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The Jersey Law Review - June 2003

GUERNSEY LAW OF TORT AND CONTRACT: DE PRINCIPIIS

Gordon Dawes

Introduction

1       Guernsey tort and contract law are essentially customary law-based in the broader sense of ongoing common or case-law.  This is necessarily so given the comparative lack of legislation in both areas.  By comparison with England there are no equivalents to the Law Reform (Frustrated Contracts) Act 1943, the Law Reform (Personal Injuries) Act 1948, Occupiers’ Liability Act 1957, Misrepresentation Act 1967, Employer’s Liability (Defective Equipment) Act 1969,[1] Supply of Goods (Implied Terms) Act 1973, Consumer Credit Act 1974,[2] Congenital Disabilities (Civil Liability) Act 1976, Torts (Interference with Goods) Act 1977, Unfair Contract Terms Act 1977, Sale of Goods Act 1979, Highways Act 1980, Supply of Goods and Services Act 1982, Administration of Justice Act 1982, Occupiers’ Liability Act 1984, Latent Damage Act 1986,[3] Minors’ Contracts Act 1987, Consumer Protection Act 1987, Access to Neighbouring Land Act 1992, Defamation Act 1996, Protection from Harassment Act 1997, Late Payment of Commercial Debts (Interest) Act 1998 and the Contracts (Rights of Third Parties) Act 1999; let alone legislation with origins in Europe such as the Unfair Terms in Consumer Contracts Regulations 1999.

2       The list is daunting; yet in every case, literally every case, Guernsey common law must produce its own solutions.  The possibilities in this regard are, prima facie, wide-ranging.  The leading case and example is that of Morton v Paint[4] where the Court of Appeal held that Guernsey common law had evolved to produce a solution equivalent to the Occupiers’ Liability Act 1957 without such legislation ever having been incorporated into Guernsey law.  The Court was particularly influenced by developments in Australian case-law where the same result as the English Act had been achieved independently of statute.  Australian case-law was cited by the Guernsey Court as illustrative of how case-law could and should develop.[5]  The essential point was that -

“It would not be appropriate to leave Guernsey law in the state reached by English law nearly 40 years ago, which was justly criticised as something of a blot on English jurisprudence and requiring urgent reform.  For the Guernsey Courts to cling to obsolete English common law cases which ceased to be authoritative in England and Wales nearly 39 years ago would not be in the interests of those who live in Guernsey or their visitors.”[6]

3       Guernsey common law had to develop and could not stand still if it was to serve the interests of the people of Guernsey; as it must.  What Morton illustrated more generally was a principled model of how Guernsey common law should go about that process of development.

4       It is a frequent criticism that Channel Islands customary or common law is uncertain and its development dependent on a more or less arbitrary selection of legal principles deriving from Norman, French, English, or other, mostly common law jurisdictions.[7]  The reality is that neither Guernsey nor Jersey is a sufficiently large jurisdiction to be wholly independent jurisprudentially, even taking account of their international business.  In circumstances where modern English jurisprudence is more amenable to the influence of other jurisdictions than previously, it is that much more appropriate that small jurisdictions look externally for solutions if there is either no pre-existing solution in their domestic law or else no appropriate original solution; which will be a significant proportion of the time.  This is not to undermine the ultimate freedom of such jurisdictions to make their own law; but the charge of arbitrariness is avoided by a principled approach to the process of legal development, even if that approach will itself be susceptible to development in the same way as the law.  The approach may also differ according to the branch of law under consideration, as for Guernsey tort and contract law.

Tort, contract and customary law

5       Ancient customary law has little contemporary influence on modern Guernsey tort and contract law,[8] for the simple reason that customary law itself had little to say on the subjects; certainly the Norman coutumiers themselves.[9]  French customary law jurisdictions were compelled to look elsewhere, principally to Roman law.  All of this is well illustrated in the work of Robert-Joseph Pothier[10] a figure still central to Guernsey (and Jersey) Law.  There are three pillars of Pothier’s massive body of work; a re-editing of Justinian’s Digest of Roman Law, his Coutume of Orléans and Treatise on Obligations with it various sub-treatises.  Each of these three works would constitute a substantial contribution to jurisprudence in its own right, let alone when taken together.  It is the confluence in the single person of Pothier which is of special interest in the present context.  In Pothier it can be said that Roman law, Customary law and “modern” law meet. 

