The
case concerned a sale of marine engines to be manufactured and supplied by
the defenders. Payment of the price was to be made in instalments; the first
on signature of the contract and the remainder at specified stages in the
construction of the engines. After payment of the first instalment, but before
construction of the engines had commenced, the outbreak of war rendered further
performance of the contract legally impossible. The point at issue was whether
the pursuers could recover the sum that they had paid as the fIrst instalment.
The issue, though seemingly simple, was one which had to be resolved by the
House of Lords.
It was accepted at all levels of the appeal that had the
contract been void ab initio, or that had the performance failed as
a result of the fault of the sellers, the pursuers would have been entitled
to recover what they had paid, provided in the latter case that they had
chosen first to rescind the contract. However, the non-performance of the
contract was not attributable to the sellers' fault and the effect of the
outbreak of war was merely to discharge the parties from further performance
of their duties and not to render the contract void. This being the case,
one approach to the issue of recoverability of the first instalment of the
price was that everything done in fulfilment of the contract up to the moment
of frustration was rightly done. In effect there was said to be a general
rule that losses arising from performance of a contract up to the moment
of frustration should lie where they fall. The main authority for this approach
was Chandler v. Webster [11] , one of the so-called "Coronation" cases of English law.
A house owner let seats to view a Coronation procession for a sum of £141
which was payable before the procession. £100 was paid in advance and
£41 was still out- <87> standing when the procession was cancelled
due to the King's illness. The parties sued each other, the house owner for
the balance of £41 and the other party for recovery of his £100.
The Court of Appeal held that the house owner was entitled to retain what
he had received. Consistent with the reasoning that this payment was "rightly"
made in fulfilment of an existing obligation, it was also held that the house
owner was entitled to the balance of £41 because the obligation in
respect of this sum was also referable to the time before the frustration
and therefore still properly exigible.
When Cantiere was heard on appeal before the
Court of Session recovery of the price was denied mainly on the authority
of the "Coronation" cases. The alternative approach to the issue
of recoverability found in the pleadings, which was subsequently to be approved
by the House of Lords, was that the prepayment was recoverable in principle
on the grounds that it had been given for a consideration that had failed.
The inspiration for recoverability was found in the condictio causa data
causa non secuta (condictio c. d.) of Roman and Scots law.
III. Further Analysis of the "Coronation" Cases
Frustration
does not annul a contract but merely operates to terminate future performance.
In such circumstances, according to the "Coronation" cases, losses
should be allowed to lie where they fall at the moment of frustration. This
approach did not preclude re-adjustment of the relations of the parties.
The critical enquiry concerned what the parties had performed in fulfilment
of obligations that were properly enforceable up to the moment of frustration.
Thus if, by chance, P had paid a sum in advance which was not in fact exigible
until after the frustrating event, he could claim it back. The approach of
the courts appears to have been one of allocation of risk under a valid,
albeit unenforceable, contract. The result was harsh in the circumstances
where, for example, P had agreed to pay the full price in advance for the
manufacture of certain goods since he would lose the money without being
entitled to the goods. However, it was open to him either to insure or to
provide for an alternative allocation of losses expressly in the contract.
We should note that although "total failure of
consideration" appears as a concept in the pleadings in the "Coronation"
cases, very little indeed is said about it in the judgments. The emphasis,
in what is regarded as the locus classicus for the approach of the
"Coronation" cases [12] , is that the validity of the contract excluded a claim for "total
failure of consideration". The reasoning was that, if the contract still
subsists, regulation of the relationship of the par- <88> ties is achieved
by reference to the contract and not by reference to the law of restitution
[13] . Thus Collins M. R. observed in Chandler [14] :
the doctrine of failure of consideration does not
apply. The rule adopted by the Courts in such cases is I think to some extent
an arbitrary one, the reason for its adoption being that it is really impossible
in such cases to work out with any certainty what the rights of the parties
in the event which has happened should be.
IV. Further Analysis of Cantiere
The
cause of action expressed by the condictio c. d. lies within the law
of unjustified enrichment. Thus Cantiere differed from the "Coronation"
cases in the fundamental respect that it established a claim for unjustified
enrichment on the grounds of failure of consideration where a contract had
been frustrated. Cantiere also cleared up doubts concerning the nature
of the consideration in a reciprocal contract and the circumstances in which
its failure was "total".
The foundation of the pursuer's claim in Cantiere
was the condictio c. d. of Roman law. This provides a claim where
something is given for a causa that fails. It was assumed by the House
of Lords that the failure of causa was no different from a failure
of consideration. As I will show below, the House of Lords' understanding
of the condictio c. d. was not fully consistent with either Roman
or Scots law. It was certainly the claim of English law concerning total
failure of consideration that was partly the model on which the House of
Lords understood the condictio. Thus, when dealing with the condictio
c. d., Lord Shaw was concerned, for example, to demonstrate that the
consideration had "entirely" failed [15] . The failure of "consideration" was seen to consist of the
non-supply of the engines, the actual supply of the engines being
the reciprocation for which the buyer had paid the price [16] . Therefore price and res were regarded as the reciprocal considerations
within a normal contract of sale.
The House of Lords was of the view that, at least on
the facts before them, it was not possible to split up the consideration
[17] by attributing part of it to the signing of the contract and the remainder
to the delivery of the res. Thus, each party was seen to perform in
consideration of the full performance by the other <89> party. Any
difficulties concerning the coincidence between "frustration" and
"(total) failure of consideration" were thereby resolved. Frustration
of a sale which has not been fully performed in respect of the payment of
price and delivery of the res will normally give rise to a claim of
(total) failure of consideration since anything short of full performance
in these respects is normally a total failure.
The effect of the decision in Cantiere was to
introduce a rule of general application to frustrated contracts in Scots
law that what is transferred in fulfilment of the contract is recoverable
subject to any counter-claim by the other party for expenses which he had
incurred in the performance of his side of the bargain. Instead of following
the general rule of contemporary English law that losses should be left to
lie where they fall, the House of Lords in Cantiere applied the law
of unjustified enrichment to strike a balance between the parties. It was,
and remains, unclear from the terms of the decision whether this balance
was to be struck strictly according to the principles of "enrichment"
or whether the first defender was entitled to counter-claim for losses which
he had incurred even if the other party had not been enriched thereby. The
general rule of rei interitus that res perit domino was seen
to be inapplicable to a case of this kind because no res had ever
come into existence to which risk could attach.
V. Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd
It
was twenty years before the House of Lords was provided with the opportunity
to bring English law into conformity with Scots law as expressed in its decision
in Cantiere. As Lord Macmillan observed in Fibrosa "The
mills of the law grind slowly" [18] . The facts of Fibrosa were similar to those of Cantiere.
A contract of sale was concluded for the supply of machinery. As required,
part of the price had been paid in advance before the contract was frustrated
by the outbreak of war. At issue was whether the advance payment could be
recovered or not.
The decision of the House of Lords in Cantiere
had a very significant influence on Fibrosa. Cantiere regulated
the interests of parties to a frustrated contract by reference to a claim
in the law of unjustified enrichment effectively on the grounds of total
failure of consideration. The availability of this claim established the
principle of recoverability in such circumstances which broke apart the approach
represented by the "Coronation" cases which Fibrosa overruled.
<90>
Whereas "failure of consideration" was barely
mentioned in the judgments in the "Coronation" cases, it was the
essential factor on which the decision in Fibrosa was made to turn.
