BRITISH LEGAL HISTORY CONFERENCE, OXFORD, 2007 JUDGES AND JUDGING DRAFT

1. PLEASE DO NOT CITE WITHOUT PERMISSION OF THE AUTHOR.

LORD MANSFIELD AND LORD DENNING: SOME PITFALLS AND

POSSIBILITIES PRESENTED BY THE GREAT JUDGE APPROACH TO
LEGAL HISTORY AND THE LAW OF CONTRACT.

DR WARREN SWAIN

Many modern legal historians are willing to downplay the role of individual judges, preferring instead to
treat judges as mouthpieces of social forces.1 It was not always the case. Forty five years ago, in his
Hamlyn Lecture of 1959, Judge and Jurist in the Reign of Victoria, Cecil Fifoot argued that Law, no more
than any other human creation, is the automatic result of natural forces or intellectual movements. It is
made by men English lawyers of all men, should believe in the power of the great judge.2 Anyone
attempting to summon up the ghost of Thomas Carlyle these days risks being labelled a conservative at
best, or nave at worst.3 This type of legal history is certainly difficult to do well. It is sometimes tempting
to accept reputations at face value. It is easy to forget that judges are frequently inconsistent. Their views

Department of Law, Durham University. I am grateful to my former colleague at the University of

Birmingham, Mr Peter Cook, who first suggested the subject. Since writing this paper, I have come across
CMA McCauliffs, A Theme of Fairness Revisited: Lord Mansfields Legacy for a Holistic Theory of
Contract Today [2000] Denning LJ 67, which considers some of the same issues. I find myself at odds
with Professor McCauliffs interpretation on many points but his article is a useful antidote to some of the
more radical arguments herein.
1
For an overview of recent trends in legal history, see KJM Smith and JPS McLaren, Historys living
legacy: an outline of modern historiography of the common law (2001) 21 LS 251. This approach is the
dominant feature of the last thirty years.
2
(Sweet and Maxwell, London, 1959) 12.
3
On Heroes, Hero-worship and the Heroic in History (Ams Press New York 1969) p. 1 For as I take it,
Universal History, the history of what man has accomplished in this world, is at bottom the History of the
Great Men who have worked here.

can change over time and according to the context. An examination of some of the decisions of Lord
Mansfield and Lord Denning on the law of contract,4 throws up some surprises which raise questions about
the popular reputations of two of the most distinctive judges of the last two hundred and fifty years.

1. LORD MANSFIELD TAKING CERTAINTY SERIOUSLY.

In Anderson v Temple in 1768 Lord Mansfield explained that:

The most desirable object in all judicial determinations, especially in mercantile ones, (which
ought to be determined upon natural justice, and not upon the niceties of law,) is, to do
substantial Justice.5

These remarks do not appear to come from a judge who placed much value on certainty in the law.
Contemporaries were quick to criticise Lord Mansfield on just these grounds. Writing in the 1770s, the
controversialist Junius complained that:

Instead of those certain, positive rules, by which the judgment of a court of law should
invariably be determined, you have fondly introduced your own unsettled notions of equity
and substantial justice. In the meantime the practice gains ground; the court of Kings
Bench becomes a court of equity, and the judge, instead of consulting strictly the law of the
land, refers only to the wisdom of the court, and to the purity of his own conscience.6

For useful earlier attempts to grapple with this subject, see CHS Fifoot, Lord Mansfield (OUP, Oxford,
1936) 118-157; J Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth
Century (The University of North Carolina Press, Chapel Hill and London, 1992) vol 1, 223-244; P Atiyah,
Contract and Tort in JL Jowell and JPWB McAuslan (eds.), Lord Denning the Judge and the Law (Sweet
& Maxwell, London, 1984) 29; P Atiyah, Lord Dennings Contribution to Contract Law [1999] Denning
LJ 1.
5
Alderson v. Temple (1768) 4 Burr 2235, 2239. The context was an action of trover.
6
J Cannon (ed.), The Letters of Junius (OUP, Oxford, 1978) Letter XLI pp. 209-210.

When Lord Eldon recalled a remark that Lord Mansfield is supposed to have made to De Grey CJ that he
never liked law as well as when it was like equity,7 he did not intend a compliment.8 Turning to the
judgments themselves, a search of the printed reports reveals that, particularly in the first half of his time as
Chief Justice, Lord Mansfield made free use of terms like equity, justice and good conscience.9 His
willingness to incorporate mercantile practice, whether through special mercantile juries10 or by consulting
more widely with underwriters11 and others engaged in particular types of insurance contract,12 suggests
that the need for certainty was secondary to the desire to build a law of contract that reflected the needs of
merchants.

At the same time, the importance of context should not be overlooked. James Park described the law of
insurance prior to Lord Mansfields appointment: there have been but few positive regulations upon
insurance, the principles, on which they were founded, could never have been widely diffused, nor very
generally known.13 The relative absence of Common law authority meant that insurance presented the
greatest opportunity for innovation. It was probably no coincidence that this was also the very area where
Lord Mansfield made particularly free use of Civilian sources.14

