All Change: Consent to Contract is Subjective not Objective after all!

Readers may recall that in the Calligo case decided last year (Le Cocq, Deputy Bailiff) the Royal Court took up the suggestion by the Court of Appeal in Home Farm that consent to contract was judged objectively and not subjectively.  It may be recalled that the Court of Appeal had included former Bailiff, Sir Michael Birt on the panel of three.

The Royal Court has now (Sir William Bailhache, Bailiff) decided that this decision was wrong and its a subjective test after all. (Foster v Holt [2018] JRC 076.) In this latest decision, the Bailiff referred to an article in the 2016 Jersey and Guernsey Law Review authored by former Bailiff, Sir Philip Bailhache, that argued that the earlier Court of Appeal suggestion was wrong and inappropriate.

It may be surprising that the answer to this legal issue is found to be so different and also over the course of only a few years. The fact that well respected judges of our courts, holding the top jobs, differ so markedly is also fairly striking.

Putting aside the various legal & policy arguments  (& indeed the objective approach to the issue adopted in England or the local precedents that support either stance) there will be little surprise to practitioners, at least, that these particular respected judges have landed on different sides of the fence. It is not really that one pair have overlooked some fundamental point but rather that the judicial approach and outlook is different. A careful survey of articles and previous judgments of each of our judges will, I suggest, testify to this.

What I do find frustrating, & I wonder what French lawyers think, is the citation of Nicholas on the French Law of Contract. It’s a good paperback published in 1982, but I do find it perplexing that when we look at Jersey law that this is hailed as containing the answer. I can’t see that this is justified  at all, and it seems a bit tenuous and lightweight.

I own up to my part in its drafting – but we also now have the Supply of Goods & Services (Jersey) Law 2009 which largely followed the English Sale of Goods Act 1979, although there are some important differences. (See Hanson & Marr “An Introduction to the Supply of Goods & Services (Jersey) Law” 2009 J&GLR.)

Our Jersey contract law is proving to be a bit of a battlefield: a “mixed jurisdiction” where differing approaches are fighting it out.