Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-26T08:58:01.101Z Has data issue: false hasContentIssue false
  • English
  • Français

The classical model of contract: the product of a revolution in legal thought?

Published online by Cambridge University Press:  02 January 2018

Warren Swain
Warren Swain*
Affiliation:
Durham Law School
Get access Rights & Permissions [Opens in a new window]

Abstract

Writing in the introduction to his new treatise on contract in 1826, Joseph Chitty observed that ‘Perhaps no branch of the jurisprudence of this country has of late years been more subject of judicial inquiry and decision than the Law of Contracts’. It is generally accepted that the so-called classical model of contract law, which remains influential into the present day, was created at this time. Ever since the subject first attracted sustained attention from legal historians in the 1970s, the driving forces of these developments have been contested. Some saw legal change as a product of economic and social factors. For others the reception of new ways of thinking and legal literature provided a more convincing explanation. What is not usually disputed is that there was a fundamental revolution in contract doctrine and literature in the nineteenth century. This assumption is open to challenge. It fails to give proper weight to the past. In fact these changes were deeply rooted in the eighteenth century and even earlier.

Type
Research Article
Information
Legal Studies , Volume 30 , Issue 4 , December 2010 , pp. 513 - 532
Copyright
Copyright © Society of Legal Scholars 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Horwitz, M The Transformation of American Law 1780–1860 (Cambridge MA: Harvard University Press, 1977) p 160 Google Scholar.

2. In addition to Horwitz, ibid, see Horwitz, M The historical foundation of modern contract law’ (1974) 87 Harvard Law Review 917 CrossRefGoogle Scholar. From a more English focused perspective, see Atiyah, P The Rise and Fall of Freedom of Contract (Oxford: Oxford University Press, 1979 Google Scholar). Atiyah attended some of Horwitz's seminars at Harvard and has acknowledged his influence: Atiyah, P, ‘An autobiographical fragment’ in Wilson, G (ed) Frontiers of Legal Scholarship (Chichester: Wiley, 1995) pp 45–46 Google Scholar.

3. On the internal point of view more generally, see Ibbetson, D What is legal history a history of?’ in Lewis, ADE and Lobban, M (eds) Law and History (Oxford: Oxford University Press, 2003) p 33 Google Scholar.

4. Simpson, AWB ‘Innovation in nineteenth century contract law’ (1975) 91 Law Quarterly Review 247 Google Scholar ; Ibbetson, DJ A Historical Introduction to the Law of Obligations (Oxford: Oxford University Press, 1999) pp 220–244 Google Scholar; Baker, JH An Introduction to English Legal History (London: Butterworths, 2003) pp 352–353 Google Scholar. James Gordley, an American also belongs in this group: Gordley, J The Philosophical Origins of Modern Contract Doctrine (Oxford: Oxford University Press, 1991 Google Scholar). For a slightly different approach, see Cornish, WR and De N Clark, G Law and Society in England 1750–1950 (London: Sweet and Maxwell, 1989) pp 200–220 Google Scholar. For a note of caution, see Lobban, M ‘Introduction’ in Cornish, W et al (eds) The Oxford History of the Laws of England, Vol XII 1820–1914: Private Law (Oxford: Oxford University Press, 2010) p 302 Google Scholar.

5. Simpson, AWB The rise and fall of the legal treatise: legal principles and the forms of legal literature’ (1983) 48 University of Chicago Law Review 632 CrossRefGoogle Scholar.

6. The fact that Horwitz and his disciples were influenced by the Critical Legal Studies movement whereas the English legal historians mentioned can be more properly characterised as the heirs of Maitland may account for some of these differences. For a detailed and devastating critique of Horwitz's approach, see Simpson, AWB The Horwitz thesis and the history of contracts’ (1979) 46 University of Chicago Law Review 533 CrossRefGoogle Scholar. For a further critical examination of Horwitz's views, see, Karsten, P Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1997) pp 47–78 Google Scholar.

7. A similar debate has taken place about the Industrial Revolution: Williamson, JG ‘Why was British economic growth so slow during the Industrial Revolution’ (1984) 44 Journal of Economic History 687 CrossRefGoogle Scholar ; Crafts, NFR British Economic Growth During the Industrial Revolution (Oxford: Oxford University Press, 1985 Google Scholar); Berg, M and Hudson, P ‘Rehabilitating the Industrial Revolution’ (1992) XLV Economic History Review 24 CrossRefGoogle Scholar.

8. Hall, GDG (ed) The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill (Oxford: Oxford University Press, 1965 Google Scholar). Glanvill dates from the late 1180s. Thorne, S (ed) Bracton On the Laws and Customs of England (Cambridge MA: Harvard University Press, 1968 Google Scholar). Bracton has been dated to the 1220s and 1230s.

9. Even in a quite abstract manner, eg, St German's, Doctor and Student which appeared in the early sixteenth century contained a discussion on the nature of enforceability of promises: see Plucknett, TFT and Barton, JL (eds) St German's Doctor and Student (London: Selden Society, 1974) pp 228–233 Google Scholar.