Dursley v. Fitzharedinge (1801) 6 Ves 251, 260; A Lincoln and R McEwen (eds.), Lord Eldons Anecdote
Book (Stevens & Sons, London, 1960) 238.
8
In The Lives of the Chief Justices of England (London, 1849) vol. 2 pp 394-95, Lord Campbell named
Lord Eldon along with Lord Kenyon as a leading critic of Lord Mansfield.
9
Vintners Co v. Passey (1757) 1 Kenyon 500, 503; Anderson v. George (1757) 1 Burr 352, 353 justice
and good conscience; Windham v. Chetwyn (1757) 1 Burr 414, 430; Rose v. Green (1758) 2 Kenyon 173,
178; Godin v. London Exchange Assurance (1758) 2 Kenyon 254, 256; Burton v. Thompson (1758) 2
Kenyon 375, 376; Hawkes v. Crofton (1758) 2 Kenyon 389, 390; Foxcraft v. Devonshire (1760) 1 Wm Bla
193, 195; Robinson v. Bland (1760) 1 Wm Bla 256, 263; Baskerville v. Brown (1761) 1 Wm Bla 293, 294;
Ingle v. Wandsworth (1762) 3 Burr 1284, 1286; Plumer v. Marchant (1762) 3 Burr 1380, 1384; Bird v.
Randall (1762) 3 Burr 1345, 1353 justice and conscience; Goodright d Carter v. Staplan (1774) 1 Cowp
201, 203 natural justice and equity; Holman v. Johnson (1775) 1 Cowp 341, 343.
10
Oldham, (n 4)vol 1, 82-102; J Oldham, The Origins of the Special Jury (1983) 50 Univ. Chic. LR 137,
173-175.
11
Glover v. Black (1763) 3 Burr 1394; Camden v. Cowley (1763) 1 W Bla 417; Wilson v. Smith (1764) 3
Burr 1550, 1556. Sometimes underwriters were of course members of a special jury see, Vallejo v.
Wheeler (1774) 1 Cowp 143, 150.
12
Salvador v. Hopkins (1765) 3 Burr 1707, 1714.
13
J Park, System of the Law of Marine Insurance (2nd edn, London, 1790) xliv. Park was guilty of
considerable exaggeration see, WS Holdsworth, The Early History of the Contract of Insurance (1917) 17
Colum L Rev 85.
14
On the influence of Civilian writers on Lord Mansfield see, WS Holdsworth, A History of English Law
(Methuen, London, 1938) vol 12, 467; D Coquillette, Legal Ideology and Incorporation IV: The Nature of
Civilian Influence on Modern Anglo-American Commercial Law (1987) 67 BUL Rev 877, 949-62. For

In the years preceding the Industrial Revolution, negotiable instruments were widely used as means of easy
credit transfer.15 Writing in 1760, Timothy Cunningham described the bill of exchange as the principal
medium of foreign and inland commerce.16 A few years later George Crooke observed that, There is
scarce any person either gentleman, tradesman, or farmer, but what must, at some times, have occasion for
bills of exchange.17 Lord Mansfield himself admitted that bills of exchange were of great consequence to
trade and commerce especially in this country and at this time.18 Negotiable instruments were much better
established as a feature of common law litigation than insurance by the time Lord Mansfield took office.
Some matters still needed to be settled but the basic legal framework was already in place.19 There was also
a much larger volume of literature devoted to the subject. 20 Rather than building a legal framework from
scratch, Lord Mansfield was much more concerned to ensure that the existing law worked as well as
possible. With this end in mind, he set about removing any obstacles to smooth enforcement21 and
inconsistencies between different types of negotiable instruments.22 In the process, Lord Mansfield was
sometimes prepared to face down mercantile objections.23

Over time, Lord Mansfields position began to harden. As early as 1774, he stated that in mercantile
transactions the great object should be certainty.24 Eight years later he warned: Nothing is more
mischievous than uncertainty in mercantile law and, as a result, in all mercantile cases there are

examples see, Goss v. Withers (1758) 2 Burr 683; Pelly v. Royal Exchange Assurance Co. (1760) 1 Burr
341.
15
R Floud and P Johnson (eds.), The Cambridge Economic History of Modern Britain 1700-1860 (CUP,
Cambridge, 2004) 53-55.
16
T Cunningham, The law of bills of exchange, promissory notes, bank-notes, and insurances (1760) iii.
17
G Crooke, The Merchant, Tradesman and Farmers director (1778) iii.
18
Blesard v. Hirst (1770) 5 Burr 2670, 267; Grant v .Vaughan (1764) 1 Wm Bla 486, 487.
19
J Holden, The History of Negotiable Instruments in English Law (Anthlone Press London 1955) 99-144;
JS Rogers, The Early History of the Law of Bills and Notes (CUP, Cambridge, 1995) 210-222.
20
W Forbes, A Methodical Treatise Concerning Bills Of Exchange (1718); Anon, Obscurities and Defects
of the Mercantile Law Considered, in an Essay on Bills of Exchange (1769). Later eighteenth century
works include J Bayley, A Short Treatise on the Law of Bills of Exchange, Cash Bills, and Promissory
Notes (1789); S Kyd, A Treatise on the Law of Bills of Exchange and Promissory Notes (1790); J Chitty, A
Treatise on the Law of Bills of Exchange, Checks on Bankers, Promissory Notes, Bankers Cash Notes and
Banknotes (1799).
21
Heylyn v. Adamson (1758) 2 Burr 669; Grant v. Vaughan (1764) 3 Burr 1516, 1 Wm Bla 486.
22
Heylyn v. Adamson ibid. Grant v. Vaughan ibid. ; Bayley (n00) iii.
23
Medcalf v. Hall (1782) 3 Doug 113; Appleton v. Sweetapple (1782) 3 Doug 137.
24
Vallejo v. Wheeler (1774) 1 Cowp 143, 153.

two objects, convenience and certainty.25 He recognised that: All questions on mercantile
transactions, but more particularly upon policies of insurance, are extremely important and ought to
be settled.26 Much had been done. William Blackstone wrote:

The learning relating to marine insurance hath of late years been greatly improved by a series
of judicial decisions, which have now established the law in such a variety of cases, that
they would form a very complete title in a code of commercial jurisprudence.27

Merchants, as well as judges, no doubt played a part as insurance contracts were drafted in an increasingly
sophisticated way.28 Mercantile practice remained relevant where the law remained to be settled29 or when
hard and fast rules were difficult to draw as, for example, when it came to determining whether or not a
term in an insurance contract should be treated as a warranty.30 But, even here, Lord Mansfield was
increasingly reluctant to place too much weight on mercantile usage at the expense of certainty.31

