Sources Of Law And Basic Principles Flashcards
(10 cards)
Q1. Which historical sources laid the groundwork for Jersey’s law of contract before 1204?
A1.
Norman Customary Law: Originally found in texts such as Le Très Ancien Coutumier de Normandie and later the Grand Coutumier de Normandie. Jersey remained formally linked to Normandy until 1204.
After 1204, Jersey continued to rely on Norman customary law even though the Island was politically separate from mainland Normandy.
Norman law itself had very limited rules on consensual obligations, so Jersey courts gradually turned to Roman/civil law ideas (the ius commune) to fill gaps.
No specific “case” cites these earliest sources because they predate modern reporting, but courts and commentators (e.g., Poingdestre, Le Geyt) confirm Jersey’s Norman origins.
Q2. Who was Pothier and why is he so significant to Jersey contract law?
A2.
Robert-Joseph Pothier (1699–1772) was an 18th-century French jurist whose major work, the Traité des Obligations, systematically explained contract law.
Jersey courts have described Pothier as the “surer guide” to Jersey contract law, especially in areas where purely Norman rules are absent.
Early authoritative references include:
Golder v. Société des Magasins Concorde (1967): The Royal Court stated “the principles stated by Pothier we believe to be the principles of our law.”
Viscount v. Treanor (1969): Court again emphasized Pothier as an important authority.
Many core doctrines—e.g., implied warranties, dol (fraud), the idea of objet (object of the contract)—are taken directly from Pothier’s writings.
Q3. What role does modern French law (post–Napoleonic Code) play in Jersey contract law?
A3.
Jersey’s separation from Normandy (1204) predated the French Civil Code (1804), so strictly Jersey law is not the Code’s direct descendant.
However, courts have sometimes looked to modern French law:
Scarfe v. Walton (1964): Royal Court noted that French law (via Domat) could be used comparatively on matters like hidden defects.
Kwanza Hotel Ltd v. Sogeo (1981 & 1983): Court examined French principles on misrepresentation and vices cachés.
Public Services Committee v. Maynard (1996): Court of Appeal warned that French law “developed independently” post-1804, so “no great weight can be placed” on modern French law unless continuity from ancient custom is shown.
Re Esteem Settlement (2002): Royal Court held French law can be persuasive if it clearly derives from the old customary law and has not diverged significantly.
Selby v. Romeril (1996): Despite caution, the Royal Court looked to Article 1108 of the French Code to confirm that Jersey recognizes four requirements for a valid contract (consent, capacity, objet, and cause).
In short, modern French rules are not binding but can guide Jersey if they remain consistent with Jersey’s historical roots.
Q4. How has English law influenced Jersey contract law, and when do courts apply it?
A4.
Norman-French tradition is foundational, but English common law has been used to fill gaps or for practical reasons (e.g., commercial convenience).
A few important milestones:
Scarfe v. Walton (1964): The Court said English law had “much in common” with Jersey law regarding certain contract principles.
Kwanza Hotel Ltd v. Sogeo (1981 & 1983): The Royal Court and Court of Appeal cited both French and English misrepresentation rules.
Donnelly v. Randalls Vautier Ltd (1991): Parties relied heavily on English case law; the Court noted that counsel often cite England where Jersey precedents are lacking.
Public Services Committee v. Maynard (1996): Court of Appeal accepted English law might be helpful but is not automatically authoritative.
Toothill v. HSBC Bank plc (2008): Jersey court explicitly aligned undue-influence rules with the English cases Barclays Bank v. O’Brien (1993) and RBS v. Etridge (No. 2) (2001) for policy reasons (most Jersey banks are UK-based).
Incat Equatorial Guinee Ltd v. Luba Freeport Ltd (2010): Deputy Bailhache cautioned that a text like Chitty on Contracts should be used carefully in Jersey, as the “basic principles do not have the same provenance.”
Q5. What does “la convention fait la loi des parties” mean, and which cases uphold it?
A5.
It means “the contract makes the law for the parties”—i.e., freedom of contract and the sanctity of agreements.
Key authorities in chronological order:
Scarfe v. Walton (1964): Early reaffirmation of respecting the parties’ bargain.