10. Thomas Littleton's New Tenures of 1481, the first English printed law book, has been described by Baker as possessed of the authority ‘enjoyed by no other legal author before or since’; see Baker, above n 4, p 188.

11. Simpson, above n 4, at 250.

12. Gordley, J Foundations of Private Law (Oxford: Oxford University Press, 2006) p 288 Google Scholar.

13. Despite the fact that the forms of action were abolished in the Common Law Procedure Act 1852, they continued to enjoy a long afterlife; see Lord Atkin in United Australia Ltd v Barclays Bank Ltd[1943] 1 AC 1 at 29.

14. The abridgements adopted an alphabetical arrangement in which the forms of action were prominent; see Holdsworth, W Sources and Literature of English Law (Oxford: Oxford University Press, 1925) pp 104–111 Google Scholar. Some of the abridgements were vast undertakings. Charles Viner's, A General Abridgement of Law and Equity, published between 1741 and 1756, ran to more than 20 volumes. For other examples, see Bacon, M A New Abridgment of the Law (London, 17361766 Google Scholar) and Comyns, J A Digest of the Laws of England (London, 17621776 Google Scholar). The last true abridgment, Charles Petersdorff's A Practical and Elementary Abridgment of the Common Law was five volumes in length and published between 1841 and 1844.

15. The whole work was published between 1765 and 1769.

16. Cairns, J Blackstone, an English institutist: legal literature and the rise of the nation state’ (1984) 4 Oxford Journal Legal Studies 318 CrossRefGoogle Scholar ; Watson, A ‘The impact of Justinian's Institutes on Academic Treatises: Blackstone's Commentaries’ in Roman Law and Comparative Law (Athens: University of Georgia Press, 1991) pp 166–181 Google Scholar.

17. (London, 1713).

18. John Austin rather unkindly called Blackstone's scheme a ‘slavish and blundering copy’: J Austin [R Campbell (ed)]Lectures on Jurisprudence or the Philosophy of Positive Law vol 1 (London: John Murray, 1869) p 71.

19. W Blackstone Commentaries on the Laws of England vol 2 (Oxford: Oxford University Press, 1766) pp 396–398 (chose in action); pp 442–470 (acquisition of property by contract); pp 471–488 (bankruptcy).

20. W Blackstone Commentaries on the Laws of England vol 3 (Oxford: Oxford University Press, 1768) pp 153–166 (injuries to personal property).

21. Blackstone, above n 19, vol 2, p 442.

22. Jones, W [D Ibbetson (ed)]An Essay on the Law of Bailments (Bangor: Welsh Legal History Society, 2004) pp 3–4 Google Scholar.

23. For a contrary view, see Lieberman, D Contract before freedom of contract’ in Scheiber, H (ed) The State and Freedom of Contract (Stanford: Stanford University Press, 1998) p 90 Google Scholar.

24. W Blackstone Commentaries on the Laws of England vol 1 (Oxford: Oxford University Press, 1765) p 7. For the details of Blackstone's lectures, see Prest, W William Blackstone Law and Letters in the Eighteenth Century (Oxford: Oxford University Press, 2008) pp 112–118 CrossRefGoogle Scholar.

25. Hanbury, HG The Vinerian Chair and Legal Education (Oxford: Blackwell, 1958) pp 52–78 Google Scholar.

26. Chambers's lectures remained unpublished until more than 200 years after his death: R Chambers [T Curley (ed)]A Course of Lectures on English Law Delivered at the University of Oxford 1767–73 vol 2 (Oxford: Oxford University Press, 1986) pp 209–217 and 221–225. On the structure of Chambers's lectures, see Cairns, J Eighteenth century professorial classification of English common law’ (19871988) 33 McGill Law Journal 226 Google Scholar. Chambers' lectures were produced in collaboration with Samuel Johnson; see Curley, T Sir Robert Chambers Law, Literature, and Empire in the Age of Johnson (Wisconsin IL: University of Wisconsin Press, 1998) pp 82–127 Google Scholar.

27. Wooddeson, R A Systematical View of the Laws of England as Treated of in a Course of Vinerian Lectures (London, 179293 Google Scholar).

28. Ibid, vol 3, pp 78, 81–83 (annuity); pp 83–85 (account), pp 85–95 (covenant), pp 95–104 (debt), pp 104–107 (detinue). The coverage of assumpsit in lectures 46 and 47 was more comprehensive.

29. Jackson, RM The scope of the term “contract”’ (1937) 53 Law Quarterly Review 535 Google Scholar.

30. Ibbetson, above n 4, p 22.

31. Denison v Ralphson (1682) 1 Vent 365; Dalston v Janson (1695) 5 Mod 90.

32. Wilmot CJ would express surprise when faced with an action of account: Godfrey v Saunders (1770) 3 Wils 94. For a similar view, see Bacon, above n 14, vol 1, p 16. Covenant was largely confined to real property transactions. Debt on a contract, as opposed to debt on a bond, was also described by Blackstone as ‘seldom brought’: Blackstone, above n 20, vol 3, p 154. It did enjoy a brief revival in the early nineteenth century: J Chitty A Treatise on the Parties to Actions, the Forms of Action and on Pleading vol 1 (London: W Clarke & J Butterworth, 1809) p 107. Debt on a bond (using a sealed instrument) remained an important action into the nineteenth century.

