Free 2.1 Law Essay
With specific reference to Roman law. In relation to the Contract of Sale, examine the three elements required for a valid contract and illustrate how the law relating to them developed.
INTRODUCTION
EU Principles of European Contract Law, Article 1.102 states:
“Parties are free to enter into a contract and to determine its contents, subject to the requirements of good faith and fair dealing, and the mandatory rules established by these Principles” .
Statutory intervention now precludes the laissez-faire entitlement previously acknowledged by the doctrine of ‘freedom of contract’ which accorded those involved with a right to agree to any arrangement on the principle of obtaining the best bargain possible in each individual situation . Certain agreements are now regulated according to legal intervention in order to protect the interests of those more vulnerable, as revealed in the Unfair Terms in Consumer Contracts Regulations 1999, and implied terms incorporated into contracts such as the Sale of Goods Act 1979. Certain legal principles are involved in the Sale of Goods Act 1979, clarified in Section 2(1) which defines a contract for the sale of goods:
“A contract of sale of goods is a contract by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price” .
Implicit in this definition, is the ‘sale’ which enables goods to be transferred to the buyer, together with the ‘agreement to sell’ and the actual transference of the ‘property in goods’ . A valid contract is an agreement enforceable by law which, to be legitimate must consist of an offer and an acceptance, in return for a consideration by parties who intend to create a legal relationship and who are recognised as having the capacity in law to make an official contract, for example both parties being over the age of 18 in the UK. This essay focuses on the three elements of offer, acceptance and consideration and investigates how the law relating to these elements developed, with especial reference to Roman Law.
DISCUSSION
Contractual Obligations
A sale may be negotiated through instituting an invitation to treat, as revealed in Partridge v Crittenden [1968] . A final unqualified expression of assent to all terms in a contract would be construed if an order had been sent, although expression of intent must be precisely related to the offer, providing evidence of it being unequivocal and unconditional. A telephone call from the buyer, in which the seller agrees to verbally sending the goods shows clear intent to accept the offer, more than just an acknowledgement of the offer.
However, it was determined in Holwell Securities v Hughes [1974] that acceptance must be communicated to the seller. The Postal Rule is revealed in Adams v Lindsell [1818] where confirmation is considered an unconditional acceptance as the contract is effective from the instant of posting, even if wrongly addressed . This is not, however, the case with instant communication sources such as email, text messaging, fax, or telephone calls if sent within office hours. A text message sent, but deleted prior to being read by the recipient would still be considered to have been received, clarified by Lord Denning in Entores [1955]. Equally effective would be a withdrawal if received, but not acted on, due to possible negligence, as ruled in Brimnes [1975] .
Acceptance must, however, be unequivocal and unconditional, although a conditional acceptance is considered to show intent, as in a request for staggered delivery which was construed in Stevenson, Jacques & Co v McLean [1880] as an enquiry not a counter offer. Silence on the part of the buyer has been ruled as having no basis for assuming an acceptance, as revealed in Allied Marine Transport Ltd .
Development of Civil Law
Modern day European Commercial law, which the EU is currently attempting to coalesce into Protocols and Directives acceptable for all Member States to follow, was derived from the discrete precepts of European mercantile law whose separate entity evolved from the merchant classes during the Middle Ages. In Europe this subsequently developed into a substantive mercantile law, with separate courts whose jurisdiction was applied through the ‘Piepoudre’ Courts, or Courts of Commerce. These courts dealt exclusively with mercantile law through which the need for specific proof against a law merchant was a pre-requisite. This concept of the ‘law merchant’ arose in England during the 16th Century and was maintained separately from the Royal courts until intervention by the Lord Chief Justice Mansfield in English law during the 18th century, when mercantile precepts were incorporated into common law, and the specific requirement for proof against a law merchant was rescinded, recognising breach of contract through common law which, as a remedy, was not a feature of commercial law in Europe, based as it is on the Civil law.
