Return to Contents The Guernsey Law Of Contract - An Explanation St John A Robilliard Introduction The law of contract in Jersey has recently g much debate [1] . It is therefore not surprising that practitioners and others interested in Jersey law might wish to discover what the position is in Guernsey. Has Guernsey law gone down the route followed by Jersey or is there, unlike Jersey, a general acceptance of English principles today? It is likely that if practitioners in Guernsey are asked what system is adopted they will reply the "English common law". However, it must be admitted that such a response does not accord fully with either the works written on Guernsey law in the past or the reported case law. Is there then a coherent explanation? Historical Background In the early 1580’s a commission was created to ine the state of Guernsey law. The commentary of Terrien [2] on Norman law had of course been published in 1574 and that work was taken as the definitive version of that law at the time. The commission therefore went through Terrien and prepared a statement known as the Approbation des Lois ("the Approbation") which proclaims which chapters of Terrien they regarded as representing Guernsey law and which chapters they did not. This formally became law by virtue of an Order in Council of 27th October 1583. The work was done in haste ntained many imperfections. About 75 years later a detailed commentary on the Approbation was prepared by Thomas Le Marchant [3], a dispossessed Rector. The seventh book of Terrien sets out the law of contract as applied in Normandy in his day and it in turn was commented on in the Approbation. Le Marchant in his turn commented on these chapters. Thus Le ant [4] states: "Remarque I: Nuls accords ou promesses ne constituent un homme detteur, et par conséquent n’obligent de payer, s’il n’y a eu droite cause de promettre, par laquelle on monstre que la promesse a esté faite; et si on allèguoit pour cause de la promesse dont on demande l’accomplissement une cause inique et vicieuse, comme service vilain, ou autre cause de soy infame, l’acteur non seulement devroit estre débouté de sa demande, mais aussi constitué en amende ou punition, selon l’exigence du cas ...". Other extracts of importance include Terrien on Ld Charges on which Le Marchant says [5] "Les biens meubles d’un louager sont tellement affectés et hypothequés ou prix du louage de la maison où ils sont ...". Hs on to say [6] "se peut aussi appliquer par identité de raison, ou mesme à plus forte, touchant les bestes qui sont trouvés sur une pièce ou terre ...". Thus the work of Terrien was with regard to general contractual principles and also areas of particular note regarded as stating the law. The next writer on Guernsey law to whom regard is stid is Laurent Carey [7] (1723-1769), who was a Jurat of the Royal Court of Guernsey from 1765-1769. He wrote a short account on the then customary law of Guernsey which is nowhere near as detailed as Le Marchant but which does contain important statements on the law of contract, for example: "Promesse sans cause, promesse pour cause déshon, promesse contre les bonnes moeurs, promesse de sous âge, promesse de ne se marier, sont nulles et amendable." [8] He goes on to state: "DE LA RÉCISION DES CONTRATS Toutes obligations et promesses faites sans juste cause de promettre, et sans numérations de deniers; tous contrats et accords faits par prisonniers dans la prison, vente de blés verts, aliénation de chose sacrées ou publiques, ou destinées à l’usage public, sont sujettes à cassation, et on s’en put faire rélever. Privation de sens, déception d’outre moitié de juste prix, minorité, circonvention, crainte suffisante et capable d’ebranler un homme constant, force, ... dol et erreur par la partie ou par les Avocats en sa cause, erreur de calcul, cassent et allent les contrats ....". [9] From these earlier writers it would seem that the cu law of contract in Guernsey was firmly rooted in that of Normandy and, in turn, the developments whereby general French civil law was received into Normandy were copied. [10] The 19th Century The text book writers of the 19th century had little to say on the law of contract. In that century there were two legal textbooks published in Guernsey which throw a little light on the su The first is that of Jeremie [11] . This deals mainly with inheritance and wills but does contain a discussion othèques [12] which confirms that such charges followed customary French law principles. Jeremie was an Advocate of the Royal Court of Guernsey of many years standing and wrote his first book as a young man. The other advocate who wrote at this time was s Gallienne [13] . Due to being involved in an assault, he was suspended from practice as an advocate for a year and a day although he later became HM Greffier. As the current Deputy Bailiff of Guernsey states: "Shortly after his fall from grace Gallienne wrote a d treatise on the Island’s insolvency law which continues to be a work of reference for legal practitioners in Guernsey to this day." [14] From this work one receimages of the law of contract applicable in Guernsey in his time. Thus there is a description of feudal contracts [15] . There is a full discussion of the "rente hque" [16] and other descriptions of the types of security that can be taken [17], which, as with the of Jeremie, show that the customary French law principles were still adhered to. The mid-19th century was a relatively active time for the Courts of Guernsey. This was due in part to the very busy commerce generated by the sea. If one looks at some of the cases of the time, it would appear that the arguments were based on principles gleaned from looking at the major neighbouring systems rather than regarding either French or English law as definitive. In Agnew & De Putron v B1842) [18] there was an appeal to the Cour des Junts et Records [19] with regard to payment on a bill of exchange. If one looks at the argument of Advocate MacCulloch for the plaintiffs it will be noted that he quoted largely from both Pothier and Chitty with a view to illustrating that although the original bill was lost, and supposing his clients could not have obtained a copy from the defendant, they could have entered a protest on a copy drawn by themselves. Advocate Utermarck, for the defendant, is stated to have gone into an explanation of the nature and principles of bills of exchange as laid down in Pothier, Chitty and Bailey. Also in this year we see a similar use of French nglish law in Follett & another v Isemonger [20] . Advocate Utermarck appeared for the plaintiffs and argued with regard to the interpretation of a clause in the bill of lading referring to Abbott on Shipping as well as the Code de Commerce, Bouley Paty and the Ordinance de la Marine. Advocate Falla for the defendant attempted to distinguish the cases from Abbott. The 20th Century Priaulx v Le Ray Priaulx v Le Ray (1931) was a case whiged to come before both the Ordinary Court and the Cour des Jugements et Records on numerous occasions between 1925 and 1931 [21] . In essence there was a contract to sell some fields but the vendor died before the contract was passed. There were a range of issues but it was contended that due to the financial pressure that the vendor was under, he may have been drunk at the time that the contract was made. Because of the disparity between the value of the land and the price, the contract could be set aside under both French and English law. The defence succeeded on two points: that they were entitled under the French doctrine of lésion ultramidiaire and also that it was a marché déraisonnable which in fact was none other than the English law concept of an unconscionable bargain. The case was applied in Watson & Watson v T (1987) [22] which concerned the sale of a house under the exercise of an option. The vendor refused to complete as it had risen greatly in price. The Bailiff directed the Jurats: 1. It was possible to invoke "lésion ultramidiaire" (that is when complaint is made of substantial harm where real property is sold at less than half its market value). 