| Return to Contents The Sources of Jersey Contract Law John Kelleher Ascertaining the Jersey law of contract on a given point is often not an easy process. There is no text book on the subject, no statute of general application and but a small amount of case law. To research a point one must therefore look further afield, usually to old French texts, and more often than not to the works of the eighteenth century French jurist, Robert Joseph Pothier. But why our research takes us in this direction, what texts we might look at and how we might distill what we find into the position in Jersey law are questions which many of us would find difficult to answer. This article seeks to address these questions. In general terms, and by way of a starting point, Jersey contract law can be said to follow pre-Code Civil French law, insofar as it is possible to establish the ius commune and unless it can be shown that a French statute intervened and deviated from the law that went before, or that Jersey contract law evolved in a different way since its separation from Normandy in 1204. However, in some areas, for example misrepresentation, mistake and the assessment of damages, it could be said that Jersey contract law as handed down in modern case law shows the marked influences of the English common law, although technically, this is an incorrect derivation. So much for the general statement. Let us now look in a little more detail at where the Jersey practitioner should look for the Jersey law of contract. The origins of Jersey law At the risk of being trite, the starg point in ascertaining the law of Jersey is quite clearly to look at Jersey law. The apparently otiose nature of this statement is soon defeated by a trawl through the reported judgements of the Royal Court where the presiding judge has, at times, found it necessary to refer to counsels’ preference for English authority. In Donnelly v Randalls Vautier Limited Tomes DB [1] reflected on this behaviour: "The court, although entitled to rely heavily upon English authorities [this, apparently, on the facts], particularly in this kind of case, must always have regard first and foremost to Jersey law and it is disappointing to note that neither counsel has deemed it appropriate to cite Jersey authority". So, what then is Jersey law? Jersey law is based on the custhe Duchy of Normandy prior to 1204. As is often the case in regard to the law of Jersey, a good introductory statement on the origins of Jersey customary law is to be found in the Report of the Commissioners appointed to inquire into the Civil, Municipal and Ecclesiastical Laws of Jersey. [2] "The common or customary law of Jersey is based upon the common law of the ancient Duchy of Normandy. The Channel Islands, forming originally a part of the Duchy, alone remained to the Sovereigns of England, on the loss of the continental part in the time of King John. From a very early period the Islands have formed two Bailiwicks, that of Jersey and that of Guernsey. They have ever since retained their ancient Norman law, except so far as it has in the course of time been modified or corrupted by subsequent enactments or usages. It was indeed contended before us, that the common law of England has been introduced into Jersey. We do not see any proof of this, and it is certain that the contrary was asserted and allowed on the occasion of attempts, in the time of Edward II, to bring the Island under the jurisdiction of the Courts at Westminster. It is true that there are numerous instances of identity or close resemblance between the laws of Jersey and the English law in its infancy; but they are much more referable to the Norman origin of the English justiciers, and to the dominant race in England at that period, than to any introduction of English law into Jersey." As to the effect on the law of Jersey’s political separation from Normandy, the Report of the Commissioners appointed to inquire into the state of the criminal law in the Channel Islands claimed the position to be: "whatever was law at the time of the separation is law still, unless it has been abrogated or modified by Charter, Order in Privy Council, Ordinance of the local Legislature or Statute. And, similarly, it is suppost no law can in theory exist which was not then existing, unless it has been established by one of these four." [3] An over simplification of a more complicated picture it certainly is - for one thing, custom itself was subject to a continual evolution - but the point is still well taken. Unless the law has been so abrogated or modified, it therefore becomes important to be able to ascertain the law pre-1204 and then to trace its development thereafter. Ascertaining the position pre-1204 Customary law is a system of legal rules based on oral tradition. The French historical background elucidates its evolution: "Les Francs, après avoir conquis la Gaule, à la fin du cinquième siècle, décidèrent à appliquer en matière de droit privé et de droit pénal le système dit de la "personnalité des lois". En conséquence, chaque habitant se trouvait régi à cet égard par les principes de son peuple d’origine auquel il appartenait par sa naissance, de sorte que lorsqu’un individu était traduit en justice, lui était d’abord posée la question rituelle "Sous quelle loi vis-tu?". Assez rapidement cependant, les