Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE COMMON LAW OF OBLIGATIONS
THE COMMON LAW OF OBLIGATIONS by P.J. Cooke, LL.B., M.Phil., Senior Lecturer in Law, Liverpool Polytechnic, and D.W. Oughton, LL.B., M.Phil., Lecturer in Law, University of Sussex. Butterworths, London (1989, xxxix and 542 pp. plus 27 pp. Index). Hardback £34; paperback £19.95.
This is an ambitious work. The authors state in their preface that its objective is “to present a coherent picture of the way in which the common law protects the expectation, reliance and restitution interests of plaintiffs”. In this it fails, perhaps inevitably given the undeveloped theoretical base in the common law material itself. The more serious drawbacks are the authors’ failure to postulate a consistent model to inform the whole of the work (whether or not the model fits all the cases) and their extremely heavy reliance on existing theoretical explanations of the law on obligations.
The preface acknowledges a debt to Professor Atiyah. His influence is indeed pervasive, and in many ways this book is an introduction to, and summary of, Aityah’s writings. This may not in itself be a bad thing, given that the book is aimed at university and polytechnic students who might not otherwise read them. However, the acknowledgment of the origin of a passage too often fails to make it sufficiently clear that what is being stated is one view which is not necessarily generally accepted. For example, Chapter 4 on the classical theory of contract and the treatment of consideration in Chapter 7 are wholesale adoptions of Atiyah’s views as expressed in The Rise and Fall of Freedom of Contract and Essays on Contract respectively. At p. 91 the distinction between pre- and post-breach representations postulated by Dugdale and Yates in 1976 as an analytical tool to explain the apparent confusion in the cases, is asserted as the formula for deciding on the extinctive or suspensory effect of estoppels. Moreover, the source is acknowledged only in a footnote which does not indicate from which of two articles the idea emanates.
This last might seem an unfairly minor criticism, but it does seem to this reviewer that in the first, general, part of the book there is a tendency to set out potted versions of published works as if they were definitive, and this is misleading as well as revealing a lack of originality. This latter criticism is, however, of far less weight where the authors have achieved a comprehensive and interesting synthesis of the possible theoretical approaches to their subject-matter. Chapter 20 on negation of liability by consent links violenti, disclaimer of responsibility, exclusion clauses and implied consent together in a stimulating way. In particular, explaining both the incorporation of contractual terms and the extension of exclusion
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