Missing Reliance

Publication Date01 Nov 2000
AuthorPeter Jaffey
Missing Reliance
Peter Jaffey*
Andrew Burrows,Understanding the Law of Obligations: Essays on Contract,
Tort and Restitution, Oxford: Hart Publishing, 1998, xxiv + 223, hb, £25.00.
This is a stimulating and wide-ranging set of essays on contract, tort and
restitution. In a number of the essays, Professor Burrows emphasises the
importance of classification based on the underlying basis or rationale for claims.
He is surely right that this is crucial to the clarification and development of the law.
However, in my view there are problems with the analysis that Burrows offers,
particularly with respect to contract and restitution. With respect to contract, it
seems to me to be a shortcoming of his approach that it fails to recognise the role of
contract law in protecting reliance. Reliance and its relation to contract have
attracted considerable debate at various times, but receive surprisingly little
attention here. According to Burrows, the difficulties that have afflicted the law of
restitution in recent years been largely overcome by the recognition of the theory
of unjust enrichment. For him, the development of the theory of unjust enrichment
as the underlying basis for restitution is the archetypal example of the exercise of
identifying underlying principles as a means of interpreting and developing the
common law. However, the theory of unjust enrichment, at least in the form in
which it has been widely recognised, is open to serious objections. In particular, it
tends to obscure genuine distinctions between quite different claims. The failure to
recognise the role of reliance in contract has contributed to the problem, because it
has allowed the law of restitution and the theory of unjust enrichment to be
invoked to explain claims that are properly understood as contractual claims
protecting reliance.
Reliance in contract
Most people would agree with Burrows that ‘the law of contract is concerned with
binding promises’ (p 3) (or, one might say, more broadly, enforceable agreements),
and that ‘the law of tort is concerned with . .. wrongs other than breach of a binding
promise’ (p 5). Burrows discusses what he regards as a subsidiary or ‘second level’
distinction between contract and tort, viz, that contract is generally concerned with
duties to confer benefits, and tort generally with duties not to cause harm (p 9).
That contract is concerned with duties to confer benefits appears to follow from an
analysis of contract in terms of promising: a promise entails the assumption of an
obligation, and generally this will be an obligation to confer a benefit. Burrows
observes that in the earlier article on which Essay 1 is based he tended to treat this
ßThe Modern Law Review Limited 2000 (MLR 63:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
* Department of Law, Brunel University.

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