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The Continued Resonance and Challenge of the “Ius Commune” in Modern European Contract Law

Published online by Cambridge University Press:  28 February 2019


The need for a more consistent and coherent European contract law is a current priority of the EC institutions. Despite decades of pointillistic legal harmonization, cross border transactions within the Internal market of the European Union continue to take place in the shadow of divergent procedural and substantive law rules, differing legal cultures and significant linguistic diversities. Whilst national contract law systems function more or less efficiently internally, it is their partial non-compatibility with other Member States’ private laws that provokes isolated distortions on the market. As a consequence, the European Commission has presented its ‘Common Frame of Reference’ research strategy aimed at fostering common contract law principles, model rules and uniform legal terminology, which, it is believed, will better facilitate commercial actors. The European Parliament has moved a step further by lending institutional credibility to the case for a European civil code. However, this clamour for codification of private laws – an idea premised on two formalisms, legal and economic – has in many respects overlooked the mechanics of modern commercial contracting in particular, the importance of contract drafting and the complex negotiations that lead to deals both domestically and cross border. This paper therefore provides an alternative assessment of the development of a European ius commune, or ‘common law’ of contract, and considers the urgency of improved means of legal information exchange in order to better facilitate the ongoing harmonization effort.

Copyright © 2006 by the International Association of Law Libraries 

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1 Cappelleti, M. (ed.), New Perspectives for a Common Law of Europe, Reports from the symposium inaugurating The European University Institute, Badia Fiesolana, Florence, 1976 (1978).Google Scholar

3 Whilst this terminology is used by the primary European institutions and is now ‘de moda’ in academic literature, it is important to remind ourselves that at present ‘EC contract law’ remains a ‘work in progress'. Cynics will argue that time-honored bureaucratic wisdom provides that the less inclined you are to act in a particular field, the more you have to talk about it; and that this alone explains the flurry of activity in Brussels. Such a view is evidently shortsighted and minimises the degree of legitimate interest within the Community institutions. Moreover, as Grundmann stresses, the emerging body of Community private law rules increasingly impacts upon the formation, the content and the termination of contracts and thus can no longer be ignored by practitioners. See Grundmann, S., The Structure of European Contract Law, 4 European Review of Private Law 505, 2001.Google Scholar

4 It is anticipated that the Common Frame, or CFR, ought to comprise general principles complete with commentary, model rules and definitions of abstract legal terminology. The decision to draft the CFR has gained the full endorsement of the Council and Parliament and represents the first prong of a tripartite strategy. In July 2001, the Commission of the European Communities (the “Commission”) initiated a comprehensive debate with stakeholders in industry, the business and academic community, legal practice and consumer organizations on the potential negative impact of divergences in contract law on the proper functioning of the internal market. See Communication from the Commission to the Council and the European Parliament on European Contract Law, COM (2001) 398 final, 11.07.2001. (Hereinafter cited as the 2001 Communication). Stakeholder feedback prompted a subsequent ‘Action Plan’ in February 2003 (hereinafter cited as the 2003 Action Plan) and a Follow-Up Communication in 2004 (hereinafter cited as the 2004 Follow Up Communication). See respectively, Communication from the Commission to the Council and the European Parliament, ‘A More Coherent European Contract Law, An Action Plan', COM (2003) 68 Final, 12.02.2003 and Communication from the Commission to the European Parliament and the Council on ‘European contract law and the revision of the acquis: the way forward', COM (2004) 651 final, 11.10.2004. These three primary Commission discussion documents on general European contract law ought further to be read in light of the Green Paper on European Union Consumer Protection, COM (2001) 531 final, 02.10.2001. The relevant documentation, and additional background material, is currently accessible via the ‘European Contract Law’ website of the Directorate General for Health and Consumer Protection at: Scholar

5 For a critical examination of those primary market forces, both economic and legal, which promote harmonisation and legal uniformity see, inter alia, Mistelis, L., ‘Is Harmonisation a Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law’ in Fletcher, I. & Mistelis, L., Foundations and Perspectives of International Trade Law, Sweet & Maxwell Publishing, London, 2001. Rossett suggests that these forces are too powerful to resist and as such will ultimately “force the success of European regional unification”, see Rossett, A., ‘The Unification of American Commercial Law: Restatements and Codification’ in il Diritto Privato Europeo: Problemi e Prospettive, a curria di Luigi Moccia, Atti degli Convegno Internazionale, Macerata, June 8–10, Guifffrè Editore, Milano, 1989.Google Scholar

6 Chamboredon, A., ‘The Debate on a European Civil Code: For an Open Texture', in van Hoecke, M. & Ost, F., The Harmonisation of European Private Law, Hart Publishing, 2000, pp.63–99, at p.82.Google Scholar

