recommended the adoption of this as the Criminal Code in 1879 but it did not materialise. As pointed out by Cadoppi, Stephen was well aware of the different approaches to statutory drafting in existence on the Continent and in Britain, and deliberately avoided choosing the French Code pénal as his model while framing his Draft Criminal Code.(205)
Another Draft Criminal Code was published by the Law Commission in 1985 and was revised and extended in 1989. This was not a complete code and did not deal with all offences at this time, though it contained general principles on liability as well as a number of substantive offences. The Code restated existing law with some changes to resolve the inconsistencies. It also modernised the language. As Parliament was not interested in the codification of criminal law, the Law Commission decided to deal with specific offences only, while at the same time working on general principles. However, according to Arden, 'it remains the view of the Commission that in the interests of fairness, certainty, accessibility, coherence and consistency there is an urgent need for a Criminal Code. That can only be achieved by codification. It cannot be done by the courts alone.'(206) In this, there is support from even the members who do not appreciate legislative intervention into common law, as seen earlier. Cadoppi says that 'the existence of the English Draft Criminal Code of 1989 will make the future codification of European criminal law much easier.'(207)
English and Scottish criminal laws prove to be the exceptions rather than the rule in the common law world in the area of criminal law, as most other common law jurisdictions have Criminal Codes. However, in Australia also, there are some common law states following the English system as opposed to the Code states where criminal law is codified.(208) Here criminal law relies on common law and statutes dealing with specific offences. The Criminal Codes of the Code states are 'in some ways comparable to a Continental Criminal Code'.(209) There is a difference between common law states and Code states in the field of criminal law, with English criminal law penetrating much more easily into the common law states. The ensuing anomaly has been dealt with at the Federal level. A Model Criminal Code is being prepared and its general part has now become the Criminal Code Bill 1994. Whether individual states will embrace this development is yet to be seen. At least, the different criminal laws may be harmonised.
While looking at the feasibility of a European Criminal Code, Cadoppi considers the Canadian example where the provinces have delegated their competence in this field to the Federal Government, themselves only being able to create quasi-criminal offences. According to Cadoppi, the Canadian system works better than the Australian and the American because the Canadian Supreme Court operates more smoothly as the result of the unity of the system.
Cadoppi also draws attention to the reasons for the failure of the attempts at the codification of criminal law in the UK and says that the Criminal Code drafted by Stephen and revised in 1879 by a Commission never came into force because of the laziness and conservatism of practising lawyers and judges, as 'lawyers tend to be conservative about their systems even in the face of the superior needs of society'.(210)
5.4.3.5 Contract Code
In his preface to the published version of McGregor's Contract Code in 1993, Gandolfi states, 'as recently as two or three years ago, only a few experts - on the Continent at least - knew that this project for a contract code existed',(211) and he compares it to the landing of the Apollo 11 team on the moon. He sees it as an event 'that seemed beyond the imagination just a few decades ago'. The existence and the contents of this Contract Code was revealed on the Continent at a meeting 'The Future European Code of Contract' in Pavia in 1990. Gandolfi states that the jurists 'realised that a kind of fruitful osmosis between those different systems that had come to maturity on either side of the Channel and had remained in opposition for centuries was at last feasible'.(212)
Can this project really be compared to 'the fall of the Berlin wall which is a symbol of the end of the political opposition of national blocks'(213) when in Britain this Code is even less well known than on the Continent, since it was never published in Britain and the Law Commission gave up the project in 1972, and the Lando Committee did not use it even as a source of inspiration for the Principles of European Contract Law?
