Codification of the Law of Contract*
| DOI | http://doi.org/10.1111/j.1468-2230.1968.tb01198.x |
| Published date | 01 July 1968 |
| Date | 01 July 1968 |
THE
MODERN LAW REVIEW
Volume
31
July
1968
No.
4
CODIFICATION
OF
THE
LAW
OF
CONTRACT
*
“
Very little need be said about codification,” wrote Professor
Cross
in
1960,
‘‘
because it is not a live issue in this country at the
present moment.”
1
He was right:
it
was not then
a
live issue.
But it is today, for within five years statute declared
it
to
be the
duty of the Law Commission to review the law
‘‘
with a view to its
systematic development and reform, including in particular the
codification
of
such law.
. . .”
Five weeks later the newly
appointed Commission submitted its First Programme to the Lord
Chancellor and included proposals for the codification
of
the law of
contract, the law of landlord and tenant and, eventually, family
law.’
It
is with the first of these that
I
am concerned.
CODIFICATION
AND
THE
COMMON
LAW
The law
of
England is to be found partly in judicial decisions and
partly in Acts of Parliament. Case-law is founded on the doctrine
of
stare
decisis-keep
to
what has been decided-and is admittedly
an ungainly form of law. A single case may discuss a single point
of law
or
several; it may occupy two
or
three pages in the law
reports
or
a hundred
or
more pages; the argument may be based
on no previous cases
or
on ninety
or
more previous cases.
Most
of
our
fundamental legal principles have emerged from
decided cases. In principle
it
is much more straightforward
to
take
your law from a statute, where you will, if you are lucky, find state-
ments of law laid down in simple language, uncluttered by the
detailed facts
of
particular cases. Handling a case is much more
complicated. The rule may
or
may not be stated by the judge.
*
An
inaugural lecture delivered at Queen Mary College, University of London,
on
November
97,
1967, with the
Hon.
Mr. Justice Latey,
Y.B.E.,
in the Chair.
1
Rupert Cross,
Precedent in English
Law
(O.U.P.,
1961),
p.
197.
He
added:
it
is
difIicu1.t to believe that the codification
of
Englkh law will
not
become
a live issue within the next
60
years
or
so”
(ibid.
p.
199).
I
am grateful
to
Professor Cross for permission
to
quote him.
a
Law Commissions Act
1965,
8.
3
(1).
8
First Programme
of
the Law Commission (Law Com.
No.
1):
H.M.S.O.,
1965. The Second Programme
of
Law Reform (Law
Corn.
No.
14)
added the
codification
of
the criminal law:
H.M.S.O.,
1968.
361
VOL.
31
13
862
THE
MODERN
LAW REVIEW
VOL.
81
Usually it is, but you cannot rely on his words as a certain state-
ment of the law, for the principle-the ratio decidendi-must be
no wider than necessary for the decision of the instant case. The
technique to be used
for
abstracting the ratio decidendi involves not
only professional expertise but also an inspired appreciation of
trends in judicial attitudes.
Small wonder that over the centuries voices have been raised
in protest against the tons of verbal pulp that must be squeezed to
obtain an ounce of pure judicial law. The story of unheeded
or
unworkable proposals for the codification of the common law has
been well documented,' and one sometimes feels that the pursuit
of
a single, simple Act
of
Parliament stating the true and certain
law, replacing all existing cases and statutes,
is
the legal equivalent
of the trail of the Holy Grail.
In some countries parts of the common law have been codified,
and in order to examine the common law experience codifications
of the law of contract
or
allied branches
of
the law will be considered.
The Indian Contract Act, substantially an attempt to codify the
English law of contract, was drafted in England between
1868
and
18Q0
by the Third Law Commission: its members included Romilly
M.R.,
Erle
C.J.
and Willes
J.
It
was revised in India by James
Fitzjames Stephen (later Stephen J.) and was passed in
1872.6
It
was subsequently introduced into East Africa and elsewhere, but in
the last six years Kenya and Uganda have forsaken the code for
the English common law of contract.6 The judges in Kenya did in
fact suggest that the Indian Act should be replaced by a newly
drafted Kenya code of contract, but the Government preferred to
adopt the English law
"
which is a living law which changes with
circumstances as it is developed and explained by the judges, which
is easily ascertainable and
on
which we will have the full weight
of
judicial authority."
'
Where the legal profession is undermanned
or
non-existent, and
where books are hard to get, a code supplies
a
pressing need. This
is no doubt one reason why events in the West paralleled those in
the East. The Civil Code drafted by David Dudley Field for New
York
was never adopted there
8
but was passed in its original
or
4
A
concise account with copious references is to be found in Ch:p.
19
of
Roscoe Pound's
Jurisprudence,,,
Vol.
111
(1959). See also Pound, Codifica-
tion
in
Anglo-American Law in
The Code Napoleon
and
the
Common-La~u
World,
ed. Schwartz
(1956).
5
See Whitley Stokes,
Anglo-Indian
Codea,
1887,
Vol.
I,
p.
534.
6
Kenya in 1961 (Law
of
Contract Act, Laws of Kenya, Revised Edition, 1962,
Cap.
23)
and Uganda in 1962 (Contract Act, Revised Edition
of
the Laws
of
Uganda,
19G4,
Cap.
75)
repealed the Indian Contract Act and applied
to
their
respective countries the uncodified common law
of
England relating to contract
with certain English statutory amendments.
7
Kenya Legislative Coiincil Debates,
Vol.
86,
col.
884,
October
26,
1960
(Mr.
Conroy,
Temporary Minister
for
Legd Amairs).
The legislature
of
New
York
State passed the Code in
1878
but the governor
was greatly inlluenced hy the opposition
of
many
members
of
the
legal
profes-
sion and refused
to
assent.
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