A Treatise on the Law of Contracts

PREFACE.

DURING the eight years which have elapsed since the publication of the last edition of this work, the Workmen's Compensation Act of 1897 and the Money Lenders and Companies Acts of 1900 have been passed, and many cases of great importance have been decided, such as Krell v. Henry upon performance, Keighley v. Durant and Shipway v. Broadwood upon agency, Kaufman v. Gerson upon the conflict of laws, and Harman v. Ainslie, upon the proviso for re-entry in leases, in which the Court of Appeal has held, in opposition to the view of Lord Coke, as followed by the late Mr. Justice Wright, that a negative covenant can be "performed." These and other Acts and cases have been woven into the text, and occasion has been taken to effect a pretty complete revision in connection with matters not necessarily calling for it. The rules, for instance, of Cooke v. Oxley and Hadley v. Baxendale have been carefully examined anew, and an attempt. has been made to make the doubt whether the Statute of Frauds requires a deed to be signed less doubtful. Compression of redundancies has been still further practised, with the result that by this means, and by the more frequent employment of smaller type, the present edition, notwithstanding its numerous enlargements -such as by a new notice of Club Contracts, and an extended treatment of Marriage Contracts, Stock Exchange Contracts, Contracts between Landlord and Tenant, and Literary and Artistic Contracts-is but little, if at all, longer than the last. Without going out of my way to search for objections, I have always ventured to criticise such judicial decisions as seemed to require it, and to offer suggestions on unbroken ground, thinking it better that an editor should give a wrong opinion on points doubtful than give no opinion at all. I have also, with great reluctance, made an exception, in the Aflalo case (p. 533), to the rule that a judgment of the House of Lords should be merely recorded and not criticised, my reasons for the exception being that proposals to amend the defective law of copyright have now been before Parliament for some twenty-five years, and that the 18th section of the Copyright Act, 1842, on which the Aflalo case was decided, has long required amendment more than any other point of copyright law.

I have to thank my friend Mr. Aggs for many valuable suggestions, especially in connection with the law of damages.

The book concludes with a short note on the extent to which the maxim communis error facit jus has been applied in the

"Decided Cases," collected under that title in my friend Mr. Mews's Digest in illustration of a head of law which has perhaps received scarcely sufficient attention.

As in Prefaces to former editions, I now venture to direct attention to certain points of contract law which seem to require remedial legislation. Twelve other such points may be found in the 17th edition of Woodfall's Law of Landlord and Tenant, at p. lxxv.

1. Money at a bank, and not drawn upon for six years, becomes the property of the banker. (Pott v. Clegg, p. 516.)

2. The liability of bankers to keep valuables entrusted to them continues, until after demand of and refusal to return them, for a time apparently unlimited. (See p. 518.)

3. The executors of a lessee may be personally liable on his covenants to repair. (Tremeere v. Morison, p. 285.)

4. The Act which invalidates sales of unnumbered bank shares is rendered a dead letter by being habitually disregarded on the Stock Exchange. (See p. 542.)

5. If A. undisputedly owes B. 100l. and B. agrees to take and takes 901. in full satisfaction of the debt, B. can nevertheless sue A. for the remaining 101. (Foakes v. Beer, p. 639.)

6. A boy and girl are marriageable at the ages of fourteen and twelve. The promise of marriage need not be in writing, and in an action for the breach of it there is practically no limit to the damages. (See Chapter XVIII., p. 472.)

7. Although in most if not all other European countries the disclosure of professional secrets by a doctor is a criminal offence, even the extent of his implied contract, if any, not to disclose them is in this country uncertain. (See p. 491.)

8. The barely intelligible 18th section of the Copyright Act, 1842, greatly requires recasting. (See p. 532.)

9. A master is under no obligation in England or Scotland (as he is in Ireland) to give a servant a character, however long the service may have been. (See p. 503.)

10. The English law of damages as laid down in supposed corollaries to Hadley v. Baxendale, might well be assimilated to the Scots law as laid down in Dunlop v. Higgins. (See p. 715.)

11. The Marine Insurance Bill (see p. 528), the Prevention of Corruption Bill (see p. 248), and the Married Women's Property Act Amendment Bill (see p. 220) should be passed as soon as possible in the next session of Parliament.

September, 1904.

J. M. LELY.

EXTRACTS FROM PREFACE TO THE FIRST EDITION.

