ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Monday, July 11, 2016

Should English Contract Law Be Persuasive Precedent in American Cases?

International law has been finding its way into American common law as persuasive precedent for some time now.  For example, in the U.S. Supreme Court decision in Lawrence v. Texas, Justice Kennedy cited to the European Court of Human Rights in support of the majority.  But what about looking to recent decisions of British courts, the UK Supreme Court in particular, for persuasive precedent in U.S. law?  The foundations of American contract law are found in the English common law.  

There are already cases that apply British contract law, where relevant, and look to the foundational cases and treatises of English contract law.  The Southern District of New York in Wesoke v. Contract Services Ltd, 2002 U.S. Dist. LEXIS 12832 (SDNY), deciding jurisdiction on a forum non conveniens motion, the court observed that the "defendants [] made no showing that British contract law principles are at all different from U.S. contract law principles (which, after all, were derived substantially from English common law)."  2002 U.S. Dist. LEXIS 12832 at 20-21.  In another Southern District of New York case, The Merton Company Limited v. PepsiCo Inc., 874 F. Supp. 634 (SDNY 1995), the court applied "principles of British contract law" in finding that "the evidence fails to establish the existence of a contract." 

The Supreme Court of Alabama has cited to Lord Mansfield in its decisions.  See, e.g., Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548.  As has the Supreme Court of Idaho.  Nash v. Meyer, 54 Idaho 283; 31 P.2d 273 (1934).  Alabama has also cited to William Blackstone.  See, e.g., Ex parte Hicks, 153 So. 3d 53 (2015). 

Moreover, a Texas Supreme Court concurrence relied on Lord Mansfield to debate the necessity of consideration in an options contract.  1464-Eight, Ltd. v. Joppich, 154 S.W.3d 101 (2004), 2004 Tex. LEXIS 1426.  Chief Justice Jefferson and Justice Brister stated that "[f]or centuries, commentators and courts have advocated the elimination of the consideration requirement from contracts altogether.  In eighteenth-century England, Lord Mansfield, Chief Judge of the King's Bench from 1756 through 1788, urged the enforcement of commercial contracts based on moral obligation rather than consideration."  2004 Tex. LEXIS 1426 at 28-29.

Given that U.S. courts will look to the past to find guidance on contract law principles, they should also be willing to look to the present.  Some of the decisions of the UK Supreme Court may be enlightening on the direction the common law of contracts is heading on the other side of the pond.  I acknowledge that my review was not inexhaustible, so where there are instances please feel free to provide citations in the comments.

 

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