REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1961.tb02195.x |
| Published date | 01 September 1961 |
| Date | 01 September 1961 |
REVIEWS
AN
INTRODUCTION
TO
TEE
LAW
OF
CONTBACT.
By
P.
S.
ATIYAH,
M.A.,
B.C.L. [Oxford:
at
the
Clarendon
Press.
1961.
xii
and
246
pp.
18s.
net.]
THE
Chrendon
Law
Series
is now well under way.
Mr.
Atiyah’s work is the
second volume to appear
in
this collection. The book,
so
its
author tells
us,
is
primarily
intended for two classes of readers: “law students beginning
a
coutse on Contract, and non-lawyers who would like to have some idea of what
the law of contract is all about.” Any assessment of its merits must therefore,
in the first instance, be made with reference to the success which it achieves in
attaining this professed object.
There is no doubt that this book constitutes a most stimulating and original
discussion of the basic principles of the law of contract. Mr. Atiyah has a
lively and interesting style which is frequently coupled with felicitous, if
caustic, turns of phrase.
For
example, when writing of the topic of Mistake,
he says that
I‘
a
cynic might conclude that no teacher of the law of contract
was worthy of the name unless he had produced at least one paper on the
subject.” (The past tense is due to
Mr.
Atiyah’s disbelief in the present
existence of
a
doctrine of Mistake.) Mr. Atiyah also has an acute eye for the
more controversial aspects of the law. In
a
work intended for non-lawyers,
however, this has proved to be something of
a
mixed blessing. Perhaps with
too great
a
deference to reviewers, he frequently gives perplexing hints of
controversies which must necessarily lie outside the lay reader’s ken. One
encounters such phrases
as
“
although there are difficulties in the way of this
conclusion” (p.
32),
“it [the rule] was based on
a
number of different
grounds, none of which is entirely convincing” (p.
38)
and “ways of escape
have been sought by academic lawyers, although their theories have not yet
been put to the test in England” (p.
41).
Such glimpses of the unknown,
though significant to the lawyer, may tend to irritate, rather than to enlighten,
the lay-reader. Again, Mr. Atiyah occasionally loses sight of the fact that
lawyers’ language may sound very much like jargon to the man in the street.
Expressions such as
re8
perit
dmilto,
inter
8e
and estoppel (unexplaintd) may
not be understood,
or
welcomed, by all.
Mr.
Atiyah’s polemical approach to
the subject, coupled with his desire to leave no controversy unturned, make
some chapters (for example, the section on Infants in Chapter VII) rather
too much for the layman. In short, your reviewer would not be inclined to
recommend the book to
‘I
non-lawyers who would like to have some idea of what
thc law of contract is all about.”
But this is not to suggest that the work is not eminently suitable as an
introduction for
‘I
law students beginning a course on Contract.” The student
will certainly be stimulated by the thought that the subject offers him some
scope for argument and dispute. He may even have begun to revel in legal
terminology. The real peril of an introductory work is that it may simply be
dull, and
Mr.
Atiyah’s book is never dull. In particular, it is enlivened by
Mr. Atiyah’s attack on three important concepts in the law of contract.
The first is the notion that contractual rules are based on the intentions of
the parties. Such a theory is variously described as being “of very little
assistance” (p.
113),
as
“an elusive criterion’’ (p.
112)
and as “a transparent
fiction” (p.
7).
Mr.
Atiyah nails his flag to the mast of an objective test.
This will be generally acceptable
to
most lawyers, but Mr. Atiyah perhaps goes
too far when he states that
Bardell
v.
Pickwick
was “probably correct” (p.
4).
658
SEPT.
1961
REVIEWS
659
The result of that case is
a
salutary reminder that the objective approach is
not without its dangers.
The second is the doctrine of freedom .of contract.
Mr.
Atiyah is convinced
that this plays little
or
no part in the modern law. A not inconsiderable
portion of this book is devoted to the problem of the standard form contract
and
Mr.