7 See Clarke, M., Doubts from the Dark Side – The Case Against Codes, Journal of Business Law, pp.605–615, November, 2001; see also Malaurie, P., Le Code Civil Européen des Obligation – Une Question Toujours Ouverte, La Semaine Juridique Édition Générale, No.6, pp. 281285, 6 février, 2002. The constitutional significance of private law discourse is seldom appreciated by public law communities. In turn, European private law scholars rarely forage deep into areas of public law. The absence of such an interdisciplinary dialogue is doubtless one of the primary reasons why private law specialists, in discussing the regulatory framework required for contractual relations to flourish in the new Europe, have tended to promote codification as a definitive solution. However, the process of consolidating the modern Dutch Civil Code of 1992 began in 1947. The time-scale required in order to agree upon and to fashion an equivalent comprehensive supranational code, covering civil and commercial law matters (and leaving aside corporate, consumer and labor law which a number of academics suggest should be codified) suggests that the Code would greet the world still-born, unable to adequately meet the challenges of technological and commercial innovation. For possible means of negativing such drawbacks, see Doris, M.J., Beyond a Still-born European Civil Code, Position paper presented at conference on ‘European Contracting', Centre for the Study of the Lex Mercatoria, Troms⊘, May 2003. Moreover, the current position of hegemony enjoyed by the common law of contract as the law of commerce has allowed law firms from the United Kingdom and United States to gain “a distinct advantage in cross border legal transactions”, an advantage that will not be relinquished gently. See Becker, W.M., Lawyers get down to business, The McKinsey Law Review (2001) at p.46. Resistance would undoubtedly increase in the event of heightened Community regulation of commercial contracts. It has been noted that the UK's commercial and maritime legal services attract business to the value of $800 million in invisible earnings. Submissions from the Commercial Bar in London and the Law Societies of England and Wales to the European Commission (see Commission website, op cit, n.2) contend that the ‘privileged position’ of English contract law in international commerce may be threatened by the development of a uniform European contract law. Sound judicial decision-making, enforceable judgments and the location of London, in particular, are just some factors cited in support of English commercial contract laws and dispute resolution procedures, see Patchett-Joyce, M., Why London is and will continue to be a Centre for the Resolution of International Commercial Law Disputes, article accessible via the website of Monkton Chambers, London.Google Scholar

8 Scott, R.E., The Uniformity Norm in Commercial Law – A Comparative Analysis of Common Law & Code Methodologies, in pp. 151171 in Kraus, J.S. & Walt, S.D., The Jurisprudential Foundations of Corporate and Commercial Law, The Cambridge Studies in Philosophy and Law Series, Cambridge University Press, 2000.Google Scholar

9 Lando considers the ‘codifiers’ to be modem-day Thibauts, after Professor Anton Friedrich Justus Thibaut who, in 1814, advocated the enactment of a civil code in Germany and the ‘cultivators’ as Savignys, after Friedrich Carl von Savigny, who in the same year published a manifesto opposing such a project, see Lando, O., Why does Europe need a Civil Code?, Position Paper presented at Leuven Society of European Contract Law conference, 2001.Google Scholar

10 Adams, J. & Brownsword, R., Understanding Contract Law, 2nd Edition, 1996, at p.32. See also Doris, M.J., Did we lose the baby with the bath water? The Scholastic Contribution to the Common Law of Contracts, 11(2) Texas Wesleyan Law Journal 556 (2005). Grossi, P., ‘Historical Models and Present Plans in the Formation of a Future European Law’ in Gambaro, A. & Rabello, A.M. (eds) Towards a New European Ius Commune, Jerusalem, 1999.Google Scholar

11 Samuel, G., English Private Law in the Context of the Codes, in The Harmonisation of European Private Law, ibid, at pp.47–58.Google Scholar

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13 See Gordley, J., The Philosophical Origins of Modern Contract Doctrine, Oxford University Press, Oxford, 1994., at p.73. Gordley makes the startling claim that modern theories of contract law cannot function logically without much of the Aristotelian and Thomistic concepts that were purged from the law during the Enlightenment era. For this reason, “[t]wo hundred years later, when we theorise about contract law, we still find ourselves at the same crossroads” in Gordley, J., ‘Contract Law in the Aristotelian Tradition’ in Benson, P. (ed), The Theory of Contract Law – New Essays, Cambridge University Press, 2001. See also, Ibettson, D.J., A Historical Introduction to the Law of Obligations, Oxford University Press, Oxford, 1999. Zimmermann, R., Roman Law, Contemporary Law, European Law: The Civilian Tradition Today, Oxford University Press, Oxford, 2001.Google Scholar

14 Watson, A., Legal Transplants, p. 12, Harvard University Press, 1987. For a contrary opinion, see Legrand's view of a divergent legal ‘mentalité’ or ‘moralité', which act to prevent the harmonisation of common and civil law legal systems. Legrand contends that a synchronization between common and civil law systems is impossible due to their being founded on distinct ‘volksgeist’ or ‘moralité', see Legrand, P., The Impossibility of Legal Transplants, 111 Maastricht J. of Eur. & Comp. Law, 1997.Google Scholar