PERHAPS no branch of the jurisprudence of the country has of late years been more the subject of judicial inquiry than the Law of Contracts. The rapid extension of commerce and the variety and increase of the transactions of mankind have furnished and constantly supply, fresh and abundant materials for a renewed and fresh investigation of this subject. Induced by this consideration the Author has ventured to offer this work to the Public, although the subject has at various periods, and in various shapes, received elucidation from able and experienced writers. Some portions of the Law of Contracts have indeed been separately discussed and explained in works of acknowledged merit. The Author alludes to the law relating to Bills of Exchange and Promissory Notes, Insurances, Freight, and Seamen's Wages. These subjects have therefore not been noticed. They are indeed collateral, rather than lineal, branches of the Law of Contracts: which presents an additional reason for the Author's omission to discuss these topics in the following pages.

The object has been to select and treat exclusively of those matters connected with simple contract, which are of common occurrence in business and are consequently of the highest practical utility. Care has been taken to pass lightly, but it is hoped not superficially, over those parts of the subject which do not partake of that character; whilst points which are important because they are of continual recurrence, have been fully discussed. It is chiefly in this respect that the Author considers that the work will be found distinguishable from others upon the same subject. In citing reported cases the mere detail of lengthened and perhaps peculiar facts can add but little to the real value of a Treatise. It is material, although it is more laborious, to extract from a reported decision, not only the points settled thereby, but the principle upon which the judgment of the Court proceeded. . . . Considering the high importance of extracting from the decisions referred to, the principles

upon which they are founded, the Author has spared no pains to arrive at correct conclusions in this particular, by thoroughly digesting the facts reported. At the same time, aware of the tedium experienced in reading in a treatise that which is merely copied from and appears with better grace in a Report book, he has carefully abstained from stating cases at length.

The subject is naturally concluded, in the seventh chapter, by a discussion of the distinctions between a penalty and liquidated damages and of the principles by which the claim to damages in an action of Assumpsit is regulated (a).

6, PUMP COURT, Temple, May, 1826.

(a) This Preface occupied about 7 and the book about 400 pages. As a rule only references were given, and not names, of the cases cited. There is no copy of the first edition in any of the

Inns of Court Libraries, or even in that of the British Museum, and I am indebted to the courtesy of the Librarian of the Incorporated Law Society for facilities in copying the above extracts.-J. M. L.

TABLE OF

OF PRINCIPAL STATUTES,

AS CITED BY REGNAL YEARS AND CHAPTERS.

[For pages, see next page.]

21 Jac. 1, c. 16, Limitation Act, 1623.

29 Car. 2, c. 3, Statute of Frauds.

7 Will. 3, c. 12, Irish Statute of Frauds.

9 Geo. 4, c. 14, Statute of Frauds Amendment Act, 1828.

11 Geo. 4 & 1 Will. 4, c. 68, Carriers Act, 1830.

3 & 4 Will. 4, c. 27, Real Property Limitation Act, 1833.

c. 42, Civil Procedure Act, 1833.

5 & 6 Vict. c. 45, Copyright Act, 1842.

6 & 7 Vict. c. 73, Solicitors Act, 1843.

8 & 9 Vict. c. 106, Real Property Act, 1845.

19 & 20 Vict. c. 97, Mercantile Law Amendment Act, 1856.

25 & 26 Vict. c. 89, Companies Act, 1862.

30 & 31 Vict. c. 131, Companies Act, 1867.

32 & 33 Vict. c. 62, Debtors Act, 1869.

36 & 37 Vict. c. 66, Judicature Act, 1873.

37 & 38 Vict. c. 48, Vendor and Purchaser Act, 1874.

c. 62, Infants' Relief Act, 1874.

41 & 42 Vict. c. 49, Weights and Measures Act, 1878.
43 & 44 Vict. c. 9, Statutes (Definition of Time) Act, 1880.
c. 42, Employers' Liability Act, 1880.

44 & 45 Vict. c. 41, Conveyancing Act, 1881.

45 & 46 Vict. c. 61, Bills of Exchange Act, 1882.

c. 75, Married Women's Property Act, 1882.

46 & 47 Vict. c. 52, Bankruptcy Act, 1883.

c. 61, Agricultural Holdings Act, 1883.

51 & 52 Vict. c. 43, County Courts Act, 1888.

52 & 53 Vict. c. 45, Factors Act, 1889.

c. 49, Arbitration Act, 1889.

c. 63, Interpretation Act, 1889.

53 & 54 Vict, c. 39, Partnership Act, 1890.

c. 70, Housing of the Working Classes Act, 1890.

54 & 55 Vict. c. 39, Stamp Act, 1891.