Civil law is revealed through specific rules that are codified to deal with prescribed legal problems , less laterally interpreted than legislation based on common law, described as being similar to ‘English medieval law of contract’ . Modern civil law is based on the ancient Roman system of corpus juris civilis together with either Germanic law or aspects associated with the five Napoleonic Codes making up French Law. However, English contract law differed in respect of assumpsit which, Borkowski explains, enabled English contract law to develop a ‘considerable degree of cohesion’. Conversely, Roman Law ‘developed into a law of contracts rather than contract’ , whilst stipulatio (the promissory debt) and mancipatio (real debt) emerged into the Roman Sales Contract which was characterised by exchanging arra as evidence of good faith between assenting parties to confirm the sale.
Roman Law can be divided into the laws of things, incorporating either assets owned, or those owed as a debt, and the law of obligations, that of rights in personam. According to Gaius , every right correlates with an obligation, thereby identifying the debtor and the creditor . As such, Civil Law is characterised by a specific focus on performance of each contract , the court needing to establish an actual or specific remit according to the terms of each individual contract and the relationship between offer, acceptance and consideration. Remedies are often limited to the contract price or cost of a replacement, with some debate over this relating to market cost or in terms of the cost of an actual replacement.
The Germanic Code is a more recent innovation and is much more narrowly interpreted than the French Code, relying on regulations modelled for specific application in each individual case subject to the philosophy of rationality and ethics, clearly relevant in the wording of the EU Principles of European Contract Law Parts I and II, Section 2, Article 1.201 (Good Faith and Fair Dealing) and Article 1.202 (Duty to Co-operate). The French Code, the main structure being the Code Civil, together with the Code de Commerce through which most of commerce is based, relies on the codification of different Articles as revealed in the Treaties of EU legislation , certain Articles of which appertaining to different aspects often combined to provide an adequate outcome. According to EU Legislation, Article 2.201 (3) states that an offer expresses a willingness to enter into a contract with the intention of a binding contract existing on acceptance of that offer, realised through the bilateral arrangement of supply as the result of payment as exhibited in Smith v Hughes [1871] from which ruling the ‘reasonable man’ test was determined.
Historical Significance
Security of transactions was an expectation as far back as medieval times when buyers and sellers recorded their deals in the ecclesiastical courts as a means of their transaction being registered , revealed through “causa fidei laesionis seu perjurii” which was recorded in the history of the medieval church as ‘enforcing a sworn promise , identified as ex delicto, ex contractu, or quasi ex contractu . At this time there was a distinction between ‘temporal law’ and ‘spiritual law’, the former evolving into English common law and the latter developing through canon law into English civil law, similar but quite distinct from the Civil Law that developed as a result of Roman Law.
In the 6th Century Dionysius Exigius, compiled the Codex Dionysiana from information based on the Didache from the Council of Jerusalem. This not only had a huge impact on medieval canon law, but many of these suggestions were the forerunner of Roman Law and imposed by Charlemagne as rules to be adhered to within Europe . The strict codification of Roman Law was based on the ‘Traditio apostolica’ which was attributed to Hippolytus, teaching that, to avoid doctrinal error and heretical beliefs it must be very strictly followed , giving rise to the emphasis on form. The ‘Didascalia apostolorum’ was also written around same time, providing instruction on Christian communities’ behaviour
Two particular collections revealing Roman Law were the ‘Corpus Iuris’ and the ‘Codex Theodosaianus’, written in AD438 and AD535 respectively . Both of these incorporated Roman law into procedures of the Church. However, due to canon law being based on Roman law, it came to be banned due to the Reformation when, in 1535, Thomas Cromwell considered that Roman Law had no further significance due to England ceasing to have any further links with Rome. According to Scrutton: ‘among English lawyers before 1600 “the Roman law became not only a subject of distrust, owing to the conflict between King and Pope; it even dropped into oblivion” .
Justinian’s Digest collated the decretals issued by the Bishops of Rome and these became the basis for law throughout Europe. Following the withdrawal of the Roman influence from Western Europe this legislation lay undiscovered until the 11th Century when various writers collated these laws into reference books, called Coda, the main one being the ‘Decretum of Burchard’ written in AD 1000 – 1025 by the Bishop of Worms . In turn, these influenced the development of the new universitas , the customs and traditions of which were introduced into England by William the Conqueror from France.
Siepp explains that temporal and spiritual law “were different laws, known to different professions and administered by different courts, differently” . Three areas of law developed in England: Common law, Equity and Canon law, the first due to lawyers acquiring their knowledge through working in the Inns of Court; cannon law continued to be responsible for the laws surrounding civil duties: as people were often illiterate they made a contract binding by an oath sworn on the Bible. As such, broken contracts were considered blasphemous these contracts were considered to be legally binding.
