Reviews
| Published date | 01 July 1980 |
| Date | 01 July 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01604.x |
REVIEWS
THE
RISE
AND
FALL
OF
FREEDOM
OF
CONTRACT.
By
P.
S.
ATIYAH.
[Clarendon Press: Oxford. 1979.
xii
and 792
pp.
(incl. index).
€30.00.1
UNTIL
recently very little attention had been paid by legal historians to the
period after
1750.
One reason, no doubt, has been the lawyers’ reluctance to
view historically materials which are still in daily use; while the vastness
of
the
source material, and the immensity of the background reading required before
dealing with it, have been an added deterrent. It is therefore not too surprising
that the pioneering explorers in this modern territory have been waylaid by
keen controversy. The most rewarding debate
so
far has been about the birth
and death of classical contract theory,
a
debate begun in America by Professors
L.
M.
Fricdman,
G.
Gilmore and
M.
J.
Horwitz. Professor Atiyah has explored
the same themes in an English context, and with
a
copiousness of detail that
sets his work apart from the more impressionistic or doctrinaire essays of the
pioneers. In criticising Dicey (p.
235),
Atiyah says that lawyers are as a rule
conservative in their beliefs about history, and his massive work shows signs of
a determination not to be accused
of
that offence. Here are brought together
many strands of legal, economic, social, intellectual and political history, in
order to relate the history of one of the most dominant ideas in modern legal
thought. The work ends with reflections on the failure
of
the classical theory
and the decline
of
contract, which is represented as “The Wheel come full
Circle
”
(Chap.
22).
It touches
on
so
many topics of current concern that it
will interest modern lawyers as much
as
historians, and the author intends
a
second volume in which to explore the implications
of
his historical conclusions
for the future of English law.
It is in its legal aspect, ironically. that the book is least convincing, for here
it shares some
of
the defects
of
its American precursors. The legal history
is
of
a
conservative kind, being based to some extent on
a
sense
of
what the
law must have been
(e.g.
pp.
147, 169, 201-203)
rather than on contemporary
records, and it often ignores
or
mistakes the law
of
preceding centuries. The
central legal theme, as in Horwitz’s essay, is that the consensual notion of
contract was almost entirely absent before about
1800.
Liability was based not
on promises but on relationships, such as reliance or the receipt
of
benefit
(Chap.
6
and
p.
499).
Executory contracts were scarcely known, and there was
no concept of the irrevocability
of
executory promises (Chap.
7).
The courts
were concerned with fairness
or
equality
of
exchange rather than the expressed
will
of
the parties. This meant that damages were not given for loss
of
bargain,
but only for the value
of
the exchange (pp.
142, 195, 199-200).
Protection
against shoddy
or
defective goods was rare (p.
179).
All this prevailed until the
end
of
the eighteenth century. Then, “shortly after
1800
the very concept of
contract in English law and theory changed its character, and the executory
contract became the paradigm
of
contract theory
”
(p.
420).
Attention now
focused on the promise,
or
the offer and acceptance, and the intention
of
the
parties, rather than the plaintiff’s reliance
or
the defendant’s receipt
of
a
benefit. Atiyah thinks the trend towards freedom of contract began with
property law (p.
727),
since
“
freedom of property
”
was established earlier than
freedom
of
contract; the freeholder did not think
of
himself
as
an independent
owner much before the time
of
Coke, who summed up the new spirit in the
phrase “every man’s house
is
his castle” (pp.
85-86,
116).
There followed
‘‘
a
transition from a property-based to
a
contract-based society
”
(p.
104).
The difficulty with this approach is that all the features
of
contract theory
which Atiyah, and Horwitz, trace to the period after
1770
were present in the
467
468
THE MODERN LAW REVIEW
[Vol.
