Gower, L. C. B.

English

Yale Law School Legal Scholarship Repository

REVIEWS
feel quite so charitable towards the doctrine, and my uneasiness has not been
dispelled by this treatise.
Although this reviewer does not always share Corbin's policy judgments, he
feels sure that the vast majority of Corbin's audience will say again and again
of this great work: "This is what I have always felt and thought, but have
never been able to put clearly into words even for myself."r,3
FEIEDRICH KESSLEet
VOLUME TWO
PART II: STATUTE OF FRAUDs §§ 275-531.
IT is a great honour for an English lawyer to have been asked to review a
volume of Professor Corbin's 2nagnium opus and thus to be privileged to partici-
pate in the tributes to the life-work of a great American jurist. Professor
Corbin has an assured reputation throughout the common law world and is
especially well-known to English lawyers for his article on "Contracts for the
Benefit of Third Persons," published in the Law Quartcrly Ricew in 1930.
This article had a powerful influence on our legal development, although not,
it must be confessed, an entirely beneficial one. As he pointed out in the
article, English judges, without openly admitting it, had been in a fair way
towards introducing a consistent principle of third party rights into the
English law of contract. Alas, once Professor Corbin drew their attention
to what they were doing they hastily recoiled, and since his article appeared
there has been a recession rather than a further advance. In England,
"lawyers' law reform" must be effected surreptitiously; an open attack has
little chance of success and often does more harm than good. This makes
the task of the professing reformer a thankless one-as our most progressive
judge is discovering.' But the unintended consequences of Professor Corbin's
illuminating intervention cannot be laid to his door-the fault is not in our
stars (of whom Corbin is one of the brightest) but in ourselves.
The object of inviting an Englishman to participate in this series was pre-
sumably to obtain his comments on the English reactions to the work as a
whole and to Volume Two in particular. Our first reactions, certainly, are
wonder and envy. Wonder at the physical resources and research facilities
of the actual result reached. Does the opinion reveal enough about the fact situation
involved to convince the reader that plaintiff's threat to break his contract to which
defendant "yielded without protest" was within legitimate bounds?
53. The passage is taken from Aldous Huxley, Tragedy and the Whole Truth in
WNI.IAms, A Boor oN ENGLISH Ess.kys 325 (1951).
'Professor of Law, Yale Law School.
1. See, e.g., Howell v. Falmouth Boat Construction Co., [1951] A.C. 837; British
'Movietonews v. London & District Cinemas, [1951] 2 All E.R. 617.
1952] 1103
THE YALE LAW JOURNAL
of the American law schools and institutions which have enabled such works
as the Restatement, Williston on Contracts, Williston on Sales, and Corbin on
Contracts to appear in quick succession. We have long experienced these
feelings and in me they were stimulated afresh before I even received the
book itself. "The length of the review," wrote your Editor, "is a matter of
your discretion." In paper-deprived England this would have read, "We must
insist that the review be as short as possible and, in any case, not longer
than. .. ." At the risk of being accused of sour grapes and of abusing your
hospitality dare I suggest that enjoyment of unlimited resources is not an
unmixed blessing? It has sometimes seemed to us in England that it has
tended to produce in current American legal literature a repetitive and diffuse
style of writing 2 which, we like to think, we generally avoid-not because
of any particular virtue but because we must, if we are to be published at all.
Hence, it is only when we read a book like Corbin, which shows none of
these defects, that our wonder is accompanied by unrestrained envy.
