18 Contract law in context
The law is not a subject which can be studied in isolation with any degree
of satisfaction. It is a living, changing body of knowledge, which, if
somewhat slowly at times, evolves in response to changes and developments
in society. This is an aspect of studying law that makes it interesting and
exciting. It is not simply a set of static regulations which cannot be
challenged, but a reflection of collective ethical, cultural, moral and political
views. It is important, therefore, that throughout your study of contract law
you continually consider the wider issues raised by the ‘rules’ themselves.
‘The important thing is to not stop questioning.’ (Albert Einstein)For instance, taking the case of R v Clarke (Chapter 2), the theory of this
may seem to be a straightforward rule, and a relatively small issue, that is,
whether a person would be considered to have formed a contract if the
actions required for acceptance were performed without knowing of the
offer. We can learn the answer to this easily – the outcome of the case, that
no contract is formed, is the ‘rule’. However, further thought may stimulate
the question of whether this is fair or sensible in every case.
In Clarke the defendant told the truth as evidence in court (presumably
- it is an old case and we must go on what is reported). He said that he had
forgotten about the offer of the reward. For telling the truth, he was
penalised by not being given the reward money. Had he chosen to lie, and
to say that he had indeed known of the reward, he would have received the
money. This raises the issue of whether the court should punish those who
tell the truth and reward those who lie. Furthermore, the reasoning for the
decision, given by the judge, was that forgetting something (in this case, the
reward) is the same as never having heard of it. Whilst we can perhaps
understand what the judge was trying to achieve, the argument can be
questioned if used in any other context (for example, forgetting an
assignment is certainly not the same as never having known about it!).
However, in commenting on, or criticising, decisions in cases, especially
where they took place some time ago, it should always be remembered that
we may not know the whole picture. For example, going back to the scenario
in Clarke, would there be, or should there be, the same amount of sympathy
towards a defendant who was a known villain as there would be towards a
known local person who genuinely tried to be helpful to the police?