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Time for an English Commercial Code?

Published online by Cambridge University Press:  16 January 2009

Dame Mary Arden
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Extract

Parliament has imposed on the Law Commission the duty to review the law of England and Wales “with a view to its systematic development and reform, including in particular the codification of [the] law … and generally the simplification and modernisation of the law”. There are a number of points which flow from this. First, as a body which reviews great swathes of the common law to see if they require to be modernised or simplified, the Law Commission has a unique standpoint from which to view the strengths and weaknesses of the common law method. Second, it has unique experience of law reform and the Parliamentary process. Third, in discharge of its functions, it has an interest in seeing that, if codification is appropriate, a recommendation to that effect is made to the Lord Chancellor. It need not be the Law Commission which carries out the recommendation, and indeed the Law Commission could not carry out a projectpurely of its own initiative.

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The Cambridge Law Journal , Volume 56 , Issue 3 , November 1997, pp. 516 - 536
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Copyright © Cambridge Law Journal and Contributors 1997

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References

1 Law Commissions Act 1965, s. 3(1). Over the years several learned articles have been written on the topic of codifying commercial law: see for example Goode, “The Codification of Commercial Law” (1986)14 Monash L. Rev. 135, and the literature cited therein.

2 The Concise Oxford Dictionary (8th ed.) (1990) defines a code “as a systematic collection of statutes, a body of laws so arranged as to avoid inconsistency and overlapping: a set of rules on any subject…”

3 (1881) 7 App. Cas. 591.

4 Chalmers, , “The Codification of the Law of Sale” (1891) 12 Journal of the Institute of Bankers II, 12–13.Google Scholar

5 Ibid, atp 12.

6 For an account of the Scottish approach to the codification of commercial law in the United Kingdom, see Roger, A., “The Codification of Commercial Law in Victorian Britain” (1992)Google Scholar 109 L.Q.R 570.

7 Sale of Goods Act 1890, s. 62(1).

8 See Marine Insurance Act 1906, s. 33.

9 See for example, the Sale of Goods Act 1893, 2nd ed. (1894), pp. 168–169.Google Scholar

10 See Hongkong Fir Shipping Co. Ltd v. Kawasaki Kisen Kaisha Ltd. [1962] 2 Q.B. 26 (C.A.).

11 Cehave, N.V. v. Bremer Handekgesellschaft G.m.b.H. [1976] 1 Q.B. 44.Google Scholar

12 Simpson's Biographical Dictionary of the Common Law (1984), p. 108.

13 So far as I have been able to ascertain, the Acts drafted by Chalmers are the only three English Acts of Parliament which include the words “to codify” in their long title.

14 SirPollock, Frederick, A Digest of the Law of Partnership incorporating the Partnership Act 1890, 5th ed. (1890), p. vi.Google Scholar

15 DTI Press Notice, 24 February 1997.

16 The Bill of Sale Act (1878) Amendment Act 1882, s. 9.

17 See e.g. Halsbury's Laws of England, 4th ed. (1992 ), vol. 4(1) paras. 692 to 720.Google Scholar

18 Digest of the Law of Partnership, 1st ed. (1877), p. xi.Google Scholar

19 See Ilbert, C.P., “Indian Codification” (1889) 5 L.Q.R 347.Google Scholar

20 Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences (1879) (C. 2345). The Commissioners were Lord Blackburn, Barry J. Lush J. and Mr. Fitzjames Stephen.

21 Criminal Law: Codification of the Criminal Law. A Report to the Law Commission (1985), (Law Com. No. 143).

22 Criminal Law: A Criminal Code for England and Wales, Volumes 1 and 2, (Law Com. No. 177).

23 The first such report to be published was Legislating the Criminal Code: Offences against the Person and General Principles (Law Com. No. 218).

24 See the Law Commission Twenty-Fifth Annual Report 1990 (Law Com. No. 195).

25 There are many other jurisdictions which have criminal codes, including Queensland, Western Australia, Tasmania, New Zealand and Canada.

26 See Gazebrook, , “Still No Code! English Criminal Law 1894–1994”, in City University Centenary Lectures (1996) p. 1. (Blackstone Press).Google Scholar

27 Law Com. No. 1. As to codification of the law of contract, see generally Diamond, “Codification of the Law of Contract” (1960) 31 M.L.R. 861. A draft of a much shorter contract code than the McGregor Code was prepared by the Law Reform Commission of Victoria: see An Australian Contract Code (1992) Discussion Paper No. 27.

28 Lord Wilberforce deals with the potential confusion from using rescission in these two senses in Johnson v. Agnew [1980] A.C. 367 at 393.

29 Harbutt's ‘Plasticine’ has been overruled by Photo Production v. Securicor Transport [1980] A.C. 827 but on the different issue of whether the particular breach prevented reliance on an exemption clause.

30 The law however has not developed along these lines: the cases start with Maredelanto Compania Naviera SA v. Bergbau-Handel G.m.b.H. “The Mihalis Angelos” [1971] 1 Q.B. 164 (C.A).

31 Now the Sale of Goods Act 1979.

32 Provisions now in, respectively, s. ll(2) – (4) (for England), s. 11(5) (for Scotland), s. 53(5), s. 61(1) (for England) and s. 61(2) (for Scotland) of the Sale of Goods Act 1979.