But even in Corbin's case we cannot help feeling a faint regret that both he
and Williston should have devoted their lives to the same field with the result
that this has twice been thoroughly tilled while other areas remain buried
in weeds. Williston was so immeasurably superior to anything produced on
this side of the Atlantic that it seemed inconceivable to us that there should
be a further work of the same magnitude for many years to come. The
results prove us to be wrong. Whether, on the whole, Corbin is superior
to Williston it is not for me to say, nor am I qualified to do so, but so far
as the treatment of the Statute of Frauds is concerned Corbin seems indeed
even better. We in England have nothing comparable; good students'
books there are-Anson and Cheshire & Fifoot in particular-but the
nearest approach to a comprehensive treatise is, I suppose, Chitty, which was
originally written in 1825 and which in its latest (1947) edition tries to
cover in 1300 pages not only the general law of contract but also special types
of contract such as sale, hire-purchase, agency and the like. The result can be
left to the imagination of those fortunate enough not to have to make use of
it.3
Turning now, to the subject matter of Volume Two, here again the first re-
action is one of bewilderment. The Statute of Frauds was enacted in the Mother
Country 300 years ago. It has been restrictively construed and animadverted
on by common-law judges, emasculated by Equity, excoriated by text-book
writers and recommended for repeal by the English Law Revision Committee;
yet its principal Sections (4 & 17) still hold sway not only in England but
throughout the greater part of the English-speaking world, including, appar-
2. Only in the obscurity of a footnote would one dare to hint that this has some-
times been discernible in contributions by distinguished jurists to this august Journal.
3. In fairness to the last editorial board it should be said that the result is not quite
so bad as might have been expected.
1104 (Vol. 61
REVIEWS
ently, nearly all the United States. It is true that it has received its share of
praise, some of it fulsome, but Professor Corbin's quotations make it clear
that the blame greatly exceeds the praise 4 which, in general, comes from
notoriously reactionary quarters.5 The reasons for its original enactment
are not difficult to understand; the jury was then an imperfect instrument
and the rules as to competency and admissibility were illiberal. But its
survi-al and extension seem inexplicable. Today it is our boast that our
jury system and the oral examination of witnesses are the most perfect in-
struments for ascertaining the truth and infallible detectors of fraud. Yet in
order to prevent fraud we reject oral testimony and insist on written evidence
-the despised instrument of the civil law countries. On the face of it this
seems to be an abject confession of failure. What is the explanation?
Professor Corbin finds it in "the juristic habit of courts and lawyers for
two hundred and seventy years" and considers that "the total repeal of
the statute would involve such a wrench to the mental habits of bench and
bar that it is very unlikely to occur.' This explanation seems unsatisfying;
it might account for its survival in England but hardly for its widespread
adoption elsewhere. And even in England my impression is that in fact
it runs counter to our habits of juristic thought so that the lawyer who
pleads it feels slightly ashamed of himself, rather as if he had laid his
opponent a stymie. Having abolished the stymie why boggle at the Statute?
The explanation, I suspect, is pure apathy. The man-in-the-street understands
the laws of golf and will agitate if they are unfair; but litigation is a more
mysterious game of chance and he leaves its rules to the professional until
some cause cjbre makes their injustice too glaring. The Statute has pro-
duced litigation in plenty-one has only to glance at the footnotes to this
book to realise how much-but it still lacks a really sensational cause cHkbrv.
And as for the professionals, well, there is not much they can do, for the
Statute is, after all, a statute which judge-made law cannot repeal. Consider-
ing that, as Lord Nottingham cynically observed two centuries ago, every
line of the Statute has been worth a subsidy to lawyers, it is perhaps com-
mendable that they have been so openly critical of it.
Throughout the pages of this book there are points of interest and of
immediate practical value to the English lawyer. I know of no other treat-
ment in which the many problems to which the Act gives rise are subjected
to a more searching and stimulating investigation or in which the authorities
are so exhaustively collected. Professor Corbin quotes extensively from
English decisions and literature although there are certain noticeable omis-
4. See § 275, p. 10 et seq.
5. To avoid the risk of a libel action by Professor Karl Llewellyn, see 40 YAm.n L.J.
747 (1931), I hasten to add that I do not regard him as a reactionary (notjritus Ur other-
wise) and that his praise of the Statute, although unexpected, is not intemperate.