In approaching the case from this point of view Fibrosa had to confront
a central problem of definition. A considerable degree of uncertainty was
apparent in the "Coronation" cases and in Cantiere, when
it was before the Court of Session, as to what constituted the consideration
for payment. The problem was that in English law "consideration"
is a term which has different meanings depending on whether it is used in
a contractual or restitutionary sense. Viscount Simon in Fibrosa distinguished
these meanings in the following manner" [19] :
... in the law relating to the formation of contract, the promise to do a thing
may often be the consideration, but when one is considering the law of failure
of consideration and the quasi-contractual right to recover money on that
ground, it is, generally speaking, not the promise which is referred to as
the consideration, but the performance of the promise ...:
The "Coronation" cases were seen to have confused these meanings.
By excluding a claim for total failure of consideration because of the validity
of the contract they ascribed the consideration to the promise and not to
its performance. The "factual" conception of the restitutionary
meaning of failure of consideration as dependent on the performance of the
promise is, arguably, another level on which Cantiere influenced Fibrosa.
As stated, according to the House of Lords in Cantiere the price was
paid for the supply of the engines. That this conclusion was reached
from an understanding of the operation of the condictio c. d. in Roman
law, albeit accommodated to the requirement of English law that the failure
of consideration must be "total", is made clear by Lord Shaw
[20] :
The consideration as a whole stands with reference to
the price and every part of the price. It is an admitted fact in the case
that that consideration has entirely failed. Therefore, this, as I say, would
be a typical case of restitution under the Roman law and one for the application
of the maxim causa data causa non secuta. The condictio under
that head would have been, in my humble opinion, plainly applicable. If not
applicable to this and to similar cases of outstanding simplicity, then the
whole chapter of the Roman law devoted to that condictio need never
have been written.
The significant feature of the condictio c. d.
is its formulation in terms of "dare". Dare emphasises
the failure of the actual performance of the bargain because, within
a sale for example, it focuses, not on the existence of the promise, but
on its execution; the price is given for the consideration of the
object of the sale which is then not forthcoming. <91>
By understanding the condictio c. d. as it did,
the House of Lords in Cantiere found the justification for the application
of a claim of unjustified enrichment to frustrated contracts on the basis
of failure of consideration. In terms of its use of unjustified enrichment
(restitution) in this context and its principal result, Cantiere was
the model for Fibrosa. The importance of this change in conception
is observed by Goff and Jones [21] :
the so-called rule in Chandler v. Webster, rested
on the misconception that there could be no total failure of consideration
unless the contract was void ab initio. Severely criticised by judge
and jurist, the fallacy underlying Chandler v. Webster was exposed
in Fibrosa.
VI. Roman Law and Scots Law Misunderstood
Roman
law was seen to have allowed a claim of unjustified enrichment in the form
of a condictio c. d. on frustration of a contract of sale. However,
the House of Lords misconstrued the operation of the condictio c. d.
both in Roman law and Scots law [22] . The essential point is that this claim applies only outwith
contract. Roman law recognised a numerus clausus of agreements as
contracts. One difficulty which this created was what to do when one party
had transferred something under an agreement that was not binding as a contract
and the other party then refused to perform his part of the bargain. Since
the counter-performance was unenforceable, the first party was allowed to
recover what he had transferred with the condictio c. d. In Scots
law the function of the condictio c. d. is still basically the same
[23] . There is a penumbra of agreements which, although perfectly legal,
are unenforceable as contracts notwithstanding the acceptance by modern law
of the principle that all agreements seriously intended to have legal effect
should be recognised as contracts (pacta servanda sunt). It is within
this narrow zone that the condictio c. d. applies. For example, P
sets you up as a dentist provided you marry his son. Having taken his money
you then think better of the marriage. P cannot insist that you marry his
son or claim damages for your repudiation but he is entitled to recover what
he gave you. <92>
The condictio c. d., properly understood, simply
cannot operate properly within the context of valid contracts. In the Civilian
tradition a party to a valid contract performs his obligations, not to receive
the reciprocation promised by the other party, but to discharge his obligations
under the contract. Thus, when the buyer paid the price in Cantiere,
because he thereby discharged his obligation to pay, the causa was
in fact secuta! In other words, the House of Lords applied the condictio
c. d. to facts to which, by definition, it was inapplicable. It is dangerous
to think of the condictio c. d. as a claim to recover what is given
for a "consideration" that fails because of the confusion which
this engenders with contractual consideration. Lord Shaw in Cantiere
relied heavily on H.J. Roby's analysis of the condictio c. d. in Roman
law [24] . Roby speaks of this claim as concerning what was given for a "purpose"
that failed. A further interesting feature of Cantiere is how Lord
Shaw slips from the language of "purpose" to "consideration".
This is not the context in which to examine the problems that the introduction
by the House of Lords of the condictio c. d. into the field of contract
has caused in Scots law. Suffice it to say that they remain serious
[25] .
VII. A Restitutionary Response to Frustration of Contract
Scots
and English law drew upon the model of Roman law in its perceived use of
the law of unjustified enrichment in cases of frustration. Thereby the principle
of recoverability of benefits was established. However, the further consequences
of the restitutionary approach were not worked out. Fibrosa is particularly
surprising in this regard. Differently from the position adopted in Cantiere,
it was stated that the sellers in Fibrosa were not entitled to set-off
the expenses which they had incurred in the performance of their contract
[26] . It seems, therefore, that the harsh consequence for the buyer who
had paid the full price in advance resulting from the rules expressed in
the "Coronation" cases was replaced in Fibrosa by an equally
harsh result for the seller who had incurred expense in preparation of the
performance of the contract. It is likely that this result was seen to be
supportable only because it was known by the time of the decision in Fibrosa
that a new statutory regime would shortly be introduced governing frustration
of contracts in English law. Given the back- <93> ground against which
it was enacted it is understandable why the Law Reform (Frustrated Contracts)
Act 1943 introduced "a scheme of mutual restitution" between the
parties to a frustrated contract. The statute solves one of the main difficulties
arising from Fibrosa by permitting the defendant, where it is deemed
to be just, to set-off (or recover) expenses which he had incurred in the
performance of the contract [27] . In Scots law, which is still governed by Cantiere, confusion
exists concerning the criteria to be observed in the assessment of the measure
of recovery. If, given the nature of the condictio c. d., a strict
"enrichment" approach is adopted the payee will not be entitled
to set-off the expenditure which he had incurred if it did not enrich the
other party [28] . For this reason, although there is strong contrary authority
[29] , it has been argued that, instead of "enrichment", principles
of equity should be observed in the context of frustrated contracts
[30] .
The regulation of the consequences of frustrated contract
by means of "mutual restitution" is now generally regarded as flawed
in certain important respects [31] . Modern statutory provisions have generally preferred an approach
which provides for a fair apportionment of losses between the parties
[32] . This differs even from the "equitable" approach to Cantiere
[33] . Thus, it seems that the restitutionary response to frustrated contracts,
which was initiated in Britain by Cantiere, is now perceived to be
unsatisfactory. One recent commentator speaks of its "grave deficiencies"
[34] . This takes us back full circle to the "Coronation" cases.
The solution to the "Coronation" cases could have been to change
the content of the rules governing the allocation of losses under the contract.
However one set of inflexible rules may thereby merely have been replaced
by another. The real need was to establish a means within the law of contract
whereby such adjustments between the parties as was fair in all the circumstances
of the case could be made. The application of a principle of bona
<94> fides comes to mind as one possible option. It was precisely
the lack of flexibility in the law of contract of both Scotland and England
which was solved in the context of frustration by reference to the law of
unjustified enrichment. It imports a different set of rules which were used
to achieve results which conformed with what was seen to be just in the field
of contract. The witness of the fact that the essence of the problem was
not addressed by this approach is that the restitutionary regimes governing
frustration of contract in Britain now do not find widespread favour.