15 Grosswald Curran, V., Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union, Columbia Journal of European Law, Volume 7, Number 63, Winter, 2001.Google Scholar

16 It barely merits repeating that soft law instruments, code-making and the building up of the lex mercatoria has become synonymous with business inspired and business-driven private law. Indeed, it is commonly overlooked that in initial discussions in the 1970's it was towards a European commercial code that Professor Ole Lando and members of the DG Internal Market were aiming and this idea continues to find expression in the writings of leading ‘codifiers'. Illustrative of this trend is Bonell, M.J., Do we need a global commercial code? [2000] 5 Uniform L. Rev. 469. For many of this persuasion, as Zumbansen neatly puts it: “political problems of exclusion and freedom have allegedly been resolved by the universal spread of private autonomy” per Zumbansen, P., Piercing the Legal Veil: Commercial Arbitration and Transnational Law [2002] 8(3) ELJ 400. The building up of a transnational private law society or “privatrechtsgesellschaft” has thus far come at the expense of consumer interests and behind softened globalised private laws, Mattei perceives a narrow conservative political agenda subservient to business self-interest. Somewhat perversely his solution to combat ‘corporate rapacity’ through a surrender of the law is a “hard” European civil code that imposes binding legal rules. For equally strong academic criticism of the technocratic agenda promoted via the CFR, see Social Justice in European Contract Law – A Manifesto, 10(6) European Law Journal 2004, and Cohen, E.S., Allocating Power and Wealth in the Global Economy: The Role of Private Law and Legal Agents [2002] CSGR Working Paper, 101/02.Google Scholar

17 The decision to ratify a European Civil Code has strong political dimensions – see Hesselink, M., The Politics of European Contract Law, 10(6) European Law Journal 2004, Wilhelmsson, T., The Legal, the Cultural and the Political – Conclusions from Different Perspectives on Harmonisation of European Contract Law, European Business Law Review, 2002, at pp.541 et seq. Schmid suggests that in order to quell opposition to the idea of codification, the Commission has adopted the euphemistic term ‘Optional Instrument', see Schmid, C. & Doris, M., EU Tenancy Law and Procedure, EC Official Publication, 2004; at. p.9.Google Scholar

18 Action Plan, Identified Problem Areas, point 3.14. Importantly, as Basedow observes, ‘contract law, in the eyes of the Community, does not exist as a body of law per se, but as an instrument to attain specific goals of the EC Treaty’ in Basedow, J. The Case for a European Contract Act, position paper presented at the Centre for a Common Law of Europe, K.U. Leuven and Society of European Contract Law (Secola) Conference, Communication from the Commission on European Contract Law – Harmonisation, Code, Optional Code, Leuven, November 30 & December 1, 2001.Google Scholar

19 See Nottage, L., Convergence, Divergence and the Middle Way in Unifying or Harmonising Private Law (2001) EUI wps, Law 2001/01 and Blanc-Jouvan, X., Reflections on the “Common Core of European Private Law” Project (2001) 1(1) Global J.F.Google Scholar

20 Niglia has been particularly active in this regard, particularly in his assessment of the implementation of the Unfair Terms directive into Member States law. See Niglia, L., The Transformation of European Contract Law, Kluwer/Aspen (2002).Google Scholar

21 Pound, R., Liberty of Contract, 18 Yale Law Journal, 1909.Google Scholar

22 Atiyah, P.S., The Rise and Fall of Freedom of Contract, Clarendon Oxford Press, Oxford, 1979., pp.294 et seq. Atiyah's analysis of the historical development of the doctrine of freedom of contract and the ‘will theory’ is predicated upon this observation which forms the basis of his work. Undoubtedly, the author has had a seminal influence on the majority of modern commentators.Google Scholar

23 See, inter alia, Ossorio Morales, J., Crisis en la Dogmática del Contrato, Tomo I, ADC, 1952, pp. 11751176; Ranouil, V., L'autonomie de la volonté: naissance et evolution d'un concept, 9, 10., Paris, 1980.Google Scholar

24 Williston, Freedom of Contract (1921) 6 Cornell Law Quarterly 365, 366–9. Traditional European legal historians and contract theorists commonly view the French theorists Jean Domat, the great initiator, to whom we owe the concept of ‘natural equity’ and Robert Pothier, whose analysis of contract formed the basis of the French Code civil of 1804, as the founders of the ‘will theory'. Where discussion exists of the French theorists’ legal ancestry, those most commonly cited as being influential upon their thinking are the German natural lawyers Grotius and Pufendorf.Google Scholar

25 See inter alia, Orduña Moreno, F.J., Contratación y consumo, pp.261–265, Tirant lo Blanch, Valencia, 1998; and Lete del Rio, M., Derecho de Obligaciones, Cáp I, p 22 et seq., Madrid 1995.Google Scholar