Golder v. Société des Magasins Concorde (1967): The Royal Court referred to Pothier’s approach, emphasizing that valid consent is binding.
Donnelly v. Randalls Vautier Ltd (1991): Court refused to add implied terms if not clearly within the scope of the parties’ agreement.
Selby v. Romeril (1996): Restated the principle and clarified the four elements (including cause).
Incat Equatorial Guinee Ltd v. Luba Freeport Ltd (2010): Court invoked the idea that once a contract is formed, “the court will enforce it save for good legal reason.”
Q6. What are the four essential elements of a valid Jersey contract?
A6.
Consent – must be real, free, and informed.
Capacity – parties must have legal competence.
Objet – the subject matter of the contract must be certain and lawful.
Cause – the underlying reason/motive recognized in law (distinct from English ‘consideration’).
These were clarified in Selby v. Romeril (1996), where the Court expressly adopted the fourfold test inspired by the French Code Civil’s Article 1108.
Previously, older cases such as Osment v. Constable of St. Helier (1850s) and Golder (1967) spoke of three elements (consent, capacity, object), but Selby merged modern French law to confirm the addition of cause.
What are “vices de consentement,” and how have Jersey courts addressed them?
A7.
“Vices de consentement” are defects in a party’s agreement, such as mistake, duress (violence), misrepresentation (dol), and undue influence.
Chronological cases on misrepresentation and duress:
Scarfe v. Walton (1964): Mentioned the overlap between English misrepresentation and French dol.
Kwanza Hotel Ltd v. Sogeo (1981 & 1983): Examined the civil law doctrine of dol par réticence (fraud by silence) and compared it to English misrepresentation.
Public Services Committee v. Maynard (1996): Emphasized caution with purely modern French expansions on dol.
Toothill v. HSBC Bank plc (2008): Adopted English undue-influence rules from Barclays Bank v. O’Brien and RBS v. Etridge due to strong policy reasons in banking.
Marett v. Marett (2008): Confirmed the subjective theory of consent in Jersey, important to analyzing if a party truly intended to contract.
Q8. What did the courts say about relying on modern French law, and in which cases?
A8.
Courts welcome comparative insights from French law but warn that it has “developed independently” since 1804.
Important chronological statements:
Scarfe v. Walton (1964): Cited Domat and recognized that older French treatises can help interpret hidden-defect rules.
Public Services Committee v. Maynard (1996): Court of Appeal said modern French law “is unlikely to be of direct assistance” except as comparison.
Snell v. Beadle (2001, Privy Council): Affirmed that the French Code or current jurisprudence might not always align with Jersey’s older Norman roots.
Re Esteem Settlement (2002): If a French rule clearly descends from pre-1804 custom, the Royal Court may consider it more readily.
Q9. Which cases illustrate adopting English law in Jersey for certain contract doctrines?
A9.
Kwanza Hotel Ltd v. Sogeo (1981 & 1983): Looked at both English misrepresentation principles and French civil law’s dol.
Donnelly v. Randalls Vautier Ltd (1991): Court noted reliance on English authorities in the absence of direct Jersey precedents.
Toothill v. HSBC Bank plc (2008): The Court aligned Jersey undue-influence rules with the English cases Barclays Bank v. O’Brien (1993) and Royal Bank of Scotland v. Etridge (No.2) (2001), citing strong banking-policy reasons.
Incat Equatorial Guinee Ltd v. Luba Freeport Ltd (2010): Deputy Bailhache reminded courts to exercise caution in wholesale importing of English doctrines (Chitty on Contracts is not automatically part of Jersey law).
Q10. How does ‘cause’ in Jersey law differ from ‘consideration’ in English law, and which case clarified this?
A10.
Cause (the reason or motive recognized by law) is a civilian concept historically found in Pothier and codified in French law.
Consideration (the price paid for a promise) is a common law concept. Jersey law does not require English-style consideration; it requires a lawful and sufficient ‘cause.’
Selby v. Romeril (1996) confirmed that cause is part of Jersey law—following the pattern of the French Code Civil’s Article 1108—while explicitly distinguishing it from English consideration.