33. Buller, F An Introduction to the Law Relative to Trials at Nisi Prius (London, 1767) p 120 Google Scholar; Espinasse, I A Digest of the Law of Actions at Nisi Prius vol 1 (Dublin: 1790) p iii Google Scholar.

34. Rann v Hughes (1778) 7 TR 350 note (a).

35. Stein, P Legal Evolution the Story of an Idea (Cambridge: Cambridge University Press, 1980) pp 1–22 Google Scholar.

36. Haakonssen, K Natural Law and Moral Philosophy (Cambridge: Cambridge University Press, 1996 CrossRefGoogle Scholar); Hochstrasser, TJ Natural Law Theories in the Early Enlightenment (Cambridge: Cambridge University Press, 2000 CrossRefGoogle Scholar). For the influence of natural law on English law, see Ibbetson, D Natural law and common law’ (2001) 5 Edinburgh Law Review 4 CrossRefGoogle Scholar.

37. Pufendorf, S [CH and WA Oldfather (transl)]Of the Law of Nature and Nations (1688 edition) (Oxford: Oxford University Press, 1934 Google Scholar), bk 3, ch 4.

38. Consent is discussed in, ibid, bk 3, ch 6.

39. The history of these ideas is traced by Gordley, James, The Philosophical Foundations of Modern Contract Doctrine (Oxford: Oxford University Press, 1992 Google Scholar) and in summary in Gordley, above n 12, pp 292–293.

40. Macnair, M Sir Jeffrey Gilbert and his treatises’ (1994) 15 Journal of Legal History 252 CrossRefGoogle Scholar.

41. Part of the surviving manuscript is held at Columbia University, Singleton, MS: Baker, JH English Legal Manuscripts in the United States of America: A Descriptive List (London: Selden Society) pp 46–47 Google Scholar. A copy of the section of the manuscript concerned with contract is available in the British Library as BL MS Hargrave 265, 266.

42. BL MS Hargrave 265 f 39.

43. Ibbetson, above n 4, pp 216–217. For Hobbes' views on contract, see Hobbes, T [Jca Gaskin (ed)] The Elements of Law (Oxford: Oxford University Press, 1999 Google Scholar) bk 1 ch 15. Hobbes' social contract actually drew on the common law of contract of his day: Glover, RA The legal origin of Thomas Hobbes's doctrine of contract’ (1980) 18 Journal of the History of Philosophy 177 Google Scholar.

44. BL MS Hargrave 265, ff 39–40, 43.

45. (London, 1737).

46. Ibbetson, above n 4, pp 218–219.

47. For a summary of Adam Smith's work on law, see Lieberman, D Adam Smith on justice, rights and law’ in Haakonssen, K (ed) The Cambridge Companion to Adam Smith (Cambridge: Cambridge University Press, 2006) p 214 CrossRefGoogle Scholar.

48. Paley was a theologian but he often attended the law courts in his youth and it is said that a ‘legalistic approach’ was evident in the ‘method and literary style of his biblical criticism’; see LeMahieu, DL The Mind of William Paley (Lincoln: University of Nebraska Press, 1976) p 26 Google Scholar.

49. Meek, RL, Raphael, DD and Stein, P (eds) Lectures on Jurisprudence (Oxford: Oxford University Press, 1978) p 472 Google Scholar.

50. Paley, W The Principles of Moral and Political Philosophy (London, 1785) p 105 Google Scholar. This work was adopted for use at Cambridge University shortly after it was published; see LeMahieu, above n 48, p 23.

51. In Lex Mercatoria which was written in the 1280s: Basile et al, M Lex Mercatoria and Legal Pluralism: A Late Thirteenth-Century Treatise and Its Afterlife (Cambridge MA: Ames Foundation, 1998) pp 11–15 Google Scholar.

52. Appleby, J Economic Thought and Ideology in Seventeenth Century England (Princeton: Princeton University Press, 1980) p 4 Google Scholar.

53. The traditional view is that English lawyers simply adopted continental practice on the back of mercantile literature and through the custom of merchants: W Holdsworth A History of English Law vol 8 (London: Methuen, 1937) p 151; Sutherland, LS The law merchant in the seventeenth and eighteenth centuries’ (1934) xvii, 4th Series, Transactions of the Royal Historical Society 149 CrossRefGoogle Scholar. The relationship between the custom of merchants and the common law was much more complex; see JH Baker ‘The law merchant as a source of English law’ in Swadling, W and G Jones The Search for Principle. Essays for Lord Goff of Chieveley (Oxford: Oxford University Press, Oxford, 2000) p 79 Google Scholar.

54. This is not to dismiss such influences entirely; see C Rogers ‘Continental literature and the development of the common law by the King's Bench: c.1750–1800’ in Piergiovanni, V (ed) Courts and the Development of Commercial Law (Berlin: Dunker and Humblot, 1987) p 161 Google Scholar.

