The Rematerialization of Contract Law

This leads to the second observation. The way in which the device of implied terms and other legal doctrines are applied demonstrates that English law, like all the other legal systems included in our study, has moved away and is continuing to move away from a paradigm of contract law which focuses almost exclusively on party autonomy, instead we find increasing emphasis being placed on party loyalty, the protection of reliance, cooperation, considera­tion also of the other party's interests, and substantive fair­ness.

There is some evidence that even English lawyers may not always have been as dismissive of notions of fairness and good faith as they are today.³⁸⁴ Simon Whittaker, in his

For Germany, see now the comprehensive analysis by Claus-Wilhelm Canaris, 'Wandlungen des Schuldvertragsrechts: Tendenzen zu seiner "Material- isierung" (2000) 200 AcP 273 ff.

SeeGordley (n. 115); Atiyah (n. 123).

However, there are also signs that the attitude may be changing again. See, for example, H. K. Lucke, 'Good Faith and Contractual Performance’, in P. D. Finn (ed.), Essays on Contract (1987), 181 f.; Johan Steyn, The Role of Good Faith and Fair Dealing in Contract Law: A Hair-Shirt Philosophy?, Royal Bank of Scotland Law Lecture (1991), 1; Roger Brownsword, Two Concepts of Good Faith', (1994) 7 Jour­nal of Contract Law 208, 243; John N. Adams and Roger Brownsword, Key Issues in Contract (1995), 211 f„ 253 f. The United States of America initially inherited from the common law the English scepticism towards a general notion of good faith but have subsequently recognized it in a particularly important piece of legislation (s.

part of the introduction to the good-faith volume,³⁸⁵ draws attention to the influence of the lex mercatoria (Law Merchant), to the views adopted by Lord Mansfield, and to a looser approach to 'fraud' prevailing until well into the nineteenth century. The lex mercatoria, a body of predomi­nantly customary rules of commercial law, had been applied in England by special merchants' courts since the Middle Ages.³⁸⁶ It was imbued by the notions of good faith and common sense; the daily negotiations of merchants, after all, 'ought not to depend upon subtleties and niceties'.³⁸' This body of commercial law was gradually incorporated into the common law and it was Lord Mans­field who completed the process of incorporation. He saw the lex mercatoria as part of a universal ins gentium. 'The mercantile law', he said in a decision concerning the law of insurance,³⁸⁸ 'is the same all over the world. For, from the same premises, the sound conclusions of reason and justice must universally be the same.' This explains the frequent recourse by Lord Mansfield to treatises on the lex mercatoria, on Natural law, Roman law, and its contemporary conti­nental usus modernus³⁸⁹ Lord Mansfield, of course, believed in the importance of certainty in mercantile transactions,³⁹*’ 'but fairness, not certainty was his lodestar for the general run of contract cases'.³⁹¹ Thus, in the well-known case of Carter v.

Zimmermann and Whittaker (n. 368) 41 if.; ci. also O'Connor (n. 378) 3 if.

³⁶⁶ See the references in (1993) 1 ZEnP & if.

³⁸⁷ Hfliwi/iOH v. jMfitdcs (1761) 2 Burr 1198(1214) (per Lord Mansfield), 97 ER 787; ci. also supra n. 318.

³⁸⁸ Petty v. Royal Exchange Assurance Co. (1757) 1 Burr 341 (347), 97 ER 342.

³⁸⁹ See Christopher P. Rodgers, 'Continental Literature and the Development of the Common Law by the King's Bench: c. 1750-1800', in Vito Piergiovanni (ed.). The Courts and the Development of Commercial Law (1987), 166 if.; cf. also David Lieberman, The Province of Legislation Determined (1991), 1(14 ff.; J. H. Baker, An Introduction to English Legal History (3rd edn., 1990), 399: 'Bench and Kir became imbued with a new European spirit.'

Cf., e.g., Vallejo v. Wheeler (1774) 1 Cowp 143 (153), 98 ER 1012.

³⁹¹ James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. i (1992), 242.

³⁹² (1766) 3 Burr 1905 (1910), 97 ER 1162. forbids either party by concealing what he privately knows, to draw the other into the bargain, from his ignorance of that fact, and his believing the contrary.' In Roman law the opposite of bona fides had been dolus, broadly conceived: whenever the behaviour of the party to a contract did not conform to the overriding standard of good faith, the excep- tio doli or the actio de dolo could be granted.^[538] It is interest­ing, therefore, to observe how extensive a concept of fraud seems to have been recognized in early nineteenth-century English contract law.^[539]

6.