VIII. Some General Observations: One Law for Britain
Cantiere
was a Scottish appeal. At first instance it was held that the first payment
was recoverable. On appeal in the Court of Session this decision was reversed,
but before the House of Lords the right of recovery was affirmed once more.
The reasoning adopted to justify recovery or non-recovery at each stage of
the appeal relied either on the authority of the "Coronation" cases
or upon the condictio c. d.
The House of Lords saw there to be a fundamental difference
of principle between English law and Scots law, at least when the latter
was properly understood [35] , concerning the issue of recoverability. Contemporary English law
was seen to be regulated by the "Coronation" cases and the result
of non-recoverability which they imported was, and indeed had been, regarded
as highly unsatisfactory for some time in England before the decision of
the House of Lords in Cantiere. Lord Shaw observed [36] :
I am not surprised that there is in high legal quarters
a feeling both of uneasiness and of disrelish as to the English rule, and
that that feeling has found expression. I cite, for instance, the language
of Sir Frederick Pollock in his work on Contracts (8th ed.), p. 440, in which,
summing up the English decisions, he observes: — "The contract
is not avoided when the failure of condition assumed as its foundation is
ascertained, but all outstanding obligations under it, and those only, are
discharged; that is, payments already made cannot be recovered back, and
any payment actually accrued due is still recoverable. Only the House of
Lords can review these decisions, but they are not universally approved in
the profession".
Although the contemporary English law was regarded as
unsatisfactory by English lawyers, it was precisely due to the influence
of English law that recovery had been denied when Cantiere was heard
on appeal in the Court of Session. Lord Shaw is also instructive in this
regard [37] : <95>
I cannot avoid feeling that any Scotch Judge would have
decided this case in favour of the appellants on principles well known to
the Roman law, and also for at least over two centuries embodied in the law
of Scotland, had it not been for the intrusion of ideas derived from English
law, and from principles which are neither Scotch nor Roman, and which, as
I shall show, are viewed with uncertainty, even in England itself.
Later Lord Shaw is more forceful concerning his own
view of the merits of contemporary English law. Clearly with the "Coronation"
cases in mind he said [38] :
Counsel was right; the "something for nothing"
doctrine goes the whole length. This result under other systems of jurisprudence
might be viewed as monstrous; but in England, it was contended, this is the
law ...
Before the decision of the House of Lords in Cantiere,
the same position had been reached in Scotland as in England concerning the
recovery of payments made in fulfilment of a contract which was subsequently
frustrated. Scots law had adopted English law on this point. The position
of English law had been regarded as unsatisfactory by English lawyers for
some time before the Scottish appeal reached the House of Lords. The House
of Lords relied upon Roman law to reach a result in Scotland that was both
different from the contemporary English law and consistent with what would
have been regarded as satisfactory in England had the case been an English
appeal. More precisely, since the condictio c. d., as conceived by
the House of Lords, was identical to "total failure of consideration"
the condictio c. d. was really a contrived bridge over which to draw
the cause of action of English law into the field of frustration. Although,
as a matter of fact, the English "Coronation" authorities were
followed by the Court of Session when it reached its decision in Cantiere,
they were not regarded as binding precedents for Scots law by the House of
Lords.
The House of Lords in Cantiere approved the foundation
of the pursuer's claim on the condictio c. d. of Roman law. Quite
correctly the Committee also regarded Roman law as a source of Scots law
only to the extent that it had been "received" as part of Scots
law. Nevertheless classical Roman law and Scots law were regarded as essentially
the same in this context. Again I refer to Lord Shaw who, when analysing
the nature of the condictio c. d., said [39] :
I am happy to cite, in connexion with this topic, the
views of that great scholar and latinist, Mr Roby. He deals in his observations
in the fifth chapter of his Roman Private Law, book V., chapter 3, on Condictiones,
with this one. ... And upon the substance of the matter I desire to quote
the quite remarkable exposition of the condiction which Mr Roby gives, remarkable
because it expresses not only the true foundation, but almost the precise
limits and extent of the principle involved; and it <96> does so in
language which is, according to my view, entirely consistent with the development
of the doctrine in the law of Scotland ...
Besides a fairly extensive discussion of Roman law,
with references to jurists like Ulpian, Africanus, Celsus and Paul, the judgments
in the House of Lords are remarkable for their strong reliance on the works
of the Scottish institutional writers like Stair, Bankton and Erskine. A
decision drawn from Roman law and the Scottish institutional writers could
not, as it turned out, possibly act as an authority for English law even
although, if Lord Shaw is to be believed, the result achieved in Cantiere
was precisely what was desired for English law by their leading lawyers of
the time. As an ancillary point it is also worth noting that the prospect
of a different result being achieved in Scots law from English law was regarded
by the House of Lords as undesirable as a matter of principle. The view appears
to have been that, especially perhaps in commercial matters, it was preferable
to have one law governing Britain. Thus Viscount Finlay observed [40] :
It would be unfortunate that in matters of this kind,
which may, as here, affect foreigners, the results should be different in
the two parts of Great Britain.
Summary
It
is likely that the condictio c. d. of Roman law was seen by the House
of Lords as the means to achieve a better result for both Scots and English
law in the regulation of frustrated contracts. The condictio c. d.
of Roman law had been perceived as essentially the same claim as that of
English law to recover what was paid for a consideration that had totally
failed, with the difference that the former was seen to be available following
frustration of contract whereas the latter, because of the doctrine enshrined
in the "Coronation" cases, was not. The application of the condictio
to cases of frustration in Cantiere was attributed to Roman law which
in turn was seen to determine the proper scope of that claim in Scots law
and the similar claim of English law. The desire immediately to achieve a
different and better result in both Scotland and England was, however, defeated
by the character of the judgments in Cantiere which emphasised the
Civilian origins of the doctrine. Generally, Lord Shaw was regarded as having
over-stated his case. Lord Chancellor Simon's displeasure is evident when
in Fibrosa he observed that "Lord Dunedin's restraint was not
imitated by Lord Shaw" [41] . The House of Lords had to wait twenty years after Cantiere before
it was able to achieve a uniform result for both Scotland and England in
its Fibrosa decision. Cantiere, I suggest, was the model for
Fibrosa. <97>
The difficulties in using Cantiere as an authority
in English law will certainly have been observed by Lord Atkin who had occasion
to deal with cases on frustration when sitting in the Court of Appeal
[42] . When the Scottish appeal of Donoghue v. Stevenson came before
the House of Lords he saw it as an opportunity immediately to extricate English
law from the unsatisfactory state in which he found one aspect of the law
of negligence. A hurdle that he had to overcome was to persuade his Scottish
colleague, Lord Macmillan, that he should not repeat the mistakes made most
prominently by Lord Shaw which had prevented an immediate solution to a pressing
problem that was seen to exist at the time of Cantiere in both English
and Scottish law.
IX. Donoghue v. Stevenson
Introduction
This
Scottish case can be better understood by placing it in the wider setting
of the decisions of the House of Lords in Cantiere and Fibrosa.
I will draw on the important discovery by Alan Rodger [43] that Lord Macmillan re-wrote his judgment in Donoghue very
shortly before it was given in order to exclude the "native" Scottish
authorities on which the first final version of his judgment was partly based.