According to John Wesket, writing in the 1780s, much still needed to be done:

What, in any country, could be more preposterous and intolerably grievous; or more
reproachful to a great commercial Nation, in particular; than that the Administration of
private Justice, in the Affairs of MERCHANTS should be solely in the Hands of
Inconclusiveness!32

25

Medcalf v. Hall ibid. 113. Lord Mansfield made these remarks in a direction to a jury.
Nutt v. Hague (1786) 1 TR 323, 330. For similar statements see, Buller v. Harrison (1777) 2 Cowp 556;
Milles v. Fletcher (1779) 1 Doug 231, 232; Simond v. Boydell (1779) 1 Doug 268, 270-71.
27
W Blackstone, Commentaries on the Laws of England (Clarendon Press Oxford 1766) vol 2, 461.
28
Vallejo v. Wheeler (1774) 1 Cowp 143, 145.
29
Carvick v.Vickery (1783) 2 Doug 653.
30
Oldham, (n00) vol 1, 462
31
Ibid.
32
J Wesket, A Complete Digest of the Theory, Laws, and Practice of Insurance (1781) xvi.
26

That a degree of inconclusiveness remained inevitable may have had less to do with Lord Mansfields
disregard for certainty than the continued importance of the jury.33 Whilst prepared to nurture the motion
for new trial, which, in time, would eat away at jury discretion,34 Lord Mansfields relationship with juries
was, in other ways, along traditional lines. His trial notes show that he was prepared, on occasion, to coax
jurors into reaching the desired conclusion.35 But jurors might still refuse to bow to judicial pressure, even
when the matter was put to them more than once.36 He was less inclined than his contemporary, Buller J, to
draw sharp lines between questions of law and fact, thereby removing questions from jurors and restricting
the scope of their decision making powers.37

2. LORD MANSFIELD: REFORMER OR REVOLUTIONARY?

Lord Mansfield was called the founder of commercial law of this country38 by his friend, Francis Buller.
Big strides to develop mercantile law were certainly made at this time but they should not disguise the role
played by earlier judges particularly Chief Justice Holt39 as well as contemporaries like Buller himself. It
is often said that Lord Mansfield was also intent on radical reform of mainstream contract doctrine. There
is also some truth in this view. But once again it should not be overstated.

33

J Oldham, The Varied Life of the Self-Informing Jury (Selden Society, London, 2005) 26-31. On the later
decline of the jury, see M Lobban, The Strange Life of the English Civil Jury 1837-1914 in J Cairns and
G McLeod (eds.), The Dearest Birth Right of the People of England (Hart, Oxford, 2002) 173.
34
Bright v. Enyon (1757) 1 Burr 390, 393; Hodgson v. Richardson (1764)1 Wm Bla 463, 465.
35
Oldham, (n 4) vol 1, 206.
36
Medcalf v. Hall (1782) 3 Doug 113; Oldham, (n 4) vol 1, 233. On occasions Lord Mansfields
displeasure with jury verdicts left a mark in his trial notebook for examples see, Oldham, (n 4) vol 1, 89-91.
37
Even within an individual action. In Grant v. Vaughan (1764) 3 Burr 1516, 1523 having allowed a matter
to go before the jury at trial, in banc he confessed that I ought not to have left the point to them for it is
a question of law. For a contrast with Buller J, see Appleton v Sweetapple (1782) 3 Doug 137, 140 In a
question of law we must not yield to the jury; Tindal v. Brown (1786) 1 TR 167, 169; Sproat v Mathews
(1786) 1 TR 182, 187. For a discussion of some of these authorities see, Oldham, (n 4) vol 1, 158-160.
38
Lickbarrow v. Mason (1787) 2 TR 63, 73, 100 ER 35, 40. Lord Mansfield left Buller a legacy of two
thousand pounds, see E Heward, Lord Mansfield (Barry Rose, Chichester and London, 1979)167.
39
For an overview of Holt CJ, see Coquillette, (n 14) 937-948. For detail of Holt CJs important
contribution to negotiable instruments, see Holden, (n 19) Ch 4; Rogers, (n 19) Ch 8.

With the growth of negotiable instruments, the paradigm of contractual relations as face to face dealing
involving an exchange expressed through the doctrine of consideration, was becoming outdated. In Pillans
v. Van Mierop,40 Lord Mansfield was prepared to abandon consideration when a contract between
commercial parties was put into writing.41 It seems likely that he was trying to extend the practice of
negotiable instruments, where consideration was all but emasculated, to all written contracts between
commercial parties, rather than proposing a radical restructuring of the law of contract.42 Lord Mansfield
was advocating an important exception developed incrementally from existing practice.43 It was Lord
Mansfields fellow judge, Wilmot J, who advocated a more fundamental re-alignment of contract. In an
opinion that drew on Civil Law and Natural law,44 he argued that the requirement of consideration should
be abandoned for all types of written contract.45 It was his revolt against orthodoxy which was stamped on
in Rann v. Hughes.46

The scale of Lord Mansfields second attempt to reform consideration is frequently misunderstood. It is
often claimed that Lord Mansfield was keen to import a doctrine of moral consideration into the Common
law.47 This view originated in the early nineteenth century48 amongst those anxious to extend the
boundaries of the doctrine of consideration.49 In reality, Atkins v. Hill50 and Hawkes v. Saunders51were less
about introducing moral consideration than extending the Common law into the territory of the Court of
40

