Comparative Law in Practice

Contract Law in a Mid-Channel Jurisdiction

Duncan Fairgrieve

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782257226
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho contractual

This book provides a comparative study of contract law, examining the interaction of common law and civil law approaches to contract law. Drawing extensively upon English, French and European law, the book explores how the law of contract of Jersey, Channel Islands, has been influenced by both civil law and common law sources. It is argued that this jurisdiction is a striking example of comparative law in action, given that Jersey contract law is made up of a blend of common law and civil law approaches. Jersey law is premised upon a subjective approach to contracts, in which civil law concepts such as cause (rather than consideration) and vices de consentement are the foundational aspects, but is nonetheless highly influenced by the common law in areas such as remedies (damages, termination, etc). The book analyses a series of key issues from a comparative and European perspective, including the principles underlying contract law (comparing and contrasting civil and common law approaches), the formation of contract, requirements of reciprocity (cause vs consideration), the structure and approach of precontractual liability, the role of good faith in a mixed system, the architecture of remedies, and more.

1

Introduction

The objective of this book is to undertake a comparative law study of contract law, examining the interaction of common law and civil law approaches to contract law. Drawing extensively upon English, French and European law, the book explores the law of contract of Jersey, Channel Islands, as a unique subject of comparative law study.

The Channel Islands, hitherto overlooked by scholarly analysis,¹ provide a fascinating subject of study for the comparative lawyer. The jurisdictions of both Jersey and Guernsey are striking examples of comparative law in action, and Jersey contract law is a particularly illustrative example. The contract law of Jersey is a subtle and complex blend of common law and civil law, based first and foremost upon Norman customary law but influenced also by modern French law as well as English law: one thus finds Norman law notions coexisting cheek by jowl with common law concepts and approaches. The Jersey law of contract is premised upon a subjective approach to contracts,² in which civil law concepts such as consent and volonté,³ the notion of cause (rather than the doctrine of consideration),⁴ and vices de consentement⁵ are the foundational aspects. Despite this civil law baggage, the law of Jersey is nonetheless highly influenced by the common law, and one finds extensive use of common law concepts and jurisprudence in areas such as remedies.⁶

The Jersey lawyer is thus a comparative lawyer of the most unusual variety: a practising comparative lawyer. This is not solely an issue of substantive law, though as we shall see, the content of Jersey contract law draws upon myriad different sources and a Jersey practitioner will thus need to master Jersey customary law, including concepts such as voisinage⁷ or quasi-contracts.⁸ We shall also see, and this is perhaps one of the most unusual aspects of the study, that the hybrid of civil and common law sources has also affected mindsets or mentalités. The outlook of a Jersey advocate, who will generally have received his or her initial legal training in a common law system, has been shaped by the hybrid Jersey context. This has given rise to a distinctive method of legal reasoning (premised upon a principle-based approach), a very open approach to norms and sources of law, a specific attitude to law-making and the evolution of case law with—for a dyed in the wool English common lawyer—a surprisingly flexible approach to precedent. As a result, it will thus be argued that a mid-Channel lawyer has a very particular mindset or mentalité.⁹

Through the analysis of this unusual, but under-explored jurisdiction, a series of comparative law themes will be examined in this book. First and foremost, Jersey provides a fascinating example of comparative law in action through the functioning of a hybrid legal system, in which civil law and common law influences continue to follow an evolutionary process within a micro-jurisdiction context. The Jersey legal system is an extremely open one, with foreign, external sources having a direct impact on the law, and is therefore an unusual subject of study from a comparative law perspective. Issues such as hybrid sources, the efficacy of transplants and the practical use of comparative law during the forensic process will be examined in this book. Comparative law reflections will thus be a prominent feature of the study.

Second, there is the perspective of European private law. Although Jersey is not part of the European Union, this legal system paradoxically provides many lessons for European private law. In one sense, Jersey might be seen as a laboratory for European private law. The relevance of the European comparative law backdrop is examined throughout the book and informs the discussion of broader comparative law issues in the conclusions.

Third, there is the issue of the reform of the law of obligations. Drawing upon the author’s experience teaching at the Jersey Institute of Law,¹⁰ consideration is given of the challenges confronting policy-makers in Jersey, and this book examines the reform issues and options. It is argued that a bold approach to reform, embracing the dual common and civil law heritage as an advantage, would provide for greater consistency and legal certainty in this core area of private law. Such a reform might also provide a significant reference point for national and international projects.