55. W Holdsworth The History of English Law vol 12 (London: Methuen, 1938) pp 605–646. For a more pessimistic view, see Wesket, J A Complete Digest of the Theory, Laws, and Practice of Insurance (London, 1781) p ii Google Scholar.

56. Examples include Pelly v Royal Exchange Assurance Co (1760) 1 Burr 341 at 343; Goss v Withers (1758) 2 Burr 683 at 685–687 and 688; Luke v Lyde (1759) 2 Burr 882 at 886; Robinson v Bland (1760) 1 Wm Bla 234 at 238–239; Hamilton v Mendes (1761) 2 Burr 1198 at 1201; Ross v Walker (1765) 2 Wil KB 264; Ricord v Bettenham (1765) 1 Wm Bla 563 at 567; London Warf's Case (1766) 1 Wm Bla 581 at 584; Blesard v Hirst (1770) 5 Burr 2670 at 2671; Earl of March v Pigot (1771) 5 Burr 2802 at 2804; Vallejo v Wheeler (1774) 1 Cowp 143 at 145 and 147; Rich v Coe (1777) 2 Cowp 636 at 637–638; Salomons v Stavely (1783) 3 Doug 298 at 299; Yates v Hall (1785) 1 TR 73 at 74; Nutt v Bourdieu (1786) 1 TR 323 at 326; Lickbarrow v Mason (1787) 2 TR 63 at 65.

57. Goss v Withers, ibid, at 690.

58. Lee was the brother of William Lee CJ and a noted authority on ecclesiastical and admiralty matters: WP Courtney [M Kilburn (rev)]‘Lee, Sir George’ in Oxford Dictionary of National Biography.

59. Goss v Withers, above n 56, at 694. For a further reference to Grotius, see Jones v Randall (1774) Lofft, 383.

60. Goss v Withers, ibid, at 692. His De Domino Maris was published in 1702.

61. Ibid, at 693. The relevant passage in a modern edition is found in Voet, J [P Gane (ed)] The Selective Voet Being the Commentary on the Pandects (Durban: Butterworth, 1957 Google Scholar) bk 49, title 15.

62. Goss v Withers, above n 56, at 693.

63. (1765) 3 Burr 1663 at 1670. The relevant passage is found in Pufendorf, above n 37, bk 3, ch 5.

64. Williamson v Losh (unreported) 1774, noted in Chitty, J A Practical Treatise on Bills of Exchange (London: Butterworth, 5th edn, 1818) pp 93–94 Google Scholar is the exception.

65. In both the Exchequer Chamber and House of Lords in Rann v Hughes (1776) LI MS Misc 130 f 134.

66. For an example of in the context of insurance, see Mayne v Walter (1782) 3 Doug 79.

67. Park, J System of the Law of Marine Insurance (London, 2nd edn, 1790) p xliv Google Scholar. For similar remarks, see Millar, J Elements of the Law of Insurance (Edinburgh: 1787) pp v–vi Google Scholar. If Park and Millar had a point they were still guilty of exaggerating the absence of earlier authorities; see Holdsworth, WS The early history of the contract of insurance’ (1917) 17 Columbia Law Review 85 CrossRefGoogle Scholar; Ibbetson, D ‘Law and custom: insurance in sixteenth-century England’ (2003) 29 Journal of Legal History 291 CrossRefGoogle Scholar.

68. Lobban, M The English legal treatise and English law in the eighteenth century’ (1997) 13 Iuris Scripta Historica 69 Google Scholar. Some of the growth of legal literature can be explained by changes in the book market: Baloch, T ‘Law booksellers and printers as agents of unchange’ (2007) 66 Cambridge Law Journal 389 CrossRefGoogle Scholar. These works were becoming better organised and indexed which in turn increased their usefulness to practitioners; see Stern, S ‘The case and the exceptions: creating instrumental texts in law and literature’ in Rogers, P and Runge, L (eds) Producing the Eighteenth Century Book: Writers and Publishers in England 1650–1800 (Delaware: University of Delaware Press, 2009) pp 95–116 Google Scholar.

69. Ballow, above n 45, p 1.

70. Jones, above n 22, p 202.

71. (London, 1790).

72. Ibid, p vi.

73. Ibid, p vii.

74. Ibid, vol 1, p 9.

75. Eg, Simpson, above n 4, at 253, Ibbetson, above n 4, p 220.

76. Out of 507 cases, only 63 post-date 1750 and 192 were from the seventeenth century or before. For these figures, see Baloch, above n 68, at 416.

77. The Declaration of Rights of 1689 contained a clause on juries; see Hoppit, J A Land of Liberty? England 1689–1727 (Oxford: Oxford University Press, 2000) p 24 Google Scholar.

78. Anon A Compendious Library of the Law (London, 1740) p 122.

79. For an account of the operation of the Court of Conscience, see W Hutton Courts of Requests. Their Nature, Utility and Powers Described (Birmingham, 1787).