(1765) 3 Burr 1663. For greater detail on these authorities, see W Swain, The Changing Nature of the
Doctrine of Consideration, 1750-1850 (2005) JLH 55.
41
(1765)3 Burr 1663, 1669.
42
On the emasculation of consideration in cases of negotiable instruments, see Holden, (n00) 102-103.
43
Although consideration was not part of Scots law, another possibility is that Lord Mansfield was
influenced by the way that Scots law relaxed formality requirements in mercantile transactions. For the
Scots rules see D Walker (ed.), Viscount Stair, The Institutions of the Law of Scotland (University of
Edinburgh Press, Edinburgh, 1981) 1.10.3; Lord Bankton, An Institute of the Laws of Scotland (1993) Stair
Society 1.11.31.
44
Wilmot J, like Lord Mansfield, had a deep interest in Civil law, see J Wilmot, Memories of the Life of
The Right Honourable Sir John Eardley Wilmot Knt. Late Lord Chief Justice of the Court of Common
Pleas (2nd edn, 1811) 210.
45
3 Burr 1663, 1670.
46
(1778) 4 Bro PC 27, 7 TR 350 note; LI MS Misc. 130 f. 74, 2 ER 18, 101 ER 1013.
47
W Holdsworth, A History of English Law (Methuen London 1925) vol 8, 25-42; Fifoot, (n00) 129-135.
For more detail on these developments, see Swain, (n00) 53-56.
48
In their note to Wennall v. Adney 3 B & P (note) written in 1814, the law reporters Bosanquet and Puller
observed that, an idea has prevailed of late years that an express promise, founded simply on an antecedent
moral obligation, is sufficient to support an assumpsit.
49
Swain, (n00) 57-59.
50
(1775) 1 Cowp 284.
51
(1782) 1 Cowp 289.

Chancery, by allowing assumpsit to be used to enforce promises on legacies. Consideration in both

instances rested on liability in Equity rather than on a moral obligation. Taken in isolation, there are some
passages in Lord Mansfields judgments which, at first sight, appear more radical. He accepted that some
promises could be enforced in assumpsit which would otherwise only bind a mans conscience. Contracts
rendered unenforceable through the Statute of Limitations, infancy or bankruptcy were cited as examples.52
Many of these agreements were already enforceable.53 They were simply rationalised in a new way. They
also fit within an older tradition once it is recognised that, from its inception, the doctrine of consideration
had allowed some flexibility around the edges so as to encompass situations that are difficult to fit within
the reciprocal analysis.54 Significantly, no attempt was made at the time, or later on, to use consciencebased consideration outside these examples.

The precise nature of a third reform continues to be debated. In Moses v. Macferlan,55 in an

important passage, Lord Mansfield explained that in money had and received:

If the defendant be under an obligation, from the ties of natural justice to refund; the law
implies a debt, and gives this action, founded in the equity of the plaintiffs case, as it were
upon a contract (quasi ex contractu as the Roman law expresses it.)This species of
assumpsit (for money had and received to the plaintiffs use) lies in numberless instances,
for money the defendant has received from a third person; which he claims title to, in
opposition to the plaintiffs right; and which he had, by law, authority to receive from such
third person.56

52

Atkins v. Hill (1775) 1 Cowp 284, 288-289; Hawkes v. Saunders (1782) 1 Cowp 289, 290.
Heyling v. Hastings (1698) 1 Ld Raym 421; Dean v. Crane (1704) 6 Mod 309; Yea v. Fouraker (1760) 2
Burr 1099 (Statute of Limitations); Southerton v. Whitlock (1726) 2 Stra 690 (infancy). The promise to pay
subsequent to a certificate in bankruptcy may have been a new ground for liability, see also Trueman v.
Fenton (1777) 2 Cowp 544.
54
D Ibbetson, Consideration and the Theory of Contract in the Sixteenth Century Common Law in J
Barton (ed), Towards a General Law of Contract (Duncker and Humblot, Berlin 1990) 67.
55
(1760) 2 Burr 1005, 1 Wm Bla 219. For more detail on this important decision see W Swain, Moses v.
Macferlan in C Mitchell and P Mitchell (eds.), Landmark Cases in the Law of Restitution (Hart, Oxford
2006) 19.
56
(1760) 2 Burr 1005, 1008-1009.
53

Lord Mansfield would variously describe money had and received as, equitable,57 very beneficial,58 a
very liberal action59 and much encouraged.60 At first sight, the action seems to be based on general
principles, the ties of natural justice. But a remark made by Lord Mansfield two years later - This is an
action on the case which I have often observed is almost equivalent to a bill in equity-61 provides a better
clue to his intentions. There was a very concrete link between money had and received and Equitable
remedies.62 Money had and received was likened to a bill in Equity on several occasions,63 as was the
closely related action for money paid against a surety.64

Writing in the late nineteenth century, Sir William Anson claimed that money had and received at
this time threatened to expand into the vagueness of moral obligations.65 In fact, by the late 1770s,
Lord Mansfield was beginning to favour a more cautious approach and even warned that the action
ought not to be carried too far.66 Part of the problem was that, because money had and received
was a straight forward action to plead,67 plaintiffs began to use money had and received as a way of
gaining procedural advantages in claims on warranties.68 This dodge was soon stopped and by the
mid-1780s, a broader restriction emerged, preventing money had and received from being when the

57

Floyer v. Edwards (1774) 1 Cowp 112.

