Act "; but having on that balancereached a conclusion it declared the agreement to becontrary to the public interest and, therefore, itcould no longer be enforced.EXECUTIVE ARRANGEMENTSA substantial number of agreements or arrangementsin the nature of contracts are regarded by the courtsas falling rather within the category of executive actsor governmental directives than within the field ofenforceable contracts. The attitude of the judiciaryis that neither the Crown nor any other publicauthority can be held to an agreement that purportsto bargain away its fundamental discretionary powers." The principle is simply that in the last resort thelaw permits a governmental agency to fulfil thefundamental purposes for which it was created, eventhough so doing may involve interference with vestedcontractual rights which an individual may haveagainst that agency." 27a27a Per Professor J. D. B. Mitchell in Contract of PublicAuthorities, at p. 17.


Executive Arrangements 65To illustrate this proposition I would like to refer tothe case of The Arnphitrite. 2 " In that case theowners of a Swedish ship of that name had, beforesending her to England in March, 1918 (i.e., duringthe First World War), obtained from the BritishLegation in Stockholm an undertaking that the shipwould " earn her own release " if she carried a cargoof at least 60 per cent, approved goods. As ithappened, this undertaking was contrary to the thenusual practice of the British Government; but withoutit the ship would not have sailed to England. On theship's first voyage to England the undertaking washonoured; but on the second voyage the BritishGovernment refused clearance from a British portand the ship was detained and eventually sold. Theowners of the ship thereupon petitioned for damagesfor breach of the undertaking given by the Legation.Their claim was rejected on the main ground that anintention to act in a particular way in a certain eventcould never be made binding on the government. 2811The field of conflict between the concept of thesanctity of contractual obligations and the generalpowers of the State, whether they be legislative oradministrative, is fully and authoritatively discussedby my former colleague, Professor J. D. B. Mitchellof Edinburgh, in his study of The Contracts of PublicAuthorities. 2 * The type of case falling within thefield studied by Professor Mitchell is liable to occur28 [1921] 3 K.B. 500.28a p or a criticism of some of the wide expressions used in thatcase, see Mitchell, op. cit., at p. 55.29Published by the London School of Economics, 1954.


66 Curtailment of Freedom by the Courtsmuch more often in the political and economicclimate of today than it was when the doctrine oflaisser-faire prevailed. The State through its manifoldagencies and with its many and increasingactivities touches the citizen, whether as an individualor as a member of some association or group, at somany points. It seems almost inevitable that itshould be so if the functions of government are tobe adequately performed in a highly organisedmodern society. What I am drawing attention to isthe fact that there are these arrangements which weremeant by the parties to be legally enforceable, whichmay appear to the layman as agreements or promisesindistinguishable from enforceable contracts, butwhich, as one of the contracting parties is a governmentalagency in the service of the community, arenot treated as enforceable by the courts.One of the conclusions which Professor Mitchellreaches after a detailed survey is that in the case ofpublic authorities generally the obligatory force ofcontract may be weaker than in the case of privatecontracts. " The special purpose for which governmentalagencies exist, the service of the community,requires that on occasions those agencies must bereleased from, or may be able to override, theirobligations. . . . This limitation of the obligationof contract depends not upon the acceptance of anyparticular theory of political philosophy but uponpractical necessity." 3030Mitchell, op. tit., at p. 222.


CHAPTER 4A COMPARISON AND CONCLUSIONSTHE OBLIGATION OF CONTRACTS CLAUSE IN THEAMERICAN CONSTITUTIONTHE rise and decline of general respect for contractsin the United Kingdom make an interesting comparisonwith the movements in the judicial interpretation bythe United States Supreme Court of the " Obligationof Contracts " clause in the American Constitutionand the " Due Process " Amendments to that Constitution.The " Obligation of Contracts " clauseprovides (among other things) that " no State shall. . . pass any law impairing the obligation of contracts."It appears that the clause was framedoriginally for the purpose of preventing the Statesfrom passing laws to relieve debtors of their legalobligation to pay their debts and this restricted viewof its object was at first taken by the Supreme Court.But, particularly under the influence of Chief JusticeMarshall, this narrow view of the objects of the clausewas afterwards rejected and a broad application wasgiven to it, at least for some time. A plea for thisbroader application is contained in a dissentingopinion 1 delivered in 1827 by Chief Justice Marshall:" The power," he observed, " of changing the relativesituations of debtor and creditor, of interfering with1 Ogden v. Saunders, 12 Wheaton, at p. 213.67


