WEEK 2 LECTURE 2 - OBJECTIVITY

Question 1

what does the Objective Test say in Smith v Hughes 1871?
brief case facts?

Answer 1

• C bought oats from D, thought they’d be old oats

says parties must be “ad idem”/of one mind + their understanding of the mutual promises must be a “mirror image”
- i.e. must be consensus

Question 2

what is promisor subjectivity?

Answer 2

we privilege what Promisor actually thought they were promising
i.e. their mental state at time of contracting

Question 3

what is promisee subjectivity?

Answer 3

we privilege what Promisee actually thought promisor was promising at time of contracting
- close to Reinach’s position on promises

Question 4

what is mutual subjectivity?

Answer 4

we privilege mental states of Promisor AND Promisee to extent that they are the same
- approx. position in French Law

Question 5

what is the argument for Subjectivity from the Objective Test from Smith v Hughes 1871?

Answer 5

• sounds like it’s describing a Mutual Subjective Test rather than Objective
• why should an Objective Test care about what Parties are thinking
• language used reflects 19th Cent. Influence of Pothier + French civilian school

Question 6

what position does English law begin with?

Answer 6

• extreme Objectivist position
• facts of Smith v Hughes 1871 shows test applied in cases was Objective

Question 7

what is Aristotle’s view on Objectivity?
what is the problem with this?

Answer 7

• says ethical value of human’s actions should be assessed by reference to the virtuous intentions of the agent
• measurement of what’s expected of the individual against their failure or success to meed the standard expected of them

problem: can’t enter mind of a party (at time of contracting) + verify their intentions

Question 8

what is the solution to Aristotle’s problem for Lawyers?

Answer 8

• lawyers must use Performative expressions of the individual to re-present their inner turmoil –> i.e. Likelihood that alleged intention was Present
• develop techniques of representation so that they inspire pity + fear of the observer –> “If I were in that position + feeling how they were feeling, would I have done that?”
• analyse what is socially objective/expected of a particular individual?

Question 9

what is the basic principle of Objectivity?
any relevant case?

Answer 9

intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning
- look at outward acts of the parties + compare it to the document they signed –> Frederick E Rose v William H Pim
- reasonable person

Question 10

what does the People of Failaise v A Pig 1385 tell us about Objectivity?
case facts?

Answer 10

• mad pig charged through French village + kills child
• the murder was horrific + people wanted to hang it
• held meeting to declare pig a human
• held court with the pig –> found guilty + hanged

reconstructed pig as human to fit their moralistic structure
- according to Objectivity, this was Rational
- i.e. –> humans are placed into certain characters + particular things are expected of them
- you don’t know what’s in men’s hearts, so must look at Performativity

Question 11

what did Saint Germain say about Obejctivity in his Doctor and Student 1520s text?

Answer 11

• “the intent inward in the heart man cannot judge. [A promise is binding] if there is charge by reason of the promise”
• “if a man say to another, marry my daughter, and I will give thee 20pounds; upon this promise an action lieth, if he marry his daughter, And in this case he cannot discharge the promise though he thought not to be bound thereby; for it is good in contract…”

confirms Objectivity = at heart of English legal teaching

Question 12

what is Promisor Objectivity?

Answer 12

• we put “Reasonable” person “in the shoes” of the promisor + ask if the Reasonable Person have regarded themselves as making a legally binding promise + on what terms?

Question 13

why does Howarth (1984) think Hannen J applied “Objective Promisor” Test in Smith v Hughes 1871?

what show’s he’s wrong?

Answer 13

Howarth relies on this dicta:
- “A Promise is to be performed in that sense in which the promisor apprehended at the time the promisee received it”
(thinks Hannen J applied this)

BUT Hannen J says:
- “Promisor is not bound to fulfil a promise in a sense which the promisee knew at the time the Promisor did not intend it” –> BUT this takes Promisee perspective (shows Howarth is wrong)

i.e. what did the Promisor mean by “I’m selling oats” –> New or Old oats?

Question 14

why do Vortster (1987) and McKendrick (2007) disagree with Howarth’s (1984) Objective Promisor view?
in relation to Smith v Hughes 1871

Answer 14

• say that “Promisor” = equivocal/ambiguous –> in Contract technically BOTH Parties are Promisors
• in Smith v Hughes 1871 –> S was suing H for breach of promise to pay the price, thus H was the relevant Promisor

Question 15

why is Howarth wrong that Hannen J used Promisor Objectivity, when in fact it was Promisee Objectivity in Smith v Hughes 1871?