6       There is a sense in which his Treatise represents a synthesis of Roman law and French law, loosely defined, as it had evolved since Roman times; i.e. an amalgam  of customary law, Roman law, statute, day-to-day jurisprudence and practice.  Brissaud makes the following introductory remarks to the topic of obligations in his History of French Private Law -

“The principles of the old Germanic and Customary law are … found to have almost entirely given way to the Roman theories.  No other portion of legislation has been Romanized to this extent.  Is this a sufficient reason for believing that this evolution has taken place merely under the influence of Roman law?  No, indeed!  No more here than anywhere else has Roman law been a direct cause of juridical changes.  It has not been imitated in the same way as a pupil copies his master, in a spirit of servile respect.  Its action, which has been great, has only been exercised where the ground was prepared for it, where evolution took place spontaneously and independently.  But the evolution was peculiarly facilitated by Roman influence, gaining therefrom a concisely defined object, precise formulæ, and a fixed plan; from an obscure growth, slow, uncertain, and groping it became a conscious work.  The real cause of the change which led the old law back to the Roman theories, as far as obligations were concerned, was the substitution … of a contractual system for the system of strict custom; the one accords with a social state as simple as that of the late Middle Ages; the other accords with societies which, like ours, are more complex.”[11]

7       Pothier stands full square within this tradition and remains of fundamental importance to Channel Islands contract law, but his influence was felt also in the law of tort, which is perhaps overlooked.

8       The fact that Guernsey’s modern law of obligations owes little to ancient customary law serves also to distinguish, at least partly, the dictum of Lord Wilberforce in the Privy Council case of Vaudin v Hamon,[12] which concerned Sark realty and prescription periods.  Lord Wilberforce stated -

“Their Lordships were referred to a number of authorities under various systems of law relevant to prescription, its nature and its effect.  These were said to be applicable, or at least relevant, by analogy to the present case.  This argument appears to their Lordships to be too widely stated.  If an argument based on analogy is to have any force, it must first be shown that the system of law to which appeal is made in general, and moreover the particular relevant portion of it, is similar to that which is being considered, and then that the former has been interpreted in a manner which should call for a similar interpretation in the latter.

While it may be true, in a very general sense, that there is some basic similarity between Roman Law, at various periods, the various customary laws applicable in different parts of France, the Civil Napoleonic Code, the law applicable in Jersey and that which governs in Guernsey, this similarity is of a too general sense and approximate character to be of much assistance in a particular case:  it covers, quite clearly, large differences in matters not only of detail but of principle.  Examination of the various laws of prescription in fact shows examples, within these supposedly analogous systems, of purely extinctive prescription, prescription extinguishing the remedy but not the right, prescription defined purely in terms of acquisition, and prescription effective both to confer title and to extinguish adverse claims.  …

Thus, although as this Board has pointed out in La Cloche v La Cloche (1870) LR 3 PC 125, it is proper to look at related systems of law, and commentators on them, in order to elucidate the meaning of terms, the particular legal provision under examination in any case, in this case the Guernsey law as to prescription, must in the end be interpreted in the light of its own terminology, context and history.”

9       Vaudin was cited with approval by Bailhache JA when giving the (single) judgment of the Guernsey Court of Appeal in Waterman v McCormack,[13] a case concerning the nature of joint ownership of realty under Guernsey law.  The Court of Appeal put to one side arguments based upon English notions of joint tenancy and tenancy in common and the French customary law concept of communité des biens in favour of Guernsey jurisprudence relating to “joint ownership” and “ownership in common”.

10     In any event, Guernsey’s modern law of obligations has antecedents sufficiently close and common to modern English and French law that both may be followed.