CONCLUSION
The focus of Civil Law, in relation to Roman Law, is ultimately on negotiation rather than litigation although, with the law of contract incorporated into English common law suing for breach of contract is an option in order to attain damages. The Court of Common Pleas, presided over by the Lord Chief Justice, became responsible for all civil actions, into which the Piepoudre Court of the law merchant became incorporated, finally amalgamating with the common law during the 18th century. As a result civil law in the English courts has evolved apart from civil law in Europe which maintains a format similar to the ethos of good faith and fair dealings expected within the original Roman, or Civil, Code.
A particular facet of the Civil Code is the designation between goods which are tangible or intangible and moveable or immovable. Specified within the Sale of Goods Act 1979 is the definition on goods being described as ‘property in goods’ which relates to the absolute or conditional ownership being transferred immediately on receipt of moveable property. Despite the statutory provision of law in more recent times, the doctrine of freedom of contract remains , with a court only being prepared to intercede where a perceived illegality occurs . Evidence of this can clearly be seen in the legislation of the European Community, together with the Sale of Goods Act 1979, both of which emphasise the ethos of good faith and fair dealings but maintain the freedom of the three elements of a contract being offer and an acceptance, in return for a consideration.
Total Word Count (excluding footnotes and bibliography) 2,030 words
BIBLIOGRAPHY
Books
Borkowski, Andrew (1997): Textbook on Roman Law. London: Blackstone Press
Brundage, James A (1996): Medieval Canon Law: Addison Wesley Longman Ltd, Harlow, UK, p. 5
Coriden, JA (1991): An Introduction to Canon Law. London: Geoffrey Chapman Publishers
Nicholas, Barry (1988): An Introduction to Roman Law. Oxford: Oxford University Press, Page 165
Weir, Tony, 1992 cited in Borkowski, Andrew (1997): Textbook on Roman Law. London: Blackstone Press
Articles
Dovey, Dave (2001): Studying Comparative Law: The Legal Executive (2001)
pp22 – 23
Helmholtz, R H (1975): Assumpsit and fidei laesio. Law quarterly review, vol.91, (1975), pp.406-432
Helmholtz, R H (1983): Canon law and English Common law : Selden Society lecture delivered in the Old Hall of Lincoln's Inn,July 5th, 1982, p. 264. . London : Selden Society, 1983
Scrutton, T E cited in Siepp, DJ (1993): The Reception of Canon Law and Civil Law in the Common Law Courts before 1600: Oxford Journal of Legal Studies 13 (3) (1993), p. 389
Siepp, DJ (1993): The Reception of Canon Law and Civil Law in the Common Law Courts before 1600: Oxford Journal of Legal Studies 13 (3) (1993), p. 395
Legislation
Sale of Goods Act Part II Sections 2 (3); 2 (4); 2 (5); 2 (6); 8 (3); 3 (1); 12
http://www.jus.uio.no/lm/england.sale.of.goods.act.1979/doc
EU Principles of European Contract Law, Parts I and II [revised] Article 1.102
http://www.jus.uio.no/lm/eu.contract.principles.1998/doc.html
Table of Cases
Adams v Lindsell [1818]1 B & Ald 681; 106 ER 250
Allied Marine Transport Ltd v Vale Do Rio Doce Navagaceo SA, The Leonides D [1985] 2 All ER 796 [1985] 1 WLR 925 CA
Brimnes [1975] QB 929
Brinkibon Ltd v Stahag Stahl [1983] 2 A C 34 [1982] 1 All E R 293 (House of Lords)
Clifton v. Palumbo (1944) 2 All ER 497
Entores Ltd v Miles Far East Corp [1955] 2 All ER 493 [1955] 2 Q B 327
Gibson v. Manchester City Council 1(1979) 1 WLR 294
Holwell Securities Ltd v. Hughes [1974] 1 All ER 164 CA
Partridge v Crittenden [1968] 1 WLR 1204.
Smith v Hughes, [1871] LR 6 QB 597 (Queen's Bench Division)
Stevenson Jacques & Co. v. McLean (1880), 5 Q.B
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