I think Lionel is entirely right that the source of the rule cannot be determinative of its nature. However, I think a rule being judge made gives a clue as to its nature, because common law courts can (should? have?) only recognised a narrow set of interpersonal rights.

 

In the common law tradition, a contractual right is one created by the agreement of the parties, supported by a quid pro quo. As I understand the civilian tradition (and e.g. EU rules like those in Rome I and the Brussels Regime), it is a right created by the consent of at least one party. On that view I think that the Rights of Third Parties Act is probably not a contractual right in the common law tradition, because it does not arise (or need not arise) by virtue of the agreement of the third party. But it is a contractual right for the purposes of e.g. Rome I.

 

Against that, one might point to implied terms or more potently to what Simon Whittaker labels ‘statutory terms’ (e.g. those in the Consumer Rights Act 2015). As these rights still arise from the agreement between the parties, I think they are still within the definition of contractual. But I think its debatable whether that is enough to exclude CROTPA.

 

 

 

To make the same point another way, we can classify rules according to their source (common law, equity, statute) or their content (criminal, tort, contract, property, etc).  What we can’t do, however, is mix these taxonomies.  It would, therefore, be a nonsense to say of a rule that it was a property rule, not a statutory one.

Bill

 

 

I agree that the distinction between the Code and other statutes is crucial, but I don’t think that touches my point, which is that it is a mistake to think that there is a mutually exclusive distinction between ‘contract’ and ‘statute’. A rule can be a statutory rule of contract, or a codal rule of contract, or a judge-made rule of contract.

In other words what makes something a rule of contract law, or not one, is not what Benoît Moore calls the ‘formal source’ of the rule or what Hart might have called the applicable rule of recognition.

 

I’m not sure it’s so strange from a civil law vantage point, actually. There has historically been a rather important difference between a Code, which is meant to embody enduring principles of private law, and a mere statute. That a statutory rule happens to affect contract law does not mean that it is of the same nature as a rule contained in a Code.

 

Stéphane

 

 

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