Guernsey tort law

11     The influence of English law on Guernsey tort law is profound, at least today.[14]  It is the dominant influence in circumstances where Norman and French law are hardly, if ever, referred to.  However this is not to say that Guernsey tort law is the same as English tort law, far from it; there are many and subtle differences.  Wherever there is an English statute there is likely to be a difference; even where there is an equivalent statutory provision borrowed from English statute the drafting is often subtly different and extra care is required.  Even in a pure case-law context, English law is in no sense binding on Guernsey courts which remain free to reject an inadequate solution or else to favour another.  Guernsey tort law has its own origins and existence independent of English tort law.

12     The history of Guernsey tort law is beyond the scope of this article, save to note that in the case of Smith v Harvey[15]the Guernsey Court of Appeal stated as follows as regards the tort of negligence[16] -

“No doubt the English law of negligence has, and has had, an influence on the development of the law of negligence in Guernsey, but it is by no means evident that the ground of action is an import from England to the Island.  … it appears to us that the roots of the action for damages based on negligence can be traced in the earlier law of Guernsey … In Terrien at p258[17] there is recognition of a ground of action not only in delict but also in quasi-delict.  This is in the context of actions mobiles, and he refers expressly to de damno data as a class of action.  It is true that the matter is developed in Terrien’s commentary beyond the precise scope of the Coutûme de Normandie, but his recognition of the action is still significant.  There is a similar passage in Le Marchant (p297), referring to délict ou quasi-délict.  Counsel for the plaintiff made reference to De Ferrière and Hoüard in so far as the Custom of Paris, with which they were strictly concerned, may throw light on the meaning and scope of the terms used in the Custom of Normandy which was inherited by Guernsey.  These references to the use of the term quasi-délict reinforce the view that an action in negligence was recognised in the early law of Guernsey.”

13     Terrien himself cited Justinian’s Institutes which themselves date back to 533 AD and perhaps place in perspective all such debates as to the more recent origins of laws;[18] but what is particularly noteworthy is the fact that Pothier also has a section entitled “Des délits and quasi-délits” under which he stated -

“On appelle délit le fait par lequel une personne, par dol ou malignité, cause du dommage ou quelque tort à une autre.  Le quasi-délit est le fait par lequel une personne, sans malignité, mais par une imprudence qui n’est pas excusable, cause quelque tort à un autre.” [19]

14     Pothier goes on to state later in the same section -

“Non-seulement la personne, qui a commis le délit ou le quasi-délit, est obligée à la réparation du tort qu’elle a causé; celles, qui ont sous leur puissance cette personne, telles que sont les pères, mères, tuteurs et précepteurs, sont tenues de cette obligation, lorsque le délit ou quasi-délit a été commis en leur présence, et généralement lorsque pouvant l’empêcher, elles ne l’ont pas fait:  mais si elles n’ont pu l’empêcher, elles n’en sont point tenues. ….  On rend aussi les maîtres responsables du tort causé par les délits de leurs serviteurs ou ouvriers qu’ils emploient à quelque service.  Ils le sont même dans le cas auquel il n’aurait pas été en leur pouvoir d’empêcher le délit ou quasi-délit, lorsque les délits sont commis par lesdits serviteurs ou ouvriers dans l’exercice des fonctions auxquelles ils sont employés par leurs maîtres, quoiqu’en l’absence de leurs maîtres; ce qui a été établi pour rendre les maîtres attentifs à ne se servir que de bons domestiques.

A l’égard des délits ou quasi-délits qu’ils commettant hors de leurs fonctions, les maîtres n’en sont point responsables.”[20]

15     Evans[21] translates Pothier’s section heading as:  “Of Injuries and Negligencies” and the above extracts as follows -

“Injury (delictum) is when a person by fraud or malignity causes any damage or wrong to another.  Quasi delicta, are facts by which a person causes damage to another, without malignity, but by some inexcusable imprudence.”