26 “La Escuela Escolástica Salmantina” per De Castro y Bravo, F., Derecho Civil de España, Madrid, 1949; and Gordley, J., to whom we owe the term ‘the late scholastics’ in The Philosophical Origins of Modern Contract Doctrine, Oxford Clarendon Press, Oxford, 1991. See also Perez Luño, A.E., La Polémica sobre el Nuevo Mundo, Aproximación al lusnaturolismo Clásico Español, Ed. Trotta, Madrid, 1992, at pp.32–33. Other prominent Spanish humanists of the era included Diego de Covarrubias y Leyva, ‘the Spanish Bartolo’ (1512 – 1571), Francisco de Vitoria (1480-), Francisco Suárez (1489 – 1546), and to a lesser extent Melchor Cano, Martín de Azpilcueta, Juan de la Peña, Domingo Bañez, etc. See respectively, Weiacker, F., A History of Private Law in Europe – With Particular Reference to Germany, Transl. per Weir, T, Oxford Clarendon Press, 1996. Glyn-Watkin, T., An Historical Introduction to Modern Civil Law, Aldershot, 1999. Ibbetson, D.J., An Historical Introduction to the Law of Obligations, Oxford University Press, 1999. Gordley, J., The Philosophical Origins of Modern Contract Doctrine, Oxford Clarendon Press, Oxford, 1991.Google Scholar

27 “Los grandes humanistas españoles fueron influidos por la doctrina de Aristotolés y la Summa Theologica de Santo Tomás”, see De Castro y Bravo, F., op cit., p. 155.Google Scholar

28 A ‘just’ contract required that both parties were familiar with all relevant terms and conditions, that the parties established a fair price, which created a warranty on the quality of the object of the contract.Google Scholar

29 Grundmann has highlighted the teleological approach of the European legislator over the last decade in introducing contract law rules which focus upon a specific type of transaction and adopt a particular regulatory approach. EC contract law concentrates upon transactions which typically concern large volumes and that are not purely domestic. It is primarily obstacles to these transactions and resultant risks which are eliminated, see Grundmann, S., The Structure of European Contract Law, ibid. The late scholastics similarly adopted a teleological vision of contract arguing that an agreed transaction ought to be upheld, not because it was the expressed will of the parties – though this was evidently an equally important factor – but because of the validity, legal and moral, of the ultimate goal or object of the parties in entering into contractual relations, see Gordley, J., The Philosophical Origins of Modern Contract Doctrine, ibid, at pp.240–1.Google Scholar

30 See also, in particular, Part I: Some Perennial Problems in Gordley, J. (ed.), The Enforceability of Promises in European Contract Law, Cambridge Studies in International and Comparative Law & The Common Core of European Private Law, 2001.Google Scholar

31 Though not completely ‘de novo'. The late scholastic thinkers were evidently building upon the scaffold erected by the Romano-canon lawyers of the fourteenth and fifteenth centuries. The Spanish civilian jurists of the preceding generations had advanced highly innovative and progressive contractual theories. In particular, they had expressly advocated the principle of freedom of contract in Título XVI of the Ordinance of Álcala, of 1345. Whilst the canonists had concluded in principle that contracts were binding because of the consent of the contracting parties, the late scholastics reached the same conclusion by arguing from the standpoint of neo-Thomist and Aristotelian philosophy.Google Scholar

32 See Watson, A, The Making of the Civil Law, Harvard University Press, 1981, pp.83 et seq. Both humanists were undoubtedly familiar with the writings of the Spanish humanists, and Gordley suggests that Grotius in particular was a “late scholastic at heart”. Wieacker adds that, Grotius “… frequently invokes Vitoria, Covarruvias, Ayala and Femando Vázquez: their influence was all the greater because despite the War of Independence the cultural links between Spain and the Netherlands were still strong”, ibid, at p.229. For an alternative analysis see Welzel – who posits the theories of Grotius in the earlier philosophies of stoicism: Welzel, H., Introducción a la Filosofía del Derecho, Aguilar, Madrid, 1971, pp. 128129. See also Marín López, A., La Doctrina del Derecho Natural en H. Grocio, Anales de la Cátedra Francisco Suárez, Universidad de Granada, núm.2, Granada, 1962, pp.205–211.Google Scholar

33 Whether through an inability to completely comprehend the ‘late scholastic’ doctrines or indeed as a consequence of their rejection by the German natural lawyers, the end result was the loss of philosophical and moral justifications underpinning contract law.Google Scholar

34 See Gordley, J., ibid, pp.133 et seq. See also Van Caenegem, R.C., An Historical Introduction to Private Law, Cambridge University Press, 1994, at p.116.Google Scholar

35 See Van Caenegem, R.C., ibid, at p. 119.Google Scholar

36 “… los humanistas … liquidaron en el plano histórico-crítico la pretensión de identificar a Aristóteles con la Verdad”, por Garin, E., La Revolución cultural del Renacimiento, 2nd edn, Barcelona, 1984, at p.256. See also Gordley, J., op cit., at p.133.Google Scholar