Answer 15

Hannen J said:
- “Promisor is not bound to fulfil a promise in a sense which the promisee knew at the time the Promisor did not intend it” –> BUT this takes Promisee perspective (shows Howarth is wrong)

• if S knew H understood the promise as being to sell old oats, S can’t claim he had promised something else, as he MANIFESTLY had not –> determinant on what H’s apprehension of promise was = PROMISEE Objectivity Not Promisor

Question 16

what is promisee objectivity

Answer 16

we put a Reasonable Person “in the shoes” of the promisee + ask: would the Reasonable Person have regarded themselves assenting to a legally binding promise + on what terms?

Question 17

what does Howarth 1984 think Blackburn J bases his decision on in Smith v Hughes 1871?

why does McDenrick disagree?

Answer 17

promisee objectivity

Howarth’s dicta:
- “whatever a real man’s intention may be, he so conducts himself that a reasonable man would believe he was assenting to the terms proposed by the other party, + that other party upon that belief enters the contract with him, the man would be equally bound as if he had intended to agree to the other party’s terms”

• McKendrick says Blackburn J doesn’t say that the reference perspective is the Promisee
• you could easily regard the proposer of terms who observes conduct of other party as the Promisor rather than Promisee

i.e. can be understood from the perspective of a Reasonable Person in the position of BOTH parties

Question 18

what is Reasonable Consensus Objectivity
(McKendrick’s position on current law)
which case supports this interpretation?

Answer 18

court looks at each Promise in the contract + posits a Reasonable Person in the position of the Promisee

Question 19

what is McKendrick’s position on current law
which case supports this interpretation?
what did Lord Denning say?

Answer 19

-agrees with Reasonable Consensus Objectivity

-BUT as BOTH parties are Promisors and Promisees, Smith v Hughes 1871 must be understood as Objectivity in the position of BOTH parties

• Denning = Reasonable Person should step back + observe promise-utterances of BOTH parties

Question 20

what is Vorster’s more subtle view?
explain

Answer 20

Mutual Subjectivity where consensus ad idem
(where everyone agrees)

• posit 2 reasonable persons (RA + RB) in the position of the 2 parties (A + B)
• if RA agrees with subjective view of A, BUT RB dissents from B’s view = Consensus Ad Idem
• because RA + RB would have reached consensus AND A and RB also would have
• i.e. B’s unreasonable reading of the situation = Discounted
• i.e. If Parties do NOT Objectively Agree = NO Consensus

see handout p. 6 for more

Question 21

what are the issues with Vorster’s Subjectivity stance?

Answer 21

• slightly oppressive
• undermined by overriding B’s will

Question 22

what is the issue with McKendrick’s Reasonable Consensus Objectivity approach?

Answer 22

• a “pointwise” analysis
  ???

Question 23

what is Contract-specific observer objectivity?

Answer 23

• 3rd party
• has all knowledge that promisor + promisee have (e.g. negotiations, ad hoc meanings agreed between them)
• with this knowledge, must assess social manifestations of the 2 parties + decide if agreement was reached + on which terms

Question 24

what is Sector-specific observer objectivity?

Answer 24

• 3rd party
• experiences in economic sector in which purported contract is made
• knows how deals are commonly struct + customary meaning of terms like “FOB” in that trade

Question 25

what is Reasonable Observer Objectivity

Answer 25

• 3rd party = “man on the Clapham omnibus”
• has no special knowledge other than cultural specificities of England

Question 26

what is Lord Denning’s Objectivity approach

Answer 26

• Reasonable Observer Objectivity
• “fly on the wall” / “detached objectivity” approach
• rather than have Reasonable person assume position of the parties, they truly Observe each party’s utterances as a 3rd party

Question 27

what’s the benefit of Denning’s Objectivity approach?

Answer 27

it admits that the only viewpoint the Court can truly adopt is that of the “Observer”

Question 28

what happened in Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd 1953?
what

Answer 28

• English firm based in Egypt asked Rose to supply Horsebeans, described in Egypt as Feveroles (diff. types exist, like Feves)
• Rose asked Pim (Algerian supplier) what Feveroles were, Pim said they’re Horsebeans
• Pim supplied Feves to Rose
• when Rose supplied them to firm in Egypt, they rejected
• Rose brought claim against Pim

Held:
- P + R agreed to buy + sell Horsebeans
- could be no Rectification/modification of Contract, as would require parties to have agreed on 1 thing that had been misdescribed in the contract, but parties hadn’t agreed on something different from the words of the contract here, they agreed on what it stated: to buy + sell Horsebeans
i.e. Despite mistake as to nature of Feveroles + Horsebeans, parties Objective conduct indicated contract for Horsebeans = C got NO entitlement Rectification

Question 29

what does JR Spencer 1973 say demerits the Reasonable Observer Objectivity stance ruling in Frederick E Rose v William H Pim?

what other stance does this criticism apply to?