80. There was a good deal of complaining about the calibre of jurors; see Oldham, J The origins of the special jury’ (1983) 50 University of Chicago Law Review 137 CrossRefGoogle Scholar at 141–144. Some of this criticism was quite specific, eg Anon The Advantages of Settling Disputes by Arbitration (Carlisle, 1795) p 9 ‘the want of local knowledge in jurors, is an evil of no small magnitude’.

81. By a series of reforms in the nineteenth century: (1833) 3 & 4 Will IV c 42 s 26.

82. For the origins of the distinction in theory, see Shapiro, B A Culture of Fact England, 1550–1720 (Ithaca: Cornell University Press, 2003) pp 34–62 Google Scholar.

83. (London, 1680) p 11.

84. Anon ‘of the function of the judge as distinguished from those of the jury’ (1845) 2 Law Review 27.

85. For the traditional role of the jury, see Arnold, MS Law and fact in the medieval jury trial: out of sight, out of mind’ (1974) 18 American Journal of Legal History 267 CrossRefGoogle Scholar.

86. John Baker made the suggestion that issues which appear in the nineteenth century as doctrine were traditionally hidden under the general issue and brought to the surface by procedural reform in a review of Atiyah's Rise and Fall of Freedom of Contract but the implications were not fully developed: JH Baker (1980) 43 Modern Law Review 467.

87. Oldham, J The Varied Life of the Self-Informing Jury (London: Selden Society, 2005) pp 24–31 Google Scholar.

88. (1778).The case is overlooked by the nominate reporters. As a decision at Guildhall rather than in banc this is not surprising. Lord Mansfield's note survives: J Oldham The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century vol 1 (Chapel Hill: University of North Carolina Press, 1992) pp 332–333. The case was reported in the newspapers: London Chronicle 30 May 1778; Morning Post 1 June 1778.

89. Morning Post, ibid.

90. (1696) Holt 701 at 702.

91. Baker, above n 4, pp 81–85.

92. Mitnick, J ‘From Neighbor-Witness to Judge of Proofs: the Transformation of the English Civil Juror’ (1988) 32 American Journal Legal History 201 CrossRefGoogle Scholar ; Wood v Gunston (1655) Style 462. For a flavour of the content of court records: Baker, JH ‘Records, reports and the origins of case-law in England’ in Baker, JH (ed) Judicial Records, Law Reports, and the Growth of Case Law (Berlin: Duncker and Humblot, 1989) pp 34–36 Google Scholar.

93. BJ Sellon The Practice of the Courts of King's Bench and Common Pleas vol 1 (London, 1792) p 502: ‘the writ of attaint is now a sound in every case it does not pretend to be a remedy’. Though not used it was not formally abolished until 1825: (1825) 6 Geo IV c 50 s 60.

94. Sellon, ibid, vol 1, p 504; J Archbold The Practice of the Court of King's Bench vol 2 (London: J Butterworth, 1819) p 227. In Atkins v Drake (1824) M'Cle & Young 213 at 229, Chief Baron Alexander described the process of reading the notes of the trial judge in the case of a motion for new trial.

95. For a complete list of situations where the motion could be used, see J Morgan Essays Upon the Law of Evidence, New Trials, Special Verdicts, Trials at Bar and Repleaders vol 2 (London, 1789) p 1, sets out the various grounds: (1) misbehaviour of a party towards the jury; (2) a verdict obtained by fraud, stratagem or inequitable means; (3) gross misbehaviour of the jury; (4) a verdict contrary to the evidence, or a hard action; (5) a verdict against record, or against law; (6) for excessive damages; (7) for insufficient damages; (8) for refusing evidence by, or misdirection or non-direction of the judge; (9) and other causes as irregularity. For an early example, see Bowen v Proctor (1715) in Hamilton Bryson, W (ed) Sir John Randolph's King's Bench Reports 1715–1716 (Buffalo: Hein, 1996 Google Scholar) para 74.

96. The court in banc consisted of the full court in the jurisdiction in which the claim was brought. Typically in contract actions this was the King's Bench.

97. For a summary of the operation of the special verdict, see W Tidd The Practice of the Court of King's Bench in Personal Actions vol 1 (London, 1790–1794) pp 595–596; Sellon, above n 93, vol 2, pp 50–60.

98. Prichard, MJ Non-suit: a premature obituary’ (1960) 18 Cambridge Law Journal 88 CrossRefGoogle Scholar ; Baskerville v Brown (1761) 2 Burr 1229; Dally v Smith (1771) 4 Burr 2148; Clay v Willan (1789) 1 H Bla 298.

99. This method was a favourite of Lord Mansfield; see Oldham, J The seventh amendment right to jury trial: late eighteenth century practice reconsidered’ in O'Donovan, K and Rubin, G (eds) Human Rights and Legal History Essays in Honour of Brian Simpson (Oxford: Oxford University Press, 2000) p 235 Google Scholar. Tidd was also an admirer: Tidd, above n 97, vol 1, pp 597–598. It worked by giving a general verdict, usually for the plaintiff, subject to an opinion of the court in banc on a question drawn up by counsel on both sides on a point of law.