33 We have been very pleased to receive the response of COMBAR recently on the Consultation Paper Shareholder Remedies (Consultation Paper No. 142).

34 See the Scottish Law Commission, Seventh Annual Report 1971/2 (Scot. Law Com. No. 28), para. 16.

35 See Law Commission Eighth Annual Report, 1972–1973 (Law Com. No. 58) paras. 3–5.

36 Exemption Clauses in Contracts, First Report: Amendments to the Sale of Goods Act 1893 (Joint Report) (Scot. Law Com. No. 12) (Law Com. No. 24) which was implemented by the Supply of Goods (Implied Terms) Act 1973; Exemption Clauses: Second Report by the two Commissions (Scot. Law Com. No. 39) (Law Com. No. 69), which led to the Unfair Contract Terms Act 1977.

37 Law of Contract: Minors' Contracts (Law Com. No. 134), which led to the Minors' Contracts Act 1987.

38 Sale and Supply of Goods (Joint Report) (Scot. Law Com. No. 104) (Law Com. No. 160), which led to the Sale and Supply of Goods Act 1994.

39 Sale of Goods forming Part of a Bulk (Joint report) (Scots Law Com. No. 140) (Law Com. No. 211), which was implemented by the Sale of Goods (Amendment) Act 1995.

40 Privity of Contract: Contracts for the Benefit of Third Parties (Law Com. No. 242).

41 Harvey, McGregor “Contract code drawn up on behalf of the English Law Commission” (Milan: Giuffre Editore and London:Sweet & Maxwell 1993).Google Scholar

42 See the Convention on the Contract for the International Carriage of Goods by Road, to which effect is given on the United Kingdom by the Carriage of Goods by Road Act 1965.

43 See now the Convention concerning International Carriage of Goods by Rail, to which effect is given in the United Kingdom by the International Transport Conventions Act 1983.

44 See now the Carriage of Goods by Sea Act 1971.

45 See now the Carriage by Air Act 1961.

46 Made applicable to the United Kingdom by the Contracts (Applicable Law) Act 1990.

47 The Convention can be found in Appendix 3 to the Seventh Report of the House of Commons Select Committee on the European Communities (H.L. Paper 59) (29 March 1996). The Convention was not ratified by the United Kingdom, and as a result failed to achieve the requisite number of signatories.

48 Principles of European Contract Law. Part I: Performance, Non-Performance and Remedies. Prepared by the Commission on European Contract Law, edited by Ole Lando and Hugh Beale and published by Martinus Nijhoff (1995).

49 Scot. Law Com. No. 159.

50 See paras 2.27–2.29.

51 Discussion Paper No. 99—Judicial Abolition of the Error of Law Rule and its Aftermath (1996).

52 See footnote 20. The rules represent Dr. Clive's personal views and not necessarily those of the Scottish Law Commission. The Appendix is published as a separate document.

53 See para. 2.16.

54 Pioneer Shipping Ltd. v. BTP Tioxide Ltd [1982] A.C. 724.

55 Antaios Compania Naviera SA v. Salen Rederierna AB [1985] A.C. 191.

56 Section 29.

57 [1992] 1 A.C. 562.

58 Section 46.

59 There are aspects of arbitration law with which the Act does not deal, for example, confidentiality.

60 See Hansard (House of Lords) Vol. 437, p. 634, (15/12/1982).

61 Ibid.

62 Belmont Finance Corporation v. Williams Furniture Ltd. (No. 2) [1980] 1 All E.R. 393 (C.A.)

63 Brady v. Brady [1989] A.C. 755.

64 Belmont Finance Corporation v. Williams Furniture Ltd (No. 2) [1980] 1 All E.R. 393 (C.A.).

65 Burrows, A., “Legislative Reform of Remedies for Breach of Contract: The English Perspective” [1997] E.L.R, 155, 156.Google Scholar

66 See for example Rhone v. Stephens [1994] 2 A.C. 310, 321 (restrictive covenants) and Kaye v. Robertson [1991] F.S.R. 62 (no tort of privacy).

67 The Pollock-Holmes Letters, Volume 1, Cambridge (1942), pp. 7–8.Google Scholar

68 See Bank of England v. Vagliano Bros. [1891] A.C. 107.

69 (1602) 5 Co. Rep. 117a; 77 E.R. 237.

70 It can help strengthen the common law system, which Professor Birks advocates in “Equity in the Modern Law: An exercise in Taxonomy” [1996] Western Australian Law Review 1, though Professor Birks argues that this can be achieved by a more analytical approach to the common law rather than codification.

71 (1891) 12 Journal of the Institute of Bankers 11, 15.Google Scholar

72 This problem was addressed in The Interpretation of Statutes (Law Com. No. 21) (Scot. Law Com. No. 11), paragraphs 68 to 73.

73 This is known as the Jellicoe procedure. It is described in SirBrooke, Henry, “Special Public Bill Committees” [1995]Google Scholar Public Law 351, the Law Commission Thirtieth Annual Report 1995 (Law Com. No. 239) and the Report of the House of Lords Procedure Committee, Hansard, 21 January 1997, Cols. 554–556.