déplacements et les mariages mixtes entrainèrent le mélange des races et pour beaucoup l’impossibilité de savoir quel était leur peuple. Le système de la personnalité des lois laissa donc logiquement la place à celui de la "territorialité des lois" qui s’instaura au cours du Xe siècle, âge qualifié de "sombre" sur le plan juridique étant donné l’absence de sources documentaires. Dans le cadre des grands domaines et des seigneuries laiques et ecclésiastiques, se dégage au sein de la population y vivant un fond d’usages juridiques communs, d’origine transactionnelle et de caractère moyen s’appliquant à tous, ces usages étant forcément inspirés par les habitudes du groupe ethnique dominant. Tandis que dans le moitié sud du royaume où la population gallo-romaine était majoritaire se développaient des pratiques inspirées par le droit Romain, droit savant, élaboré et écrit, dans la moitié nord s’imposaient des pratiques d’origine germanique, de caractére primitif et fruste. Quelle que fût leur inspiration, ces usages apparurent, pour répondre à des besoins, au sein de la population qui les façonna d’instinct en les adaptant aux nécessités et en fonction des circonstances. Les principes juridiques constituant la Coutume naquirent ainsi de la répétition continue dans le temps de ces usages qui, dans la mesure òu ils n’étaient pas contestés, s’affirmèrent par là-même pour correspondre à la mentalité aux moeurs, à la vie de ceux qui les avaient suscités et adoptés. Les deux éléments "temps" alité" s’avèrent ainsi indispensables à la formation de la Coutume." [4] This oral, and mutable, French customary law developed by consuetudo ou usus, an evolutionary process of fixing law by usage sanctioned by time. It was a law that developed across the north of France (essentially, north of an imaginary line running east to west to the north of the Auvergne) in an area that became known as the Pays Coutumier. In Normandy, customary law took its greatest hold. Given the fluid nature of its evolution, it me time before Norman customary law settled into a firm body of law. The crystallisation of this law cannot be separated from the development of a more settled political structure in Normandy. Besnier in his La Coutume de Normandie [5] dealing with the period 911 (the first date from which one can properly refer to Normandy as an entity in a political sense) to 1204 states: "Le cadre politique se fixe au moment où la nécessité d’une coutume s’impose aux Normands. De là vient le parallélisme entre la création des institutions et l’élaboration du droit. Les limites du duché et le ressort de la coutume coincident; celle-ci est essentiellement formée par la répetition d’actes identiques dans des situations semblables, elle s’élabore partout, simultanément, aussi bien dans les cours de justice que dans les relations journalières ou en présence des officiers chargés d’intérêts administratifs, militaires ou financiers. A une époque où les fonctions ne sont pas encore nettement spécialisées, il n’y a pas d’organismes qui ne jouent leur rôle dans cette lente élaboration." This "répétition d’actes identiques dans des situations semblables" rted in the crystallisation of the oral tradition. R. Genestal, one of a handful of celebrated academics to study Norman Customary Law at the Université de Caen, calculated that the loose bag of customs and practices which provided the basis of the customary law in Normandy had crystallised into a definitive, oral body of law between 1048 and 1090. [6] Once crystallised into a definite body of law, this law of the communal memory then found its first expression in written form circa 1200 in a text entitled Le Très Ancien Coutumier de Normandie ("TACN") prepared by an unknown practitioner. There followed, some fifty or so years on, a second written version of the Norman coutume, Le Grand Coutumier de Normandie ("GCN") or the Summa de Legibus (known in Jersey as the Summa of Maukel or Mansel and by other names), again the work of an unknown practitioner and believed een prepared between 1235 and 1258. Neither text was an official redaction of the coutume. [7] If the view that only pre-1204 Norman law can legitimately be considered as a source of Jersey’s customary law was correct, clearly the only "pure" text in this regard can be the TACN. In fact, and perhaps not surprisingly given its date, there is no evidence that the text was used in Jersey at the time of its publication. By contrast, the GCN used extensively in the Island. In the preface to his Commentaires sur l’ Ancienne Coutume de Normandie [8], Jean Poingdestre noted how the Jersey people, without hesitation and in one voice, had informed the Royal Commission of 1333 that their law and customs "estoient celles de Normandie, comprises dans le coûtumier qui en avait été compilé, il n’y avait pas fort long-temps, appemme de Mansel, sans qu’il s’y trouvast aucune différence sinon pour le cas de Douaire avec quelques autres exceptions". [9] As the law developed in Normandy, the coutume, as expressed in the TACN and the GCN, was subject to judicial scrutiny by the court of exchequer in Rouen and the interpretation of a number of commentators. The most celebrated commentator was Terrien with his Commentaires du droit civil tant public que privé observé au pays et duché de Normandie, the first edition