Towers v. Barrett (1786) 1 TR 133.
59
Sadler v. Evans (1766) 4 Burr 1984, 1986; Price v. Neal (1762) 3 Burr 1354. He used similarly
expansionist terminology to describe the action for money paid around this time see, Decker v Pope (1757)
LI MS Misc. 129 (unfold.). Lord Mansfield made the same comment about actions on the case generally in
Gardiner v. Crosedale (1760) 1 Wm Bla 198, 199.
60
Moses v. Macferlan (17600 2 Burr 1005, 1011.
61
Bird v. Randall (1762) 1 Wm Bla 386, 388.
62
Others have stressed the close relationship between money had and received and Equity: B Kremer, The
Action for Money Had and Received (2001) 17 JCL 93; G Virgo, Restitution Through the Looking Glass:
Restitution Within Equity and Equity Within Restitution in J Getzler (ed.), Rationalizing Property, Equity
and Trusts Essays in Honour of Edward Burn (Lexis/Nexis, London, 2003) 82, 87-88. Money had and
received was very similar to situations where Chancery would order the repayment of money paid as a
result of mistake or fraud, see DJ Ibbetson, A Historical Introduction to the Law of Obligations (OUP,
Oxford, 1999) 273-4.
63
Clarke v Shee (1774) 1 Cowp 197, 199-200, 98 ER 1041; Jeston v. Brooke (1778) 2 Cowp 793, 795.
Buller J was also explicit about the link, see Straton v. Rastall (1787) 2 TR 366, 370.
64
Decker v Pope (1757) LI MS Misc. 129 (unfol.).
65
W Anson, Principles of the English Law of Contract (Clarendon Press, Oxford, 1879) 326-7.
66
Longchamp v. Kenny (1778) 1 Doug 137; LI MS Hill 13 f 311.
67
Stevenson v. Mortimer (1778) 2 Cowp 805. The ease of pleading money had and received was recognised
as early as Moses v. Macferlan (1760) 2 Burr 1005, 1010.
68
Power v. Wells (1778) 2 Cowp 818; Weston v. Downes (1778) 1 Doug 21. For more detail on these
developments see W Swain, Cutter v. Powell and the Pleading of Claims of Unjust Enrichment (2003) 11
RLR 46.
58

parties were still in a contractual relationship.69 The action would shrink further in the early
nineteenth century and, when it was revived, the link with Equity would be lost.

3. LORD DENNING FROM PRECEDENT TO PRECEDENT.

Speaking in the Romanes Lecture of 1959, Lord Denning said that If lawyers hold to their precedents too
closely, forgetful of the fundamental principles of truth and justicethey may find the whole edifice comes
tumbling down about them.70 Towards the end of his career he would say something similar.71 No one
would pretend that Lord Denning was not a reforming judge willing to jump the obstacles placed in his way
by precedent when he could.72 In areas of the law like real property, where certainty has traditionally taken
precedence over social justice, his methods would cause widespread unease.73

It therefore comes as a surprise to find that Lord Denning sometimes had a better insight into
precedent than his critics. He was a long time opponent of the rule preventing a third party from
suing or otherwise relying on a contract to which they were not a party.74 Along with others, he
attempted to undermine the rule by the creative use of exceptions.75 But he also went further. He
argued that those who claimed that privity of contract was a fundamental principle were

69

Swain (n 68)51-52.
Lord Denning, From Precedent to Precedent (OUP, Oxford, 1959) 3.
71
The Discipline of Law (Butterworths, London, 1979) 314.
72
The phrase is Lord Dennings own, ibid. 201-203.
73
The doctrine of the deserted wifes equity provides a particularly graphic example see Lord Denning,
The Due Process of Law (Butterworths London 1980) 205-219; S Cretney, Family Law in the Twentieth
Century A History (OUP, Oxford, 2005) 125-127.
74
Smith and Snipes Hall v. River Douglas Catchment Board [1949] 2 KB 500, 514; White v. John Warwick
[1953] 1 WLR 1285, 1294; Drive Yourself Hire (London) Ltd. v. Strutt & Another [1954] 1 QB 250, 272.
75
The exceptions are discussed in W Swain, Third Party Beneficiaries in English Law 1880-2004 in D
Ibbetson and E Schrage (eds.), Ius Quaesitum Tertio (Duncker & Humblot, Berlin 2007) 331.
70

10

mistaken.76 The leading authority, Tweddle v. Atkinson, had departed from the law as it had been
understood for the previous 200 years.77

When Lord Denning claimed that Lord Mansfield and Buller J knew nothing of the parties only
rule, he was half right.78 By the late eighteenth century, the courts were adopting a relaxed attitude
towards the right of action for non parties in assumpsit, which, by this time, was the main remedy for
informal contracts.79 The old rule that consideration must move from the promisee remained in
place, though in practice, the rules of pleading were sufficiently flexible that relatively few claims
were probably defeated.80 The position in covenant and debt where a deed was required was
different. The parties only rule continued to be strictly applied.81

In Drive Yourself Hire (London) Ltd. v. Strutt, Denning LJ described Tweddle v. Atkinson as
unfortunate.82 Later, he attempted to distinguish the decision on the basis that neither party to the
contract had performed.83 Paradoxically, Tweddle v. Atkinson itself can be used to mount a defence
of Lord Dennings position. Numerous inconsistencies between the different reports of the case
mean that it offers equivocal support for the parties only rule at best.84 The fact that the decision
came to stand for the parties only rule had less to do with what was actually said in the case than the
way in which it was interpreted by late nineteenth century textbook writers.85 A further fifty years

76

For example, Lord Haldane in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. [1915] AC 847,
854.
77
Drive Yourself Hire (London) Ltd. v. Strutt & Another [1954] 1 QB 250, 273.
78
Midland Silicones Ltd. v. Scruttons [1962] AC 446, 483.
79
In his Introduction to the Law of Nisi Prius (1767) 125, Buller described how the courts currently
adopted a more generous attitude towards third-party beneficiaries. He later made the same point on the
bench in Marchington v. Vernon (1787) 1 B & P 101 note c.
80
D Ibbetson and W Swain, Third Party Beneficiaries in English Law: From Dutton v. Poole to Tweddle
v. Atkinson in Ibbetson and Schrage (ed.) (n 75) 191.
81
The rule for agreements contained in deeds was stated as long ago as the thirteenth century by Bracton,
see SE Thorne (trans.), Bracton on the Laws and Customs of England (Cambridge, Mass., 1968) f 18 b. For
a nineteenth version, see CG Addison, Treatise on the Law of Contract and Liabilities ex Contractu (1st
edn, London, 1847) 238.
82
[1954] 1 QB 250, 273.
83
Beswick v. Beswick [1966] Ch 538, 553-54.
84
The case was reported in (1861) 1 B & S 393, 30 LJQB 265, 4 LT 468, 9 WR 781. For a detailed
discussion of these differences, see Ibbetson and Swain, (n 75).
85
SM Leake, The Elements of the Law of Contract (1867) 221; F Pollock, Principles of Contract at Law
and in Equity (1876) 190-91; Anson, (n 65) 200.