I.The Importance of Comparing

A word will first be said about the exercise of comparative legal studies. In both England and France, comparative law has traditionally been underrated as a discipline. From a historical perspective, comparative law was at best seen as a likeable eccentricity, at worst a frivolous distraction from serious intellectual pursuit. In France, François Lichère has referred to comparative law as being considered traditionally as ‘a purely intellectual exercise’ without any practical utility and undertaken by a select group ‘inhabiting ivory Chateaux’.¹¹ On the other side of the Channel, Professor Otto Kahn-Freund joked in his inaugural lecture for the Chair of Comparative law in Oxford that: ‘[T]he Professor of Comparative Law suffers from the problem that the subject he professes has by common consent the somewhat unusual characteristic that it does not exist.’¹² One of his successors at Oxford, Professor Sir Basil Markesinis, complained that the English comparatists of the twentieth century had led their students and successors into an isolated and enclosed intellectual ghetto with little prospect of escape.¹³

It should, however, be remarked that, despite these statements, the resort to foreign law has actually been relatively commonplace in English law—at least before the courts. The inherent characteristics of the common law have perhaps served to mask the fact that judicial decision-making has often been based upon a series of comparative law exercises. Citations of, and to, other common law jurisdictions are of course frequent before the English courts, a practice reinforced by the comparative law jurisdiction par excellence the Privy Council, which on a day-to-day basis applies foreign law—sometimes even of a civil law nature.¹⁴ In many ways, the common lawyer has, like Monsieur Jourdain, been deploying comparative law without knowing it.

It is true, however, that there has recently been a major shift in the role that courts play, and the sources which are now applicable in judicial decision-making. Domestic courts are deliberately and explicitly making use of comparative law to an unprecedented extent.¹⁵ Many factors can be seen as having influenced this process. Primary amongst these is the breakdown of traditionally closed and hierarchical national legal systems. Another factor is the increasingly complex and polycentric issues which modern courts are required to consider and in respect of which ethical and moral issues are increasingly prominent. The polycentric nature of these issues poses challenges to traditional judicial approaches and explains a whole host of changes, in terms of procedures, personnel and outlook. Comparative law plays a role in developing the substantive law in different areas, including in finding normative solutions to questions of a more technical kind.

No one can be under the illusion that all the challenges of using foreign-law materials have been resolved. Indeed, the methodological discussions are still very much in play, and much remains to be determined.¹⁶ An engaging and important debate thus continues about the methodology, role and function of comparative law in the study of the law.¹⁷ It is now commonly appreciated and accepted that legal systems are not simply about formal legal rules, but are also highly influenced by other factors such as the institutional context as well as cultural or socio-legal influences. The rule-making method of studying foreign jurisdictions needs thus to be supplemented by placing the different approaches in their specific context, drawing upon historical, cultural and constitutional perspectives.¹⁸ These factors contribute to creating distinctive ‘mindsets’ or ‘mentalités’¹⁹ and there is great importance in taking into account these differences when undertaking comparative law study. It is argued in this book that Jersey lawyers have a very distinctive mindset, which is a product of the particularities of the socio-legal context of their system, including the hybrid approaches to sources as well as the micro-jurisdiction context of this legal system.²⁰

Another aspect of this contextual approach is that in comparing the position of English, French and Jersey law, account will be taken of the specific procedural context. We will thus record how the patterns, trends and structures of civil procedure impact upon substantive law. This is a particularly acute consideration for Jersey which, having inherited an adversarial system of civil procedure, draws heavily upon the English common law, whereas the character of French civil procedure is very different and is characterised by a predominantly written procedure which is heavily reliant on documentary evidence.²¹ We will see that this has an important impact on Jersey law, for instance within the context of the adoption of a subjective approach to contract law, whereby the actual intentions of the parties are taken into account, rather than the objective, external interpretation commonly associated with the common law.²²

In understanding these difficulties, resort is often made to other systems which have long since juggled with heterogeneous sources and competing reference points.²³ Mixed systems such as the Province of Quebec in Canada or Louisiana in the United States have sometimes been taken up as such an example.²⁴ And yet, there are examples closer to home, which illustrate, over and above geographical proximity, similarities from a cultural and socio-legal perspective. In this book, it will be shown that the jurisdiction of Jersey, with its mixed origins, deriving from Norman customary law but highly influenced in recent times by the common law, can be seen as a fruitful subject of comparative law study in and of itself.

II.Scope of the Study

A word must also be said about the scope of this book. As is well known, civil law systems commonly categorise a broad swathe of private law under the umbrella of ‘the law of obligations’. Stemming back to Roman law classification, one finds the French civil law topics of contracts, delict and restitution (known as quasi-co...