Answer 29

• too rigidly objective –> forces an agreement that both parties don’t want
• applies to Vorster’s Consensus Objectivity stance

Question 30

what is pure objectivity
which cases?

Answer 30

• the very document containing the purported promise is considered the sole + absolute expression of the will of the Promisor
• Elliot v Holder 1567 –> modified by Pigot’s Case 1614
• Lord Coke held that where mouse ate seal of Promisor affixed to a deed = Promisor NO Longer Bound, as deed now manifested the absence of Promisor’s assent to be bound
  i.e. Physical document overrides intention of the parties + Reasonable Observer’s view of that intention

Question 31

why does Karl Llewellyn view Objectivity as problematic?

Answer 31

• in unconscionable contracts where 1 party = dominant + other = subservient –> subservient party agrees to contract terms the average person would view as Disadvantageous

Question 32

what is the possible error in Karl Llewellyn’s stance?
which case is relevant here?

Answer 32

• what about cases where power imbalance = deemed acceptable for that particular contract?
• power imbalances in society
• “Objectively” nothing wrong with a contract where 1 party is socially subordinate to another
• Pakistan International Airlines Coproration v Times Travel 2019 –> Court held ruling was fine due to Capitalist Society

Question 33

what is Amy Kastely’s 1994 critique of Objectivity?

Answer 33

• features understandings + expectations of privileged white men as the standard for contract interpretation
• objective theory establishes + maintains white, class-privileged male norm as governing law of contractual obligation
• treats anyone with different understandings/expectations as defective/ill-informed
• maintained hierarchies of race, class + gender –> but allows people to believe Law is not racist, classist, sexist

Question 34

what does contract law on insurance say about Objectivity (Test)?

Answer 34

• person taking out insurance must disclose all material info to insurer
• failure to do so = Misrep., insurer can regard contract void

Test = if there’s a factor a Reasonable Person in the potential insured’s positon would regard Material to the policy, they ought to disclose it to Insurer, regardless if they filled out long Questionnaire = i.e. Full Disclosure

Question 35

Horne v Poland 1922 case facts

Answer 35

• Horne = Jewish Immigrant came to England in 1899
• Unofficially adopted Anglican name Horne
• registered as married under original name Euda Gedale 1917
• took out 3rd party fire + theft insurance under Horne name with Henry Poland + some underwriters
• suffered burglary + claimed insurance –> Insurers wanted to avoid this
• Subjectively seen as material info by Insurers
• Poland argued Horne should have disclosed material info about his name, if they knew this info, they would NOT have written the policy with Horne –> BUT regarded this info as Objectively Material by underwriters who would have cared if he was Eastern European
• Material Info = Horne was an “Alien” under Aliens Act 1905 which targeted Jewish Immigrants
• Horne subjectively did not know this was Material

Held in favour of Poland, Horne lost 500L

Question 36

what was Lush J’s judgement of the Horne v Poland 1922 case when he applied Objective Test?

Answer 36

• immaterial that Horne would not take view that his countrymen are not as careful + trustworthy as Englishmen
• Real Q here = If a Reasonable Person would know Underwriters would naturally be influenced in deciding whether to accept the risk…the fact they were kept in ignorance and misled is fatal to Horne’s claim
• Horne was making contract of insurance and if he failed to disclose what a Reasonable man would disclose, he must suffer the same consequences as any other person

(quote)

Question 37

Glicksman v Lancashire and General Assurance Co. Ltd 1926 case facts?

Answer 37

• similar to Horne v Poland 1922 case
• Glicksman + business partner asked if “you” have ever been refused insurance
• partners together had not, but G previously had been individually
  Question = was this Material Disclosure? was “you” singular or plural?
• Held: not in G’s favour

Viscount Dunedin’s antisemetic Judgement
- sidesteps question of language + decides on diff. basis that Objectively the previous refusal was disclosable

Question 38

issues with HoL + Objectivity?

Answer 38

• reframe/shift goal post –> see Glicksman 1926 case
• but if they keep shifting the goalpost, how Objective actually is the test?