Codification of the law of contract was in the first programme of law reform of the Law Commission, the intention being to carry out the project jointly with the Scottish Law Commission and to produce a Contract Code to apply to Scotland as well as England and Wales. McGregor QC became the consultant for the project in 1966 and produced a number of drafts with commentary. According to Arden, the purpose of these drafts was to reform the law rather than to restate it and had serious implications for the Sale of Goods Act 1893 - now the Sale of Goods Act 1979. 'The McGregor Code was only a draft. Current Law Commission methodology involves extensive public consultation. ... It may very well be that the draft Code would have been amended after consultation.'(214)
Moreover, there were fundamental differences of opinion between the two Commissions and in 1971 the Scottish Law Commission withdrew from the project. As a result, the Law Commission first reassessed its plan to produce a Code, suspended the work in 1972 and then adopted a topic-by-topic approach exposed in its Eighth Annual Report. Consultation papers on more limited areas such as exemption clauses, minors' contracts, the sale and supply of goods, sale of goods and contracts for the benefit of third parties were published over a period of twenty years. A number of these projects came to fruition through individual Acts such as Supply of Goods (Implied Terms) Act 1973, Unfair Contract Terms Act 1977, Minors' Contracts Act 1987, Sale and Supply of Goods Act 1994 and Sale of Goods (Amendment Act) 1995. This development fits in with the traditional casuistic character of statutory drafting in Britain. Arden says that 'the Law Commission never reached the stage when it could publish the [McGregor] Contract Code although Parliamentary Counsel at the Commission spent a considerable time casting it into a form that might ultimately be suitable for a Bill'.(215)
The facts that both the Law Commission in England and the Scottish Law Commission initially considered contract law a priority area for codification, an idea later abandoned, and that they asked a single jurist to draft the Code, choosing McGregor, a scholar, practitioner and the Head of Legal Chambers in London, may be regarded as important signs that this could be the beginning
of a constructive dialogue between common law and civil law. Of course, it must be remembered that historically the law of obligations in England was overtly influenced by French law, especially by Poitier. This was much more the case in Scotland. It must also be remembered, however, that statutory law, specifically codifications of large areas of law, never fitted in with the mentalité of common lawyers. So it is not the substantive reform itself that is of most significance here but the technique and method in which it was envisaged. This points to the osmosis that is referred to by Gandolfi. Nevertheless, it must further be remembered that nothing has changed in spite of the existence of this unofficial Code, although it has been suggested, as seen above, that the presence of the Code may create an easier and smoother passage into a European Contract Code when and if it comes. Continental jurists are looking for a significant common law contribution to this project. The common law contribution into the Lando Code will be touched upon below.
McGregor was asked to prepare a draft Code, based on, but not restricted by, current English law and later also by Scottish law. For over six years McGregor prepared drafts which were discussed with Commissioners and an advisory panel of outside experts. As will be seen below, the draft moved English law substantially in the direction of Scots law by, for example, recognising the rights of third parties and abolishing the doctrine of consideration. This Code puts rules inferred from decision, which make up a large part of English law of contract, into a comprehensive, cohesive and systematic whole. In this it is a Code, but it is not complete as compared to a Continental Civil Code, and has thus far 193 sections!
According to McGregor, in its published form it should be regarded as a 'period piece' since, apart from indicating in footnotes any changes to English and Scots law in the ensuing years, the Code is a product of 1972.(216) He also states that his intension was 'to deal, first and separately, with the contract between two parties, which represents the norm in contractual relationships - the contract in which there are no defects, initial or supervening, other than breach itself, and in which there are no third parties involved. Defective agreements and third-party situations are given independent treatment.'(217)
The Code has an introductory part, where contract is defined and agreements which are contracts are indicated. Part I, Valid Contracts, deals with Formation (agreement, certainty, form), Content, Performance, Breach and Remedies (specific enforcement, restraint of breach, damages, restitution, declarations, interrelation of remedies). Part II, Defective Contracts, covers an Introductory, Contracts affected by public policy (illegal contracts, other contracts affected by public policy), Contracts lacking formalities, Contracts lacking capacity (minors, persons mentally affected), Contracts lacking free consent, Contracts lacking full consent, Contracts initially affected by common mistake and Contracts subsequently frustrated. Part III, Three Party Situations, deals with Multiple party contracts, Contracts concluded through agents, Creation of rights and duties in third parties by contract and Transfer of contractual rights and duties. The Introductory Part has 2 sections, Part I 103, Part II 55 and Part III 33. Thus, although the gaps in the numbering suggest that there is scope for many more additions to make up an impressive 673 sections, there are actually only 193 sections, as already noted.
Let us now turn to an in-depth analysis of the contents of this Code from the point of view of the interests of this study.
McGregor takes inspiration from two Conventions, the Uniform Law on the Formation of Contracts for the International Sale of Goods and the Uniform Law on the International Sale of Goods, both given effect by the Uniform Laws of International Sales Act 1967 by Schedule 2 and 1 respectively. Other sources of inspiration are the Uniform Commercial Code of the United States and the American Restatement of Contract. Section 25 of the Code on 'late and imperfect acceptance' somewhat expands article 9(1) of Schedule 2. Section 303 on 'anticipation of non-performance' adopts this doctrine also put forward by the Convention. In the area of 'general rules as to the assessment of damages', section 434 'basic measure: loss of bargain' is again thus inspired. Section 13 'agreement without offer and acceptance', section 304 'failure to give assurance of performance', section 401 'entitlement as of right' and section 408 'hardship out of proportion to benefit of performance' use the Uniform Commercial Code of the United States as support. In dealing with 'persons mentally affected', section 551 'general rule where no court control' discards the conventional test in favour of the test put forward in this section, in conformity with that propounded by the American Restatement of Contract (Second) section 18 C.
