chapter
Questions 1 How does one recognise a set of facts as being contractual? 2 In Fisher v Bell (above, p 24), if the owner of the shop had sold the knife on credit to the buyer, and the buyer had failed to pay the debt, could the owner have sued the buyer for a contractual debt? 3 If an employee of a supermarket steals goods from his employer and sells them to an acquaintance in his local pub, could the employee sue the acquaintance if the latter failed to pay for the goods? Could the supermarket sue the acquaintance? 4 Besides contract, what are the other parts of the law of obligations? Notes 1 The notion of a law of contract goes back to Roman law, from where it found its way into modern European law through the rediscovery in the 11th century of Justinian’s compilation of the writings of the Roman jurists and of imperial legislation published in 533AD (Corpus Iuris Civilis). The succession of continental jurists from medieval to modern times who worked on these sources took the Roman law of contracts from its fragmented nature to a general theory of contract (Samuel and Rinkes, Law of Obligations and Legal Remedies, 1996, Cavendish Publishing, pp 1– 9). A range of Roman characteristics are still to be found in the contract sections of all the modern codes, but a Roman jurist would not recognise the modern style of presenting private law in terms of codes. Nor, probably, would he recognise the notion of a general theory of contract based on the will theory (CC, Art 1134), although the idea is stimulated by a Roman text (Dig 50.17.23). In terms of legal style, the Roman jurist would be more comfortable in the common law system where contract is founded upon concrete cases (Weir (1992) 66 Tulane LR 1615). 2 Despite the historical emphasis on the form of the action, to say that contract was unknown in England before the 18th century would be to misinterpret legal history. The Court of Chancery had been familiar with (Romanist) contractual notions long before the industrial revolution and academic writing since the Middle Ages was well acquainted with Roman law (and thus the law of contract) (Gordley, The Philosophical Origins of Modern Contract Doctrine, 1991, OUP). But contract as a dominant legal institution is largely a creature of the 19th century common law, and it is during this period that it reached its ‘classical’ form (Atiyah, The Rise and Fall of Freedom of Contract, 1979, OUP). The basic principles of offer and acceptance, consideration, terms and breach were all worked out—or, more accurately, imported from the codes (Simpson (1975) 91 LQR 247)—during the period between the end of the 18th century and the beginning of the 20th century (Samuel and Rinkes, pp 75–82). The result was that many of the older forms of liability founded on status, debt and bailment became
Pages 1