68 A Comparison and Conclusionscontracts, a power which comes home to every man,touches the interest of all and controls the conductof every individual in those things which he supposesto be proper for his own exclusive management, hadbeen used to such an excess by the State legislaturesas to break in upon the ordinary intercourse of societyand destroy all confidence between man and man.The mischief had become so great, so alarming as notonly to impair commercial intercourse, and threatenthe existence of credit, but to sap the morals of thepeople, and destroy the sanctity of private faith."Too much was unquestionably made of the clauseby describing its effect as being to enshrine the freedomof contract in the Constitution. Its context andimmediate surroundings were ignored as was alsoits original express purpose as stated by Chief JusticeMarshall. It was intended to restrict State activitiesin absolving debtors from paying their debts, not toproclaim for future guidance a general principle offreedom of contracts.Similarly the Supreme Court in 1905 2 seems tohave deduced from the " Due Process " clauses of theFifth and Fourteenth Amendments to the Constitutiona prohibition against State legislative interferencewith freedom of contract. The point in issue waswhether a State-enacted maximum-hours law wasunconstitutional. There is no express provision inthe Constitution saying that a State shall not havepower to regulate hours of labour. The Fifth andFourteenth amendments, however, provide that no2 In Lockner v. New York, 198 U.S. 45 (1905).


The Obligation of Contracts Clause 69person shall be deprived of life, liberty or propertywithout due process of law.. In the Supreme Courtopinion in the case 3 it was declared that: " TheStatute necessarily interfered with the right of contractbetween employer and employee, concerningthe number of hours in which the latter may labourin the bakery of the employer. The general rightto make a contract in relation to his business is partof the liberty of the individual protected by theFourteenth Amendment. . . . The right to purchaseor to sell labour is part of the liberty protected bythis amendment." For this reason the Statute inquestion was declared unconstitutional.The emphasis in the common law countries on thebeneficent economic effects of freedom of contractand the consequent belief in contract as an institutionmaking for general economic welfare brought in theirtrain an enhanced respect for contractual obligationsas an extension of individual liberty. This promptedover-statements of the degree of protection given tofreedom of contract in the Constitution.A distinguished American author i has recentlydeclared that " generally speaking, the protectionafforded by clause 1 does not today go much, if atall, beyond that afforded by Section 1 of the Fourteenth.Amendment." The learned author cites insupport of his opinion the words of the SupremeCourt 5 : " It is settled that neither the ' contract'a Lockner v. New York, 198 U.S. 45 (1905).4 Edward S. Corwin: The Constitution and What it MeansToday, 11th ed., at pp. 82-83.s Atlantic Coast Line Co. v. Goldsboro, 252 U.S., at p. 558.


70 A Comparison and Conclusionsclause nor the ' due process' clause has the effect ofoverriding the power of the state to establish allregulations that are reasonably necessary to securethe health, safety, good order, comfort, or generalwelfare of the community."It is true that taken together these provisions didand still do provide a considerable safeguard tothe contractual rights of individuals. Nevertheless,as we have already seen, their influence has not beenstrong enough to counteract the tendency to weakenobligations in the field of contracts with publicauthorities so that their force is not so great as thatof private contracts.CONCLUSIONSI SHALL now proceed to summarise the developmentswhich I have tried to trace in my first three lecturesdrawing attention to some contemporary trends inthe treatment of contracts; and in conclusion I willventure to make some general observations on thosedevelopments and trends.We are so familiar with the broad definitions of alegally enforceable contract framed during the nineteenthcentury and with the statement in generalterms of the governing principles of the law of contractthat we are inclined to lose sight of the fact that thisbroad definition and these governing general principleshave been assembled from masses of separate rulesapplied by the courts from time to time in the decisionof issues between individual litigants. It is a corollaryof that generalisation that just as an edifice of broadprinciples can be erected by decision after decision so