100. Judges remained reluctant to intervene in relation to matters of fact: Smith v Frampton (1695) 1 Ld Raym 62.

101. Grant v Vaughan (1764) 3 Burr 1516 at 1526.

102. Appleton v Sweetapple (1782) 3 Doug 137 at 140. For similar remarks elsewhere, see Tindal v Brown (1786) 1 TR 167 at 169; Sproat v Matthews (1786) 1 TR 182 at 187.

103. Anon ‘of the distinction between law and fact’ (1844) 1 Law Review 37.

104. Berman, HJ and Reid, CJ The transformation of English legal science from Hale to Blackstone’ (1996) 45 Emory Law Journal 437 Google Scholar at 444–451. The doctrine of precedent in the modern sense did not emerge until the nineteenth century; see Duxbury, N The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008) p 18 CrossRefGoogle Scholar.

105. (1321) in Cam, H Year Books of Edward II (London: Selden Society, 1969) p 286 Google Scholar.

106. (1550) Plo 1 at 17. Ibbetson, above n 4, p 146, cf Gordley, above n 4, p 136: ‘One could scarcely imagine more wretched authority for the proposition that a contract at common law is a mutual agreement’.

107. Plucknett and Barton, above n 9, p 228.

108. For a more radical take on this thesis, see Hamburger, P The development of the nineteenth-century consensus theory of contract’ (1989) 7 Law and History Review 241 CrossRefGoogle Scholar.

109. For a discussion of mistake in Equity: see MacMillan, C Mistakes in Contract Law (Oxford: Hart, 2010) pp 38–68 Google Scholar. Mistake in contracting was also being raised in the Court of Conscience, see Hutton, above n 79, pp 164–67.

110. MacMillan, ibid, pp 39–40.

111. Strete's Case (1528) British Library MS Hargrave 252 f 19 v, cited by Ibbetson, above n 4, p 131. For further examples of expectation damages, see DJ Ibbetson The Development of the Action of Assumpsit PhD Thesis (Cambridge University, 1980) pp 363–366.

112. Morgan, above n 95, vol 2, p 1; Sayer, J The Law of Damages (London, 1770) p 201 Google Scholar; (1819) 1 Bligh 582 (note).

113. Sayer, ibid, p 211: ‘one reason for the granting of a new trial…was, that the jury had not in finding the verdict paid a proper attention to the direction of the judge’. For examples, see Barton, J ‘Contractual damages and the rise of industry’ (1987) 7 Oxford Journal Legal Studies 40 CrossRefGoogle Scholar at 46–47.

114. Sayer, above n 112, pp 49–52.

115. (London, 1806).

116. Ibid, p 1. The passage is taken from Blackstone, above n 19, vol 2, p 442.

117. (London: J Butterworth, 1807).

118. (London, 1818).

119. (Paris, 1761). For a short biography of Pothier, see Wilton, G, ‘Pothier (1699–1772)’ (1947) 59 Juridical Review 208 Google Scholar.

120. Jones, above n 22, p 29.

121. The editor of Ballow's treatise was an early champion of Pothier: Fonblanque, J (ed) A Treatise of Equity (London, 1793 Google Scholar) vol 1, pp 3, 28, 115, 121, 341 and 380; vol 2, p 420. For another early reference to Pothier, see Chitty, J A Treatise on the Law of Bills of Exchange (London, 1799) p 10 Google Scholar. The author was the father of Joseph Chitty of contract fame.

122. Beale v Thompson (1803) 3 B & P 405 at 413 and 414; Cooth v Jackson (1801) 6 Ves Jun 12 at 23.

123. Above nn 54 and 56.

124. J Aikin General Biography: or Lives, Critical and Historical of the Most Eminent Persons of all Ages Countries, Conditions, and Professions vol 8 (London: J Stockdale, 1813) p 318.

125. Evans, W A Treatise on the Law of Obligations or Contracts by M. Pothier (London: J Butterworth, 1806 Google Scholar) at 1.1.1§ 1.

126. One important consequence of this was that a discussion of the limits on what could be legitimately willed was also dropped: J Gordley ‘Contract, property, and will – the civil law and common law tradition’ in Scheiber, above n 23, p 82.

127. Kant, I [M Gregor (ed)] The Metaphysics of Morals (Cambridge: Cambridge University Press, 1996) p 57 CrossRefGoogle Scholar; Hegel, GWF [A Wood (ed)] Elements of the Philosophy of Right (Cambridge: Cambridge University Press, 1991 Google Scholar) § 75.

128. Gordley, above n 126, p 80.

129. (1807) 3 Law Journal 297 at 301.

130. There was an even earlier English translation published in America in 1802 by Francois-Xavier Martin as A Treatise on Obligations Considered in a Moral and Legal View (Newbern: Martin & Ogden, 1802).

131. (London: S Sweet, 1826).

