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Frozen In Aspic? The Approach Of The Jersey Courts To The Roots Of The Island's Common Law.

Alan Binnington

"Our law cannot be regarded as frozen in the aspic of the 18th Century", were the words used by the Royal Court of Jersey in its decision in Selby v Romeril [1] . It is sometimes suggested by the Island’s competitor jurisdictions that a legal system which relies heavily on medieval Norman concepts is unable to meet the demands of a thriving finance sector. Critics of the Island’s legal system suggest that it has failed to keep pace with the significant changes in the Island’s business and the origins of its residents. This is said to be particularly the case in relation to the law of contract: it would no doubt come as a surprise to the average purchaser of goods in a supermarket in Jersey to be told that their contractual relationship with the supermarket is to be ascertained by reference to 17th century works written in a language totally alien to them. It is also said that in its enthusiasm for rediscovering its Norman links the Royal Court has lost sight of the real origins of the Island’s legal system and has cited with approval certain legal authorities simply because they are written in French. Whilst in a number of decisions in the last few years the Royal Court has shown itself able to adapt ancient principles to modern circumstances and to produce decisions of relevance to the Island’s business community which make sound commercial sense, there are certain dangers in the course presently being adopted by the Courts.

The Royal Court’s ability to adapt ancient principles is illustrated by a case concerning a dispute over the trade mark for Dry Sack sherry [2] . The Royal Court was faced with a situation where injunctions had been granted against a Jersey registered company but the injunctions were effectively unenforceable as there were no directors within the Island who could be made liable for contempt should the injunctions be breached. The Court therefore took the ancient procedure of administratelle, under which the property of a person absent from the Island could be safeguarded by means of the appointment of an administrator of his assets, and applied it to a company, which is obviously a concept of more recent creation. The Court then appointed its executive officer, the Viscount, as administrator of the company and he was able to take steps to ensure that the injunctions were obeyed. In the words of Tomes, Deputy Bailiff,

"the common law is subject to development to meet the needs of the times and has developed to meet changing need and circumstances".

In 1991, in its decision in the Rahman [3] case, the Royal Court set aside a trust on the grounds that it was a sham, applying amongst other grounds, a maxim which stemmed from the customary law of Normandy, namely "donner et retenir ne vaut". The case has since been widely discussed, with general approval, in other jurisdictions although such discussion has tended to focus more on the question of the "sham" nature of the trust itself rather than the application of the maxim. Although the decision was not appealed it is a moot point as to whether a maxim from a jurisdiction which would regard the trust as an alien concept should be applied to the product of the equitable jurisdiction of the English courts.

If a legal system is to serve the interests of society it must of course develop with the changing needs of that society but must nevertheless retain a significant degree of certainty. One of the means of attaining this certainty is to ensure that the law develops in a manner which is consistent with its origins. The W. & H. Trademarks case is a prime example of such development. Concern is, however, occasionally expressed at the Royal Court’s recently renewed enthusiasm for the links between the common law of Jersey and the customary law of Normandy. Such enthusiasm is, of course, entirely justified where it is possible to demonstrate that a principle of Norman customary law has either already been adopted as part of Jersey law or was in existence at the time when Jersey and Norman law were essentially the same. The development of the Island’s common law might be compared to the growth of a tree: it develops naturally in many different directions from its roots upwards, without losing its identity. However if one grafts onto it the product of an entirely different root stock then one risks a loss of identity.

The dangers of grafting onto a legal system alien concepts were recognised by the Jersey Court of Appeal in the 1992 decision [4] of a criminal matter, in which the Court considered the ingredients of the common law offence of fraud. The Court disapproved of references by counsel in that case to South African and Scottish law which, it had been argued, were heavily influenced by Roman law and were therefore alleged to be of relevance in a jurisdiction, such as Jersey, with similar roots. The Court regarded such a link as "very questionable" given that

"the custom of Normandy in Jersey and in South Africa of Roman-Dutch law had been subject not only to the influence of Roman law but to other influences as well ..... it is hardly possible to appeal to Roman law today as a common influence justifying the development of Jersey law by analogy to the law of Scotland or South Africa". (per Le Quesne, J.A.).

In Selby v Romeril, where the issue was the legal requirements for a valid contract, the Court looked at a number of legal sources. The first was a work written by the legal commentator, Pothier, who wrote in the 18th Century. Although writing on the customary law of the province of Orleans, Pothier has for many years been regarded as a relevant source when looking at the Jersey law of contract. The Court had this to say on the subject:

"It is true that Pothier has often been treated by this Court as the surest guide to the Jersey law of contract. It is also true, however, that Pothier was writing two centuries ago and that our law cannot be regarded as frozen in the aspic of the 18th Century. Pothier was one of those authors upon whom the draftsman of the French Civil Code relied and it is therefore helpful to look at the relevant article of that Code".

Whilst, in the context of that particular case, it may well have been permissible to do so, as the extract from the French Civil Code referred to by the Court did not materially differ from the commentary by Pothier, it is worth bearing in mind the warning given by the Court of Appeal in the Foster case: Pothier was only "one of" the authors upon whom the draftsmen of the French Civil Code relied.