2. There was no authority that the English doctrine of "unconscionable bargain" applied in Guernsey where its place was taken by the doctrine "lésion ultramidiaire" (in fact Priaulx v Le Ray did not decide this). C & G Developments Limited v Duquemin In C & G Developments Limited v min [23] it was held that where, in a contract for the sale of real property, completion is specified on or before a certain date which has passed, then the contract is not thereafter enforceable. The respondents, who succeeded in the Court of Appeal, argued that in the absence of assistance from Guernsey authorities, one applied Pothier. In the judgement of the Court it was stated that the founding principl "l’accord fait la loi des parties" [24] . There then followed references to Pothier and Dalloz and it was stated: "Thus, according to both Pr and Dalloz, an agreement for sale made subject to a limitation of time, is automatically discharged by the lapse of that time and without there being any necessity for judicial intervention." [25] On the use of English law in this area, the Court said: "Some reference was made in the Court below to the equitable doctrine of English law that in contracts relating to the transfer of land time is not necessarily deemed to be of the essence of such contracts. No reference was made to that doctrine before this Court and it was not contended that it had any relevance to this issue." Evidence given to the Privy Council Committee in 1946 In 1946 a committee was set up to look into the law and titution of Guernsey [26] as also hpened in Jersey [27] . The evidence given to the Committee sheds some light on views of the law of contract at the time. The Bailiff stated that whilst Guernsey criminal law had regard to English law: "...nevertheless the Norman law has been preserved here, there is not the same body, there cannot be, of case law that you have in England; there has not been the same volume, in spite of the mass that I have placed before your Lordships this morning, there is nevertheless not the same volume of statutes. It is inevitable, therefore, that we still have to look to the old authorities: - Terrien, Basnage, Berault, Flaust and Pothier - to Pothier as being a very, very informative writer on many aspects of life... For instance, some few years ago a case arose here and, strangely enough, an almost identical case arose in Jersey at the same time in which the principle of "lésion ultramidiaire" came in, an ancient principle. As far as I know it had never been heard in this Court before, and the rules were contained in Terrien, and in Jersey and in Guernsey the cases proceeded perfectly independently, in fact we did not know they were proceeding in Jersey for some t eventually the decisions given by these Courts were identical." [28] It should be noted that the Guernsey Bar becarticularly small due to the fact that no new Advocates were admitted during the Second World War and some of the existing ones died [29] . Civil litigation over this period was at an all time low. The evidence of Advocate W. H. Langlois was perhaps a little different. He said this: "...the English law today is invariably used and particularly English jurisprudence, relative to the interpretation of wills, the interpretation of deeds, shipping, contracts, company law, and all matters which generally engage the attention of the Court ... a few isolated matters which are still covered by the basic law of Normandy, for instance the law on easements, particularly the law relative to the dower rights of a widow, the survivorship rights of a husband, the rights or the devolution of realty ... I think it would be interesting to your Lordships if I mentioned that though I have been here throughout the whole of the occupation I do not think I have referred to the Ancient Customary of Normandy on more than two occasions since 1939, so that will give you, my Lords, an idea of the little that we really use the Ancient Customary of Normandy today. We are, I think I can safely say, 80 per cent. English in the administration of our laws generally, and insofar as criminal law is concerned, although I only became a criminal lawyer during the occupation thorce of circumstances, we are governed as to 99 per cent. by local criminal statutes and English common law..." [30] It must however be noted that there was no reported jurisprudence of any significance on the law of contract over the period and therefore Advocate Langlois would seem to be talking about advice given in practice as opposed to law laid down by the Court. Conclusion The true approach of Guernsey law to the law of contract is that one must first see if there is a particular rule of Guernsey law. Such a rule may be established by statute. It should not be overlooked that the Approbation refers to Terrien, some parts of which concern the law of contract. There are rules such as the droit de discussion and droit de division that have been established and followed. With regard to other areas it would seem that the practice of the Courts in both the 19th century and 20th century (at least as regards the cases discussed in this article) has been to examine both French and English law in order to exact what can be considered to be natural law principles. In turning to the question today, it is suggested that regard should be had to the nature of the subject matter. The system of land law in Guernsey is very different to the system in England and Wales and therefore it is only natural that where Guernsey law itself is silent, regard would be had to the development of Norman law and other French customary systems. On the other hand, in commercial matters, standard form contracts have invariably followed the English pattern. Legislation on company, banking, insurance and so on has also been modelled on the English form. It is therefore natural that on contracts relating to these matters the Courts would have regard to English law. In essence then a pragmatic approach has been adopted as opposed to that which seems to prevail in Jersey. St John A Robilliard, is a barrister and an advocate of the Royal Court of Guernsey; sometime lecturer in law at the University of Manchester |