I will confirm Rodger's "speculation" that Lord Macmillan was prevailed
upon by Lord Atkin to suppress the Scottish authorities in order to ensure
that Donoghue could immediately be founded upon as a precedent by
English law. I differ from Rodger on the significance which I attribute to
this excision of the Scottish authorities. Certainly, given the history of
Cantiere, it was necessary to make this change if Lord Atkin's aim
were immediately to be achieved by Donoghue. In fact the Scots law
that was excised by Lord Macmillan was not as insignificant as Rodger suggests.
It contained references to a general principle of delictual liability which
found its origin in the Lex Aquilia. The nature of Aquilian liability
in Roman law had been transformed in the hands of practising lawyers during
the period of the ius commune. This liability was then given expression
as a general principle by the natural lawyers and by the Scottish institutional
writers on whom the natural lawyers had exerted a profound influence
[44] . I will show that Donoghue was a very finely balanced de- <98>
cision which involved a major difference of view between, principally, Lord
Atkin and Lords Buckmaster and Tomlin. The general principle of delictual
liability drawn from the Civilian tradition was certainly one, and conceivably
a critical, inspiration for Lord Macmillan's decision which in turn was followed
by Lord Atkin in certain significant respects. The conclusion to be drawn
is that the general principles of delictual liability formulated by the Civil
law played an important role in a decision which is recognised as having
created the foundations of a central part of the Common law of negligence.
Why it was thought necessary to suppress the fact that "native"
Scots law, and through it the Civil law, had played this role in Donoghue
is also explained.
The Facts
There
are few cases whose facts are better known. Mrs Donoghue drank part of a
bottle of ginger beer bought for her by a friend when they were taking refreshments
in a cafe in Paisley. Her friend then poured out the remaining contents of
the bottle which contained a snail in a state of decomposition. Mrs Donoghue
sustained shock (presumably from the sight of the snail) and illness from
the contents she had drunk and raised a claim in delict against the manufacturer
for compensation. She averred that the defender had been negligent in the
manufacture of the ginger beer, principally in allowing a snail to enter
the bottle that she had consumed. The defence was that a manufacturer owed
no duty of care to a consumer with whom he had no contract unless the facts
fell within two well known exceptions which they did not on this occasion.
At first instance the pursuer was allowed to go to proof on the issue of
negligence but this decision was overturned by the Second Division of the
Court of Session. The Second Division followed English authority in reaching
its decision that the manufacturer would not have been liable even if he
had been negligent since he owed no duty of care to Mrs Donoghue. Thus, just
as in Cantiere, the Court of Session reached its decision on the basis
of English authorities which, by the time the case came on appeal to the
House of Lords, were regarded as importing an undesirable result for English
law by (some) leading English lawyers. It was accepted at all stages of the
appeal that English and Scots law were identical in this context. Since Scots
law had been decided on the basis of English authorities this assumption,
subject to an important reservation, was not unreasonable.
The Judgments in the House of Lords
The
decision was carried by a majority of three to two. In this respect it was
quite evenly balanced. For the reasons that have been intimated, the case
was pled and judged virtually exclusively on the basis of the English authorities.
When one observes, as we will see, that the majority of the English judges
dissented and that it was part of Lord Atkin's purpose that Donoghue
should im- <99> mediately form a precedent for English law, the fine
nature of the balance and the critical role played by Lord Macmillan becomes
clearer. The leading judgment for the dissenting minority was given by Lord
Buckmaster with whom Lord Tomlin agreed. The other main judgments were given
by Lord Atkin and Lord Macmillan with whom the other Scot, Lord Thankerton,
agreed. It is on the principal three judgments that I will concentrate. I
will highlight a fundamental difference of approach in respect of the merits
of the contemporary English law that Donoghue was set to clarify.
The interpretation which Lords Atkin and Macmillan put upon the English authorities
was seen to import a result in English law which was regarded as nothing
short of dangerous by Lords Buckmaster and Tomlin. I shall also highlight
a different method adopted towards the case law by Lords Atkin and Macmillan
from those who took the opposing view of the merits of the pursuer's claim.
Lord Buckmaster
One
remarkable feature of Lord Buckmaster's judgment is how often it stressed
the importance of deciding the case on the basis of the authorities of English
law. For example, he said [45] :
The law applicable is the common law, and, although its
principles are capable of application to meet new conditions not contemplated
when the law was laid down, these principles cannot be changed nor can additions
be made to them because any particular meritorious case seems outside their
ambit.
The strength of feeling with which Lord Buckmaster approached
the issue that a manufacturer might be liable in negligence to persons with
whom he had no contractual relationship is consistently emphasised. He said,
for example [46] :
It is impossible to accept such a wide proposition, and
indeed, it is difficult to see how, if it were the law, trade could be carried
on.
Later, still more emphatically, Lord Buckmaster agreed
with the following statement of Lord Anderson which was made when the Court
of Session rejected a claim [47] on facts similar to those of Donoghue:
In a case like the present, where the goods of the
defenders are widely distributed throughout Scotland, it would seem little
short of outrageous to make them responsible to members of the public ...
Lord Buckmaster added [48] : <100>
In agreeing, as I do, with the judgment of Lord Anderson,
I desire to add that I find it hard to dissent from the emphatic nature of
the language with which his judgment is clothed.
In similar vein to Lord Buckmaster, Lord Tomlin talks
in Donoghue of the "alarming consequences" of accepting
the validity of the pursuer's claim [49] . Given the language in which their judgments were framed there can
be no doubt whatsoever that the issue was one on which Lords Buckmaster and
Tomlin had formed views which differed very strongly indeed from the remainder
of the Committee. As we will see, it is equally clear that Lords Atkin and
Macmillan had formed correspondingly strong views of the merits of their
own position.
Lord Buckmaster subjected the English authorities to
a minute examination. His general approach was restrictive in the sense that
each case was treated as establishing a narrow precedent within an understanding
of the law that sought to restrict the range of claims of negligence in the
context in question. He expressed his general conclusion in the following
terms [50] :
In my view, therefore, the authorities are against the
appellant's contention; and apart from authority, it is difficult to see
how any common law proposition can be formulated to support her claim.
Lord Atkin
Lord
Atkin identified the issue as whether, as a matter of law, the defender owed
any duty to the pursuer to take care. However, he complained [51] :
It is remarkable how difficult it is to find in the English
authorities statements of general application defining the relations between
parties that give rise to the duty (to take care).
However, where Lord Buckmaster had sought to restrict
the authorities to narrow propositions, Lord Atkin looked in the same case
law precisely for evidence of general principles governing English law. Thus
he said [52] :
At present I content myself with pointing out that in
English law there must be, and is, some general conception of relations giving
rise to a duty of care, of which the particular cases found in the books
are but instances.
Thereafter Lord Atkin proceeded to enunciate the general
neighbour principle for which he has become famous. <101>
Throughout his judgment Lord Atkin emphasised the importance
of principle. However, where he saw an affirmation of this principle
[53] in a case like Heaven v. Pender [54] Lord Buckmaster had said of the dicta in the same case: "that
they should be buried so securely that their perturbed spirits shall no longer
vex the law" [55] and that they have "been used as a tabula in naufragio
for many litigants struggling in the seas of adverse authority"
[56] . Lord Atkin expressed equally strong views concerning the merits of
the pursuer's case which, in his view, the existence of the general principle
supported. Thus, he said [57] :
It is said that the law of England and Scotland is that
the poisoned consumer has no remedy against the negligent manufacturer. If
this were the result of the authorities, I should consider the result a grave
defect in the law, and so contrary to principle that I should hesitate long
before following any decision to that effect ... I do not think so ill of
our jurisprudence as to suppose that its principles are so remote from the
ordinary needs of civilised society and the ordinary claims it makes upon
its members as to deny a legal remedy where there is so obviously a social
wrong.
