JOURNAL: The Journal of Legal History XLIII (2022), No. 1

 

(image source: Routledge)

Contracts ‘Not for the Public Good’ and the Classical Law of Contract (Warren Swain) (DOI 10.1080/01440365.2022.2043408)

Abstract:

During the nineteenth century, legal writers began to put the law of contract into a more rationale and ordered framework. This approach reached its apotheosis in the classical law of contract, which retains some influence in modern times. At its core was the belief that contracts were formed by a meeting of wills – that is, contracts were based on consent. Historically, however, there are instances where the law refused to enforce a contract even if the parties had seemingly freely consented to it. Two major examples were contracts that were against morality or public policy. Both of these categories evolved in the nineteenth century. They came to be seen as increasingly anomalous and restricted. They did not, however, disappear altogether.

Aggravation in Tort Before 1763 (Nicholas Sinanis) (DOI 10.1080/01440365.2022.2043398)
Abstract:

According to a well-settled narrative, modern exemplary (or punitive) damages were first awarded in 1763 in two famous tort cases that arose from the publication of the controversial forty-fifth issue of the North Briton newspaper. Before these cases were decided, English juries only ever increased damages in aggravated tort cases to further compensate plaintiffs for various intangible injuries. This article presents a challenge to this narrative. It seeks to do so by systematically accounting for the place of ‘aggravation’ in the practice of litigating tort actions from the turn of the seventeenth century to the North Briton decisions. It shows that remedial judgments about how to respond to matters of aggravation in tort were fundamentally conceived as belonging to the jury’s adjudicative province, and in which judges increasingly hesitated to interfere. Ultimately, this article contends there is sufficient evidence upon which to conclude that – within this province – pre-1763 juries increased the financial liability of aggravated tortfeasors according to diverse principles, not all of which purported to repair the full extent of a plaintiff’s suffering. In select cases, juries may have applied punitive and exemplary principles.

Law and Commerce: The Fortunate Crisis of the Eighteenth Century (Aleksi Ollikainen-Read) (DOI 10.1080/01440365.2022.2043373) (OPEN ACCESS)

Abstract:

This article refines a common narrative about eighteenth-century commercial law and its relationship to economic development. It looks at a specific doctrinal strand of English common law–promissory notes–and argues that their recognition by statute without regard to common law’s requirements led to a serious destabilization and a crisis for the legal community. This crisis coincided with the South Sea crash and its aftermath, when promissory notes were most needed by the population at large. However, a fortunate effect of this crisis was that promissory notes went essentially unregulated by the courts, and their use was thereby allowed to proliferate. When Lord Mansfield effected his reforms, this brought mercantile cases back to common law courts and brought certainty to the law (albeit at the cost of common law processes). With these commercial instruments in common use and on certain legal foundation, the financial instruments and networks were in place to allow the process of economic development that eventually became modern capitalism. Therefore, instead of the narrative of the steady development of English institutions to pave the way for industrial and financial capitalism, the story of common law’s development is of institutional failures that happened to be fruitful.

 Scottish Legal History Group Report 2021

Migrations of Manuscripts 2021 (sir John Baker)

Book reviews:

• Art and Modern Copyright: The Contested Image by Elena Cooper, Cambridge, Cambridge University Press, 2018, 304 pp., £85 (hardback), ISBN: 9781107179721 (by Stavroula Karapapa)
• The Foundations of Anglo-American Corporate Fiduciary Law by David Kershaw, Cambridge, Cambridge University Press, 2018, xxix + 517 pp. (including index), £110 (hardback), ISBN 978-1-107-09233-4 (by Victoria Barnes)

Read more here.