Atiyah cogently points out that contracts freely negotiated between
individuals should no longer be regarded as typical. This is, of course,
B
most
welcome break from the
“
Victorian
”
approach to the law of contract. The
student’s ideas are immediately placed in the right perspective. But is the
doctrine merely
“
a
shibboleth
”
(p.
3)?
Again, Mr. Atiyah may have over-
stated his case. In any event, the doctrine still has some relevance vhere
equitable defences such
as
duress and undue influence are concerned.
Mr.
Atiyah reserves for it
his
most bitter invective. We are told that “there is much to be said for the
view that there is really no room for any such doctrine in English law
”
(p
41).
lie
bewails the decision in
Couturier
v.
Hastie
and its subsequent embodiment
in section
6
of the Sale of Goods Act,
1893.
In his view, cases of “mistake”
are explicable in terms of offer and acceptance, failure of consideration
or
rules
of construction. But, even supposing this to be true, there is no reason why
these should not be conveniently grouped together since there must be proof of
a
mistake,
or
at
least of
a
change of circumstances outside the contemplated
risk, before any legal consequences result.
Mr.
Atiyah has fortunately freed
himself from his former adherence to the implied term theory of mistake,
although, like Galileo, his recantation is somewhat half-hearted, since he now
toys (p.
131)
with the idea of an implied condition precedent. Yet support for
an iTnplied term theory in misttrke can scarcely be reconciled with his attack on
the
“
intention of the partie;
”
and on the implied term theory
of
frustration.
Such personal views niake for interesting reading.
It
is necessary, however,
to
tnke issue with Mr. Atiyah on one or two points. A better example might
have been found of illegality which renders
a
sale unenforceable than that of a
sale of
a
car in such
a
condition that its use on the road would constitute an
offence under the Road Traffic Acts (p.
150).
Section
68 (5)
of the Road
Traffic Act,
1960,
expressly enacts that this is not to affect the validity of
a
contract
or
of any rights arising under
a
contract.
Mr.
Atiyah follows
Williston in rejecting an intent to affect legal relations
as
a
positive require-
ment of the formation of
a
contract (p.
50),
but does not entirely justify the
alternative requirement that the promise should be
‘‘
seriously meant
”
and that
there should be an intention to be bound.
It
is by no means certain that
the defence of
non est
fnctwm
can be classed
as a
case “where there has never
been any semblance of
a
proper offer and acceptance” (p.
106),
especially
since it does not depend on proof of knowledge
or
fraud by the other party.
Nor
is it certain that the sellers in
Cundy
v.
LindPay
could have sued the rogue
Blenkarn on the contract of sale (p.
47),
although they might have had an
action for damages for deceit. The fiduciary relationship between parent and
child does not necessarily cease when the child marries
or
attains the age of
twenty-one years (p.
165),
and it is perhaps misleading to speak of the
relationship of principal and agent as
a
fiduciary one when dealing with cases
of undue influence
(ibid.).
Finally, it is by no means clear that
Mr.
Atiyah’s
suggested emendation of the Law Reform (Frustrated Contracts) Act,
1948
(p.
mO),
would be of advantage to a just distribution of losses. There is
no
reason why the “buyer
”
should bear all the
loss
in
a
situation similar to that
in
Appleby
v.
Myers
where no actual bencfit has accrued to him.
The book is written in a lucid and readable prose, and there are very few
misprints
or
mistakes. When the book goes to its second edition
Mr.
Atiyah
will no doubt correct the reference to
I’ercivd,
Ltd.
v.
L.C.C.
Asylwms
to
(1918) 87
L.J.K.B.
677
and that of
Hughes
v.
Metropolitan Ry.
to
(1877)
2
App.Cas.
439.
Mis-spellings occur in
Derry
v.
Peak
(p.
169)
and in the
Inheritance (Family Provisions) Act,
1938
(p.
182).
At the time Mr. Atiyah
His third antipathy is the doctrine of mistake.
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