The differences between Lord Atkin and Lord Buckmaster
were clearly very keenly felt indeed.
Lord Macmillan
The
official version of Lord Macmillan's speech takes a fairly liberal view of
some of the English authorities. Thus, for example, it assumes that their
tensions can be explained by the fact that they represent the meeting place
of two rival (albeit fairly elementary [58] ) principles of law: that no one other than a party to a contract can
complain of a breach of that contract, and that negligence apart from contract
gives a right of action to the party injured by that negligence. Lord Macmillan
concludes that "Where, as in cases like the present, so much depends
upon the avenue to the question, it is very easy to take the wrong turning"
[59] . We might speculate on what Lord Buckmaster made of such a liberal
treatment of the English authorities by a Scottish judge and the implicit
correction of his own approach which this statement implied.
In his more detailed treatment of the authorities Lord
Macmillan's stated purpose was to show that "there is in the English
reports no such unbroken and <102> consistent current of decisions"
as would justify the aspersion that the law of England has committed itself
irrevocably to what is neither reasonable nor equitable" [60] . Later, in the same manner as Lord Atkin, Lord Macmillan took an abstract
approach which sought once more to identify in the cases general principles
governing the identification of the circumstances in which there was a duty
to take care [61] .
The First Final Version of Lord Macmillan's Speech [62]
Alan
Rodger discovered that Lord Macmillan had prepared a final version of his
judgment which, shortly before it was given, was reworked in some important
respects. In this version, instead of declaring, as he did in the official
speech, that English law showed no "unbroken and consistent current
of decisions" against the pursuer's claim, Lord Macmillan concluded
[63] :
I am prepared to agree that the general, though by no
means the uniform, trend of English decisions below has been adverse to the
admission of such a claim as your Lordships are considering in the present
appeal. But the matter is open in your Lordship's House.
We can well understand how undesirable such an admission
that the English authorities were against the pursuer's claim would have
appeared in the eyes of Lord Atkin. He was in the minority of the English
judges in his interpretation of the English cases and had to rely on Lord
Macmillan's support if Donoghue were immediately to act as a precedent
in English law. Still more problematic in Lord Macmillan's first version
of his speech was that, as Rodger has observed [64] :
Not only did Lord Macmillan originally begin by looking
at the Scots law: he actually professed to decide the case on the basis of
Scots law and then to go on to see, without prejudice to that decision, whether
the same result would be reached for English law.
This approach is reminiscent of Lord Shaw in Cantiere.
Lord Atkin, sitting in the Court of Appeal, had occasion to comment on the
undesirable consequences of the "Coronation" cases long before
the opportunity arose to overrule them in Fibrosa, and he must have
been aware of the lessons to be learnt from Cantiere [65] . Rodger is therefore quite correct in his "speculation"
[66] that <103> Lord Atkin prevailed upon Lord Macmillan to revise
his speech shortly before it was given in order to ensure that Donoghue
would act immediately as a precedent for both English and Scots law. We may
observe how extraordinarily instrumental both Lord Atkin and Lord Macmillan
were prepared to be in achieving the result that they desired. We may also
speculate that this fact was not lost on Lords Buckmaster and Tomlin. The
change effected by Lord Macmillan in his speech shortly before it was given
perhaps explains the strength with which the dissenting opinions in Donoghue
were ultimately framed.
As regards the excision from Lord Macmillan's speech
of all references to the "native" Scottish authorities Rodger observed
[67] :
... although Lord Macmillan originally visited what he
called "the fountain heads of Scots law", his trip was essentially
a detour which achieved little even in purely Scottish terms. We lost nothing
of significance for Scots law when he altered his speech in the way in which
he did.
Rodger recognises that the inspiration for Lord Macmillan's
speech in support of the pursuer's claim was the "native" Scottish
authorities and also that reference to these had to be suppressed to achieve
wider goals. Whether the contribution of Scots law was quite so insignificant
as Rodger suggests is a point which I doubt. Most importantly, Lord Macmillan
commenced his treatment of Scots law by reference to the institutional writers.
It is no coincidence that Erskine is given the greatest prominence since
it is in his An Institute of the Law of Scotland first published in
1773 that we find the clearest expression of the general principle of delictual
liability drawn from the Civilian tradition which at times has proven to
be such a rich source for the development of Scots law [68] . Erskine says [69] :
Alterum non laedere is one of the three general
precepts laid down by Justinian, which it has been the chief purpose of all
civil enactments to enforce. In consequence of this rule, every one who has
the exercise of reason, and so can distinguish be- tween right and wrong,
is naturally obliged to make up the damage befalling his neighbour from wrong
committed by himself. Wherefore every fraudulent contri- vance or unwarrantable
act by which another suffers damage, or runs hazard of it, subjects the delinquent
to reparation.
The other passage to which Lord Macmillan refers
[70] from Erskine was this [71] : <104>
Wrong may arise not only from positive acts of trespass
or injury, but from blameable omission or neglect of duty.
In Erskine we therefore find a succinct expression of
a general principle of delictual liability the limits of which are drawn
by reference to "neighbourhood". Liability is said to arise from
acts, omissions or neglect of duty.
X. Influences
What
evidence is there that Erskine was influential on the decision of the House
of Lords in Donoghue?
George v. Skivington [72] and Heaven v. Pender [73] were given particular prominence in Lord Atkin's judgment since they
contain broad statements from which the existence in English law of a general
principle equivalent to that expressed by Erskine can be deduced. However,
the testimony of cases like Heaven v. Pender is problematic. However
one reads his judgment concerning the existence of a general principle of
liability arising from negligence [74] , Brett M. R. certainly restricted its effect by suggesting that the
case before him in fact fell within a recognised exception to the position
of non-recoverability adopted by English law [75] :
This case is also, I agree, within that which seems to
me to be a minor proposition — namely, the proposition which has often
been acted upon, that there was in a sense, an invitation of the plaintiff
by the defendant, to use the stage.
Another influence upon Lord Atkin in his search for
general principle was the judgment of Cardozo J. given some years earlier
in New York [76] which Lord Atkin himself mentions [77] . Cardozo J. appears to have been seeking to discover a general principle
of the law of negligence but his judgment was also still constricted by the
assumption that a manufacturer did not owe a duty of care as a matter
of principle to those with whom he had not contracted. In his dissenting
judgment Willard Bartlett, Ch. J. stated the law as follows [78] : <105>
the liability of the vendor of a manufactured article
for negligence arising out of the existence of defects therein does not extend
to strangers injured in consequence of such defects but is confined to the
immediate vendee. The exceptions to this general rule which have thus far
been recognized in New York are cases in which the article sold was of such
a character that danger to life or limb was involved in the ordinary use
thereof; in other words, where the article sold was inherently dangerous.
The significance of Cardozo J.'s judgment lay in the
liberality with which he was prepared to regard objects as "dangerous"
[79] .
It is possible to view the general principle of liability
for negligence which Lord Atkin enunciated as a mere confusion arising from
the narrow exceptions to the opposite position of non-recoverability espoused
by Lords Buckmaster and Tomlin [80] . To the same effect, while admitting a principle of recoverability,
this might be treated as subject to detailed exceptions which defeated the
claim in point [81] . The first problem, as Lord Atkin saw it, was to identify "fundamental
principles of the common law" [82] which ensured the success of Mrs Donoghue's claim. There is a striking
correspondence between the general principle of English law as he finally
expressed it and Erskine [83] :
You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour.