37 Francisco de Vitoria, (1480–1546). Thomas Glyn Watkin views Vitoria as the modem founding father of the European law of obligations, whilst Francisco Suárez (1548–1670) has been singled out by one historian of legal interpretation as one of the most vigorous and sophisticated thinker on issues of legal textual interpretation and meaning of his time, see Lefebvre, C. Les Pouvoirs du Juge en Droit Canonique, Paris, 1938. Lefebvre's study points to the qualities of Suárez's work in comparison with that of his contemporaries, even though it did not form part of the “common stock of ideas and theories in the first third of the seventeenth century, even if it necessarily falls within the conceptual paradigms of that time”. Suárez's Tractibus de Legibus ac deo legislature was published apparently for international consumption in Coimbra, 1612, Antwerp 1613, Lyons 1613 and Mainz in 1619. Yet, Watkin provides illuminating evidence as to why the theories of the scholastic thinkers failed to gain a dominant position within mainstream European legal thought: Suárez was published expensively in folio, whereas many monographs appeared in smaller, cheaper formats; and his work was not included under the rubric libri juridici in the book fair catalogues. Instead his volume, financed initially by the Bishop of Egitania and not, apparently, by a speculative publisher, was produced with the needs of Jesuit colleges in mind, and was addressed to canon, not civil, lawyers”, ibid, at p.48.Google Scholar

38 Friedmann, W., Legal Theory, pp.114 & 115, Steven & Sons, 5th Ed., London 1967. See also Van Caenegem, R.C., An Historical Introduction to Private Law, pp.117 et seq., Cambridge University Press, 1994. This analysis is not shared by Watson however, who discounts any hostility toward the established order on the part of the German natural lawyers, see Watson, A., The Making of the Civil Law, ibid, pp.88 et seq., Harvard University Press, 1981.Google Scholar

39 “It was at this point that the authority of Aristotle collapsed in the seventeenth and eighteenth centuries and the philosophical foundations of the law of contract were lost”, see Gordley, ibid, p. 161.Google Scholar

40 See Gordley, ibid, at p. 133.Google Scholar

41 “In particular, the tradition of positivism was ultimately to yield a conception of legal scholarship quite different from that of Grotius and his successors”, Simmonds, N.E., Protestant Jurisprudence and Modern Doctrinal Scholarship, 60(2) Cambridge Law Journal 271, 2001, at p.300. Brett's discussion of the impact of late scholastic thinking on both Grotius and Hobbes legal and political theories is further illuminating. She discusses the divisions among contemporary theorists as to whether the late scholastics sought a return to an authentic Thomist-Aristotelian theory, founded on such notions as pure natural law and of right as the object of justice (objective right), or whether, although on the surface these Spanish neo-Thomists appeared faithful to Aristotle and Thomas Aquinas, in reality they thought of right as a faculty or liberty of the individual (subjective right) and that as such their political theory, as premised upon such legal rights, ought to be viewed therefore as a forerunner to Hobbes legal philosophy. For an analysis of late scholastic doctrine in the development of European philosophy, see also Skinner, Q.R.D., The Foundations of Modern Political Thought, Volume II, Cambridge, 1978.Google Scholar

42 See, inter alia, Gómez Arboleya, E., El Racionalismo Jurídico y los Códigos Europeos, Estudios de Teoría de la Sociedad y del Estado, Centro de Estudios Constitucionales, Madrid, 1962, pp.476–477. The German systematisers, Wolff and Savigny, were undoubtedly influential, yet in the ambit of contract law, it was the French legal theorists Domat y Pothier, who were instrumental in the birth of a generalised, abstract theory of contract, premised upon the principles of autonomy and freedom, which were justified with recourse to ‘natural reason'. Domat's general law of contract is often reduced to the basic principle that, ‘all contracts, whether they have a particular name or not, always have their effect, and oblige the parties to do what is agreed on’ Domat, J, Les loix civiles dans leur ordre naturel, Book 1, Title 1. See Remy, J., Les Oeuvres Complets de Jean Domat, 1830. This subjective ‘internalization’ of contractual obligations – the meeting of minds or concurrence of two or more independent wills – though evidently supported by external, objective elements became the cornerstone of the French natural law theory of contract.Google Scholar

43 See Van der Walt, A., Marginal Notes on Powerful Legends: Critical Perspectives on Property Theory, 58 THRHR, (1995) 402. Indeed, in of the late scholastics role in the formation of the modern law of contract one is minded of John Henry Newman's fable of the Man and the Lion, Lions would have fared better, had lions been the artists, cited by Keneally in How the Irish Saved CivilisationGoogle Scholar

44 It is important to note, however, that the doctrines of the Spanish natural lawyers, premised upon an ideal of justice which formed part of a universal or divine law- Van Caenegem, R.C., An Historical Introduction to the Private Law, p.117, Cambridge University Press, 1994 – failed to find legal expression in practice, either in the courts or in legislative enactments, and are thus largely consigned to history.Google Scholar

