i-law

Lloyd's Maritime and Commercial Law Quarterly

BOOK REVIEW - CONSENSUS AD IDEM: ESSAYS ON THE LAW OF CONTRACT IN HONOUR OF GUENTER TREITEL.

CONSENSUS AD IDEM: Essays on the Law of Contract in Honour of Guenter Treitel. Edited by F.D. Rose, Professor of Commercial and Common Law, University of Buckingham. Sweet & Maxwell, London (1996) xl and 296 pp., plus 5 pp. Appendix and 7 pp. Index. Hardback £60.
The Magdalen trio of Morris, Cross and Treitel in the 1960s were the academic equivalent of the Manchester United strike force which won the European Cup in the same decade, Charlton, Law, Best, superstars every one. I was myself taught administrative law (not contract) by Guenter Treitel, which causes some cheerful chaffing whenever we meet. Who knows, if I had been tutored in his mainstream subject, I might have practised as a private more than a public lawyer, instead of vice versa, and by the same token been better qualified to review this work of homage.
Without prejudice to the foregoing—in the time honoured pleader’s phrase—two essays at least establish that the territories of public and private law overlap. Paul Craig examines the controls over public procurement derived from the EU Treaty. His absorbing analysis prompts the reflection that the paramountcy given to free trade in community law echoes (in domestic terms) Victorian rather than Elizabethan values. Peter Cane scrutinizes the relationship of tort and contract in the context of the Lloyd’s debacle. Interestingly, he does not allude to the possibility that judicial review might have had a role to play in gaining redress for the bereaved names, nor could he in the light of R. v. Lloyd’s of London, ex p. Briggs [1993] 1 Lloyd’s Rep. 176, where the Divisional Court held (wrongly in my view) that Lloyd’s was not amenable to that remedy—a classic instance of a very bad case making doubtful law. (The proposition as to Lloyd’s immunity was judicially questioned in the course of argument in Society of Lloyd’s v. Clementson [1996] 1 Lloyd’s Rep. 313, in which I represented Lloyd’s in front of a strong Court of Appeal consisting of Sir Thomas Bingham, M.R., and Steyn and Hoffmann, LJJ.)
But elsewhere there are nuggets of scholarship for the administrative lawyer. Katherine Grevling concludes that the common law does not recognize an ability effectively to contract out of the privilege against self-incrimination: such a notion would, I suggest, be still more alien to a system informed by the values of the European Convention on Human Rights (see, e.g., Saunders v. U.K. (1997) 2 B.H.R.C. 358). Peter Birks salts his attack on the concept of total failure of consideration by reference to the swaps litigation—a saga which proved as enriching financially for practising, as it did intellectually for academic, lawyers.
But the book’s dominant motif is the law of contract, whether in detailed analysis of the medieval principle of breach without fault (David Ibbetson) or contemplation of the modern law of software contracts (Colin Tapper). There was no essay which I did not find instructive and coherent, none which merely accepted and embellished the legal status quo. If Treitel never wrote a word which was not reasoned, or expounded a thought that was not pellucid, those who learned from him or taught with him have provided a worthy tribute to a great scholar.

Michael J. Beloff, Q.C.

452

The rest of this document is only available to i-law.com online subscribers.

If you are already a subscriber, click Log In button.

Copyright © 2024 Maritime Insights & Intelligence Limited. Maritime Insights & Intelligence Limited is registered in England and Wales with company number 13831625 and address 5th Floor, 10 St Bride Street, London, EC4A 4AD, United Kingdom. Lloyd's List Intelligence is a trading name of Maritime Insights & Intelligence Limited.

Lloyd's is the registered trademark of the Society Incorporated by the Lloyd's Act 1871 by the name of Lloyd's.