According to Lords Buckmaster and Tomlin [84] , the position in English law was to deny a claim on the facts of Donoghue
unless it fell within certain recognised exceptions. Lords Atkin and Macmillan,
by contrast, adopted a very different method, the "generality"
of which is observed by Rodger [85] :
Essentially what Lord Macmillan did when he prepared the
May version (of his speech) was to take the generalised reasoning which he
had originally used for Scots law and apply it to the law of both systems.
<106>
Similarly, it was by the discovery and application of
principle that Lord Atkin approached the merits of Mrs Donoghue's claim.
For Erskine, "neglect of duty" possibly only
arose within a narrow class of relationships where persons, because of their
position or office, had assumed special responsibilities towards the pursuer.
The examples he gives are of a jailor and a clerk of court [86] . However, by the beginning of the twentieth century "breach of
duty" was expressed as a general precept of the Scots law of delict
[87] :
and damages will be given only when there is a legal wrong,
an invasion of another's right; in other words a breach of duty [88] .
English law, historically, had recognised limited relationships
within which there might be a "breach of duty" [89] . Lord Atkin, by reference to "neighbourhood" generalised
the class of persons to whom a duty was owed in negligence independent of
contract [90] . However, in response to any extension of the Common law Lord Buckmaster
had warned: "If one step, why not fifty?" [91] Lord Atkin's further problem was therefore to draw limits to his principle
that would make it acceptable in the world of practice whose interests Lord
Buckmaster was protecting. Again Lord Atkin did this by reference to the
idea of "neighbourhood". He said [92] :
The liability for negligence, whether you style it such
or treat it as in other systems as a species of culpa, is no doubt
based upon a general public sentiment of moral wrongdoing for which the offender
must pay. But acts or omissions which any moral code would censure cannot,
in a practical world, be treated so as to give a right to every person injured
by them to demand relief. In this way rules of law arise which limit the
range of complainants and the extent of their remedy ... the lawyer's question,
"Who is my neighbour?" receives a restricted reply ... The answer
seems to be — persons who are so closely and directly affected by my
act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in
question. <107>
The fact that other judges and other powerful voices
of the Common law [93] were seeking to broaden the range of the law of negligence provided
the background against which Lord Atkin gave his famous judgment in Donoghue.
It is acknowledged that, before he altered his speech, Lord Macmillan decided
the case on the basis of Scots law. Equally, Lord Atkin, we can be sure,
was well aware of the native Scots law which formed part of the background
to the claim [94] . The principle found in one of "the fountain heads of Scots law"
produced the result which Lords Atkin and Macmillan desired and there are
indications that it also proved influential in respect of the method, concepts
and language which they adopted in their judgments.
XI. Significance
The
position in English law preceding Donoghue concerning the limits on
the range of persons who owed a duty of care in negligence was historically
based [95] . There are certainly indications that some English judges had been
striving to discover a principle of the law of negligence that expressed
a more general duty of care that included that of a manufacturer towards
the consumer independent of contract, but the whole area was clouded by contrary
authority. English law unequivocally effected the discovery of principle
in Donoghue.
Donoghue has assumed a central position
in the ideology of the Common law. Rodger describes it as "probably
the most famous case in the whole Commonwealth world of the Common law"
[96] . One reason concerns central images of the Civil and Common law. The
former is seen to be principled but (too) abstract. The latter pragmatic
but constricted by precedent. Donoghue confounds this image of the
Common law because of its dynamic discovery of principle. An advantage is
seen to lie in the discovery of principle by judges because it is mediated
by the pragmatism of the practical lawyer which makes it more workable in
the real world.
There are grounds on which to question Donoghue's
contribution to this view of the Common law. All legal systems at times need
to find the impetus and means to re-orientate. There is a good chance that
the majority in Dono- <108> ghue drew on Scots law and
on the Civilian tradition which lay behind it. Given the fact that it was
a Scottish appeal this is no bad thing. A principle of the Scots law of delict,
unfettered by the problems concerning the interface between negligence and
contract, provided the avenue through which to break through the rigidities
that had been created in the Common law by history and precedent. However,
Lord Atkin was certainly creative with what he found in Erskine, especially
in his elaboration of the neighbourhood principle. Donoghue is therefore
best seen, not as an example of the Common law developing in isolation, but
as an important occasion on which the House of Lords founded upon the principle
of the Civil law [97] , and developed it through the pragmatism [98] of the Common law in the development of one law for Britain. The bridge
between the Common and Civil law was again provided by Scotland.
XII. Conclusions
Sitting
as the highest court of appeal for both jurisdictions, the House of Lords,
on a number of occasions this century, has actively sought to create a unitary
law, or to achieve similar results, for both Scottish and English private
law. The normal practice is that Scots law is made to conform with the law
of England, even where the principles of its law would not naturally lead
to such a result. Thus, the desire to achieve a result that was common to
both Scotland and England provides the most likely explanation for the nature
of the recent decision in Sharp v. Thomson [99] . Yet, sometimes the usual direction of flow between Scots and English
law is reversed. Recently in Woolwich Building Society v. IRC
[100] , an English appeal before the House of Lords, Lord Goff explicitly
drew upon the judgments of Lord Mansfield, and on the Civilian (and Scottish)
condictio indebiti, when stating that over-paid tax in the circumstances
of the case before him was recoverable in English law on the grounds of no
consideration [101] . Lord Goff was possibly unwise so clearly to identify the source of
his inspiration. It caused a vigorous reaction amongst English academics
who successfully argued that such a cause of action drawn from the Civil
law would <109> be highly damaging if introduced into the Common law
[102] . Nevertheless Woolwich also caused a strong reaction against
the rule that payments made in mistake of law are irrecoverable. The Law
Commission shortly thereafter provisionally recommended that the rule should
be abolished in English law [103] . The issue was quickly addressed for Scotland in Morgan Guaranty
Trust Co. of New York v. Lothian Regional Council [104] where the Court of Session, with copious references to Civilian authority,
decided that the cases which introduced the mistake of law rule into Scots
law from English law had been wrongly decided. The intention in Morgan
Guaranty was to bring Scots law into line with England concerning the
recovery of over-paid taxes after the changes which Woolwich had just
effected for English law. The leading judgment in Morgan Guaranty
was given by Lord President Hope who was a member of the House of Lords before
whom Kleinwort Benson Ltd v. Lincoln City Council [105] was recently heard. The judgments in that case do not rely, at least
expressly [106] , to any great degree on the Civil law. However, given the background
against which the decision arose its abolition of the mistake of law rule
in English law should come as no surprise.
My study of Cantiere, Donoghue and Fibrosa
shows that, where English law has been perceived to be unsatisfactory, "native"
features of Scots law were founded upon to achieve what was regarded as desirable
results for English law. By this means Civilian concepts, albeit mediated
through their understanding by the judiciary and the interpretation which
they receive in Scots law, have provided the stimulus for important developments
in English private law this century. This raises questions concerning the
definition of "mixed" legal systems. As this term is used of Scots
law it is the large degree of mixture viewed at a particular time in its
history that needs to be explained. The degree of mixture can possibly best
be explained by the manner in which it came about; namely by "reception"
[107] .
It is questionable whether the opportunity to draw
on the best features of the Common law and Civil law traditions existing
within the United Kingdom has been fully realised for Britain. The development
towards one law has been <110> achieved almost exclusively on the basis
of English law. In my own view this "reception" of English law
in Scotland was driven by deep running cultural forces and not directly by
a desire to achieve results which were qualitatively better for Scotland
[108] . Thus, we saw that Scots law had received aspects of English law that,
by the time of Cantiere and Donoghue, were regarded as unsatisfactory
for England by leading English lawyers. Nevertheless, on occasion, English
law has drawn on Scots law, and through Scots law, on its Civilian tradition.