of which was published in 1574. It was not until 1583 that the customary law of Normandy received its first and only official text, the Coutumes du Pays de Normandie, anciens ressorts et enclaves d’iceluy. Te codification of the Norman coutume was part of a larger process to codify and update customary law throughout France and was motivated by the centralising tendencies of an increasingly absolutist French monarchy [10] . The 1583 Coutume was known by the Normans, who wrongly believed the GCN to be an official text, as la Coutume Reformée ("CR"). The CR was the object of study for a number of commentators until the end of the ancien régime in 1789. Among them are included names familiar to the Jersey Courts: le Bathelier d’Aviron, Godefroy, Berault, Basnage, Flaust and Houard. It was also the subject of Poingdestre’s Remarques et animadversions sur la Coutume Reformée de Normandie (MS). The development of Jersey customary law One further difficulty for the Jersey lawyer in researching the customary law is that after the separation from Normandy in 1204, not surprisingly, Jersey law began to develop independently of Norman law. This must have been a progressive process, though one which accelerated particularly after the mid-nineteenth century. Ascertaining the extent of this independent development and how it may parallel or differ from development in post-1204 Normandy has been the subject of a detailed examination only in the area of succession: see I. Mautaeboul, Le Droit Privé Jersiais : Transformation et adaptation de son contenu original au monde contemperain [11] . If the Commissioners’ 1847 Report were to be followed in a strict sense, of course, Jersey law could rely on the TACN but not on the GCN. However Jersey is fortunate to have two of its own commentators in Jean Poingdestre (1609 - 1691) and Philippe Le Geyt (1635 - 1716) whose works enable an understanding of how Jersey law had developed in the early seventeenth century and it is clear, as we shall see, that Jersey has continued to look to contemporary Norman Law. They do not however provide all the answers as to what constituted Jersey Law. Unless Jersey lawyers are able to look at the TACN, the GCN and the CR there would be some distinct gaps in our law. In the preface to his Commentaires sur l’ Ancienne Coutume de Normandie Poingdestre noted how his ancestors some four hundred years before were in a more fortunate position than his contemporaries in seeking to ascertain his law. His ancestors had the certainty of the GCN. Time however had lessened this certainty. The contemporary difficult position was compounded, he continued, by the fact that the Normans themselves had moved away from the ancient coutume and towards a more mainstream French or civil law modelled on the law which prevailed in Paris. The result was that contemporary Jersey practitioners: "sont demeurés en suspends entre la vieille et la nouvelle, sans scavoir laquelle suyvre, d’un costé ils voyaient que l’usage universel avait déjà rejetté plusieurs choses contenues au vieil coustumier comme barbares et déraisonables ou comme superflues, depuis que les lettres & passements, les Registres publics et les enthérinements ne laissent presque rien à recorder de vive voix. Le langage antique du coustumier devenu estrange à notre Barreau ne leur en donnait pas peu d’aversion, d’autre part ils ne voyoient pas d’apparence d’assujettir les sujets du Roy d’Angleterre à des loix nouvelles fabriquées par la seule authorité du Roy de France, lesquelles en apparence portent le nom de coustumes de Nodie, mais avec tant de changements que l’ancienne n’en fait que la moindre partie." [12] Poingdestre then set about detailing the of Jersey and pointing out where it differed from that of Normandy. And as may be observed in his Loix et Coutumes some of the differences could be quite fundamental: see for example the contrast in the décret procedure in Jersey and Normandy [13] . Poingdestre also undertook the invaluable task in his Remarques on the CR of identifying where Jersey and Norman law parted company. It was however in the area of contract law that the question of the evolution of the laws of Jersey and Normandy posed a novel problem. Contract law in the Norman coutume In theory, one might argue that because the CR post dated the separation of 1204 by nearly four centuries its value as authority is significantly diminished and certainly less than the TACN and the GCN. In practice the distinction is lessened by the fact that the differences between the CR and the TACN and GCN are not large and can often be detected [14] . So far so good. The novel problem derived from the fact that the Norman coutume had very little to say on the law of contract in a general sense and instead had from early on turned to the ius commune to fill this lacuna. In his Commentaires sur l’Ancienne Coutume de Normandie, Poingdestre explained the position thus: "Il y a bien au Chapitre de Querelle de Dette et au Chapitre de convenant quelque traits à la légère touchant les contrats et promesses, mais qui voudrait approfondir en ces matières là ou s’esclaircir des difficultés qui arrivent aux vtions, permutations, obligations... n’y trouveroit pas son compte; car pour ces choses là les anciens Normans, aussy bien que les autres nations n’avoient point de loix