11

would elapse before the House of Lords unequivocally sanctioned this position,86 but to pretend that
the rule was fundamental as Lord Dennings critics claimed is quite wrong.87 In the case of
informal contracts it was a comparatively recent invention.

In a lecture to the Society of Public Teachers of Law in 1959, Lord Denning declared that he was content to
be described as an iconoclast.88 He took the term to mean one who assails cherished beliefs rather than
changes them.89 He was not always so circumspect. When, a few years before, he had observed that there
were two kinds of judges, bold spirits and timorous souls,90 the implication was clear. Given remarks of
this sort, it is hardly surprising that Lord Denning is often seen as a judicial maverick.

The Sixth Interim Report of the Law Revision Committee is now largely forgotten.91 The Reports key
recommendations included reforming privity,92 the introduction of a version of the Pillans v. Van Mierop
heresy93 and abolishing the rule in Foakes v. Beer.94Although similar proposals had appeared seventy years
before in the Report of the Third Indian Law Commission on Contract,95 it was still a radical document for
1937. The tone of the Report was not all that surprising given that two members of the Committee, the
Chairman, Lord Wright,96 and the comparative lawyer, Professor Gutteridge,97 had both criticised
consideration.

86

Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd [1915] AC 847.
Midland Silicones Ltd. v. Scruttons [1962] AC 446, 467 (Viscount Simonds).
88
Lord Denning, The Way of an Iconoclast (1959-1960) 5 JSPTL 77.
89
Ibid.
90
Chandler v. Crane, Christmas & Co. [1951] 2 KB 164, 178. During his time in the House of Lords, Lord
Denning dissented in 16% of his full judgments. He was in second place to Lord Keith on 22%, see L
Blom-Copper and G Drewry, Final Appeal A Study of the House of Lords in its Judicial Capacity (OUP,
Oxford 1972) 179.
91
Law Revision Committee Sixth Interim Report (Statute of Frauds and the Doctrine of Consideration)
(1937) Cmd 5449, 20-21.
92
Ibid. para 48.
93
Ibid. paras 29-30.
94
Ibid. para 36.
95
The Report of the Indian Law Commission on the Subject of Contracts (1867-1868) PP HC vol xlix. The
Report became the Indian Contract Act 1872. The proposal to replace consideration with writing was
considerably watered down in the final Act.
96
Lord Wright, Ought the Doctrine of Consideration to be Abolished from the Common Law ? (1936) 49
Harv LR 1225, 1246, 1250-51.
97
Contract and Commercial Law (1935) 51 LQR 91, 96-97.
87

12

Although the Report never made the statute, book it provides the backdrop to one of Lord Dennings most
famous decisions.98 In some obiter remarks in Central London Property Trust v. High Trees House Ltd.,
Denning J said that:

The logical consequence, no doubt is that a promise to accept a smaller sum in discharge of a
larger sum, if acted upon, is binding notwithstanding the absence of consideration: and if the
fusion of law and equity leads to this result, so much the better.99

This passage immediately attracted criticism. Later the same year, Sommervell LJ referred to
Denning Js rather far reaching observations.100 His unease is unsurprising. At first sight Denning
Js position is difficult to reconcile with Foakes v. Beer,101 where the House of Lords had held that
an agreement to accept a smaller sum in satisfaction of a larger one was unsupported by
consideration. Denning Js solution was to argue that the representation was binding, not because
there was consideration but because it could be brought within a series of decisionswhich,
although they are said to be cases of estoppel are not really such.102 But once again this led Denning
J into conflict with a leading authority. In Jordan v. Money103 the House of Lords had held that only
representations of fact as opposed to intention were binding.

In fact, the historical foundations of these nineteenth century decisions are perhaps no more secure
than Tweddle v. Atkinson. In Foakes v. Beer, the House of Lords relied on some remarks of Sir
Edward Coke in Pinnels Case.104As Ames pointed out, Pinnels Case was a very unhelpful
authority.105 It concerned an action of debt at a time when differences between the forms of action
remained important. In assumspit cases of the same period, such agreements were treated as

98

Lord Denning was always candid about the influence of the Report see, Denning (n 71) 202; Central
London Property Trust v. High Trees House Ltd [1947] KB 130, 135.
99
[1947] KB 130, 135.
100
Re Venning (1947) 63 TLR 394.
101
(1883-84) 9 App Cas 605.
102
[1947] KB 130, 134.
103
(1854) 5 HLC 185.
104
(1602) 5 Co Rep 117 a.
105
JB Ames, Two Theories of Consideration (1898-1899) 12 Harv L Rev 515, 522-23.