This process has been motivated by the perception that a different and better
result can be achieved for English law. However, the independence of the
jurisdictions of England and Scotland was maintained by the Union. The authorities
of one jurisdiction are therefore not formally binding on the other. English
law has also never experienced the same pressures for "reception"
that explains why its law has proved to be so influential in Scotland. Cantiere,
Donoghue and Fibrosa show that the strength with which English
lawyers adhere to their own precedent can create an obstacle to the adoption
of ideas from different traditions. They also show how, on occasion, that
obstacle has been overcome. Thus, while English law has "borrowed"
from Scots law there are also good reasons why the fact of the "loan"
has sometimes had to be suppressed [109] .
Notes
[Note 1]
For a recent assessment
see W M. Gordon, 'A Comparison of the Influence of Roman Law in England
and Scotland' in: The Civilian Tradition and Scots Law, edd. D. Carey Miller/R.
Zimmermann (Berlin 1997) 135. On the general question of the extent to which
English law has been influenced by "Roman law", cf., most recently
R. Zimmermann, 'Savigny's Legacy: Legal History, Comparative Law and
the Emergence of a European Legal Science', 112 (1996) L.Q.R. 576 at 587
ff. <84>
[Note 2]
See W.D.H. Sellar,
'The Resilience of the Scottish Common Law' in: The Civilian Tradition and
Scots Law, edd. D. Carey Miller/R. Zimmermann (Berlin 1997) 225 at p.149.
[Note 3]
Cap. 7, article 19.
[Note 4]
'Receptions of Law,
Mixed Legal Systems and the Myth of the Genius of Scots Private Law', 114
(1998) L.Q.R. 228. The fact that there was a drift of Scots law towards English
law is now becoming more widely accepted; see, most recently, H. MacQueen
/W.D.H. Sellar, 'History of Negligence in Scots Law', Northern
Cross (OUP), edd. K.G.C. Reid/R. Zimmermann (forthcoming) who pose the following
important question: "How does one explain the apparent shift in orientation
of Scots law in the course of the nineteenth and twentieth centuries from
the Civil to the Common law?"
[Note 5]
See R. Evans-Jones,
op. cit. n. 4.
[Note 6]
As regards this perception
amongst Scots lawyers, see Alan Rodger, 'Thinking about Scots Law',
(1996) 1 Edinburgh Law Rev. 3. See also idem, 'The Codification of
Commercial Law in Victorian Britain', 108 (1992) L.Q.R. 570. <85>
[Note 7]
1923 S.C. 725; 1923
S.C. (H.L.) 105.
[Note 8]
1929 S.C. 461; 1932
S.C. (H.L.) 31; [1932] A.C. 562.
[Note 9]
[1943] A.C. 32. <85>
[Note 10]
Russkoe Obscheslvo
D'Lia Izgslovlenia Snariadov L'Voennick Pripassov v. John Stirk and Sons
Ltd, (1922) 10 Ll. L. Rep. 214 at p. 216.
[Note 11]
See also esp. Krell
v. Henry, [1903] 2 K.B. 740. <87>
[Note 12]
Per Collins M.
R. at p. 499. <88>
[Note 13]
This is the approach
adopted by the House of Lords in the recent Scottish Appeal, Dollar Land
(Cumbernauld) Ltd v. CIN Properties Ltd, 1998 SLT 992 with the difference
that on this occasion the relationship between the parties was expressly
regulated by the terms of the contract. See further, H. MacQueen,
'Contract, Unjustified Enrichment and Concurrent Liability: A Scots Perspective',
1997 Acta Juridica 176.
[Note 14]
At p. 499.
[Note 15]
At p.117.
[Note 16]
At p. 117.
[Note 17]
Per Lord Shaw
at p. 117. <89>
[Note 18]
At p. 58. <90>
[Note 19]
At p. 48.
[Note 20]
At p.117. <91>
[Note 21]
The Law of Restitution
(4th ed., London 1993) 407 f.
[Note 22]
See W. W. Buckland,
'Casus and Frustration in Roman Law and Common Law', (1932-3) 46 Harvard
L.R. 128; R. Evans-Jones, 'Unjust Enrichment, Contract and the Third
Reception of Roman Law in Scotland', (1993) 109 L.Q.R. 663; G.D. MacCormack,
'The Condictio Causa Data Causa Non Secuta', in: The Civil Law Tradition
in Scotland, ed. R. Evans-Jones (Stair Society 1995) 253.
[Note 23]
See R. Evans-Jones,
'The Claim to Recover what was Given for a Lawful Purpose Outwith Contract
that Fails', 1997 Acta Juridica 139. <92>
[Note 24]
Lord Shaw and Roby
were friends; see A. Rodger, 'The Use of the Civil Law in Scottish
Courts', in: The Civilian Tradition and Scots Law, edd. D. Carey Miller/R.
Zimmermann (Berlin 1997) 225 at p. 228.
[Note 25]
See esp. J.A. Dieckmann
and R. Evans-Jones, 'The Dark Side of Connelly v. Simpson', 1995
J.R. 90; R. Evans-Jones, 'The Claim to Recover what was Transferred
for a Lawful Purpose Outwith Contract that Fails', 1997 Acta Juridica 139.
[Note 26]
Deriving from the
logic that there had been a "total" failure of consideration. <93>
[Note 27]
Section 1(2).
[Note 28]
The defence of change
of position is undeveloped in this context.
[Note 29]
See Fibrosa
per Lord Atkin at p. 54.
[Note 30]
Lord Cooper,
'Frustration in Scots Law', (1946) 28 Journal of Comparative Legislation,
Part III, 1; reproduced in: Selected Papers 1922-1954 (1957) 124.
[Note 31]
See the instructive
study by E. McKendrick, 'Frustration, Restitution, and Loss Apportionment',
in: Essays on the Law of Restitution, ed. A. Burrows (Oxford 1991) 147.
[Note 32]
The British Columbian
Frustrated Contracts Act 1974, the New South Wales Frustrated Contracts Act
1978, and the South Australian Frustrated Contracts Act 1988.
[Note 33]
McKendrik,
op. cit. at p. 166. The payee's claim "does not hinge upon the
fortuitous circumstance of the making of a prepayment by the payer; the payee
can bring his expenditure into account and his claim is not limited by the
ceiling of the payer's prepayment".
[Note 34]
McKendrik,
op. cit. at p. 170. <94>
[Note 35]
As not being bound
by the "Coronation" cases.
[Note 36]
At p.121.
[Note 37]
At p. 116. <95>
[Note 38]
At p. 121.
[Note 39]
At p. 117. <96>
[Note 40]
At p.115.
[Note 41]
At p. 44. <97>
[Note 42]
Russkoe Obschestvo
D'Lia Izgstovlenia Snariadov L'Voennick Pripassov v. John Stirk and Sons
Ltd, (1922) 10 Ll. L. Rep. 214 at p. 216.
[Note 43]
'Lord Macmillan's
speech in Donoghue v. Stevenson' (1992) 108 L.Q.R. 236.
[Note 44]
See D. McKenzie
and R. Evans-Jones, 'The Development of Remedies for Personal Injury
and Death', in: The Civil Law Tradition in Scotland, ed. R. Evans-Jones (Stair
Society 1995) 277. Rodger relies on scholarship which argues that
the Scottish institutional writers did not recognise such a general principle.