particulières, mais se réglaient par le droit civil qui en cela suit la raison et l’équité naturelles." [15] He expanded on the point in his Loix et Coutumes : "Car il est certain que quand le Drarticulier & municipal se taist, il faut tousjours auoir recours au Droict Commun, qui est la Regle generalle, la ou le Droit Coustumier n’est que l’exception particuliere: et que la ou il n’y a point d’exception a ensuiure, on doibt juger par la Regle [du droit commun]." [16] The point had been made somewhat er by Terrien, whose comments, along with those of Poingdestre cited above, were taken up by the Royal Court in Scarfe v Walton [17] .The action was an application to set aside a contract on the ground of error and Bois, Deputy Bailiff, prefaced Poingdestre and Terrien with this: "Counsel in their arguments before the Court, relied almost exclusively on precedents from the law of England, and we therefore think it wise first to state what we conceive the law of Jersey in this matter to be: Terrien in his Coutume de Normandie, Book 1, Chapter III, states: "Vray qu’ès cas où la Coutume ou l’usage defaut, et qui ne sont compris aux ordonnances Royaux, ou autres que nous observons pour loy, nous usons bien et nous aidons de lois et constitutions Impériales, et du droit escrit des Romains: non pas comme de loix qui nous obligent, mais comme de raison commune ou elles sont fondées." We are fortunate to have an academic treatment of the devement of contract law in Normandy from the eleventh to the thirteenth centuries in J. Yver, Les Contracts dans les très ancien droit Normand [18] . The work is particularly helpful because it examines the early customary concept of contract which was dominated by the contrat réel (including le prêt, la vente and donation) and the contrat formel (la foi and le serment). It shows how during the thirteenth century what, in many respects, remained primitive concepts as expounded in the TACN and GCN were supplanted by the consensual contract derived from Roman law: "Il n’est pas téméraire de penser que la théorie romaine des obligations s’est....rapidement répandue en Normandie et s’est emparée d’autant plus rapidement des esprits cultivés qu’elle y trouvant table rase. Cependant, cesence même de théorie [en la Coutume] avait créé un état de fait que le droit romain avec ses finesses et subtilités, son régime de protection des faibles, d’exceptions, de restitutions in integrum, allait brusquement bouleverser." [19] It is clear that the TACN and the GCN devoted sections to aspects of contract law. However, if Yver is to be our guide, the texts are not helpful in expounding a general framework for contractual analysis. Ts it may be that a modern lawyer will find elements which help to elucidate a particular contractual question - this is particularly the case in areas where the texts are stronger, for example, succession and property law. However, in terms of analysing a purely contractual issue, the texts are found wanting. [20] The GCN lacks a study of the magnitude of Yver’s work. However, what it has to say about contract law can be gauged from what we have already quoted from Poingdestre, who was writing some four hundred years after the redaction of the GCN. It, too, does not contain an overall contractual framework. Thus for their contract lawe Normans looked to the French droit commun or ius commune, which has been called the "complex result of the coming together... of local custom with feudal law, Roman law in modified and elaborated form, canon law and the law merchant" [21] . It is worth noting that this process of looking oe the coutume was not unusual, and as Routier, pointed out in his Principes généraux du droit civil et coutumier de la province de Normandie [22], this was to be expected because the coutume simply did not treat of all aspects of the law. Routier in fact provided a set of rules for the interpretation of the coutume and inter alia stated that: "Quand une Coutume ne contient point toutositions nécessaires pour décider les questions qui se présentent, il faut dans ce cas avoir recours à l’usage de la Province; & si l’usage manque, il faut avoir recours aux Coutumes voisines, ou à l’Esprit général des Coutumes de France, ou enfin à la raison du Droit Romain". [23] Where then does this leave Jersey law? If we are to be restricted to pre-1204 customary law we are left without a theory of contract law, without even a concept of consensual obligations. The answer is that we cannot be and have not been so restricted. Poingdestre and Le Geyt make it clear that Jersey law had, by the seventeenth century, quite pragmatically, moved on: in some respects Jersey had developed its own law, but in other respects it continued to follow developments in Normandy and this included looking into the ius commune on matters of contract law. This reference to post 1204 Norman law is also clear in areas other than contract law: for example, Basnage’s Commentaires sur la Coutume de Normandie in its third edition (1709) and fourth edition (1778) has been frequently cited to the Royal Court. It is thus with the sanction of local and Norman commentators on the Norman coutume that Jersey law looks to mainstream civil law for its law of contract. French authorities on contract law In practice, looking at mainstream civil law for the purposes of contract