6. See § 275, p. 14.
1952] 1105
THE YALE LAW JOURNAL
sions.7 Hence our students will here find an unmatched guide through the
labyrinths of a highly technical branch of the law, and our practitioners an
invaluable weapon in their armoury. Not only is Professor Corbin rightly
critical of many of our decisions but, as his pages make clear, there are
points which have not yet arisen in England but which have been thoroughly
explored in the States. Unhappily English practitioners are not yet ac-
customed to make the use that they should of American authorities, and for
this they cannot be altogether blamed, for no English law library possesses
the necessary facilities for enabling them to undertake research into the
primary sources. It is, I think, infinitely more common for English decisions
to be cited in American Courts, and, of course, it is correspondingly easier
for Americans to keep track of the relatively few reported decisions of our
one High Court than it is for us to follow the mass of case-law produced
by your States and Federal jurisdictions. But if the unity of Anglo-American
jurisprudence is to be preserved it is essential that there should be a true
cross-fertilization of ideas-English law is certainly in need of the revivifying
influence of new blood. Works such as the Restatement and, to an even
greater extent, within a narrower sphere, Williston and Corbin, are therefore
especially welcome because they make available to the Old World the legal
wealth of the New. Already there are signs of a greater awareness of the
opportunities thus provided. The Restatement is frequently cited in our
Courts, and Candler v. Crane Christmas & Co.8 is a recent example of the Court
of Appeal supporting their decision by a reference to the American Ultramares
case-although it is significant that this was not cited by counsel but drawn
to the judges' attention by Professor Goodhart acting as a kind of extra-mural
amicus curiae. Hitherto, so far as I am aware, English advocates have not
turned to the States for assistance when arguing cases on the Statute of
Frauds, but such cases are frequent and often difficult and now that they
have Corbin to hand they will be foolish indeed if they do not avail them-
selves of it.
Nevertheless, an Englishman in reading this Volume is struck by the
extent to which the unity of Anglo-American law has been preserved even
in a field where one might expect to find divergences. As Professor Corbin
points out, the actual wording of the Statutes in the various States differs
substantially. Some adopt the original formula that "no action shall be
brought" on a contract which does not comply with the Statute; others
declare that it shall be "void" or "invalid." These differences seem to have
made surprisingly little difference to the practical results, so that although
the Statute is not part of the Common Law, "there is a common statutory
7. E.g., I looked in vain for any reference to Dr. William's book, which is our most
scholarly discussion of the Statute; to the report of the Law Revision Committee; or to
Denning L. J.'s article in 41 L.Q. REv. 79 (1925), recently quoted in the case of James v.
Kent [1951] 1 K.B. 551, which itself will merit a reference in the next edition.
8. [1951] 2 K.B. 164.
1106 [Vol. 61
REVIEIVS
law which has been the basis for a great mass of judicial law. . . ."D Even
the States which adopt the original wording have, in the main, found no
difficulty in avoiding the conclusion of the English Courts, in the much criti-
cised case of Leroux v. Brown, that the Statute lays down a mere rule of
procedure. And even in England the practical effect of this decision seems
to be limited to the Conflict of Laws. Professor Corbin demonstrates that
the Statute should be regarded as laying down a rule of substance and that
Leroux v. Brown cannot be supported.10 Most English lawyers would agree,
and will welcome him as a powerful ally. It is greatly to be hoped that, if
the House of Lords has an opportunity of re-considering the decision, the
American authorities and Corbin's trenchant criticisms will be drawn to their
attention.
It would appear to be in connection with Sale of Goods that the greatest
differences between the two systems are discernible, and this is not surprising
since both countries have fairly recently re-enacted and modified the original
provisions of § 17. The English Sale of Goods Act, 1893, continues to
exclude choses in action and expressly defines "acceptance." The American
Uniform Sales Act includes choses in action and gives a different definition
of "acceptance." The consequences of the first divergency need no illustrating;
as regards the second, however, it may be of interest to point out that whereas
in America a rejection cannot as such constitute acceptance, in England,
paradoxically, it may. Acceptance. for the purpose of § 4 of the Sale of
Goods Act means "any act in relation to the goods which recognises a pre-
e:sting contract of sale whether there be an acceptance in performance of the
contract or not." Hence, it was held in the leading case of Abbott v. Wolsey 21
that the ill-advised statement by the buyer that "this hay is not to my sample
and I shall not have it" was a sufficient acceptance for the purpose of the
section so that the buyer could not rely on the absence of a memorandum!
