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Without the Power to Drink or Contract

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/elr.2020.0598
Pages26-48
Published date01 January 2020
Date01 January 2020
INTRODUCTION

Not drunk is he, who from the floor, Can rise alone, and still drink more: But drunk is he who prostrate lies, Without the power to drink or rise.1 Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Three factors are particularly problematic. Firstly, excepting chronic alcoholics, intoxication – unlike insanity or mental disability – is a voluntary condition. Secondly, intoxication is (generally) a temporary condition. Thirdly, intoxication occurs in varying degrees of severity. Mild euphoria is quite different from an alcoholic stupor. The presence of intoxication raises difficult questions of contractual autonomy and individual responsibility. These sorts of issues are not unique to intoxication and can also be found elsewhere in the law of contract. For example, in working out the boundaries of the doctrine of economic duress.2 Yet, intoxication has some unique features as well, not least of these is the fact that alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time.

Writers in the ancient world were all too aware of the effects of intoxication. Aristotle observed that “more men are insolent when drunk than when sober”.3 Seneca described one Prefect of Rome who was so drunk at Senate that he was “overcome by sleep from which he could not be aroused, and was carried away”.4 Any condemnation of heavy drinking is couched in moral rather than physical or medical terms.5 There is plenty of archaeological evidence that the Romans enjoyed the consumption of wine and beer.6 Legal sources, on the other hand, are almost entirely silent on drunkenness.7 However, this is not to say that Roman lawyers had entirely failed to recognise that intoxication impacted on criminal culpability even if it was unclear how exactly this affected legal liability.8

Later treatments of intoxication sometimes make a connection with insanity but this parallel did not appeal to the Romans. In fact, there are more Roman texts on mental incapacity than there are on intoxication. The Digest, for example, states, “[i]t is clear in the nature of things that a lunatic whether he makes a stipulation or a promise, performs no valid act”.9 Intoxication is not mentioned in texts on contract nor is it equated with insanity. Yet it is still possible, and indeed likely, that intoxication was a relevant factor in the contracting process. This is because many of the main Roman contracts, including sale, were consensual and therefore required bona fides.10 As a result, as the Institutes explains, “in all actions bona fides full power is given to the judge to determine, according to the rules of equity, how much might be restored to the plaintiff”.11 Taking advantage of someone in a state of intoxication might very well reflect an absence of good faith. For those other stricti iuris contracts such as stipulatio, an exceptio doli was available. Fraud defined as “every kind of cunning, trickery or contrivance practiced in order to cheat, trick or deceive another”12 might conceivably catch a situation where one of the parties was intoxicated and the other party took advantage. The application of these principles can only be a matter of speculation, but it seems likely that it would involve some degree of fault on the part of the person seeking to enforce the contract, or in the case of fraud, some advantage-taking. Merely contracting with someone who is intoxicated would not seem to be enough to vitiate a contract in Roman law unless a very broad meaning of bad faith is applied. Rather than focusing on the mind of the person intoxicated the Romans looked instead to see whether there was (what might loosely be termed) advantage-taking. This is quite a different approach from insanity where attention was focused on the mental state of the insane person. In contrast to the silence of Roman law, English and Scottish lawyers have a great deal to say about contracting whilst intoxicated, at least from the early modern period onwards. Many leading writers including Coke and Stair have also contributed to the discussion.

 INTOXICATION IN THE MIDDLE AGES

In Shakespeare's, Othello, Iago observes that the English “are most potent in potting. Your Dane, your German, and your swag bellied Hollander – drink ho! –  are nothing to your English”.13 A reputation for heavy drinking is hardly unique amongst European nations,14 and it was not entirely undeserved either. In William Langland's fourteenth-century allegory, Piers the Ploughman,15 Betty the Brewster entices Glutton into her tavern where he is confronted with a good cross-section of humanity from fiddlers, rat-catchers, street sweepers, ditch diggers, cobblers, Clarice (a prostitute) to a priest and the parish clerk. The allegory reflects the way alcohol was consumed at all levels of society during the Middle Ages, although the amount and quality of alcohol varied according to social position.16 For the poor, ale was an important source of energy and sustenance in what must otherwise have been a miserable existence.17