has meant looking to the work of Robert Joseph Pothier. As we shall see, Pothier’s credentials in this regard are impeccable, but it is not immediately clear why it is to his work and, generally, to no other that Jersey law turns. One difficulty for the contemporary Jersey lawyer is ascertaining which writers on Roman law and French civil law were followed in matters of contract in Normandy. Self-evidently, given that the Coutumes are generally silent on consensual contract, they are silent on the relevant authorities on the same subject. The names of authorities are found in the commentators, including Poingdestre, and in Norman jurisprudence - for example, Alaric II and the lex Ra Visigothorum (506), Justinian’s Digest (527-65), Bartolus (1327-1400), Charles du Moulin (1500-1566), Jacques Cujas (1522-90); Guy de Coquille (1523-1603), Antoine Loysel (1536-1617), Jacques Godefroy (1587-1652) [24] . However such references are sporadic and do not indicate a general approach. The works of Robert Joseph Pothier (1699-1772) on Obligations provide one to Jersey’s law of contract. Pothier’s role as a source, indeed the main source, derives from his most influential work, the Traité des Obligations (1761) [25] . Such was Pothier’s influence on French law in this area, that the section on Obligations in the Code Civil is greatly indebted to him. It is sometimes suggested that Pothier is particularly relevant because Norman law in times of need looked to the customary law of Paris-Orleans of which Pothier was a leading writer. Pothier was in any event a great synthesiser and the turning to him as an authority on the ius commune is understandable. For the Jersey lawyer, for whom French is usually a second language, he also has the great advantage of writing in clear and simple terms. As an aside, it is interesting to note Pothier’s status in English contract law which was d by Best J. in Cox v Troy [26] to be "as high as can be had, next to a decision of a court of justice in this country". A statistical analysis of sources cited by the Jersey courts in post-1950 Jersey contract cases provides an interesting, if crude, reflection on Pothier’s influence on our jurisprudence in this area. He has been cited in approximately 50% of the cases which have come before the Royal Court. One further name should be noted at this point, that of Jean Domat (1625-1696). An influential French jurist who also influenced the drafting of the Code Civil, he is from time to time cited in the Royal Court, albeit with less frequency than Pothier. There is no obvious reason for this, though his influence in France did not approach thaier on obligations. It has been said that his work was "more admired than read" and this may explain the preference for Pothier. [27] The Code Civil In the wake of the French Revolution in 1789 previous moves towards a of French law came to fruition. On 21st March, 1804, the Code Civil came into force as the law of France. Customary law in France was officially at an end. [28] It is clear that the Code Civil had an early influence on Jersew. Parts of the Loi (1851) sur le testament d’immeubles are based on the Code, as are parts of the Loi (180) sur la propriété foncière [29] . The 1861 Commissioners’ Report noted, too, "that the circumstances of the Jersey lawyers receiving their legal education chiefly in France, helps to impart a modern French complexion to the jurisprudence of the Island". [30] As already noted, Pothier’s treatise on Obligations was a major source for the Code Civil’s treatment of this area of law. It is not unnatural therefore to presume that where there is continuity between the two, the Code Civil itself can be considered something of an authority for the Jersey law of contract. The Code Civil is, of course, a statute and for this reason its influence on Jersey law must be treated with care. However for some local lawyers the use of the Code Civil at all is controversial, if not plainly undesirable. The role of the Code Civhe law of Jersey received a brief, but interesting treatment at first instance in the case of Kwanza v Sogeo: [31] "Although the "Code Civil" represents the law of modern France and not the "Ancienne Coutume" of Normandy from which the law of Jersey is drawn, I feel that, on a question such as the one I now have to decide, he [sic] and the other authorities quoted are a surer guide to the discovery of the Law of Jersey than is the Law of England, where, as here, the Laws relating to real property have diverged to a substantial extent." In a specifically contract , the Code Civil has received its most definitive recognition by the Royal Court in Selby v Romeril [32] .This case, which concerned the existence of a contract in a landlord and tenant context, caused consternation in the local legal profession. The particular words of concern, were those of Bailhache, Bailiff: "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 cent Pothier was one of those authors upon whom the draftsmen of the French Civil Code relied and it is therefore helpful to look at the relevant article of that Code." [33] The Bailiff turned to Article 1108 of the Code Civil which recites the four requirements for the creation of a valid contract: "In our judgment it may now be asserted that e law of Jersey, there are four requirements for the creation