Professor Corbin makes it clear that this would not be supported in the
States either under the original § 17 or under the Uniform Sales AcLY
Elsewhere, however, differences even as regards Sales of Goods appear
to be trifling and accidental, and all too often we seem to share the same
errors. But I think that Professor Corbin occasionally does England less
than justice. Thus I do not agree that the English cases establish that receipt
of a cheque in conditional payment is not part payment for the purposes of
the Statute.' 3 Moreover, it just is not true that the ruling of Blackburn J. in
Lee v. Griffin, that a contract to fit a set of false teeth is a contract for the
sale of goods, "gives reasonable satisfaction in England."' 4 On the contrary
it gave so little satisfaction that, although never formally over-ruled, it is
9. § 278, p. 18.
10. §§ 293-4.
11. [1895] 2 Q.B. 97.
12. § 483.
13. § 495.
19521 1107
THE YALE LAW JOURNAL
tacitly ignored. A fairer impression of our law would have been given had
Professor Corbin cited the later case of Robinson v. Graves1i which shows
that the modern English doctrine is very much that for which he argues.
Before concluding perhaps I may venture upon one suggestion for the
second edition which will undoubtedly be called for shortly. It seems to me
that the practical utility of the work would be still further increased if each
volume had its own Index and Table of Cases in addition to the consolidated
-Index and Tables in Volumes Seven and Eight. I can well understand that,
having accomplished the amazing achievement of producing the whole work at
one time, Professor Corbin is anxious to emphasize its essential unity. Never-
theless it would be valuable, especially to the practitioner, if each Volume could
be used, for example in Court, on its own.
On reading the foregoing I am acutely aware that it is all too inadequate
an appreciation of a major work of legal scholarship. My excuse must be
that of a great English lawyer and jurist, Lord Wright, in commenting on
the equivalent sections of Williston's book.10 "I confess," he said, "that I
found it, however ably and brilliantly done, somewhat depressing. There is
no principle involved. It is all directed to construing badly drawn and ill-
planned sections of a statute which was an extraneous excrescence on the
Common Law. . . ." It is the great strength of Corbin's treatment that he
almost succeeds in concealing that "it is all devoted to ... badly drawn and
ill-planned sections" and in persuading the reader that there is some principle.
But not even he can make the Statute of Frauds a really thrilling or fascinat-
ing chapter in our legal story. Had your Editor entrusted me with the volume
on Mistake or Frustration then indeed I might have been able to do myself,
and Professor Corbin, better justice, but I can well understand that the
competition was keen and that charity begins at home. So this review must
end, as it began, with envy-this time of the deservedly fortunate champions
among whom I am privileged to offer this very humble but very sincere
tribute.
L. C. B. GOwERt
VOLUME THREE
PART III: INTERPRETATION-PARoL EvmENCE-MISTAKE §§ 532-621.
PATIENT genius made this book. A first class legal education could rest
largely on Corbin's 95 page discussion of the so-called "parol evidence rule."1
14. § 476, p. 623.
15. [1935] 1 K.B. 579.
16. Wright, Williston on Contracts, 55 L.Q. REv. 189, 204-5 (1939).
t Professor of Law, London School of Economics.
1. For that discussion does not, remaining on the aloof, relatively calm, upper court
level, content itself with an exposition of legal rules and their complexities. It also refers
[Vol. 611108


Corbin on Contracts: Part II: Statute of Frauds

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Corbin on Contracts: Part II: Statute of Frauds

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