And -

“Not only is the person who has committed the injury, or been guilty of the negligence, obliged to repair the damage which it has occasioned; those who have any person under their authority, such as fathers, mothers, tutors, preceptors, are subject to this obligation, in respect of the acts of those who are under them, when committed in their presence, and generally when they could prevent such acts, and have not done so; but if they could not prevent it then they are not liable … Masters are also answerable for the injury occasioned by the wrongs and negligence of their servants; they are even so when they have no power to prevent them, provided such wrongs or injuries are committed in the exercise of the functions in which the servants are employed by their masters, although in the master’s absence.  This has been established, to render masters careful in the choice of whom they employ.

With regard to their wrongs, or neglect not committed in these functions, the masters are not responsible.”

16     If one then turns to the relevant articles of the French Code Civil one finds the following -

Art. 1382     “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer.

Art. 1383     Chacun est responsable du dommage qu’il a causé non seulement par son fait, mais encore par sa négligence ou par son imprudence.

Art. 1384     On est responsable non seulement du dommage que l’on cause par son propre fait, mais encore de celui qui est causé par le fait des personnes dont on doit répondre, ou des choses que l’on a sous sa garde. … Le père et la mère, en tant qu’ils exercent l’autorité parentale, sont solidairement responsables du dommage causé par leurs enfants mineurs habitant avec eux.  Les maîtres et les commettants, du dommage causé par leurs domestiques et préposés dans les fonctions auxquelles ils les ont employés ...”

17     This may be translated as follows -

Art. 1382     “Every human act whatsoever which causes damage to another obliges the person by whose fault that damage has occurred to make it good.

Art. 1383     Each person is responsible for the damage he has caused not only by his own (positive) act but also by his negligence or carelessness.

Art. 1384     A person is responsible not only for damage caused by his own action but also damage caused by the acts of persons on behalf of whom that person must answer or for objects which that person has within his control.  … Mothers and fathers to the extent that they exercise the right of parental authority, are jointly responsible for damage caused by their minor children living with them.  Masters and principals, for damage caused by their domestics and employees in the employments for which they were engaged …”

18     Pothier’s influence on the authors of the Code Civil is not doubted, certainly in the context of contract law; likewise the similarities between Pothier’s work in this context and the Code Civil are obvious.  The similarity between Pothier’s work and modern English notions of tort law hardly needs to be stated.  Again this is not the place for a comparative historical study of the Anglo-Norman-Franco law of obligations[22] but Plucknett notes  that -

“All through the eighteenth century English lawyers were reading Continental works on natural law and jurisprudence, while English scholars were themselves producing comparative studies of their own and foreign systems.  Particularly interesting to them were the works of Pothier which circulated widely in England and America, both in the original French and in translation.”[23]

19     There were other influences also; Ibbetson identifies Grotius, Pufendorf, Burlamaqui and Barbeyrac in the context of tracing the “crystallization” of the English law of negligence.[24]

The essential point is to recognise a common heritage to some greater or lesser extent underlying Anglo-Franco tort law notions.  Even the English use of the French word tort itself acknowledges French and Roman influences.  If Guernsey law is currently influenced heavily by English law in the context of tort then English law was itself influenced by French law which was in turn the product of Roman law, various bodies of customary law, statute law and day-to-day jurisprudence.  The increasing influence of “European” law on current English law should also be borne in mind; this is particularly noteworthy in the context of consumer protection and human rights law, to the extent that it affects indirectly private law rights.

20     That French law is no longer a powerful influence in the context of tort law in Guernsey has more to do with the development of French tort law than anything else.  French tort law has evolved more as a function of social and political policy than pure jurisprudence.[25]  From being essentially fault-based, French tort law has evolved through a combination of statute and purposive construction of the Code Civil towards what amounts to near strict liability for the causation of loss and damage; this is particularly so in the context of accidents at work and damage caused by objects.[26]  The law relating to road traffic accidents has, for example, been placed on a statutory footing which appears anything but satisfactory, at least viewed from a distance.[27]  French tort law is so dependent on a very particular reading of the Code Civil (itself a statute), modern French statute, and French governmental and judicial policy that its appropriateness as a general source for modern Guernsey tort law would be doubtful in any event.  When the content of French tort law is also considered this conclusion is fortified.