of a valid contract, namely: consent, capacity, objet and cause". [34] The effect of this statement was to take the three requireme a valid contract established by Pothier which had been followed in Jersey (see Osment v Constable of St. Helier [35] ) and to recast them in the mould of Article 1108 of the Code Civil. The full implications of this extension are yet to be seen, but it cannot be other than to invite from counsel submissions based on the interpretation of this and other articles in the Code Civil made by modern French courts and writers. Quite why some members of the profession view this prospect with consternation is unclear, but some have expressed it as a concern that to reveal Jersey’s law of contract as so decidedly Fren will leave Jersey unattractive as an offshore jurisdiction with close links to England. The obvious counter to such an argument is that if reference to the Code Civil makes the Jersey law of contract clearer and more accessible, and if it allows the Royal Court to tap into the vast joint of French jurisprudence and doctrine, this can only be in the interests of justice. [36] The concern of some members of the profession was perhaps reflected by the obiter statements of the Court of Appeal in Maynard v Public Services Committee, a case on the law of prescription. The Court warned: "… care has to be taken in referring to French legal texts in connection with the law of Jersey. After the Channel Islands were severed from the rest of the Norman territories in what is now France, Norman customary law continued to develop in Jersey, Guernsey and Normandy in parallel, but not with identical developments. In Normandy development was naturally affected by doctrines prevailing in other parts of France. The Napoleonic Codes embodied much of the pre-existing laws of the French provinces, but with some material changes. After the Napoleonic codes came into existence, French law developed independently of developments in Jersey and Guernsey, under the direction or influence of French statutes, French jurisprudential writers, and the case law of tourts. Accordingly, no great weight can be placed on French law as it exists today in ascertaining what is Jersey law, except perhaps on a comparative basis as showing how the same problems have been treated in another legal system." [37] The comparative nature of Norman and French law post 1204 cannot be denied, but with respect, in the contractual context without Pothier and, indeed, the Code Civil, Jersey would have no firm foundation upon which to develop its law. It is also fair to say that the warning of the need for care could equally, perhaps even more cogently, be applied to the use of English law in this jurisdiction. Influence of the English Law of Contract It is a popular misconception amongst the public (not surprisingly) that the law of contract in Jersey derives from English law. In fact, the misconception goes further. One is more likely to find a copy of Chitty on a Jersey lawyer’s bookshelf, than a copy of the Précis Dalloz. Inasmuch as this is a criticism, the misconception is understandable. It is a misconception which has even found its way into judgments of the Royal Court. The reasons behind this misconception are not easy to dt it is clear that it reflects a reality in Jersey life, its ever increasing anglicisation, a process that has been at work, effectively, for nearly 150 years [38] . It is also fair to say that this misconception represents for many, including some lawyers, a degree of wishful thinking. The historical anglicisation of Jersey law is explained in the criminal context in Foster v Attorney General. In that case the Court of Appeal concluded that, historically, fraud was an offence by the common law of Jersey, but to determine whether it was an offence in the modern context it was necessary to consider other developments of the last 150 years: "English law has for centuries exe some influence upon the development of criminal law in Jersey. Le Geyt, when writing about criminal law, makes numerous references to Dalton and Coke. By the middle of the nineteenth century, it is clear from the Report of the Commissioners on the Criminal Law of Jersey (1847) that English authors were frequently cited in the Royal Court on questions of criminal law." [39] This, said the Court, represented an established process which operated in the absence of local statute and judicial precedent (particularly, as in the case of fraud, though one might argue more generally, where cases were not frequent and judicial decisions and the reasons for the decisions were imperfectly recorded). Jersey lawyers, said the Court - "borrowed terms and their definitions from the law of neighbouring countries in which the law of fraud had been developed... We have seen that terms were borrowed from France in the first half of the 19th century. In the second half of the century the use of English categories and English terms (in translation) began. In this century the use of English categories and En terms in prosecutions for fraud has increased very greatly, almost to the exclusion of any other mode of proceeding". [40] Because of the nature of the reporting of local judgments in the nineteenth century, which generally amounted to a simple statement of the facts and the decision without any reasoning, the