Date: Thu, 31 Jul 2003 16:51:20 +1000

From: Andrew Robertson

Subject: Insurance/principles/policies

Once again my apologies to the bored, but I must make two quick observations in response to Jason:

1. In Foakes v Beer Lord Blackburn was talking about whether business people might regard part payment of a debt as beneficial. It is not even arguable that he was referring to an obligatory custom having the force of law.

2. RB Ferguson has systematically identified a series of cases (from 1802-1973) involving non-formalist reasoning. These are cases involving (in his words) 'contextual and instrumental reasoning' in which 'the judge lays claim to some knowledge of the business context in which the dispute arose' : RB Ferguson, 'The Horwitz Thesis and Common Law Discourse in England' (1983) OJLS 34, 48-51.

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