Warren Swain

The changing nature of the doctrine of consideration, 1750–1850

Historically the substance of contractual obligations in English law was found in the idea of exchange. In the action of assumpsit exchange found expression in the doctrine of reciprocal consideration. Legal historians have usually argued that the courts began to undermine the traditional doctrine of consideration from the middle of the eighteenth century. It is said that the courts were willing to contemplate removing the requirement of consideration when the contract was in writing and that judges had begun to recognize that good consideration could be found in moral obligations. This orthodox description is guilty of exaggerating the threat to the traditional notion of consideration in the eighteenth century. One consequence of this interpretation is that it underplays the importance of the Will Theory in eroding the requirement of reciprocal consideration in the period after 1800.

The enactment of the Matrimonial Causes Act 1857: the Campbell commission and the parliamentary debates

ABSTRACT Rather surprisingly none of the existing accounts of the Matrimonial Causes Act 1857 considers the mechanics of reform which brought about the legislation in any great detail. Yet this subject as much as the final legislation merits attention in its own right. The nineteenth century in England was a significant period of law reform and the legislation provides a vivid illustration of the inner workings of the process. The passage of the Matrimonial Causes Act 1857 was not entirely smooth. The fact that it succeeded at all makes it an ideal case study in Victorian law reform. This article considers the pressures for divorce reform, the working of a Royal Commission, the debates in Parliament, and ultimately how reform was finally achieved through a series of compromises between those who wanted more radical change and defenders of the status quo.

Reshaping Contractual Unfairness in England 1670-1900

English contract law has offered protection for the vulnerable and exploited for centuries. The most wide-ranging doctrine of contractual unfairness could be found within the Court of Chancery. In Lord Nottinghams time relief extended to a range of situations, loosely held together, with no real unifying structure. Yet even here some common themes emerged. Transactions which fell outside the usury laws were looked at with particular concern. In the eighteenth century Lord Hardwicke attempted to rationalize relief under the rubric of fraud. This was largely a difference in presentation. Under the influence of the rise of legal literature and ideas derived from Will Theory, the nineteenth century might have seen the emergence of a truly coherent doctrine of contractual unfairness. That this did not happen can be attributed to a combination of factors. These include the durability of the notion of fraud, the complexity of contractual unfairness which could not be reduced to a doctrine based on will and the way in which contractual unfairness was bound up with public policy. The substance of relief may have changed less than has often been supposed. Certainly there was no shift from a world in which the courts offered protection to one in which freedom of contract always prevailed. The failure of nineteenth century judges and writers to be more radical has left a legacy of incoherence that is still felt today.

Horse sales: the problem of consumer contracts from a historical perspective

One anonymous reviewer writing in 1831 observed that: ‘As full of diseases as a horse’, says Shakespeare, and he might have made a comparison in another respect with equal truth, by saying ‘as fruitful of law-suits as a horse’; for of all chattels, the purchase of one of this sort, is the most likely to be the purchase of a suit. Such remarks could have been made with equal force at any point in the last thousand years. Many horse sales fell within the modern definition of ‘consumer contracts’ and, as a result, these transactions provide a valuable insight over a long period into some of the problems raised by the sale of defective goods to consumers. Although most were far too poor to afford a horse, horse ownership had spread to men of quite modest means by the seventeenth century. Until comparatively recently the horse played a vital role in English society. As well as transporting goods and people horses had important agricultural and military uses. By the eighteenth century horse-racing had become a plebeian as well as patrician pastime. Foreign visitors in the eighteenth century were struck by the relationship between the English and their horses. La Rochefoucauld wrote in his memoirs that the English possessed a ‘natural affection for the horse’. The American Quaker, John Woolman, was less impressed with what he had heard about the ill treatment of stage-coach horses. But it was an Englishman Reverend Granger, who was most damning when in a sermon he described England as a ‘Hell for Horses’. There was an element of truth in both descriptions. If not always well treated, horses were frequently admired. Horses were variously described as the ‘noblest, strongest, swiftest, and most necessary of all the beasts’ and ‘of all the unreasonable creatures upon the Earth are of the greatest understanding’. Horses were portrayed as man’s closest relation in the animal kingdom. It was this insight which made for such biting satire in hands of Jonathan Swift. Horses were feˆted by such otherwise disparate groups as medieval Welsh poets and leading society figures who employed George Stubbs to immortalise their animals on canvas. No doubt horse owners of all types, in every century, could feel sympathy with those unfortunate enough to purchase an animal which turned out to be defective.