Introduction: Contract in Commercial Law
James Edelman, James Goudkamp and Simone Degeling, ‘Introduction’ in Simone Degeling, James Edelman and James Goudkamp (eds), Contract in Commercial Law (Sydney, Thomson Reuters, 2016) ch 1 (pp.1–24).
24 Pages Posted: 15 Nov 2016
Date Written: November 14, 2016
Some time ago, a conference of extraordinary jurists and scholars was held in order to discuss issues concerning contracts. Those issues included termination, the duties of buyers and sellers, formalities and good faith. There was vigorous debate. A book was written that addressed these issues at a high level of principle. That book was not the present volume. It was Justinian’s Institutes. However, a millennia and a half later, many of the same deep, structural issues concerning contract law remain. The chapters in this volume, which derive from a conference held in 2015, therefore reflect significant thought on foundational issues that have been debated for hundreds of years.
Although the Roman jurists debated and considered many issues of contract law that remain difficult today, they did not take the most significant step in rationalising the law of contract as a unitary body. Roman law had a law of contracts with different principles applying to different categories of contract. Thus, Justinian’s Institutes provides that contracts “fall into four species, for contract is concluded either by delivery, by a form of words, by writing or by consent …” Towards the end of the Empire, the Romans came close to developing a unified law of contract. But the goal was never quite realised. In England, the goal was achieved in the 19th century. One significant step was the reforming legislation which curtailed, and then abolished, the forms of action.
Another was the decisions by judges to remove important contract issues from juries, which allowed the law of contract to be specified by legal rules to a greater extent than was previously the case. The emergence of a unified law of contract was not solely the product of legislative and judicial reforms. The judicial development of the law was heavily influenced by jurists, although often without attribution. These jurists were not just the English writers such as Addison, Anson, Chitty, Mayne, and Pollock. There was also a strong influence from Continental writers, particularly Pothier whose work had been translated in 1806 by Evans, and United States authors such as Benjamin, Story and Kent.
The structure of this book remains true to the existence of a law of contract, not contracts. The concern is with principles and rules that inform contract as a whole. But there are pressures on this unitary understanding. Some of those pressures come from the increasing specialisation of the practising profession. Legal scholars are increasingly writing texts on particular contracts such as insurance contracts, contracts for the sale of goods, and consumer contracts. Even Chitty’s great work on contract has a second volume entitled “Specific Contracts”. The pressure on the common law also comes from statute. Legislation increasingly deals with contract law in silos such as consumer contracts and contracts for financial services, where the contractual terms are often in standard form and largely mandated by legislation. Contracts and statutes, like all language, generally require context to be understood. The particular area or silo can supply important context for a contract. But if the law is to remain coherent the context cannot govern the underlying principles.
It is these principles which provide the road map through the difficult issues that recur across different contexts. They are the focus of this book. For a time in English legal history, there was an apparent sharp separation between the writing of judges and the works of scholars whom the judges would often read but would rarely cite. Happily, that time has largely faded from memory. As Lord Neuberger said in Patel v Mirza, “judges can look to legal academics not only to identify what they think are judicial inconsistencies and errors, but also to develop and modify their analyses of legal principles when we consider it necessary to change, develop or clarify the law”. Consistently with this approach, Contract in Commercial Law, like the other books in this series,10 deliberately straddles professional boundaries. It also adopts a transjurisdictional outlook. Many of the contributors are drawn from a range of overseas jurisdictions indicating our view as editors that the search for answers to the most persistent problems in the law of contract should not be confined by national borders. Developments in other jurisdictions may constitute models for reform. They may also constitute retrograde steps and serve as warnings of
the danger of setting the law down a given path.
Keywords: Commercial contracts, good faith, construction, illegality, rectification, estoppel, termination, breach, assignment
JEL Classification: K12
Suggested Citation: Suggested Citation