REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00593.x |
| Published date | 01 March 1960 |
| Date | 01 March 1960 |
REVIEWS
ANSON’S
LAW
OF
CONTRACT.
By
A.
G.
GUEST,
M.A.,
Fellow
of
University College, Oxford.
Twenty-&st edition.
[Oxford
:
Clarendon Press.
1959.
lviii and
607
pp.
E2
10s.
net.]
THE
first
edition of Anson’s
Law
of
Contract
appeared in
1879.
For
well
over half
a
century it must have been the medium through which the majority
of students were introduced
to
the subject. Sir William Anson’s treatment
combined accuracy and lucidity to
a
remarkable degree. In recent years,
however, Anson, like an ageing
star,
has heen challenged and overtaken
by
younger rivals. This was due partly, no doubt, to the absence of
a
thorough
revision since
1946,
but also to the fact that,
as
Mr.
Guest points out in his
introduction to this edition, “However good
a
book may be, it slowly loses
what life and originality it once possessed by reason of successive accretions.”
This
is particularly the case, of course, where the process of revision has not
been carried out by the author, since editors must necessarily feel
a
certain
reverence for his views and arrangement, and even indeed for his
ipswsima
verb.
In these circuni-
stances it would not have been surprising if
Mr.
Guest had been content to
acquiesce in the demise of Anson, but instead he has chosen the path of
“complete revision.”
It
may perhaps be doubted whether such an attempt,
however valiant, is worth while. Since
1879
or
even since
1912,
the changes in
the substantive law
of
contract have, despite the dead hand of
stare
alecisis,
been considerable, but more significantly the social and economic background
of the law has been totally altered. Mr. Guest, of course, is not unaware
of these changes, but the legacy
of
twenty previous editions is often
a
grievous
handicap in grappling with them. This
is
immediately apparent in Chapter
1
where an attempt is made to integrate with Anson’s original discussion
of
the nature of contract such typically twentieth-century ideas
as
Dean Pound’s
theory of “injurious reliance
”
and Professor
Hart’s
analysis of defeasible
concepts. Thus on p.
4
we are told
“
a
promise, in
fact, connotes an agreement between the parties to
it”
but
no
attempt
is
made to reconcile this with the statement on p.
7
that “promise
. . .
is more
suggestive of an objective attitude than agreement.”
It
would seem clear
that in non-legal usage
I‘
promise” and
“
agreement
”
are not identical. If
some special legal meaning is intended, this should be made clear. Similarly
the discussion of contract should make it clear whether what is attempted
is a jurisprudential definition of “contract” which is equally true of all
systems
or
a
discussion of the meaning of “contract” in English law, If
the two
are
merged the discussion may become
so
general as to be of little
practical value, whereas it is submitted that it is of considerable practical
jmportance to define the underlying ideas behind English contract law. This
is
not to claim that English law can be deduced
a
pn’ori
from a few funda-
mental postulates but
it
is dear for instance that Lord Denning’s approach
to
contractual problems
is
motivated by
a
strong belief in the morally binding
force of promises which
is
likely to, and does, lead him to different conclusions
from other judges whose inarticulate
premise
is
the commercial bargain.
‘Mr.
Guest leaves such questions unresolved.
Outwardly the work of revision has been attractively done.
A
new page
size
and
type
have been adopted and the book
is
pleasant to handle and
read.
It
is
not easy
$0
estimate the effect of these changes on the size of the
.work but since it
is
now
160
page8 langer
it
Is
clear that Mr. Guest has added
much new material. This might perhaps have been compensated
for
by the
206
The last edition by Sir William Anson was in
1912.
The result is confusion.
MARC&*
1960
REVIEWS
207
deletion of the chapter on Quasi-Contract, the inclusion of which
can
only
be
justified by the accidents of history. The disappearance of references from
the table of cases will be regretted by many users. Technically there are very
few errors but the following were noticed
:
“
offeree
”
on p.
59,
line
16,
should
be “offeror”; “to plea” on. p.
114,
penultimate line of third paragraph,
should be “to plead”; Mellish L.J.’s name is incorrectly spelt on p.
267,
note
1;
the last sentence in the third paragraph on p.
270
is ungrammatical;
on p.
349,
note
4
“yer” should be “per”; on p.