45 Zimmermann, R., Codification: History and Present Significance of an Idea, 3 European Review of Private Law 95, 1995.Google Scholar

46 It was a general thought and a particular perception of society, of morality, of order. The “ethereal intellectual constructions” of the advocates of the law of reason, provided an alternative approach to the analysis of conceptual problems, per Zweigert & Kötz, ibid, at p. 142.Google Scholar

47 Indeed Gordley suggests that when the authority of Aristotle collapsed in northern Europe what remained of the ‘late scholastics’ theory to the untrained mind was the concept of the will of the parties. See also, Gordley, J. Myths of the French Civil Code, 47(3) The American Journal of Comparative Law, 1994.Google Scholar

48 Hawkes v Saunders, 1 Cowper 289, 98 Eng. Rep. 1091 (K.B. 1782). In the late eighteenth century Lord Mansfield suggested that in English law, as in the civil law, all promises seriously made should be considered as legally binding, subject to a broad theory of what may be called ‘invalidating cause', which was remarkably similar to the civilian concept of the ‘justa causa'; see also Payne v Cave, 3 Term R. 148, 100 Eng. Rep. 502 (1789) and Cooke v Oxley, 3 Term R. 653, 100 Eng. Rep. 785 (1790) in which distinctly civilian terminology was employed by the courts; yet, as Horwitz notes, “only in the nineteenth century did judges and jurists reject the belief that the justification [for enforcing] a contractual obligation is derived from the inherent justice or fairness of an exchange. In its place they asserted for the first time that the source of the obligation of contract is the convergence of the wills of the contracting parties”, see Horwitz, M.J., The Historical Foundations of Modern Contract Law, 87 Harvard Law Review 917.Google Scholar

49 “The authority of Pothier … is as high as can be had, next to the decision of a Court of Justice in this country”, per Best J, Cox v Troy (1822) B & Ald 474, at 480. Without doubt the generality and abstraction offered by Pothier's analysis was warmly received into an English legal system that had endured since the sixteenth century the uncompromising system of Assumpsit.Google Scholar

50 Carey, “A Course of Lectures on the Law of Contract: Lecture 1”, The Law Times (1845) at 463. As Horwitz notes, “Modem contract law is fundamentally a creature of the nineteenth century”, see Horwitz, M.J., ibid; See also Atiyah, P.S., An Introduction to Contract Law, at p.7. The main corpus of the general principles and theory of the modem English law of contract, including the concepts of offer and acceptance, the intention to create legal relations, the various forms of vitiation of consent etc, were developed and elaborated in the late eighteenth and early nineteenth century via treatise.Google Scholar

51 J.J. Powell's Essay upon the Law of Contracts (1790) developed upon Blackstones’ Commentaries (1765–69) which devoted a mere forty pages to ‘contracts’ and focused primarily upon contracts for land; however it was Pothier's Traite des obligations of 1761 which proved most influential both in the courts and among legal academics, prompting the works of the later treatise writers such as Chitty (1818), Pollock (1875), Anson (1879), etc. In this regard, it is important to highlight the important role of Ibbetson in unearthing Sir Jeffrey Gilbert's unprinted treatise on contract: “which has a good claim to be the first serious work on the subject in England” and which bears a strong imprint of the thinking of Thomas Hobbes social contract theories. Moreover, “Pufendorf's influence is abundantly clear in the first published English work on contract with any pretension to treat the subject on an abstract basis, a Treatise on Equity published anonymously in 1737, but probably the work of Henry Ballow or Bellewe of Lincoln's Inn. For the most part his discussion of contract consists of brief paraphrases of or unattributed quotations from the English translation of Pufendorf's De iure nature et gentium, followed by illustrative material from English case law,” see Ibettson, ibid, at p.73. In similar fashion to the continental legal schools of the Middle Ages, the use of the legal treatise in England and later in the U.S., can be viewed as both the forum and the emerging vehicle for the debate and promotion of contract theories.Google Scholar

52 An importation of a civilian outlook into the common law was the logical result of an acceptance of civilian theories; see Simpson, AWB, The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature, (1981) 48 University of Chicago Law Review 632.Google Scholar

53 The common lawyers “engaged upon an enterprise that was new to the common law … but old to the civilian tradition; they were trying to do what the civilians, the canonists and the natural lawyers had been doing for centuries”, Simpson, AWB, 'Innovation in Nineteenth Century Contract Law' (1975) 91 LQR 254.Google Scholar

54 See, Cornish, W.R. & Clark, G.N., Law and Society in England 1750–1950, pp.200 et seq., London, 1989. See also Rubin, G.R., Law, Economy and Society, 1750 – 1914: Essays in the History of English Law, London, 1984.Google Scholar