Conclusions 71sections of the edifice can be pulled down by onedecision after another, until whole sections have to bediscarded and the whole edifice may appear to becomeobsolete or threatened with destruction.Morris L.J. in his recent address to the HoldsworthClub on " Law and Public Opinion " 6 has strikinglyand most aptly described an aspect of the same featurefrom a different angle. " The practising lawyer," heobserves, " and the judge in office must ... at alltimes remember that though the history of the lawfascinates and though the theories and the principlesof legal philosophy are rich in interest, the interestof the litigant is in his own case."All this leads me to the view that we must at alltimes keep in mind the question whether the time isnot fast approaching when the whole structure ofcontract law, with its preconceived ideas and nineteenth-centurydoctrines, has not become so rigid andstatic that it cannot be expected to bear on all frontsthe strains and stresses of modern economic and socialpressures.As I have already indicated, there is a considerablemeasure of stability and fixity about legal machinerywhen it operates to determine human relationships.Indeed this has in the past been one of the greatassets of the common law. It has served, amongother purposes, to create security and calculabilityin the life of the community. As Judge Cardozo hasemphasised, 7 " What has once been settled by a« At p. 3.7 In Paradoxes of Legal Science, pp. 29-30.


72 A Comparison and Conclusionsprecedent will not be unsettled overnight, for certaintyand uniformity are gains not lightly to be sacrificed.Above all is this true when honest men have shapedtheir conduct upon the faith of the pronouncement."But as social and economic changes tend now totake place with much greater rapidity than formerly,the comparatively static machinery of law does notseem to be so apt for the adjustment of the rights ofcitizens. It is not only the ever-changing needs andcircumstances of our society but also the complexsituations which it provides that call here and therefor some modifications of the older machinery. Ihave seen no better observation on this complexitythan one recently made by Professor C. F. Carter, 8of Manchester: " The purposes of economic policy arecontradictory, so that only in rare cases is it possibleto make one thing better without making anotherworse. The main instruments of economic managementturn out to be weak or to have undesirableside-effects."One suggested explanation of the restrictions on thefreedom of contract apparent in the last hundredyears is that collectivism curtails, as surely as individualismextends, the area of contractual freedom. 9This is seen more clearly perhaps in the field oflegislation than in the decisions of the courts. Forexample, much of the law governing the relation oflandlords and tenants is now statutory and the partiesare expressly forbidden to contract out of these8 In an article entitled " Can We Control the Economy? "District Bank Review, Dec, 1958, at p. 17.9 Koscoe Pound, Interpretation of Legal History, p. 264.


Conclusions 73statutory regulations. Many other examples couldbe given from the law governing masters and servantsand overseas trade.But the foregoing " explanation" is really noexplanation at all: it is a simple description of ageneral political trend. The root causes lie deeper.One commentator has observed that we are todayconfronted with the paradox that man is at once asocial being, and therefore co-operative, and anindividual personality, and therefore competitive.More and more, it is becoming apparent in the fieldof economics and political science that one of thegreat contentious issues of modern times is whetherthe State should intervene to regulate certain aspectsof our daily lives; and if it should, to what extentsuch intervention should be carried. In other wordsthe line between the provinces of State activityand individual enterprise is indistinct. It would begenerally agreed that it is for the legislature ratherthan the courts to draw that line. Indeed, as ProfessorFriedmann has pointed out, 10 the English judiciaryaccept for practical purposes the doctrine of separationof powers and are consequently reluctant to competewith the legislator in the application of legal policy.In this respect their attitude can be contrasted withthat of the American Supreme Court, which, throughits role as guardian of the Constitution, has decisivelyinfluenced American social policy for almost a century.The English Statute-book in recent years is full ofenactments reflecting prevalent political, economic andi° Legal Theory, 3rd ed., at p. 334.


