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A light-hearted look at Guernsey's law of contract
Everyone knows the story of the Emperor who wore no clothes; well this article is a variation on that theme. Our Emperor is the Bailiwick of Guernsey; contract law is his clothing. Two questions immediately arise: (1) is he in fact naked? and (2) if not, what on earth is he wearing?
Is the Emperor naked?
I set about trying to find Guernsey contract law the other day and I can report as follows. Since the Romans had emperors it seemed like a good place to start. The Romans invaded Gaul between 58 and 50 BC. What is now Normandy was very close in size and shape to one of the Roman provinces of Gaul. The Western Roman empire had collapsed by AD 476. Germanic tribes invaded and settled, kingdoms came and went, waxed and waned. With the death of Charlemagne in 814 everything went rapidly pear shaped. Vikings started invading the land which came to be Normandy; ie the land of the Northmen. They mostly came from Denmark. They became such a nuisance that the King of France Charles “the Simple” and his successors gave land to their leader, one Rollon, in return for peace and to act as buffer between him and the rest of the Vikings. Rollon was the great-great-great-great-grandfather of William, Duke of Normandy, and after 1066, Kind of England. Normandy and England were under the same leadership, but they had different laws and customs. When William’s great-great-grandson lost all of mainland Normandy in 1204 to the French King he managed to retain just one small portion of Normandy, namely the Channel Islands. The Islanders continued to live by Norman law and custom. It is the 800th anniversary of that separation from mainland Normandy which we commemorate this year. It was the founding event of the Islands’ special identity and place in the world. So that explains why Channel Island law is different to English law; it was looking to Norman customary law and not English common law.
That’s all very well, but is he naked or not?
Right, so now we have found our contract law in this Norman customary law? Wrong. The startling news is that Norman customary law has next to nothing to say on the subject of contract law. Eek, I hear you say. What’s going on, you mean to say that the Emperor really is naked? Thankfully no.
All of the provinces of Northern France had their own customary laws; Normandy was one (and an important one) among approximately 65 customary law systems. In Southern France they placed much greater reliance on Roman law. Roman law? Yes, Roman law. The Romans left behind them an extraordinarily developed body of law. They didn’t just excel at cities, roads, amphitheatres, aquaducts and waging wars of conquest; they were also great jurists.
Customary law was, in effect, provincial custom. Norman law in particular was only chiefly concerned with land and inheritance. It did not really care very much for anything else. It was obsessed with the idea of preserving family land in the family line from which it came. There were strict controls on gifts and wills of land; families were given the right to intervene if you tried to sell land (we still have the retrait in Guernsey law), you could not even leave your land to your widow; it had to go to your (male) descendants or else go to your (male) relatives on either your mother’s side or father’s side depending who it was inherited from. It is for this reason that a Guernsey lawyer will invariably say that land law and succession law are those areas where customary law survives strongest.
So, if Guernsey contract law is not to be found in Norman customary law, is the Emperor naked? The answer is no.
What’s he wearing then?
Well, rather appropriately he is wearing Roman clothing, yes ladies and gentlemen, Guernsey contract law is distinctly Roman. However, it is Roman with a very French twist because Roman law was refined and developed by French jurists over the centuries; in particular by Robert-Joseph Pothier. Pothier lived between 1699 and 1772 and produced a remarkable body of work, assisted by the fact that he never married. Pothier’s Treatise on the Law of Obligations (French law calls both tort law and contract law, the law of obligations, in the sense of one person being obliged to another either by contract or to compensate him for some civil wrong) of 1761 was hugely influential, not just in French law but also Anglo-American law. The French Code civil in particular drew heavily on Pothier. Guernsey contract law is firmly planted within this French tradition.
What does it all mean?
There is no great need to panic. Because of that common tradition French and English contract law are not so dissimilar; although there are traps for the unwary. It is rare that any very significantly different result would be reached. Equally there are certainly different emphases in the two systems of law. French contract law, for example, emphasises much more heavily than English contract law the obligation to act in good faith (bonne foi); a notion very familiar to insurance professionals. Because of that common tradition one also frequently cites English cases; although there is a view that English common-law has become so large, complex and unsatisfactory that it is no bad thing to be somewhat removed from it.
Guernsey is its own legal jurisdiction with its own laws and customs; that is a great privilege. If sometimes Guernsey law does not seem as clear as it might be I can assure you that English law is no clearer and there is certainly a great deal more of it. England can barely move for the weight of the law it carries. That freedom from excessive law in almost every area of business, apart from the purely regulatory, is another reason to celebrate Guernsey.
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