Court’s role in the anglicisation process is not entirely clear. To ascertain the position would require the detailed level of research applied in the Foster case across the board. Perhaps it suffices to say that the Royal Court reflected the changes in the society around it. It is interesting to note that prior to the time that an English influence became particularly marked in Jersey law, local lawyers trained in France. Today, the majority of Jersey lawyers study law in England and obtain a professional qualification in that jurisdiction prior to training locally. A small minority qualify locally without outside study. I know of no member of the Jersey Bar with a French professional qualification in law. So, perhaps, it should come as no surprise, that notwithstanding the often repeated statements of the Royal Court that, in matters of contract, Pothier and the French authorities are "a surer guide to the discovery of the law of the Island than is the law of England", certain anomalies have crept in and that in some instances the Courts have had regard to English law as a guide in laying down the law of Jersey. This tendency was particularly marked in the 1960s and 1970s, although many more recent examples may also be found. I shall refer below to those which are the most noteworthy. The case of Scarfe v ecided in 1964, concerned an action to set aside a contract of purchase of a company on the grounds of mistake and misrepresentation. In this case, although the Court referred at length to extracts from Domat’s Les Loix Civiles dans leur Ordre Naturel, it also went on to comment that "it has been the practice of the Court in extension of the principles enunciated by Terrien and Poingdestre to have regard also to the law of England where no clear precedent is to be drawn from the law of Jersey." [41] This case is interesting in that the Court justified its reliance upon the law of England on the grounds that the principles expounded by Domat had much in common with the English law of misrepresentation and mistake. However, given that the passages relied upon by the Court in Scarfe concerned the principles applicable to an action rédhibitoire, that is an action to have a contract set aside on the grounds of vice caché, and that in these extracts Domat says nothing about mistake and very little about misrepresentation, it is difficult to see how the Court felt able to draw this conclusion. Furthermore, there is no doubt that the laand and the law of France have developed very differently with regard to the seller’s warranty for defects in the thing sold, a fact which was highlighted by the Court of Appeal in the case of Kwanza Hotels Ltd. v Sogeo Company Ltd. [42] Nevertheless, the approach adopted by the Cou Scarfe was echoed by the Royal Court in Kwanza at first instance where the Bailiff commented that in considering the law relating to misrepresentation "I shall confine myself to the law of England which I believe, on this matter, to be the same as the law of Jersey." [43] There are also a number of cases in which the Courts have simply justified their reliance upon English law upon the grounds that there is no established Jersey law which could properly be applied. In the case of Wallis v Taylor, a case concerning the enforceabil restrictive covenant, the Court simply commented that "by reason of the paucity of precedents in Jersey, we have had regard to precedents in the common law of England." [44] It is clear from the above that in the area of contract as in many other areas of Jersey law, the Royal Court has simply "cherry picked" elements from both the English and the French legal systems without laying down or following any consistent guidelines with regard to the sources of law to which the Courts will have regard. Although this approach may have advantages in terms of flexibility, it has resulted in a degree of uncertainty and confusion which cannot but prejudice the interests of litigants before the Jersey courts and which reflects poorly upon our legal system as a whole. Conclusion The identification of the Jersey law of contract both in terms of a general framework of analysis and in terms of researching opinions on everyday problems, remains a difficult process. By the very nature of the sources, the process is time consuming - at least more so than reaching for a copy of Chitty or of Halsbury’s Laws - and hence more expensive for the client. Furthermore, it takes a brave lawyer to hold up a relevant extract from Pothier and to claim that it provides the definitive answer to the problem in hand. The fact remains however that the material is there for the taking and for developing it into local jurisprudence. Modern French writers on the Code Civil are accessible and readily comprehensible. Provided a suitable linkage with Pothier can be traced and it is clear that no statute has interposed to change the ius commune on the point, an answer to most legal questions is attainable. If Jersey is to hold itself out as a jurisdiction with the appropriate degree of gravitas it is beholden on the profession and the Royal Court to establish a sound body of contract law to provide for certainty. John D. Kelleher is an advocate of the Royal Court of Jersey and a partner of Olsen Backhurst & Dorey, Eaton House, Seaton Place, St. Helier, Jersey JE2 3QL |