132. Comyn, above n 117, p 2; Chitty, ibid, p 3.

133. Comyn, ibid,, p 2.

134. Chitty, above n 131, p 3.

135. See above n 106. Comyn, above n 117, p 2; Chitty, ibid, p 3.

136. Wain v Warlters (1804) 5 East 10 at 16.

137. Chitty, J A Practical Treatise on the Law of Contracts not under Seal (London: S Sweet, 1834 Google Scholar), for example at p 10 where Chitty sets out Pothier's definition of contract. The second edition is 792 pages in length. The first edition was only 397 pages long.

138. Charles Addison's A Treatise on the Law of Contract and Liabilities ex-Contractu (London: W Benning, 1847), which was largely arranged according to the subject matter of the contract, was one exception.

139. (Oxford: Clarendon Press, 1879) p v. For the role of principle in nineteenth century contract law, see Waddams, S What were the principles of nineteenth-century contract law?’ in Lewis, A, Brand, P and Mitchell, P (eds) Law in the City Proceedings of the Seventeenth British Legal History Conference, London, 2005 (Dublin: Four Courts Press, 2007) p 305 Google Scholar.

140. Pollock, F Principles of Contract at Law and in Equity (London: Stevens & Sons, 1876 Google Scholar). For detail of Pollock's philosophy of law which informed his writing on contract, see Duxbury, N Frederick Pollock and the English Juristic Tradition (Oxford: Oxford University Press, 2004 CrossRefGoogle Scholar).

141. Chitty, above n 137, p iii.

142. This was not just a matter of the usage of civil juries, which did decline significantly from the 1880s, but a question of where the balance of power between juries and judges lay. On the issue of usage, see Lobban, M ‘The strange life of the English civil jury, 1837–1914’ in Cairns, J and McLeod, G The Dearest Birth Right of the People of England (Oxford: Hart, 2002) p 173 Google Scholar; Hanly, C ‘The decline of civil jury trial in nineteenth-century England’ (2005) 26 Journal of Legal History 253 CrossRefGoogle Scholar.

143. These reforms were known as the Hilary Rules Reg Gen HT 4 Will IV. They are reproduced in (1834) LJ Repts KB 5. When Henry Brougham, in his famous speech on law reform, came to criticise the wide general issue he used assumpsit as one of his examples: (1828) 18 HC Deb 127 at 201. The expert on pleading in assumpsit, Edward Lawes, writing a few years earlier, pointed out that ‘almost every sort of defence might be given in evidence’ under the general issue in assumpsit: Lawes, E A Practical Treatise on Pleading in Assumpsit (London: W Reed, 1810) p 520 Google Scholar.

144. As part of the reforms, fraud had to be pleaded specially, which meant that it had to be specifically identified. In his evidence to the commission which preceded these reforms, Chitty explained that fraud was currently pleaded under the general issue: Second Report into the Practice and Proceedings of the Superior Courts of Common Law (1830) [123] PP Vol XI 11 App B No 4 § 56.

145. As The Civil Law in its Natural Order (London, 1722). A section of Domat's treatise had appeared in a translation by Wood some years earlier: A Treatise of the First Principles of Laws in General (London, 1705). For a discussion of Wood's and Strahan's translations, see Coquillette, D The Civilian Writers of Doctors' Commons, London (Berlin: Duncker and Humblot, 1988) pp 200 Google Scholar and 203–209.

146. Strahan specifically drew attention to Domat's treatment of contract and commercial issues: ibid, pp iii–iv.

147. He was cited by Lee CJ in Ryall v Rowles (1750) Ves Sen 348 at 370. Examples in argument include Harvy v Aston (1740) 2 Comyns 726 at 757; Holdfast v Dowsen (1747) 1 Wm Bla 8 at 11; Robinson v Bland (1760) 1 Wm Bla 234 at 235 and 258; Eyre v Lovell (1782) 3 Doug 66 at 68. References to Domat in judgments are even rarer: Miller v Race (1758) 2 Kenyon 189 at 199; Doe on the Demise Lancashire v Lancashire (1792) 5 TR 49 at 64.

148. Rudden, B Pothier et la common law’ in Monéger, J (ed) Robert-Joseph Pothier, d'hier à aujourd'hui (Paris: Economica, 2001) p 97 Google Scholar.

149. Warren, S A Popular and Practical Introduction to Law Studies (London: Maxwell, 1845) p 757 Google Scholar.

150. Anon (1846) 5 Law Magazine 258: ‘To us there is no law book so pleasing as that of Mons. Pothier, by reason of the extremely clear manner in which the various rules applicable to the law of contracts are expounded’.

151. Evans, above n 125, at 1.1.1§§1-2.

152. G Lubbe ‘Formation of contract’ in K Reid and R Zimmermann (eds) A History of Private Law in Scotland vol 2 (Oxford: Oxford University Press, 2000) p 44.

153. Salmon, T A Critical Essay Concerning Marriage (London, 1794) pp 180–213 Google Scholar. On the similarities, see Ibbetson, above n 4, p 222.

154. Powell refers to several such authorities in the context of the Statute of Frauds: Powell, above n 71, vol 1, pp 286–299. Examples include Moor v Hart (1683) 1 Vern 201; Wanchford v Fatherley (1694) 2 Freem 201; Seagood v Meale (1721) Pre Ch 560; Ayliffe v Tracey (1722) 2 P Wms 65. See also Lobban, above n 4, p 330.

