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Published online by Cambridge University Press: 02 January 2018
Lawyers place great stress on the ‘objectivity’ of the law’s approach to agreements. Humpty-Dumpty may claim that ‘when I use a word it means just what I want it to mean, no more and no less’, but a lawyer would advise Humpty that the law, should it interest itself in any promise he made, would be interested not in what he meant by what he said, but in how a reasonable man would understand that which was said. This, the lawyer would explain, is the dichotomy between the subjective and the objective interpretation of words, and it is a dichotomy which has considerable influence on lawyers’ and judges’ thought. Treitel discusses it on the first page of his text, and the very title of one of the chapters of Cheshire, Fifoot and Furmston, ‘The Phenomena of Agreement’, is derived from the law’s concern ‘not with the presence of an inward and mental assent but with its outward and visible signs.
1. Treitel, G. H., The Law of Contract (6th edn, Stevens & Sons, London, 1983) at p I.Google Scholar
2. Furmston, M. P., Cheshire, Fifoot and Furmston's Law of contract (11th edn, Butterworths, London, 1986) chapter three.Google Scholar
3. Cheshire, Fifoot and Furmston, p 28.
4. This is one of the weaknesses of Fried's, C. Contract as Promise (Harvard University Press, Cambridge, Mass and London, 1981 Google Scholar).
5. This approach should be compared with Dworkin's ‘interpretative’ approach to law, in Dworkin, R. Law's Empire (Fontana Press, London, 1986)Google Scholar. The approach certainly is available to legal philosophers, though one might question how far it is available to judges and lawyers.
6. Likewise, if our theory of contract does not explain certain duties, it may be more appropriate to look elsewhere for justification for those duties, rather than merging them with contract to form an all-embracing but incoherent whole. This is the principal criticism that can be made of Collins' fascinating book The Law of Contract (Weidenfeld and Nicholson, London, 1986).
7. Wittgenstein, L., Philsophical Investigation (Anscombe trans, 3rd edn, Basil Blackwell, Oxford, 1984).Google Scholar
8. Philsophical Investigations, note to para 35 at p 18e.
9. Consider the examples given in paras 2–9 of Philsophical Investigations.
10. Finnis, J., Natural Law and Natural Rights (Clarendon Press, Oxford, 1984) p 298.Google Scholar The emphasis is mine. The account of promising which follows is largely derived from Finnis' discussion at pp 298–308.
11. Ibid, p 300.
12. Ibid, pp 300–1.
13. Rawls, J., A Theory of Justice (OUP, Oxford, 1985) pp 344–8.Google Scholar
14. Finnis, p 303.
15. Finnis, p 308 and cf Rawls, p 345.
16. Any child who has experience of such behaviour in the playground knows that people soon cease to bother to promise, for to do so has no point.
17. One could, of course, use ‘promise’ and ‘agreement’ only to refer to central cases of these institutions, and call a sign like Humpty's a ‘quasi-promise’, but it seems unnecessary to say that we are obliged to keep promises and quasi-promises, and easier to term both (binding) promises, focally and secondarily respectively.
18. Atiyah, P. S., The Rise and Full of Freedom of Contract (Clarendon Press, Oxford, 1979) at pp 731–3, 742, 744–7.Google Scholar
19. W. Howarth, ‘The Meaning of Objectivity in Contract’, 100 LQR 265 at 279–281.
20. Atiyah, pp 407–8.
21. Pao On v Lau Yiu Long [1980] AC 614 at 635 per Lord Scarman.
22. Lynch v DPP [1975] AC 653.
23. Lord Scarman in Pao On at 636.
24. Cf the discussion in Barton v Armstrong [1976] AC 104 at 118 (majority) and 121 (minority) of how the party threatened is ‘subjected to an improper motive for action’.
25. That dilemma is, that in order to be free to achieve certain goals now, I must be able effectively to restrict my future freedom. To obtain another's co-operation, or to assure another of my goodwill, I must be able to bind myself subject to sanction, either moral (promising in general) or legal (contractual promises). Where the state wishes to facilitate certain types of exercise of this freedom, it will provide effective legal sanctions in addition to existing moral sanction. Thus, for the same reasons-maximisation of freedom- that the practice of promising arises in a society, the state may ‘enforce’ certain promises, usually by providing alternative sanctions rather than insisting on actual performance.
26. The Moorcock (1889) 14 PI) 64 at 68 per Bowen LJ.
27. Except that limited apportionment is possible where the dispute falls within the scope of the Law Reform (Frustrated Contracts) Act 1943. Such cases are rare. For an attempt to give judges a wider discretion to apportion loss, see the New Zeal and Contractual Remedies Act 1979. Unfortunately, the breadth and vagueness of this statute does little to encourage clear thought either, though at least it does not promulgate inherently confused categories of analysis.
28. [1961] 1 QB 31.
29. [1972] QB 198.
30. [1919] 2 KB 243.
31. Cf Smith v Hughes (1871) LR 6 QB 597.
32. An analysis of the law of mistake which runs foul of the second limb of this critique is that of Williams in ‘Mistake as to Party in the Law of Contract’, 23 Can Bar Rev 271. Distinctions between ‘confusion’ and ‘non-confusion’ errors of attributes may explain the existing cases, but it is not difficult to think of situations where drawing that distinction is far from easy, and leads to differences in result which the nature of the factual differences do not seem to justify.
33. Cf Lord Wilberforce's comment in NZ Shipping Co v Satterthwaite [1975] AC 154 at 167E.
34. Professor Atiyah discusses some findings of contract where no agreement is present at pp 726–754 of Rise and Fall; but it is in precisely those situations where our intuition finds no agreement that a contractual analysis is strained, and some better explanation should be sought, eg standard form contracts, boarding buses and other reciprocal relationships, changing employment relationships.
* I am indebted to Roger Teichmann and Tim Pitt-Payne for their criticism of drafts of this article.
