Contract law reform: Legislators or judges – or both?
| Citation | 2021 Acta Juridica 57 |
| DOI | https://doi.org/10.47348/ACTA/2021/a3 |
| Date | 23 August 2021 |
| Published date | 23 August 2021 |
| Author | MacQueen, H. |
| Pages | 57-82 |
57
https://doi.org/10.47348/ACTA/2021/a3
Contract law reform: Legislators or
judges – or both?*
HECTOR L MACQUEEN†
This ess ay pursues a theme identied by Dale Hutchison – judge s’
use of their tech nical expertise to achieve creat ivity in law – and asks
how far that may be relied upon by law refor m bodies, such a s the
Law Commi ssions in the Un ited Kingdom. The question is whether
such bodies should take account of mea ns other tha n legislation for
having their recommendations put into eect. It is suggested that,
while law refor m bodies shou ld be fully aware that their published
work is a source of in formation, ideas and a rguments for pract itioners
and judges wh ich may contribute to the judicia l development
of the law, they should address themselves only to govern ment and
the legisl ature.
I IN TRODUCTION
This contribution from Scotland in honour of Dale Hutchison
and his contribution to the law of contract begins with an apology
for somewhat mangling a quotation from his work in my own, as
well as for a subsequent misattribution to me of what was really
his thinking. In an article dealing, inter alia, with good faith in
contract law, I quoted at some length from a character istically
trenchant contribution on the subject by Dale which included the
following sentence: ‘Good faith thus has a creative, a controlling
and a legitim ating or explanatory function.’1 A few pages further
on in my article, I wrote that ‘in Scottish contract law … as in
South African law, good faith is generally an underlying principle
of an explanatory and legitimating rather than an active or
* I a m grateful t o my colleagues Er ic Clive, Tahir Erdog an, George Grett on,
Lorna R ichardso n and Andrew S teven, and to th e anonymous ref erees, for
helpful com ments on earlier dra fts of this paper.
† L LB PhD (Ed inburg h) FBA FRSE; Pr ofessor of Pr ivate Law, Univers ity
of Edinburg h.
1 H L MacQueen ‘ Delict, cont ract, and t he Bill of R ights: A per spective
from the Unit ed Kingd om’ (2004) 121 SALJ 359 at 377, quoting D Hutch ison
‘Good fait h in the South A frica n law of contract ’ in R Brownswo rd, NJ Hi rd
& G Howells (eds) Goo d Faith in Contract: Concept and C ontext (1999) 213 at 230.
2021 Acta Juridica 57
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58 THE FUT URE OF THE LAW OF CONTR ACT
https://doi.org/10.47348/ACTA/2021/a3
creative nature’.2 Yet a little later my sentence was quoted by Lord
Hope of Craighead in a House of Lords case dealing not with
contract law, but with immigrat ion law and asylum seekers; it is
the one and almost cer tain ly only citat ion of my work at the apex
of the United Kingdom’s legal systems.3 As will be apparent, my
words were an inexact and indeed incomplete rendering of what
Dale had written. It is thus only poetic justice that in his turn
Lord Hope did not go on to quote further words of mine showing
the Scottish courts using good faith in an active or creative way.4
However, the truth of the matter in both Scotland and South
Africa is probably best captured by another sentence from Da le:
‘[T]he inuence of good faith in the law of contract is merely of
an indirect nature, in that the concept is usua lly mediated by some
other, more technical doctrinal device.’5
Another quotation from Dale’s writings seems to me to
indicate the essence of his overall contribution to thinking about
contract law:
[T]o reach directly for the baton of good fait h would be to confes s to
a want of techn ical expertise or c reativity. Palm-tr ee justice no doubt
has its vi rtues, but as lawyers we shou ld adhere to the ideal of justice
according to law.6
This essay will not seek to re-enter debates about good faith, which
continue to rage in Scotland and South Africa (not to mention
Eng la nd).7 Instead I wi ll pursue the theme of law yers’ (and especially
judges’) use of their technical expertise to achieve creativity in law.
I am prompted to do so by my exper ience between 2009 and 2018
2 M acQueen (n 1) 382.
3 R (o n the applicatio n of European Rom a Rights Centre) v Im migration Oce r,
Prague Airport [2004] UK HL 55, [2005] 2 AC 1 at 60.
4 M acQueen (n 1) 382–3.
5 Hut chison (n 1) 231. See HL MacQ ueen ‘Good fa ith in the Scot s law of
contract: A n undis closed pri nciple?’ in A DM Forte (ed) Good Fa ith in Contract
and Property (1999) chap 2.
6 D Hut chison ‘Non-va riation c lauses in con tract: A ny escape fr om the
Shifren stra itjacket?’ (20 01) 118 SALJ 720.
7 S ee D Hutchison ‘F rom bona des to ubuntu: The quest for f airne ss in
the South Af rican l aw of contract’ (2 019) Acta Juridica 99; HL MacQueen &
Shannon O’By rne ‘The pr inciple of goo d faith in con tractu al perfor mance: A
Scottis h-Cana dian per spective’ (2019) 23 Edin L R 301; and, most re cently,
Beadica 231 CC and Othe rs v Trustees for the time be ing of the Oregon Trust an d
Others 2020 (5) SA 2 47 (CC).
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