155. (1818) 1 B & Ald 681.

156. Kennedy v Lee (1817) 3 Mer 441.

157. (1818) 1 B & Ald 681 at 683.

158. For the operation of the postal service at this time, see Gardner, S ‘Trashing with trollop: a deconstruction of the postal rules in contract’ (1992) 12 Oxford Journal of Legal Studies 170 CrossRefGoogle Scholar.

159. Pothier, RJ [LS Cushing (ed)] Treatise on the Contract of Sale (Boston: Little & Brown, 1839 Google Scholar) at 1.2.3.1; Chitty, above n 137, p 12; Addison, above n 138, p 38. For a discussion of this issue, see Perillo, J Robert J. Pothier's influence on the common law of contract’ (20042005) 11 Texas Wesleyan Law Review 267 Google Scholar at 278–280.

160. Chitty, ibid, p 11; Addison, ibid, pp 37–38; Leake, SM The Elements of the Law of Contracts (London: Stevens, 1867 Google Scholar) pp 13 and 20–21; Pollock, above n 140, p 8; Anson, above n 139, p 18.

161. (1790) 3 TR 653.

162. (1789) 3 TR 148.

163. Comyn, in the second edition of his work on contract, noted this at the time: Comyn, S A Treatise on the Law Relating to Contracts and Agreements not under Seal (London: Butterworth, 1824 Google Scholar) pp 79–80 and 108.

164. Evans, above n 125, at 1.1.3.1 § 17.

165. Colebrooke, above n 118, p 46.

166. Outlines of the Law of Contracts as Administered in the Courts of British India (London, 1860) pp 2–5. For more detail on Macpherson, see Ibbetson, above n 4, p 227; MacMillan, above n 109, pp 108–112.

167. The Report of the Indian Law Commissioners on the Subject of Contracts (1867–1868) PP HC vol xlix.

168. Macpherson, above n 166, p xi.

169. Leake, above n 160, pp 168–181.

170. (1854) 17 & 18 Vict c 125 ss 83–86; MacMillan, above n 109, pp 82–86.

171. Pollock, above n 140, pp 355–429; Anson, above n 139, pp 116–128.

172. MacMillan, above n 109, pp 136–180.

173. (1852) 8 Exch 40.

174. (1857) 2 H & N 564.

175. (1864) 2 H & C 906.

176. For examples see Pollock, above n 140, pp 389 and 398; Anson, above n 139, pp 121–122.

177. Cox v Troy (1822) 5 B & Ald 474 at 480.

178. Hadley v Baxendale (1854) 9 Ex 341.

179. For a detailed discussion, see Ibbetson, above n 4, pp 229–232, Danzig, R ‘Hadley v Baxendale: a study in the industrialisation of the law’ (1975) 4 Journal of Legal Studies 249 CrossRefGoogle Scholar , Barton, above n 113, Faust, F ‘Hadley v Baxendale: an understandable miscarriage of justice’ (1994) 15 Journal Legal History 41 CrossRefGoogle Scholar.

180. If not totally absent: Lobban, above n 4, pp 542–543.

181. Leake was unusual in this respect. He devoted a whole chapter to damages; see Leake, above n 160, ch 5. Damages did not appear in Pollock's treatise until 1946: Pollock, F [P Winfield (ed)] Pollock's Principles of Contract (London: Stevens & Sons, 12th edn, 1946) pp 528–539 Google Scholar.

182. The way in which intention was used to justify rules of contractual interpretation is perhaps the most blatant example of this. Writing in the 1840s, Colin Blackburn hinted as much, ‘the intention must be collected from the whole agreement, and the Courts have within the last fifty years adopted for this purpose some rules of construction which are perhaps some of them a little artificial’: Blackburn, C A Treatise on the Effect of the Contract of Sale (London: W Benning, 1845) p 151 Google Scholar.

183. Mitchell, P The development of quality obligations in sale of goods’ (2001) 117 Law Quarterly Review 645 Google Scholar at 647–650.

184. Evans, above n 125, vol 2, appendix 2.

185. For Pollock's views on the subject, see Duxbury, above n 140, pp 202–207.

186. Swain, W The changing nature of the doctrine of consideration, 1750–1850’ (2005) 26 Journal of Legal History 47 CrossRefGoogle Scholar at 57–59.

187. Ibid, at 59–61. As part of this process the nature of consideration was stretched so that it no longer reflected the need for exchange which had formed the core of the doctrine.

188. On the law of slow development of the tort of negligence in the nineteenth century, see Ibbetson, D The tort of negligence in the common law in the nineteenth and twentieth centuries’ in Schrage, E (ed) Negligence: The Comparative Legal History of the Law of Torts (Berlin: Dunker and Humblot, 2001) p 47 Google Scholar.

189. Ibbetson, D Unjust enrichment in English law’ in Schrage, E (ed) Unjust Enrichment and the Law of Contract (The Hague: Kluwer Law International, 2001) p 33 Google Scholar.