What Duncan Fairgrieve's book does particularly well is debunk the notion that ‘Jersey contract law is simply, in legal terms, a variant of English common law spoken with a slightly French accent’. It is shown by Fairgrieve—a distinguished scholar of comparative law, in particular English and French law—to be truly hybrid in nature, being a product of both the civil law and the common law. Through these sources combining has emerged a system that is not only distinctive but also a ‘striking example of comparative law in action’.
The book is composed of eight chapters. After briefly explaining the importance of comparative law and the book's scope in Chapter 1, Fairgrieve explores in Chapter 2 the history of the Jersey legal system and its sources of law. Two aspects of this chapter are of particular interest. The first is its description of the tension that has resulted from drawing upon both civil law and common law sources. The traditional influence of French law and citation of civil law writers, illustrated by Pothier having been cited in as many as half of all contract law cases since 1950, is juxtaposed with discussion of a recent tendency for the Jersey courts to draw more heavily upon English law. This tendency is attributed by Fairgrieve to the close cultural and economic ties between Jersey and the United Kingdom, as well as to members of the Jersey legal profession primarily being educated in English universities. It might be thought, at least at first glance, that the ‘cherry-picking approach’ that has emerged in Jersey would be a successful combination of the best features of English and French contract law. However, Fairgrieve argues persuasively (albeit disappointingly for comparative lawyers) that it has actually rendered Jersey contract law uncertain and complex, and lacking ‘the necessary coherence and clarity as to sources which is a fundamental requisite of a modern legal system’.
The second interesting aspect of Chapter 2 concerns what Fairgrieve describes as the mindset of Jersey lawyers. In his view, this mindset has been shaped by a number of distinctive factors including the multilayered, overlapping, and heterogeneous sources of Jersey law and their training as Jersey advocates and practice of Jersey customary law. By virtue of these factors, he explains that their outlook differs from ordinary common law practitioners. Their approach to precedent is notably more flexible than in England and (much more satisfyingly for comparative lawyers) judges resort to comparative law as part of their reasoning. The courts are also less reluctant to interfere with contracts and tend to take a more paternalistic and interventionist role, which Fairgrieve says ‘may reflect broader differences in philosophy in contract law’.
Chapter 3 considers what the author describes as the key characteristics that make Jersey contract law distinctive as a legal system. These include the principle of ‘la convention fait la loi des parties’ (freely agreed contracts are binding and should be enforced), a will-based approach to contract law, the centrality of consent in contract cases, the preference for a subjective approach to contract, the absence of a doctrine of consideration, the use of the civilian notion of ‘la cause’, and the limited role of good faith.
Chapters 4 to 7 then examine more specific aspects of Jersey contract law: formation of contract, ‘defects in consent’ (including duress, undue influence, mistake, fraud), the ‘effects of contracts’ (for instance privity, interpretation, penalty clauses), and remedies law. Woven into the description of these doctrines is the examination of the extent to which each is influenced by French and English law and the challenges that drawing upon these dual sources of law has presented.
Fairgrieve demonstrates that, in some respects, Jersey law has shown a clear inclination towards civilian notions, exemplified by ‘cause’ prevailing over consideration. He argues that this has significant practical consequences: ‘cause’ gives the Jersey courts an intrusive tool to interfere with contractual bargains. Its role is ‘illustrative of a different philosophy to the law of contract, one which is less defined by economic efficiency and legal certainty, and in respect of which judicial interventionism is more readily accepted’. In other respects, however, Jersey law has closely followed English law. One example is the emphasis on pecuniary remedies and corresponding rarity of specific performance.
Chapter 8, entitled ‘Comparative Lessons and Reform Issues’, summarizes the key findings of the book and critically analyses Jersey contract law. Of particular note is the author's warning that the increasing resort to English law in recent years has presented challenges for its coherency and consistency. Fairgrieve argues forcefully that ‘unsuccessful transplants have been made. Inconsistencies are rife; cherry picking is often in evidence; and legal certainty could be better served’. He then turns to consider how Jersey contract law might be reformed, in particular through a restatement or codification. This is particularly timely since in 2015 the government of Jersey announced an intention to reform Jersey contract law.
The book is an engaging and rewarding read, both as an account of Jersey contract law in its own right and also as a comparative analysis of an often overlooked jurisdiction. Its brims with interesting discussion relating to the dual common law and civil law sources of Jersey law from which much can be learnt. As the author himself points out, the challenges resulting from the hybrid nature of Jersey contract law have the potential to be particularly instructive for the draftsmen of European contract law projects which often seek to draw upon competing and divergent common law and civil law influences. The book will appeal to and be a valuable addition to the collection to all comparative contract lawyers.
