Stephen Michael Waddams

Equity in English Contract Law: the Impact of the Judicature Acts (1873–75)

Just before the Judicature Acts came into force, the equity bar objected that the new court would be dominated by common law judges, whose ignorance of equity would ‘endanger the very existence of Equity jurisprudence’. This objection, though ridiculed at the time, can be seen in retrospect to have had some substance. In respect of several important aspects of contract law, notably unfairness, mistake, and privity, former equitable approaches were, after 1875, effectively marginalized both by the courts and by the writers of treatises on English contract law.

Authority, Precedent, and Principle

The concept of binding precedent is so familiar to common lawyers that they might mistakenly suppose that the concept is a simple one. Neil Duxbury has shown, in a persuasive and elegantly written book, that, on the contrary, the concept bristles with historical, practical, and theoretical difficulties. Duxbury writes that ‘the English doctrine of stare decisis did not begin to take shape until the eighteenth century’ (25) and that ‘although stare decisis was in the making [in the mid-nineteenth century] . . . not until the later decades of the nineteenth century did the rules of precedent begin to solidify’ (18). Yet, as many of the examples throughout the book demonstrate, both the concept and the language of binding precedent are much older. Sir John Baker has written that ‘judicial opinions from former times had been accorded an authoritative status since the very earliest days of law reporting and beyond.’ In The Merchant of Venice (c. 1597) Portia, arguing ostensibly for strict enforcement of the bond, says that

'Modern Notions of Commercial Reality and Justice': Justice Iacobucci and Contract Law

The number of contract cases in which Justice Iacobucci delivered judgment during his time on the Supreme Court of Canada was comparatively small. The cases are discussed here under the headings of ‘Privity of Contract,’ ‘Concurrence of Claims in Contract and Tort,’ ‘Wrongful Dismissal and Good Faith,’ and ‘Tenders for Construction Contracts.’ It is not easy to discern a single or simple principle that governs all these cases, nor is this surprising, considering the complexity and subtlety of contract law. Insofar as a common theme can be discerned in Justice Iacobucci’s judgments, it may be suggested that it is to be found in his frequent references to good policy, commercial convenience, and general considerations of justice.

Law, Politics and the Church of England: The Career of Stephen Lushington, 1782-1873

Preface List of illustrations 1. Establishment and reform 2. Anti-slavery 3. Lady Byrons separation 4. The defence of Queen Caroline 5. The Consistory Court 6. The Admiralty Court 7. The Privy Council 8. Church rates 9. The High Church 10. The Broad Church Appendix.