21     To the extent that modern French tort law can offer persuasive or satisfactory solutions there is no reason why those ideas should not be considered on their own merits; experience merely suggests that French tort law currently has little to offer as against English tort law when viewed in the round.  It remains possible though that French law may assist with particular issues.  French tort law remains a valid source; at least potentially.  One should also not overlook the fact that what English law would regard as independent torts are often addressed by French law as a part of the law of contract.[28]

22     For all that English tort law is a powerful influence it is not an exclusive source, let alone panacea, for Guernsey tort law.  English tort law has its own problems and struggles still to produce satisfactory or consistent solutions to age-old problems.  Where there is an English statute it is an indicator that the common law got into difficulty.  There is again the example of occupiers’ liability, but others include contributory negligence (at common law it amounted to a complete defence), the doctrine of common employment (at common law the master was not liable for harm caused by one employee to another employee engaged in a common employment), lost years’ claims (the idea that a deceased’s estate may claim for earnings in the lost years (in addition to the dependants)) and the liability of highway authorities for accidents (at common law there was no liability for nonfeasance as opposed to misfeasance).  English case-law constantly throws up problems, some of which are resolved and some not; causation is a particular problem for English case-law as illustrated by the recent case of Fairchild v Glenhaven Funeral Services Ltd[29] where the House of Lords overturned Court of Appeal decisions and disapproved the dictum of Lord Bridge in the case of Wilsher v Essex Area Health Authority.[30] 

23     A further example is the case of Gregg v Scott,[31]  a decision of the English Court of Appeal in the context of a clinical negligence claim on the question of whether proof of probability of less than 51% was a sufficient foundation to sound in damages; i.e. whether the worsening of the prospects for a patient falling short of showing on the balance of probabilities that the (ultimate) outcome would have been different is enough.  The Court of Appeal considered conflicting common law jurisdiction decisions and House of Lords authority and held, reluctantly, that it was not.  A Guernsey court might not agree.

24     It is not uncommon for there to be some distinction between Privy Council and House of Lords decisions; these reflect divergences in the evolution of common law jurisdictions’ jurisprudence and again draw attention to the fact that English courts have no monopoly over the best legal solutions.  A recent example is A v Bottrill, a Privy Council case on appeal from the Court of Appeal of New Zealand.[32]  Lord Nicholls distinguished between English jurisprudence on the topic of exemplary damages “still toiling in the chains of Rookes v Barnard”[33] as opposed to courts in (other) common law countries which had “remained true to the underlying rationale of the exemplary damages jurisdiction”.

25     Guernsey law enjoys a relationship with English law akin to that of New Zealand law[34] but with the extra dimension of its customary and French law heritage.  Guernsey law is as free, if not freer because of that more diverse heritage, to develop its common law as it deems fit having regard to such domestic precedent as there may be and the needs and interests of existing Guernsey society.  Equally, if an English tort case-law answer is manifestly just and reasonable then it is likely to be adopted by a Guernsey Court, and vice versa.  It is not unknown for whole areas of English tort law to be imported, particularly if they are case-law based, as with conspiracy.[35]

26     It is suggested that there is a principled hierarchy of authority for the determination of Guernsey tort law as follows -

(1)        Guernsey statute and case-law;
(2)        Jersey case-law;
(3)        English (statute and) case-law;
(4)        the case-law of other common law jurisdictions;
(5)        French law;
(6)        wider European law.

27     The high position of Jersey law will be noted and is justified by the common experience and position in the world of the two jurisdictions.  The reference to English legislation is explained by the fact that, although such legislation cannot be applied directly, it can in some sense set a benchmark for the standard to be achieved in a common law context, e.g. in a health and safety at work claim.  French law is still referred to, given that there are areas where French tort law may yet be preferred over English law as a source: particularly in the area of relations between neighbours and landholdings.[36]  It should be emphasised that there is no bar to French ideas being imported, if warranted.

