Two contract laws restated

Andrew Burrows has followed up his excellent Restatement of the English Law of Unjust Enrichment with an equally impressive Restatement of the English Law of Contract. This is a sort of draft code and commentary on English contract law which successfully resists all temptation to tweak the law into an improved form even in areas, such as the rules on consideration, where most people would say this was obviously desirable.

In his introduction Andrew points out that many lawyers outside England need to understand English contract law and expresses the hope that the book may attract readers in civil law systems. “One of the aims is for the reader to see quickly and easily how the different elements of this area of English law fit together. Civil lawyers, who are used to a statutory code, often find English law difficult for that reason.”

As a lawyer from a mixed jurisdiction who has worked with civil lawyers and other lawyers on contract law projects I would say that the book admirably achieves that aim. It would have been very useful, for example, in the work on the DCFR and the CESL. Let us hope that there will be similar opportunities for it to be useful in the future.

It is interesting to follow up the reference to civil codes by comparing the Restatement with the recent reform of the provisions of the French civil code on contract law (due to come into force on 1 October 2016). I suspect most contracting parties would find one system just as good in substance as the other. Both emphasise freedom of contract, with qualifications. But the tone is rather different. The French code seems more pedagogical. It distinguishes, for example, between contracts which are:- synallagmatic/unilateral; onerous/gratuitous; commutative/aleatory; consensual/solemn/real; framework/application; for one performance/for successive performances (see arts 1106 to 1111). The Restatement finds such distinctions unnecessary. Its tone is less “learned”. It can even seem a bit chatty and informal. For example section 12, on promissory estoppel, says in subsection (4) “Sometimes the reliance on the promise by B is required to be to B’s detriment”. This sort of thing is possible in a non-legislative restatement, where the commentary can fill out gaps and leave things hanging if necessary, but would not be possible in legislation.

So we have two “restatements”, one legislative and one non-legislative. They are different in nature and style but both are magnificent achievements.

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