43
law long before.’ The very first reported case on consideration, in 1561. arose
from a wholly executory contract in which the plaintiff recovered damages
for
loss
of
bargain.*
As
early as 1517 a chief justice had thought it possible to
enforce
a
wholly executory contract for the sale
of
land, and framed such an
action for his own
use
against an unpaid defaulting
endo or.^
These cases were
not printed, but later printed cases are consistent with them. By 1618 it was
established that an executory promise could not be revoked by the promisor,‘
and in 1651 it was held that the discharge
of
a
wholly executory contract
could be consideration for another promi~e.~ It
is
difficult to reconcile the
doctrine of equality of exchange with the common maxim that for
a
penny
a
man could bind himself for E100.6
If
we rely on the records rather than the
absence
of
reports, it becomes clear that damages for
loss
of
bargain were
frequently awarded in the sixteenth century and were often claimed by
a
special-damage clause in the declaration.‘ In a case
of
1623 it
was
expressly
said that on repudiation for breach
a
party was to recover not merely the price
paid but also damages
“
pur losse de benefit de son bargaine.”
*
It is therefore
rather unsafe to regard
Flureau
v.
Thornhill
as old learning; the development
seems to have been the other way. As to protection against defective
goods,
this
was commonplace before the action of deceit was stifled by the requirement
of
dishonesty; and here the old lawyers were more conscious of the consensual
nature
of
contract than lawyers were in the age of implied warranties, because
they did not yet confuse misleading conduct with breach
of
promise. The
argument about the influence of property law is also rather difficult to
accommodate with the chronology proposed. There is little reason
to
suppose
that medieval freeholders did not think of themselves as
owner^,^
and it was
an aphorism current in the fifteenth century that
a
man’s house was his
castle.10
If
we are going to make such broad sweeps across the centuries, we
might complain further that there had been a consensual theory
of
contract
since the thirteenth century; the requirement of
a
seal in the action
of
covenant extended only to actions in the central courts. Moreover, debt, the
commonest contractual remedy of all, often secured more than the value of
the exchange; bonds were specifically designed to provide more than was due in
common equity. Now, it might be objected that what happened in earlier
centuries is irrelevant to modern legal history. Yet this would hardly be an
acceptable objection when one is advancing broad hypotheses about intellectual
history and supposedly new ideas about contract, especially when the arguments
rest so heavily on the absence of written evidence for the relevant period. The
reviewer would not be
so
dogmatic
as
to assert that legal history can never be
explained by social, economic and intellectual history; but the link is rarely
so
easy to establish as is
so
widely assumed. This particular attempt seems to run
1
For a detailed criticism of Horwitz, see A.
W.
B.
Simpson,
‘‘
The Horwitz Thesis
and the History of Contracts
”
(1979) 46 Univ. Chicago Law Rev. 533-601. Many
of
Simpson’s arguments are equally applicable to Atiyah.
2
Lucy
v.
Walwyn
(1561)
K.B.
27/1198, m. 183; Gell’s
MS.
Reports (unpublished).
This case, and other 16th-century discussions of executory contracts, will
be
discussed more
fully
in a forthcoming article,
“
Origins of the Doctrine
of
Con-
sideration 1535-1585.”
3
Fyneux
v.
Clyflord
(1517)
K.B.
2711026, m. 76; 94 Selden SOC.
268.
4
Hurjord
v.
Pile
(1618) Cro.Jac. 483. Accord.
Howe
v.
Beeche
(1685) 3 Lev.
244.
The case in
3
Lev. 237
is
ambiguous and may refer to a discharge by agreement.
5
Baker
v.
Smith
(1651) Sty.
295,
303.
6
e.g.
J. Rastell,
Exposiciones terminorurn
[c. 15251, sig.
B4v;
Howell
v.
Trevanion
(1588) Harvard Law Sch. MS. 16, 423~424
el seq.; Knight
v.
Rushworth
(1596) Brit.Lib.
MS.
Hargrave 51,
fo.
134,
per
Anderson C.J.
7
See
94 Selden SOC.
271,280,284,286,295.
Brigs Case
(1613) Palm. 364.
0
See
A.
Macfarlane,
The Origins
of
English Individualism
(1978), which has
initiated a controversy analogous to the contract controversy. We might add that
the typical cestuy
que use
in 1500 had more freedom than the typical tenant
for
life
in 1700.
10
Fitz. Abr.,
Corone,
pl. 246 (1499); 94 Selden SOC.
316.
To continue reading
Request your trial