A Comment
| Date | 01 May 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb02272.x |
| Published date | 01 May 1967 |
MAY
1967
HEB.E
LIES
THE
COMMON
LAW
259
Within the last Bty years the
pax
Americana
has superseded
Will America succeed England as the chief
the
pax
Britannica.
custodian of the common law
7
H.
R.
&HLO.*
A
COM-
I
AM
most grateful to my good friend Professor Hahlo and to the
Editors of the
Modem
Law
Review
for letting me see this perceptive
article and
for
the opportunity to comment
on
it.
I
think that we
of the Law Commission would be in general agreement with Pro-
fessor Hahlo’s admirably clear statement of what codification can
and cannot accomplish.
In
particular we are fully alive to the
fact that
it
is a fallacy
to
suppose that cacation
can
ever bring
the law within the comprehension of the uninstructed layman. We
also realise that a code needs to be kept under constant review and
revised from time to timethat
is
one of the things that the Law
Commission is intended to do-and that
it
must steer between
“
the
Scylla of vague generalities and the Charybdis of detailed technical
rules.” But in
so
far as Professor Hahlo’s article is an attack
on
our decision to
codify
the Law of Contract,
I
should like to reply
briefly.
In
the first place,
it
is not quite correct to state, as Professor
Hahlo does, that
our
main motive in selecting this topic was
66
the
strongly-felt need to bring order into the
‘
superabundance of
materials.’
”
We should not have selected the Law of Contract
on
that ground, for
it
probably suffers from that defe%t rather less
than some other branches of English private law. Rather, we were
moved by the following considerations
:
(1)
In
this sphere, the common law has not, unfortunately,
continued to display its customary ability to adapt itself
to changing conditions. To a small extent, but to a small
extent only, this has been corrected by legislative inter-
vention, as with the Law Reform (Frustrated Contracts)
Act
1948.
This in turn has led to a somewhat untidy
mix-
ture of common law and statute law. The main problem,
however, is that legislative intervention has not tackled any
of the fundamental principles. A strict adherence to the
doctrine
of
consideration has prevented the
common
law
from adjusting itself
so
as to meet current
needs
in this
field, especially in relation to third party rights.
If
the
recent decision of the Court of Appeal in
Beswick
v.
Beswick
is upheld
on
appeal
to
the House of Lords, bold
judicial action may accomplish what legislation has failed
to achieve.
In
view of the House’s new self-acquired free-
dom
to
resile from its
own
previous decisions there is some
*
LL.D.,
D.R.
Jm.;
Professor
of
Law, University
of
Witwatersrsnd, Johannesburg.
1
[1966]
Ch.
538.
To continue reading
Request your trial