13

binding. 106 In Foakes v. Beer, Lord Blackburn said that he knew of no case between Pinnels Case
and Cumber v. Wane107 115 years later where the issue was discussed.108 Uncertainty persisted into
the late eighteenth century109 and the first unequivocal statement of the rule in assumpsit was made
as late as 1804.110 Even then, the rule was eroded by a series of exceptions111 and was criticized and
even doubted by some influential observers. Frederick Pollock, in the first edition of his textbook,
went as far as to describe Pinnels Case as an absurdity.112 Pollock would only modify his stance in
light of Foakes v. Beer.113

The case law before Jorden v. Money did not all point in one direction. There were some suggestions that a
statement of intent, if relied on, was binding.114 In any event, over time, it would be undermined by
manipulating the distinction between fact and intention.115 Denning J preferred a new solution. He turned to
Hughes v. Metropolitan Railway Co.116 and Birmingham and District Land Co. v. London and North
Western Railway Co.117 He would admit that a judgment of MacCardie J in Hartley v. Hyams,118 in which
Hughes was described as a broad rule of justice, first brought the case to his attention.119 Lord Denning
would also claim that these authorities were lost in obscurity.120 In fact, Hughes had first appeared in the

106

Ibbetson (n 54) 78-79.

(1721) 1 Stra 426.
108
(1883-84) 9 App Cas 605, 619.
109
In Heathcote v. Crookshanks (1787) 2 TR 24, 28 Buller J referred to the unreported decision of
Hardcastle v. Howard (1752) and an unnamed decision of Lord Mansfields, where Cumber v. Wane was
not applied.
110
Finch v. Sutton (1804) 5 East 230.
111
Goddard v. OBrien (1882) LR 9 QBD 37, 39 The doctrine of Cumber v. Wane if not actually
overruled, has been very much qualified (Huddleson B); JW Smith, Leading Cases on Various Aspects of
the Law (1837) 1.148-50; Leake (n 85) 474.
112
Pollock (n 85) 160.
113
In the 4th edition of his textbook, published in 1885, p 180, he described Pinnels Case as paradoxically
not anomalous. In a short note on the case in the first volume of the Law Quarterly Review in 1885 at p.
134 Pollock wrote that, The fact that the House of Lords did affirm the doctrine laid down in Pinnels
Case is as striking proof as can be found of the weight wisely given by the English courts to authority.
114
M Lunney, Jordan v. Money A Time for Reappraisal? (1994) 68 ALJ 559, 563-64. Contrast
Hammersley v. De Biel (1845) 12 Cl & F 45 with Maunsell v. Hedges (1854) 4 HLC 1039.
115
Fenner v. Blake [1900] 1 QB 426; Sainsbury v. Gilmore [1942] 2 KB 38, 51-52.
116
(1877) 2 App Cas 439.
117
(1888) 40 Ch D 268. For support for a broad interpretation of Birmingham and District Land Co., see R
Meagher, D Heydon and M Leeming, Meagher Gummow & Lehanes Equity Doctrine & Remedies (4th
edn, LexisNexis Butterworths, Australia) 555.
118
[1920] 3 KB 475, 493.
119
Denning, (n 88) 78.
120
Ibid.
107

14

leading practitioners textbook, Chitty on Contract, as early as 1909. Though hardly a broad rule of justice
the description is still notable for its brevity:

And as a general proposition of law, although the subsequent acts of the parties to a contract are not
admissible in evidence to vary its terms, they may prevent one of the parties from insisting upon a
strict performance of the original agreement.121

The edition of the work, published in the same year as High Trees, contained a similar passage.122

Hughes was derived from Equity. Writing in the 1870s, Pollock alluded to the tensions created by
the existence of an equitable doctrine which appeared to be broader than estoppel, its Common law
cousin.123 Denning Js response was to claim that Law and Equity were fused.124 A close
examination of the background to the Judicature Act 1873 reveals that those who drafted the
legislation did not intend substantive fusion,125 though several judges seem to have thought so.126

Geoffrey Cheshire and Cecil Fifoot, two academics, wrote an extensive case note on High Trees
which appeared in the Law Quarterly Review. They argued that the decision was based on a slim
but sufficient catena of authority.127 Cheshire was a friend of Dennings128 and had, along with
Fifoot, criticised Foakes v. Beer in the first edition of their textbook two years before, whilst

121

W Paine (ed), J Chitty A Treatise on the Law of Contract (15th edn, Sweet & Maxwell, London 1909)
701.
122
H Potter (ed), J Chitty A Treatise on the Law of Contract (20th edn, Sweet & Maxwell, London 1947)
192.
123
Pollock (n 85) 561.
124
For references to fusion in Lord Dennings judgments, see Central London Property Trust v. High Trees
House Ltd. [1947] KB 130, 134; Solle v. Butcher [1950] 1 KB 671, 691; Fredrick E Rose (London) Ltd. v.
William H Pim & Co. Ltd. [1953] 2 QB 450; Bridge v. Campbell Discount [1962] AC 600, 632 law and
equity are one; Federal Commerce and Navigation Ltd. v. Molena Alpha Inc. [1978] QB 927, 974. He
made the same point away from the bench as early as 1949, see AT Denning, The Recovery of Money
(1949) 65 LQR 37, 48.
125
M Lobban, Preparing for Fusion: Nineteenth Century Court of Chancery (2005) 22 LHR 389, 565.
126
Pugh v. Heath (1882) 7 App Cas 235, 237 (Lord Cairnes); Walsh v. Lonsdale (1882) 21 Ch D 9.
127
Central London Property Trust Ltd. v. High Trees House Ltd (1947) 63 LQR 283, 288. G Cheshire and
CHS Fifoot The Law of Contract (2nd edn, Butterworths, London, 1949) 69.
128
The Family Story (Butterworths, London, 1981) 78; Denning (n 71) 200

15

conceding that the decision could only be altered by the intervention of Parliament.129 The
appearance and tone of the note helped to bring the decision to prominence and ensure that Denning
Js judgment avoided the fate of a decision one year earlier, where Humphrey J had held that a
similar agreement was binding.130 But even if there was no deliberate plot to undermine Foakes v.
Beer, the decision in High Trees no doubt delighted those who were dismayed by the failure of
Parliament to implement the Law Revision Committee Report.131

4. LORD MANSFIELD AND LORD DENNING: ROUGH TRUTH.

George Meredith, the Victorian novelist, coined the aphorism Caricature is rough truth.132 There is
a good deal of rough truth in the representations of Lord Mansfield and Lord Denning. At the same
time, Lord Mansfields reforming zeal can sometimes be overstated. He was well aware that change
could be the bedfellow of chaos. It is no coincidence that some of his most significant innovations
were built on well established principles, even if they were drawn from Equity. When an action like
money had and received began to upset the equilibrium of the Common law, Lord Mansfield pulled
back.

