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A CODE OF ENGLISH COMMERCIAL LAW

Lloyd's Maritime and Commercial Law Quarterly

A CODE OF ENGLISH COMMERCIAL LAW

Gerard McMeel*

This project aims to produce by 2025 a draft English Commercial Code, encapsulating the core principles and rules of English commercial law in the format of black-letter propositions and accompanying commentary. It aims to restate the principles and rules, to make them readily accessible in one place, and, where appropriate, to clarify and to modernise English commercial law. Codification of commercial law principles stalled after the Edwardian era. In addition to US and international precedents, Lord Burrows’s recent Restatements of unjust enrichment and of contract have demonstrated the utility of such a project in identifying in clear and accessible formats the principal rules, isolating areas of uncertainty, and suggesting the way forward where the law is unclear. This paper outlines the background to the project and its methodology, and attaches the draft Part I of the draft Code, covering general principles of English commercial law and matters of interpretation.

A. ENGLISH COMMERCIAL LAW: A NATIONAL TREASURE?

English commercial law has long been celebrated by its admirers as a product of the “strength and stretch of human understanding”,1 from its genesis in the court of
* QC; Professor of Commercial and Financial Law, and Director of the Centre for Commercial and Financial Law, University of Reading; Associate Member, Quadrant Chambers. Feedback is invited on this project and Part I, to me at gerard.mcmeel@quadrantchambers.com.
Principal authorities and texts cited:
BEA: Bills of Exchange Act 1882
Burrows, Restatement Contract: A Burrows (Assisted by an Advisory Group of Academics, Judges and Practitioners), A Restatement of the English Law of Contract, 2nd edn (Oxford, 2020)
Chitty: H Beale (gen ed), Chitty on Contracts, 23rd edn (London, 2018)
CISG: United Nations Commission on International Trade Law (UNCITRAL), Vienna Convention on Contracts for the International Sale of Goods 1980
DCFR: C von Bar and E Clive (eds), Principles, Definitions and Model Rules of European Private Law— Draft Common Frame of Reference (DCFR) (2009)
Goode & McKendrick: E McKendrick, Goode and McKendrick on Commercial Law, 6th edn (London, 2020)
Goode, Essays: R Goode, Fundamental Concepts of Commercial Law [-] Fifty Years of Reflection (Oxford, 2018)
Lewison: K Lewison, The Interpretation of Contracts, 7th edn (London, 2020)
McMeel: G McMeel, McMeel on the Construction of Contracts [-] Interpretation, Implication and Rectification, 3rd edn (London, 2017)
MIA: Marine Insurance Act 1906
PECL: O Lando and H Beale (eds), Principles of European Contract Law—Parts I and II (1999); Part III (2003).
SGA: Sale of Goods Act (1893 and 1979)
UCC: Uniform Law Commission and American Law Institute, Uniform Commercial Code (1951 to 2010)
UNIDROIT Principles: UNIDROIT Principles of International Commercial Contracts, 4th edn (2016).
1. Lickbarrow v Mason (1787) 2 TR 63, 73, per Buller J, who went on to describe Lord Mansfield as the “founder of the commercial law of this country”. We can identify the key judicial innovators in commercial law, in contrast to the common law more generally, where doctrine has anonymous roots: S Milsom, Historical Foundations of the Common Law, 2nd edn (1981), 95.

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