Guernsey contract law

28     The hierarchy of authority is different for Guernsey contract law.  Pothier has a great deal more to say about the law of contract than the law of tort.  Modern French law likewise has more to offer, albeit the extent of that influence has yet to be worked out fully in Guernsey law.[37]  Modern English and French contract law are also much closer together than English and French tort law.  Pothier is here, indisputably, a figure of central importance for both jurisdictions, if only historically.  Ibbetson states -

“Around 1800, the rather half-hearted tentative sallies in the direction of a theorized law of contract were superseded by more full-blooded attempts to fit the Common law into an apparently rational framework.  … [I]n the last decade of the 18th century there started to appear a steady stream of treatises on the law of contract - Powell (1790), Newland (1806), Comyn (1807), Colebrooke (1818), Chitty (1826), followed by Addison (1847), Leake (1867), Pollock (1876), Anson (1879) - in which fundamental questions of the nature of contractual liability had to be addressed.

The model from which judges and writers derived their inspiration was the Traité des obligations of the French jurist Robert-Joseph Pothier, first published in 1761 and translated into English in 1806.”[38]

29     It is still this self-same Traité which exerts a considerable direct influence in present-day Guernsey (and Jersey) contract law.  The influence is disguised on a day-to-day basis by the fact that in many cases modern French and English contract law will produce the same result; but one must have a knowledge of both systems of law in order to know where a difference is likely to emerge and to what extent one could or should maintain that the distinction, whether French or English (or other common law), is a part of Guernsey law.  It must be conceded that there is in fact comparatively little Guernsey contract law jurisprudence; most civil claims settle or are resolved other than by a full trial.  In the twentieth century there were cases such as Priaulx v Le Ray[39]  where the principles of lésion ultradimidiaire and marché déraisonnable were maintained; likewise C&G Developments Limited v Duquemin,[40] a judgment of the Guernsey Court of Appeal in which both Pothier and Dalloz were referred to with apparent approval.[41]

30     It is suggested that there is again a principled hierarchy of authority for Guernsey contract law as follows -

(1)        Guernsey statute and case-law;
(2)        Jersey case-law;
(3)        Pothier/(leading pre-1804 French jurists);
(4)        English case-law; and modern French contract law;
(5)        the case-law of other common and civil law jurisdictions.

31     As with tort law, the Guernsey Court will look first to Guernsey statute and precedent followed by Jersey precedent.  However, beneath this Pothier (and the leading pre-1804 French jurists to a lesser extent) appear next.  This is justified historically and by the fact that both modern French and English contract law can be seen as branches spreading from this common trunk.  Given the overlay of statute, governmental policy and other local factors in those countries, it is still appropriate to look back to Pothier as in some sense a purer source for Guernsey contract law; a surer foundation or set of first principles.  It may well be that Pothier still provides an adequate and self-sufficient solution on the facts of any given case; but equally it will be valid also to look to modern French and English law to see if either system has evolved a better or more appropriate solution from those common principles.  Nor is there anything new in this; in 19th century Guernsey cases advocates would refer to French and English authority interchangeably.[42]  It is no more appropriate that Guernsey contract law should remain lodged in Pothier’s admittedly special aspic than, say, the aspic of old English common law in the context of tort.

32     There must again be some souplesse in the exercise; one is not ultimately in search of an unbroken line of reasoning or authority in every case going back to the Grand Coutumier, l’Approbation or even Le Marchant; indeed to do so would be futile.  Instead the ambition is to detect or derive legal principle from those authorities from which Guernsey contract law is itself derived and which may be applied to the facts of whatever case is before the Court in order to do justice between the parties and, hopefully, to be of general usefulness.  The ultimate goal is to serve the ends of justice in a changing society.

