Date: Wed, 30 Jul 2003 08:42:01 -0400

From: Jason Neyers

Subject: Insurance/principles/policies

Dear Andrew,

If Lord Blackburn had decided the case as he was originally disposed to do, based on armchair empiricism about business practice, would he have breached his judicial oath? I don't think so.

Not in a case where the "custom of the realm" is considered to be a source of the law in the absence of other authoritative sources. The difference between this case and insurance is that the custom of the realm is arguably relevant to the dispute between the parties in a way that the insurance is not. Of course, one could rightly complain that although this inquiry was relevant, he should have asked the lawyers involved to prove the particular custom rather than basing his judgment on "my conviction". (But perhaps this fact was so well known that his Lordship felt that he could take judicial notice of it?). At worst then, this is more a case of slight negligence/laziness than a wilful Denning-like, the law be damned, breach.

In any event, I think that the mistake that Lord Blackburn made was in thinking that Coke made a mistake of fact. The question of what can constitute "consideration" is a legal question (i.e.. one which requires an elucidation of the logical requirements necessary to transfer a right between the parties in the absence of a change of possession), not a factual question. If that is correct, no amount of societal adherence can change the need for consideration, though a large disjuncture between logic/law and business practice might be a good reason for the legislature to enact remedial legislation (as has been done in Ontario, see Mercantile Law Amendment Act).

Jason

Andrew Robertson wrote:

For those who are bored with this discussion, I am sorry to prolong it, but I feel obliged to offer some evidence to support Steve Hedley's point that the non-formalist approach to deciding cases and developing principle is not new. Lord Blackburn's speech in Foakes v Beer (1884) 9 App Cas 605 is a well-known example of the delicate interplay between doctrine, precedent and an appellate judge's understanding of the world. He said (at 622-3), referring to the doctrine (formulated by Coke) that payment of a lesser sum cannot be satisfaction of a greater:

'What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognise and act on the ground that prompt payment of a part of their demand may be more beneficial to them than it would be to insist on their rights and enforce payment of the whole. ... I had persuaded myself that there was no such long-continued dictum as to render it improper in this House to reconsider the question. I had written my reasons for so thinking; but as they were not satisfactory to the other noble and learned Lords who heard the case, I do not now repeat them or persist in them. I assent to the judgment proposed, though it is not that which I had originally thought proper.'

If Lord Blackburn had decided the case as he was originally disposed to do, based on armchair empiricism about business practice, would he have breached his judicial oath? I don't think so.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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