55 (1818) 1 B & Ald 681 – This case is widely regarded in English contract law as constituting the birth of the concept of “offer and acceptance”. Simpson supra suggests that the court relied heavily upon Pothier's “Treatise on the Contract of Sale” which provides that “a contract is affirmed by the coincidence of the will of [the two contracting parties], where one promises something to the other, and the other accepts the promise that he was made” – 'le contrat renferme le concours des volontés de deux personnes, dont l'une promet quelque chose a l'autre, et l'autre accepte la promesse qui lui est faite'.Google Scholar

56 Atiyah, P.S., The Rise and Fall of Freedom of Contract, ibid, at p.407. See also wealth of caselaw; e.g. Pole v Leask (1863) 33 L.J. Ch. 155; Dickinson v Dodds (1876) 2 Ch.D 463, at 472; Cundy v Lindsay (1878) 3 App. Cas. 459, at 465.Google Scholar

57 See Danzig, R., A Study in the Industrialisation of Law- Hadley V Baxendale, (1975) 4 Journal of Legal Studies 249.Google Scholar

58 “When Pothier's works began to be read in England they must have appeared a revelation of clarity of exposition”, per Adams, J.N. & Brownsword, R., Understanding Contract Law, at p.32., 2nd Edition, London, 1996,Google Scholar

59 Gordley, J., op cit., p. 161 et seq.Google Scholar

60 Gordley, J., op cit., at p. 162.Google Scholar

61 The justification for enforcing contracts was to be found in the convergence of the parties wills.Google Scholar

62 Haynes v Haynes (1861) 1 Dr & Sm 426, 433 – “when both parties will the same thing, and each communicates his will to the other, with a mutual agreement to carry it into effect, then an engagement or contract between the two is constituted”, per Kindersley VC.Google Scholar

63 (1878) 3 App Cas 459, at 467. Agreement is necessarily the outcome of consenting minds.Google Scholar

64 Smith v Hughes (1871) LR 6 QB 597 – “If, whatever a man's real intention be, he so conducts himself that a reasonable man would believe that he is assenting to the terms proposed by the other party, and that other party upon that belief enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to other party's terms, per Blackburn J. Similar observations were made in Bardell v Pickwick and in the later US case of Hotchkiss v National City Bank, 200F. 287, 293 (S.D.N.Y.) 1911. It is evident however, from this historical analysis, that this conclusion had been reached by the civilian framers of Las Siete Partidas in fourteenth century Spain.Google Scholar

65 Gordley, J., ibid, p. 135.Google Scholar

66 Though his thesis has been rejected by Simpson as being ‘oversimplified’ in Simpson, A.W.B., The Horwitz Thesis and the History of Contracts, 46 University of Chicago Law Review 533, at p.600.Google Scholar

67 See Eastwood v Kenyon (1840) 11 A&E 438, 113 ER 482.Google Scholar

68 See Atiyah, P.S., The Rise and Fall of Freedom of Contract, ibid, pp.388 et seq.Google Scholar

69 39 LQR 163, at 165, per Frederick Pollock.Google Scholar

70 See Atiyah, P.S., The Rise and Fall of Freedom of Contract, pp.375 et seq, and Tillotson, J., Contract Law In Perspective, 2nd ed., p.42, London, 1995., who notes that ‘enthusiasm for freedom of contract went hand in hand with support for the operation of a free market'. See also Freil, R.J., The Law of Contract, 1995.Google Scholar

71 See Collins, H., Legal Theory and Common Law, OUP, 1996, at p.144. As Atiyah stresses, the common belief was that “people could be trusted to look after themselves, to see to their own interests, and this led to a rejection of paternalism” and the adoption of an umpirical or abstentionist position by the courts. See Atiyah, P.S., ‘Freedom of Contract and the New Right', in Essays on Contract, Oxford Clarendon Press, 1996 and Rubin, G.R., Law, Economy and Society, 1980 at pp12–13 and pp.70–71.Google Scholar

72 Cornish, W.R. and Clark, G de N, Law and Society in England, 1750–1950, p.206, Professional Books, London, 1989.Google Scholar

73 In addition, the introduction of the Common Law Procedure Act 1852 further assisted the development of the concept of freedom of contract by abolishing the various procedural forms of action in the courts.Google Scholar

74 See Cornish and Clark, ibid, at p.202. Moreover, as Gilmore notes, ‘the classical theory of contract did not come as the natural result of caselaw development … it represented a sharp break with the past', Gilmore, G., The Death of Contract, Ohio State University Press, 1974, at pp. 1718. Importantly, the population of London more than doubled in the period between 1800 and 1850 and the social conditions in Britain during the age of classical contract are perhaps best illustrated by Blakes’ poem ‘London'.Google Scholar

75 Rubin, G.R., Law, Economy and Society, London, 1984, p.70. Curiously, Gordley rejects any grander ideological motives on the part of the common law judiciary. He suggests that in practice, ‘we find little direct borrowing from philosophers, economists or political theorists. Only rarely do we find any sign of commitment to liberal values of freedom or individualism. We find almost the opposite: an insistence that the jurist can do his job without taking account of economics, philosophy, politics or values such as freedom … They said almost nothing about any larger principles on which they were building', ibid (1994) at p.215–216.Google Scholar