The Code is intended to create greater harmony with the Continental systems and to this end proposes fundamental change. For example, section 19 'revocation' introduces two exceptions to the current English rule that all offers are revocable up to the time of acceptance. Subsection (1), which requires that to be effective a communication of acceptance must have reached the offeror, brings the law into 'greater harmony with Continental systems and expresses, we believe, a result of which the businessman would approve'.(218) Again, the conventional English rule that performance must be made according to the method agreed by the contracting parties is preserved but there is a superimposed requirement by the Code of 'good faith' in performance.(219)
Sometimes McGregor departs both from Scots law and from English law, such as when in section 23 'time when acceptance takes effect', a simple and straightforward rule that a communication of assent is necessary for an effective acceptance is adopted abolishing 'the postal rule' whereby an acceptance by post or by telegram is complete when the letter is posted and when the telegram is handed in or telephoned in to the Post Office.(220) Another example of such departure is when section 110 'oral evidence that contract inaccurately reduced to writing', does not attempt to deal with the procedural differences between the two systems on rectification but instead proposes a solution which goes beyond either.(221)
Sometimes a doctrine such as the 'doctrine of anticipatory breach', part of the English law of contract for over a century which also appears to be accepted by Scotland, is kept, though reformed, in spite of existing criticism and incompatibility with other legal systems such as the French. The commentary states that, 'Although the doctrine has met with criticism at the theoretical level, it is retained by the Code because of its practical merit in allowing the aggrieved party to resolve the matter speedily and so minimise his loss.'(222)
Some changes indicate that existing legislation should be revised. This is the case in 'substantial
breach' where it is proposed to effect a drastic amalgamation of all the variations in the remedies available and to totally discard the concepts of 'dependent promises' and 'entire contracts' unknown in many legal systems.(223) In the same vein, 'repudiation', the common law term, and 'rescission', the term of equity, and 'rejected', a term of the sale of goods, are eliminated from the Code. The commentary states that 'if this approach is adopted it will clearly be desirable to revise existing statutes such as the Sale of Goods Act 1893 [now of 1979] and the Hire Purchase Act 1965 and the Hire Purchase (Scotland) Act 1965'.(224) Some provisions have to be repealed, such as section 6 of the Sale of Goods Act 1893 [now 1979], since under the Code, the contract is not void for initial impossibility of performance where the goods have physically perished before the contract was made.(225)
Occasionally, rules whose existence is found to be due to historical accidents are removed, such as the English rule that a claimant is not entitled to damages for the loss of his bargain in the area of 'basic measure: loss of bargain' (section 434). This limitation was imposed by a rule in Bain v Fothergill,(226) which allows a buyer or lessee of land to claim only his expenditures against the seller or lessor unable to complete through a defect in title. The commentary states that, 'It is considered that this exceptional rule should no longer be the law. In large measure the rule owes its present existence to the historical accident that it was established long before the general rules of contract damages.'(227)
Further, the Code puts an end to the discretionary character of the remedy of 'specific enforcement', a name introduced by McGregor, to replace the terms 'specific performance' in England and 'specific implement' in Scotland.(228) This remedy is no more to have a secondary and supplementary character as in English law, thus bringing English law into line with that of Scotland.(229)
English law is also brought into line with Scots law when the Code prefers the Scots law term 'minor' over the former English term 'infant' - 'minor' now being adopted in other English Statutes such as the Family Law Reform Act 1969. However, the Scots distinction of 'minor' and 'pupil' also disappears.(230) In the area of 'contracts lacking capacity', McGregor says:
The Code's basic approach is to jettison the distinctions currently drawn by both legal systems. Distinctions between types of contract appear to have little to justify them and add only an unnecessary complexity to the law: it is significant that Scotland has managed without them. Conversely, the fact that England has dispensed with distinctions based upon age groups and adult participation rather indicates that they too savour of unnecessary complexity: indeed that Scots law allows reduction of nearly all contracts on the ground of lesion during the quadriennium utile rather suggests a lack of conviction in the real utility of these distinctions.(231)
Another substitution is 'restraint of breach' to replace 'injunction' in English law and 'interdict' in Scots law. McGregor says that neither term very clearly expresses the real function of the remedy and at the same time covers instances outside contracts.(232) Again, the term 'homologation of contracts' in Scots law and 'ratification of the contract' in English law are replaced by the term 'affirmation', thought to be more easily understandable to both lawyers and laymen.(233)
临界的比较法