350
the article cited from
15
Harvard L.R. is by Williston and not Corbin, and on p.
356
the reference
should now be to Gutteridge and Megrah,
The
Law
of
Bankers’ Commzercial
Credits
(2nd edition).
There is obvious scope for variance of opinion
as
to the precise content
of
a
student’s work on cmtract but
ta
this reviewer at least the number
of
omissions of significant references seems in the total rather considerable.
One of Mr. Guest’s stated objectives is to increase the number of references
to periodical literature, which in previous editions had been minimal, but the
selection remains eclectic. The following would seem to be worthy of con-
sideration for future editions: on damages, Mr. Mulligan’s articles in
71
S.A.L.J.
44; 72
S.A.L.J.
162, 862;
73
S.A.L.J.
27,
261, 423; 74
S.A.L.J.
61, 296; 75
S.A.L.J.
160;
and those of Professor Marshall in
34
Can.B.R.
969
and of Mr. Waters in
36
Can.B.R.
360;
Mr.
Unger’s article
613
the problem of
the fundamental term in
4
Business L.R.
30;
Mr. Trcitel’s note on exemption
clauses and third parties in
18
M.L.R.
172;
the article
of
Professor Kahn on
offer and acceptance in
72
S.A.L.J.
246.
References might be given to the
criticisms of
Uptown-Severh R.D.C.
v.
Pow11
[1942]
1
All E.R.
220,
mentioned
at
p.
30.
No
reference is made to any of the considerable literature developing
around
British
Transpart
Commission
v.
Gourley
and the seventh report of
the Law Reform Committee thereon (Cmnd.
501)
but this is less surprising
than the unaccountable omission of any reference to the case itself. There
are
a
number of omissions in the discussion of offer and acceptance:
Qwnerdnaina
v.
Cole
might be cited on p.
55
on contracts by telegram; the
decision of the High Court of Australia in
Tallerman
4 Co.
Pty., Ltd.
v.
Nathan’s Merchlandwe (Vict.)
Pty.,
Ltd.
(1957) 31
A.L.J.
176
should be
mentioned on the basis of the rules
as
to acceptance through the post, and
Dick
v.
U.S.
(1949) 82
F.Supp.
326
and
Rhode Island
Tool
Co.
v.
U.8.
(1955)
128
F.Supp.
417
on purported revocation of
a
posted acceptance. In the
discussion of the
Strathcolla
case on pp.
343-347
the judgment
of
Scrutton
L.J.
in
Barker
v.
Btickney
[1919]
1
K.B.
121
should be mentioned. Reference
might also be made to the articles by Professor Chafee in
41
Harv.L.R.
945
and Professor Wade in
44
L.Q.R.
51
and to the interesting suggestion by
Professor Lawson in his
Introdaction
fio
Property
(pp.
72-73)
that bailments
of
chattels may create interests analogous to estates in land.
It
does seem
that if the
Stnathcona
case was rightly decided it must be by reason
of
developments in the law of property rather than of contract-see too
Holdsworth in
49
L.Q.R.
576
at
579.
On pp.
353354
Mr. Guest suggests that
a
major objection to the wide application of the trust to avoid the doctrine of
privity of contract was the irrevocability of the trust. But it has been
sug-
gested that such
a
trust might be revoked by the original contracting parties-
see
Hill
v.
Gme
(1839) 5
My.
&
Cr.
250
and Fullagar
J.
in
Wilson
v.
Darling
IShnd
Stewdoring
and
Lighterage Co., Ltd.
(1956) 95
C.L.R.
43
at
67.
It
is
not clear whether Mr. Guest had access
to
Goodyear Tyre
4
Rubbar
Co.
v.
Lancashire Batteries
[1958]
1
W.L.R.
857,
which indicates
a
substantially
different approach to section
25
of the Restrictive Trade Practices Act,
1956,
from that adopted by Harman
J.
in
Coanty Laboratories
v.
Mindel
[I9571
Ch.
295.
The work is dated January
1959
but there seem to be other omis.
sions of
1958
authorities. At p.
418
a
cross-reference to the effect of the Law
Reform (Frustrated Contracts) Act,
1943,
might be given in relation to the
discussion
of
Cuttor
v.
Powell+
the important case
of
8t.
John
Bhipphg
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