Interestingly enough one finds that in the 19th Century English courts Pothier received what the advertising industry would probably now describe as "rave reviews": Best J. stated that Pothier’s Treatise on the Law of Obligations was, as an authority, "the highest that can be had, next to a decision of a court of justice in this country" [5] and in 1835 it was "strenuously recommended" as a student’s textbook by Samuel Warren in his work, A Popular and Practical Introduction to Law Studies. If we take the reasoning in Selby v Romeril at face value then in the light of Best J.’s comment it may be just as helpful for a Jersey Court to look at Chitty on Contracts as it is to look at provisions of the French Civil Code!

Is the Court really sure where it should be looking when it comes to ascertaining the Jersey law of contract? In Warner v Hendrick [6], a building case, the Royal Court recognised the principle of réception relying on a passage in Dalloz’s Répertoire, which post-dates the Napoleonic Code. The Court began its excursion into French law in that case with the remarks "looking at the common law of Normandy....." but then referred first of all to a modern dictionary of French juridical terms and then to a passage in Dalloz, neither of which could be said to represent "the common law of Normandy". The Court was, it would appear, conscious of the fact that it was not looking at Norman sources because in the judgment we find the words:

"Then Mr. Pallot (counsel for the Defendant) drew our attention to the section in Dalloz, 30 Répertoire, entitled Louage d’Ouvrage et d’Industrie, but before referring to that, it appears to us that the common law of Normandy, or, at least, of France, appeared to envisage that a réception, in other words, a payment by a master to an employee or contractor, precluded a claim by the master for bad workmanship except where there were large works when, according to a particular article in the Code, there was a ten year limitation period."

Later on in its judgment the Court referred to a further passage from Dalloz which dealt with vérification. This particular passage referred to a provision in the French Civil Code and having cited the passage the Court said:

"of course, that is an actual codification which cannot apply, for we must keep ourselves tied to the common law itself."

So far so good, except that in the very next sentence the Court said:

"however, it is quite clear that (para. 132 at 564)- "la responsabilité de l’ouvrier cesse, d’après l’art . 1770 du code civil, lorsque l’ouvrage a été reçu ou que le maître a été mis en demeure de la vérifier". The question is: was Mr. Warner, in this case, able to verify, that is put in a position to verify, the work? Having read those articles and sections of Dalloz, having decided that the defects were not vices cachés but vices apparents, we think that we should apply that law to this case."

Thus the Court appears to have disregarded one article of the Code on the ground that it did not represent the common law yet almost immediately followed another, presumably on the ground that it did but without any obvious justification.

A few years later in Fort Regent v Regency Suite [7], which was another contract case, this time dealing with the question of alleged breaches of covenant in a lease, the Royal Court stated that:

"in the absence of local authority we look for assistance either to French or English law".

The Court then went on to consider a number of English cases and passages from Dalloz. One has to assume that there was a dearth of Norman authority on the particular point, the Court noting that:

"Mr. Fielding (counsel for the Defendant), in the absence of Norman Customary Law, looked to English Law. Mr. Pallot (counsel for the Plaintiff) was able to argue that he felt there was sufficient in Dalloz to retain us within the French sphere of influence".

Eventually Dalloz won, the Court finding that:

"we do not think, with deference to Mr. Fielding’s arguments, that in the circumstances it is necessary to examine English case law in any depth. We are quite satisfied that we can draw sufficient from the French authorities which have been stated time and time again in this Court to be preferred (see for example Warner v Hendrick)". 

If one were to summarise the present position, as demonstrated by the cases referred to above, it would seem that whilst the Royal Court is not averse to looking at English cases when dealing with contract matters it has shown a marked tendency to look across the water to France, albeit that it is receiving modern French authorities without any apparent reference to whether or not such authorities reflect principles of Norman Customary Law which pre-date the French Civil Code. Whilst looking at French law is slightly more justifiable than looking at English, bearing in mind the origins of the Jersey law of contract, to look at provisions of the French Civil Code in isolation must be highly suspect given the warning sounded by the Court of Appeal in the Foster case.

It is perhaps a little unfair to blame the Courts for this state of affairs given that they rely on counsel to produce the relevant authorities. However, just because Nicholas’ "French Law of Contract" is still available at Sweet & Maxwell’s bookshop we should not prefer it to the early commentaries of Terrien or Basnage, which are not!

The ancient sources of Jersey law do provide a useful fund of material for the continuing development of the law in accordance with the needs of a thriving business community. In the interests of certainty for all, it is clear that any enthusiasm in Jersey to look to and, if appropriate, rely upon French sources or indeed any others must be tempered by a regard for the strict origins of the Island’s legal framework. To continue with the earlier analogy, if we graft on too many branches the fruit is likely to be regarded with some suspicion. The alternative may well be for Jersey’s legislature to consider codifying the Island’s law of contract - in effect they would be planting a new tree!

Alan Binnington is an advocate of the Royal Court of Jersey and a partner in Messrs. Mourant du Feu and Jeune, PO Box 87, 22 Grenville Street, St. Helier, Jersey JE4 8PX