76 León González, M.A., La evolución histórica del concepto del contrato, Lecciones sobre las obligaciones y contratos, Salamanca, May 12–14, 1998. This analysis of the development of freedom of contract in English law is a minority opinion which evidently questions much of the traditional thinking, though this author finds it highly persuasive.Google Scholar

77 In the nineteenth century, freedom of contract was regarded by many philosophers, economists and judges as an end in itself, finding its philosophical justification in the ‘will theory’ of contract and its economic justification in laissez-faire liberalism. Chitty on Contracts, pp.5 et seq., 27th ed., Vol. I, General Principles, London, 1994. Caselaw in modern times reveals judicial recognition that the operation of an absolutist analysis of freedom of contract cannot be justified and that the doctrine has been reduced to a ‘general principle', see for example Suisse Atlantique Société d'Armement Maritime SA v NV Rotter dams che Kolen Centrale [1967] 1 AC 361, 399 and Photo Production Limited v Securicor Transport [1980] AC 827, 848.Google Scholar

78 As Cornish and Clark note, the common law courts renounced their ‘earlier willingness to rectify elements of unfairness in bargains and instead insisted upon enforcing whatever terms had been agreed'. The common law support for a severely individualistic conception of freedom of contract contrasted with the courts of equity, which constituted ‘a protective jurisdiction of conscience', ibid, at p.203. Evidently, as Horwitz notes, the role of the courts of equity had greatly diminished.Google Scholar

79 Per Friedman in Gilmore, G., ibid, at p.7. Cornish and Clark, ibid, suggest that the decline of the classical vision of contract ought to be traced from the year 1876 onwards; as, following the Judicature Acts of 1873, in 1876, “the liberal hegemony of the mid-Victorian years was threatened by a novel, democratic “collectivism” and in that year a directive was issued giving preference to the rules of equity over the common law rules, at p.203.Google Scholar

80 Gilmore, G., The Death of Contract, p. 18., Ohio State University Press, Columbia, Ohio, 1974.Google Scholar

81 “All these specific, substantive, moral considerations were omitted when this civilian law of contract was received into common law. What was taken on board was only that part of the theory concerned with the parties will, and the categories based on offer and acceptance that were held to be the expression of their agreement. This, as Gordley stresses, was to create problems for the later development of contract law. As a result of stripping away requirements for full understanding the common law had no way of dealing with the implied lack of consent. Contract law in the first half of the century was far from the logical and complete doctrine that is imagined in discourses on liberalism. It also exhibited major lacunae that would later need to be filled”, O'Malley, P., Uncertain Subjects: Risks, Liberalism and Contract, Journal of Economy and Society, pp.460–484, at p. 483. Vol. 29, Number 4, November, 2000.Google Scholar

82 Gordley, J., op cit., p. 160–1, who suggests that having failed to retain these earlier concepts they were unable to make their ‘will theory’ work.Google Scholar

83 As Gilmore notes, classical contract was ‘an ivory tower of abstraction’ whose ‘natural habitat was the law schools, not the law courts', Gilmore, G., The Death of Contract, p. 18., Ohio State University Press, 1974.Google Scholar

84 Van Gerven, W., Codifying European Private Law? Yes, if…! 156 European Private Law Review 2001. See also, Schmid, C.U., The Emergence of a Transnational Legal Science in European Private Law, Oxford Journal of Legal Studies, Vol.19, 1999 and Hesselink, M.W., The New European Legal Culture, Kluwer, 2001. Hesselink detects the emergence of a new European legal culture, characterized by a rejection of the formalism of the past and the promotion of a “more substance-orientated and pragmatic approach”. See, in particular, Chapter IV on 'European private law: Shift from Form to Substance', pp.37 et seq.Google Scholar

85 Indeed, the working methods employed by the Scottish Law Commission and the Law Commission of England & Wales, in bringing forward joint initiatives, deserve further academic scrutiny and may serve as an adequate template for future cooperation at EU level. Both Commissions have produced consistently high grade research and a recent study on the impact of Unfair Terms legislation has received much positive comment from business and consumer associations beyond both jurisdictions.Google Scholar

86 For a suitable example of this problematic conservatism, see Report to the Irish Competition Authority on the Provision of Legal Practice Services in Ireland criticizing the current practices of King's College, Dublin as the sole provider of formal legal practice examinations in Ireland.Google Scholar

87 Brownsword, R., Individualism, Cooperativism and an Ethic for European Contract Law, 64(4) Modern Law Review 628 (2001). See also Truilhe-Marengo, E., Towards a European Law of Contracts, 10(4) European Law Journal 463 (2004).Google Scholar

88 See Whilst by no means perfect, the BAILI website compiles updated legislation, caselaw and legal commentary from Britain, Ireland and the Commonwealth and provides access to a range of other ‘World resources'.Google Scholar

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