Medieval English contract law was quite different from what we are familiar with today. The mandatory requirement of a deed in the action of covenant (based on the allegation that the parties had entered into an agreement) from the mid-fourteenth century killed off the possibility of a general contract action based on a simple agreement.18 Covenant withered and debt on a bond became an attractive remedy for formal contracts following the invention of the conditional bond.19 On satisfaction of the condition, which might be performing an agreement or repaying a loan, the bond became void. The bond was dispositive meaning that the bond and not the condition comprised the underlying debt.20 Defences were few – and those that were available required the defendant to attack the validity of the deed by pleading non est factum (a denial that the document was his deed). From the fourteenth century, a successful plea of non est factum rendered a bond void rather than voidable.21 The plea covered the situation of a defendant who was unable to read the deed or who had the deed incorrectly read to them.22 It was also broad enough to cover incapacity.23 The substance of the plea was put to a jury.24 More precise clues about intoxication are harder to find. In the context of an action in trespass which turned on the validity of land ownership, Moyle JCP stated that “even if one be ill or sick, yet he has his whole memory, and so is one who is inebriated”.25

The suspicion that intoxication was no answer when faced with an otherwise valid deed was confirmed a century and a half earlier by Britton who stated that:

Or he may say that he writing ought not to affect him, by reason that he executed it when he was not in his right senses. This exception shall hold in the case of madmen and those who have lost their memory by sickness or any other pain but not in the case of drunkards, or such as are light headed, although they may sometimes be not in their right mind.26

In the hands of Sir Edward Coke in The First Part of the Institutes of the Laws of England,27 the prohibition on raising intoxication against a deed became a general principle: “As for a drunkard who is voluntarius daemon, he hath (as hath been said) no privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it”.28 Coke was not specifically addressing the problem of contracting whilst intoxicated, but the phrase voluntarius daemon captures the idea that intoxication is self-imposed. So whilst it was classed along with other types of non compos mentis it “shall give no privilege or benefit to him”.29 Intoxication was a voluntary condition and therefore not a defence.

By the late sixteenth century, it became doubted that any form of insanity could be pleaded against a bond. Fitzherbert in the New Natura Brevium repeated Britton's statement,30 but this view was expressly doubted in Stroud v Marshall when the court refused to even allow a plea of insanity against a bond.31 At no point does it seem to be suggested that drunkenness provides a defence, however serious the intoxication.32 John Brydall in his Non compos mentis or The law relating to natural fools, mad-folks, and lunatick33 having observed that “drunkenness is the vice of British men”, notes that moralists distinguish between actual and habitual drunkenness.34 A habitual drunk was one who “knowingly, and willingly, makes himself drunk”.35 As far as the law was concerned, Brydall made no distinction between degrees of intoxication and simply quoted Coke to the effect that drunkenness “gives no privilege or benefit”.36

 CONTRACTING WHILST INTOXICATED AND THE COURT OF CHANCERY

Common lawyers of the early modern period resisted allowing intoxication as a defence to a claim in contract law because they regarded it as a self-imposed disability. A writer like Brydall was nevertheless beginning to recognise that there were different types of drunkenness, albeit from a moral perspective. However, the common law did not yet have a very sophisticated approach towards intoxication other than a blanket prohibition. It remains possible that some juries might have refused to find liability where one of the parties was intoxicated. This option was available because in the typical contract claim – the action of assumpsit – a general blank denial of liability could be pleaded. As a result, although there was no provision for intoxication a jury might potentially deny a claim on the grounds that no agreement was reached. Equity was different and not just because cases were heard before judges alone. The nature of the jurisdiction made it particularly well-suited to handle problems of intoxicated contracting.

The character of alcohol consumption was changing by the early eighteenth century...

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