74 A Comparison and Conclusionssocial theories. But in its interpretation of sociallegislation, as well as in applying and advancing wellestablishedlegal principles, the judiciary is inevitablycalled upon " to reconcile the freedom which isnecessary if the individual is to give of his best tomankind, with the compulsion which is necessary ifthe community is to exist in which alone he can enjoyhis freedom." X1 When in the past the courts have beenengaged in this task, they have often shown a specialvirtue in moulding and adapting time-old principlesto fit new situations. And this they must at allcost continue to do; for the common law is " a livingorganism constantly readjusting itself to its environment,and it is in that power of constant readjustmentthat its supreme merit resides." 12 Yet when all thisis taken into consideration the role of the courts inreshaping and readjusting and guiding the affairs ofthe community must from the very nature of moderngovernment be secondary.I think we would be deceiving ourselves if we wereto believe that the respect of the ordinary citizen forhis formal contractual obligations is as great today asit was, say, a hundred years ago. Evidence to supportthis view is forthcoming from the developments withinthe law of contract itself during the present century.As we have seen, a whole area of excuse for nonperformanceof obligations has been opened up anddeveloped under the title of frustration. This is theoutcome of pressure by litigants for release frompromises which they find onerous having regard to11 Lord Macmillan, Law and Other Things, at p. 18.12 Ibid., at p. 54.


Conclusions 75fundamental changes of circumstances. Similarly agood deal of pressure is continually exercised for theimportation of terms to relieve situations of hardshipif performance is insisted upon according to the strictletter of the contract. And there is a whole host ofrecent cases in which a promisor, after he himself hasperformed his promise, finds the other contractingparty ready to take the benefit of the performancewhile declining to discharge his own obligation and,distastefully so far as the judges are concerned,relying on the defence of illegality or immorality orpublic policy.Considerable significance must also, I think, beattached to the fact that so many arrangements,indistinguishable almost from enforceable contracts,are today made with the clear intention that they arenot to be justiciable as contracts in the ordinary courts.As a background there are a number of otherconsiderations that may be influencing the public intheir attitude to the fulfilment of their contracts. Inthe first place there are more circumstances now thanformerly in which the legislature and the courts havefor reasons of government or public policy imposedrestrictions on the parties' freedom to contract. Thereis not the same measure of faith in the beneficence ofcontracts or of fervour for freedom of contract asthere was during the nineteenth century. The environmenthas changed; and the climate in which contractshave been entered into is not so favourable.Secondly, an increasing number of contracts is nowentered into by the acceptance of standard forms


76 A Comparison and Conclusionscontaining many terms which the acceptor often neverreads and often also which, if he did read, he couldnot fully comprehend. The printed or typed formof contract is presented to the customer, whosealternatives are, either to do business on its terms,or to decline to do business at all and do without theservice or commodity. It may well be that a personwho concluded the bargain in such circumstances cannothave the respect for his obligations that he ought tohave, and when he finds his position difficult may pressfor relief from what he regards as a " technical "obligation of which he was not fully aware or whichhe only imperfectly understands or which he onlyunwillingly accepted.A third influence may well be the complexity ofmodern activities and the consequent difficulty ofproviding for every eventuality. I have alreadyquoted from Denning L.J.'s judgment in the Movietonewscase that " we cannot any longer credit a partywith the foresight of a prophet or his lawyer with thedraftsmanship of a Chalmers." Here again a partymay regard the matter in issue as a " technicality "the import of which he did not comprehend.All these circumstances in my view tend to diminishthe regard of the promisor for his promise or contractualobligation. And it is not without interest that inthe United States also the nineteenth century faithin the freedom of contract is neither so universallynor so potently felt.One never appreciates more fully the truth of aprofound observation by that great American judge


Conclusions 77Mr. Justice Holmes than when studying developmentsand trends in the law of contracts during the lastthree or four hundred years. "The law," he observed," is always approaching, and never reaching, consistency.It is forever adopting new principles from lifeat one end, and it always retains old ones from historyat the other. ... It will become entirely consistentonly when it ceases to grow."

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