Lord Denning is more difficult to pin down than Lord Mansfield. At times he appeared to be bent on
radical reform. In Combes v. Combes133 and elsewhere,134 Denning LJ would deny that it was his
intention in High Trees to destroy consideration. But there is a strong hint that he was moving in this
direction in the late 1940s, both in the way that he emphasised that promisors who intended to enter
129

G Cheshire and CHS Fifoot, The Law of Contract (Butterworths, London, 1945) 64-65.
Buttery v. Pickard (1946) TLR 241 was noted by PV Baker at (1947) 63 LQR 278 but otherwise
disappeared into obscurity. Interestingly, High Trees did not appear in the All England Reports until 1956.
131
For additional support for the Law Revision Committee proposals, see CJ Hamson, The Reform of the
Doctrine of Consideration (1938) 54 LQR 233, 239 (albeit with some reservations); Editorial, The Law
Revision Committees Sixth Interim Report (1937) 1 MLR 97.
132
G Meredith, The Egoist: A Comedy in Narrative (Constable, London, 1915)
133
[1951] 2 KB 215, 219.
134
AT Denning, Recent Developments in the Doctrine of Consideration (1951) 15 MLR 1, 4; Denning (n
88) 79-80.
130

16

into a legally binding agreement, which was relied upon, should not be able to renege on their
promise135and the way in which consideration was treated with some scepticism.136 Towards the end
of his career he would admit:

During the 16 years whilst I have been Master of the Rolls I do not recall any case in which it
(consideration) has arisen or been discussed. It has been replaced by the better precept: My
word is my bond, irrespective of whether there is consideration to support it. Once a man
gives a promise or assurance to his neighbour on which his neighbour relies he should not
be allowed to go back on it. 137

Even here, at his most outlandish, Lord Denning tapped into a respectable intellectual heritage amongst
legal writers138 as well those like Lord Wright, who regarded consideration, in some or all of its aspects,
with suspicion.139 But in the law of contract at least there is also some truth in Lord Devlins observation
that Lord Dennings reputation of waywardness has been exaggerated.140 His views on the past were not
those of a straight forward radical. As a young barrister he had helped to edit the last edition of Smiths

135

Robertson v. Minister of Pensions [1949] 1 KB 227, 231; Charles Rickards v.Oppenheim [1950] 1 KB
616, 623; JF Perrott v. Cohen [1951] 1 KB 705, 710; Wallis v. Semark [1951] 2 TLR 222.
136
Bob Guiness Ltd. v. Salomonsen [1948] 2 KB 42, 45 It must be remembered that that which amounts, in
legal theory, to consideration, is sometimes a real consideration and sometimes not. Consideration in law is
sometimes the real purchase price of a promise, and sometimes it is a mere fiction devised to make a
promise enforceable.
137
Denning (n 71) 223.
138
Even the doctrinally conservative Frederick Pollock came to doubt the utility of consideration, though
he did not express these views publicly, see N Duxbury, Frederick Pollock and the English Juristic
Tradition (OUP, Oxford, 2004) 204-205. The literature on the function and value of the doctrine of
consideration is vast, particularly in the United States from Ames (n 105) onwards. Ames (n 105) 522
incidentally was no fan of Cumber v. Wane, a decision which he described as objectionable.
139
It was not the only occasion that Lord Denning and Lord Wright thought along similar lines. Lord
Denning was an early champion of unjust enrichment. His first explicit reference was in 1949, see Denning,
(n 124) 48. He was less explicit about adopting the unjust enrichment analysis on the Bench, see Reading v.
Attorney-General [1948] 2 KB 268, 275. His caution was perhaps understandable, see Lord Denning, The
Changing Law (Stevens, London, 1953) 62-63. On Lord Wrights influence, see Denning ibid. 62 and
Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour Ltd. [1943] AC 32, 64. As counsel in United
Australia Ltd. v. Barclays Bank Ltd. [1941] AC 1, 6 Denning KC had cited Lord Wrights article Sinclair
v. Brougham [1938] CLJ 305 when urging the House of Lords to accept that the promise was a fiction.
He had also referred to the American Restatement. For a discussion of this case by Lord Denning, see Lord
Justice Denning The Universities and Law Reform (1947-1951) 1 JSPTL 258, 265-66.
140
In the foreword Jowell and McAuslan (eds.), (n 4) iv.

17

Leading Cases.141 He would later claim that the process taught me most of the law I ever knew.142 In a
lecture delivered shortly after High Trees, Denning said that:

The researches made by the legal historians of our universities have proved of utmost value. By
uncovering the reason for a rule, they may enable the judge or legislator to fit the rule in its proper
place and so ensure that the dead hand of the past does not paralyse the development of the
present.143

Lord Denning may have regarded the dead hand of the past with some dread. At the same time these are
not the words of a man who regards the past as irrelevant and, in this respect, he was not always the figure
of popular public and academic imagination.

141

Sir T Chitty, AT Denning, CP Harvey (eds.) JW Smith, A Selection of Leading Cases on Various
Branches of the Law (13th edn., Sweet & Maxwell, London 1929) 2 vols. The first edition was published in
1837.
142
Denning (n 128) 94.
143
Denning (n 139) 260.

18