33     It will be noted that English case-law and modern French contract law are tied at 4th equal in the above list.  Much will turn on the area of contract law under consideration and the relative attractiveness of the solutions presented by the competing systems.  It is also an unfortunate yet undeniable fact that English law is more easily accessible to today’s Guernsey advocate than French law; and note the Jersey Law Commission’s observation that -

“There is, of course, the practical problem that the vast majority of Jersey lawyers now receive their legal training in England and French law is therefore to them an alien concept.”[43]

34     This observation does not however have the same force in Guernsey given that would-be Guernsey advocates must still attend Caen University; indeed French contract law is studied and examined at degree level in French.  It is for the Guernsey lawyer to assist the Court in developing Guernsey contract law in the most appropriate way.  This means that the Guernsey advocate must be familiar not only with Chitty but also (inter alia) arts. 1101 - 1369 of the Code Civil.

35     There is nothing here that is inconsistent with an Anglo-Saxon-dominated business environment when the common heritage of Anglo-American and French contract law is appreciated.[44]  A Guernsey court would look for business efficacy in any commercial context; again it is a mistake to assume that only English law can do this.  As with tort law it is easy to overlook the considerable difficulties English courts seem to have in resolving quite fundamental issues which ought perhaps to have been determined conclusively long ago.  A recent example is the case of Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd.[45] where the English Court of Appeal, in a detailed 42 page judgment referring to 44 other cases, concluded that there was in fact no equitable jurisdiction to grant rescission of a contract on the ground of common mistake where that contract was valid and enforceable on ordinary principles of contract law.  The case of Solle v Butcher[46] was disapproved after half a century whilst the Court went on to suggest that -

“Just as the Law Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of the common law doctrine of frustration, so there is scope for legislation to give greater flexibility to our law of mistake than the common law allows.”[47]

36     This hardly amounts to legal certainty.  By way of contrast arts. 1108 to 1110 of the Code state as follows:

Art. 1108:    Quatre conditions sont essentielles pour la validité d’une convention:

                  Le consentement de la partie qui s’oblige;

                  Sa capacité de contracter;

                  Un objet certain qui forme la matière de l’engagement;

                  Une cause licite dans l’obligation.

Art. 1109:    Il n’y a point de consentement valable, si le consentement n’a été donné que par erreur, ou s’il a été extorqué par violence ou surpris par dol.

Art. 1110:    L’erreur n’est une cause de nullité de la convention que lorsqu’elle tombe sur la substance même de la chose qui en est l’objet.

                  Elle n’est point une cause de nullité, lorsqu’elle ne tombe que sur la personne avec laquelle on a intention de contracter, à moins que la considération de cette personne ne soit la cause principale de la convention.”

37     These articles may be translated as follows -

Art. 1108:    Four conditions are essential to the validity of a contract:

                  The agreement of the party who binds himself;

                  His capacity to contract;

                  A sufficiently certain object for the contractual undertaking;

                  A lawful purpose or raison d’être[48] for the obligation.

Art. 1109:    There is no valid agreement if consent has been given only by mistake or extorted by force or through improbity.

Art. 1110:    Mistake does not nullify a contract unless it goes to the substance itself of a contract’s object.

                  Mistake is not a cause of nullity when it relates solely to (the identity of) the person with whom one intended to contract; unless the identity of that person was the principal cause of the agreement.”

38     Again this is not the place to embark upon an examination of the relative merits of English and French law of mistake and when each will and will not nullify a contract; the above merely serves to illustrate the clarity with which the Code can express itself and the potential complexity and uncertainty of English case-law.  At the same time the common threads of both legal systems are apparent; there is no dichotomy or reason to commit Guernsey law irrevocably to one or other system as opposed to developing Guernsey law by reference to both English and French law where there is no pre-existing solution in Guernsey law or persuasive Jersey authority.[49]

The Jersey Law Commission consultation paper

39     The Jersey Law Commission has recommended in a consultation paper[50] that English contract common law be incorporated by statute into Jersey law.  This overlooks, however, the fundamental rôle which various statutes play in English contract law.[51]  It is difficult to see how one could sensibly import English case-law wholesale without additionally importing those statutes central to the area of law concerned.  It is difficult to understand why one should want to, given English case-law’s own problems.  It would also have the effect of sacrificing jurisdictional independence.  The Commission appeals to Guernsey’s 16th century example of l’Approbation, but there is a view in Guernsey that this was in fact responsible for stultifying the development of Guernsey law for some considerable time thereafter.  Even l’Approbation was not a wholesale importation of another jurisdiction’s law; it was selective, even if a somewhat defective selection.[52]