This view is no longer credible. See, for example, MacQueen/Sellar,
op. cit. n. 4. <98> <99>
[Note 45]
At p. 35.
[Note 46]
At p. 41.
[Note 47]
Mullen v. Barr
and Co., 1929 S.C. 461 at p. 479.
[Note 48]
At p. 43. <100>
[Note 49]
At p.57.
[Note 50]
At p. 42.
[Note 51]
At p. 44.
[Note 52]
At p. 44. <101>
[Note 53]
At p. 44.
[Note 54]
11 Q.B.D. 503.
[Note 55]
At p. 42.
[Note 56]
At p. 39.
[Note 57]
At p. 46.
[Note 58]
But perhaps not so
elementary; see S. F. C. Milsom, Historical Foundations of the Common
Law (2nd ed. 1981) esp. at p. 400; also T.B. Smith, 'The Common Law
Cuckoo', in: Studies Critical and Comparative (1962) 89 esp. at pp. 107 and
113.
[Note 59]
At p. 65. <102>
[Note 60]
At p. 63.
[Note 61]
For example, at p.
70.
[Note 62]
The text is presented in the
Appendix to Rodger's article cited at n. 43.
[Note 63]
Appendix, at p. 258.
[Note 64]
At p. 239.
[Note 65]
Russkoe Obschestvo
D'Lia lzgstovlenia Snariadov L'Voennick Pripassov v. John Stirk and Sons
Ltd, (1922) 10 Ll. L. Rep. 214 at p. 216. <103>
[Note 66]
At p. 247.
[Note 67]
At p. 242.
[Note 68]
See D. McKenzie/R.
Evans-Jones, op. cit. n. 44.
[Note 69]
An Institute of the
Law of Scotland 3, 1, 13. I quote more from this section of Erskine than
Lord Macmillan. It is worth comparing Erskine's statement with
that found in the German Civil Code BGB § 823 which draws on the same
source.
[Note 70]
Appendix p. 249.
[Note 71]
Ibid. <104>
[Note 72]
L.R., 5 Ex. 1.
[Note 73]
(1883) 11 Q.B.D. 503.
[Note 74]
Lord Buckmaster
was of the view that no such general principle had been expressed.
[Note 75]
At p. 514. A point
which is noted by Lord Buckmaster in Donoghue at p. 39. Lord
Buckmaster also notes at p. 40 that there were narrow limits within which
Brett M. R. (Lord Esher) was prepared to apply such a principle
(if it were to exist).
[Note 76]
MacPherson v. Buick
Motor Co., 217 N.Y.R. 382.
[Note 77]
At p. 56.
[Note 78]
At (Lexis) p. 25.
<105>
[Note 79]
Cf. Winterbottom
v. Wright, 10 M. & W. 109. Also John D. Gordon III, 'The American
Authorities in Donoghue v. Stevenson: A Resolution', 115 (1999) L.Q.R.
183.
[Note 80]
When is a principle
of recoverability or non-recoverability no longer such a principle when subject
to a large number of exceptions. See per Lord Buckmaster concerning
Heaven v. Pender at pp. 40-41.
[Note 81]
For example, it might
not apply to the relationship between a manufacturer and a consumer. Thus,
if we assume that Brett M. R. recognised the principle of recoverability
in Heaven we must also accept that he did not apply it to the relationship
between mortgagees and surveyor in Le Lievre and Dennes v. Gould,
[1893] 1 Q.B. 491.
[Note 82]
At p. 56.
[Note 83]
At p. 44.
[Note 84]
At p. 38.
[Note 85]
At p. 242. <106>
[Note 86]
3,1,13.
[Note 87]
Bell, Principles
of the Law of Scotland (10th ed. 1899), ed. William Guthrie para 553, 1.
I am grateful to Professor D.P. Visser for this observation.
[Note 88]
For a highly instructive
overview of the early use of the term "breach of duty" in Scots
law, see H. MacQueen/W.D.H. Sellar, op. cit. n. 4.
[Note 89]
P.H. Winfield,
'The History of Negligence in the Law of Torts', 42 (1926) L.Q.R 184; 'Duty
in Tortious Negligence', 34 (1934) Columbia Law Review 41.
[Note 90]
On the differences
in significance of the decision for England and Scotland, see the perceptive
observations of K. McK. Norrie, 'Obligations Arising from a Wrongful
Act', The Laws of Scotland, Stair Memorial Encyclopaedia (Edinburgh 1996)
vol. 15 para. 258.
[Note 91]
At p. 42. The phrase
was lifted from the judgment of Alderson B. in Winterbottom v.
Wright, 10 M. & W. 109 at p.115.
[Note 92]
At p. 44. <107>
[Note 93]
Pollock, Law
of Torts (13th ed. 1929) at p. 570.
[Note 94]
Hence his reference
at p. 44 to systems of law which approached the subject matter of the claim
on the basis of "culpa".
[Note 95]
See S.F.C. Milsom,
Historical Foundations of the Common Law (2nd ed. 1981) esp. at p. 400. Also
Winterbottom v. Wright, 10 M. & W. 109.
[Note 96]
A. Rodger,
'Mrs Donoghue and Alfenus Varus', (1988) 1 C.L.P. 1 at p. 2. Some descriptions
of the significance of the case are extravagant; see the example quoted by
R. Zimmermann, The Law of Obligations, Roman Foundations of the Civilian
Tradition (1990) p. 1039 n. 264. <108>
[Note 97]
In Le Lievre and
Dennes v. Gould, [1893] 1 Q.B. 491 at p. 497 Lord Esher M. R.,
says, "So too, if a man is driving along a street in a town, a similar
duty not to drive carelessly arises out of contiguity or neighbourhood".
It is likely that reference was being made to a concept of physical proximity;
see Donoghue per Lord Buckmaster at pp. 40-41.
[Note 98]
Lord Atkin
shows a mistrust of principle that is too generally stated; for example,
at p. 46 he says, "it is of particular importance to guard against the
danger of stating propositions of law in wider terms than is necessary".
[Note 99]
1997 S.L.T. 636 (H.L.),
discussed by R. Evans-Jones, op. cit. n. 4.
[Note 100]
[1993] A.C. 70.
[Note 101]
At p. 166 and p. 172.
<109>
[Note 102]
See R. Evans-Jones,
op. cit. n. 4 at p. 240 and the literature cited.
[Note 103]
LAW Commission:
C.P. No. 120, Restitution of Payments Made Under a Mistake of law (1991)
paras 2.36-2.37.
[Note 104]
1995 S.C. 151; 1995
S.L.T. 299.
[Note 105]
[1998] 3 W.L.R. 1095.
[Note 106]
I am grateful to Reinhard
Zimmermann for pointing out that I have probably underestimated the degree
of influence of the Civil law on the decision. The issue is examined in detail
by Zimmermann and S. Meier in this volume of the Law Quarterly
Review. [Editor's note—see Addendum.]
[Note 107]
See R. Evans-Jones,
op. cit. n. 4. <110>
[Note 108]
R. Evans-Jones,
op. cit. n. 4.
[Note 109]
I am grateful to Peter
Duff, Angus Campbell, Phillip Hellwege, Geoffrey MacCormack,
Scott Styles and Neil Walker for their help and comments.
Addendum
To
footnote 106: The article by Zimmermann and Meier appeared as: Sonja Meier
and Reinhard Zimmermann, 'Judicial Development of the Law, Error Iuris,
and the Law of Unjustified Enrichment—A View from Germany', 115 (1999)
L.Q.R. 556-65.