40     The Jersey Law Commission identified a number of alleged difficulties in ascertaining Jersey’s law of contract.  The first was the inaccessibility of early Norman texts.  Given the limited relevance of such texts to modern Channel Islands contract law, there is no true difficulty here.  It would be a simple task to scan and translate such portions of texts as are relevant and add them to a legal resources section of the excellent Jersey Legal Information Board website.[53]  There would be few documents to copy for Guernsey law.

41     It is said also that there is a problem with the inaccessibility to laymen of the French language.  Arguably modern law has become so complex that the language in which it is written is something of an irrelevance for the layman; it is largely impenetrable to him in any event.[54]  If the French language is a problem it would be an easy matter for judgments to include translations of extracts taken from French authorities.  In addition there are a number of texts written in English on French law,[55] and there have also been English translations of the Code Civil.[56]  Pothier’s Treatise on Obligations and his Treatise on the Contract of Sale were translated into English in the 19th century and reprinted as recently as 2000 in the case of the former and 1999 in the case of the latter.[57]  In any event we should make a greater effort with the French language.

42     The Commission goes on to identify a perceived difficulty in applying ancient concepts.  It is not clear to which concepts they refer.  From a Guernsey point of view modern contract law does not have its source in the ancient customary law of Normandy, as noted above.  It is also said that there is difficulty in applying contract law principles from a jurisdiction which did know the trust.  However, this again overlooks Pothier’s influence on the English law of contract where, plainly, no such difficulty was encountered.

43     The Commission then says that there is uncertainty given the inconsistent reliance on legal systems and, by implication, authority.  If there is such a problem it would be an easy matter for Channel Islands courts to give guidance in this regard.

44     The final complaint relates to the need to service the Island’s business community and again the alleged lack of certainty.  The premise here is, of course, that English law provides such certainty when the reality is quite different; this lack of certainty would be amplified if one imported only the case-law and not the statutes upon which much of that case-law draws.  There is no reason why the Island’s business should not be served well by a distinct Jersey contract law which continues to respect its origins whilst avoiding either resurrecting or perpetuating the impractical or obsolete.

45     There is also the fundamental reality that English contract law will itself inevitably move closer to the European model; it simply makes no sense for Channel Islands law to abandon its own continental European heritage in such circumstances.  A European contract law code is on the agenda of the European Union and is a real possibility, if not in the immediate future.[58]  The Package Travel, Package Holidays and Package Tours Regulations 1992, the Commercial Agents (Council Directive) Regulations 1993 and the Unfair Terms in Consumer Contracts Regulations 1999 are merely indicators of the extent to which EU law will eventually be incorporated into English domestic law.

Conclusion

46     Guernsey tort and contract law have their origins in Norman and French law.  French law and French jurists, in particular Pothier, have influenced English law.  English law will itself inexorably move closer towards European legal systems as opposed to common law models as time passes.  Guernsey law looks first to whatever domestic precedent it may already have, but in default looks next to Jersey law and then to the law of other jurisdictions for possible solutions.  French tort law has less to contribute in this context than English tort law whereas in contract law the balance is, or should be, more even.  In any event Guernsey law is fundamentally free within a principled hierarchy of authority to make its own case-law by adopting those solutions which appear most sound and most appropriate to its own society and circumstances.

Gordon Dawes is an advocate of the Royal Court of Guernsey and a partner of Ozannes, Advocates and Notaries Public, of 1 Le Marchant St, St Peter Port, Guernsey.  He is the author of Laws of Guernsey, a textbook of Guernsey law, published by Hart Publishing of Oxford in May 2003, from which the above article is largely derived.

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