- What Maisie Promised: Realism, Liberalism and the Ends of Contract
In its barest outline, the celebrated 1864 case Raffles v. Wichelhaus seems an unremarkable occasion of breach of contract: the plaintiff, a cotton seller with operations out of Bombay, sued the defendant for refusing to accept or pay for a delivery of cotton contracted “to arrive ex Peerless” that is, on a ship called Peerless, in Liverpool. What made this case noteworthy was not the defendant’s desire to escape from the contract but the ingenious, elaborately implausible legal means his lawyer employed in the effort to allow him to do so. The counsel did not deny the allegations against his client, but instead argued that the Peerless that the defendant “meant and intended” was a ship that had sailed from Bombay in October, while the ship on which the plaintiff’s cotton had arrived “was another and different ship, which was also called the Peerless, and which had sailed from Bombay, to wit, in December” (Raffles v. Wichelhaus, cited in Gilmore, 36). 1 Even more oddly, the counsel for the plaintiff was quick to agree. True, he granted, it was possible, even likely, that the plaintiff and the defendant “meant and intended” different ships by the phrase “arrive ex Peerless,” but establishing that both parties meant the same ship when they said “Peerless” was crucial only if the particular identity of the ship mattered to the sense of the contract. In this case, however, he argued, the fact that the ship was called “Peerless” was a contingent rather than a necessary element of the contract, indicating only, as was the convention of the period, that if the ship were lost on the voyage, the contract would be at an end—the seller would bear the loss, but the buyer would not be able to claim damages for non-delivery.2 Even if the seller had been mistaken in sending the cotton on the December rather than the October Peerless, such a mistake was not sufficiently central to the performance of the contract to justify the contract’s recision.
Accepting the defendant’s contention that while no departure or anticipated arrival dates had been specified within the text of the contract, the ship’s identity was nonetheless a crucial condition of the contract, the Raffles judges concluded that because buyer and seller had intended two entirely different meanings by the use of the term “Peerless,” there had been no “meeting of the minds” and hence no contract had ever existed to be broken. The buyer had intended the meaning, “a ship arriving in October,” whereas the seller meant, “a ship arriving in December.” The contract law at issue was thus revealed to be incoherent, since agreement was defined as a condition of interiority—a “meeting of minds”—yet the achievement of such an [End Page 335] internal condition was only measurable through external signs that the case revealed to be only contingently and ambiguously linked to these internal mental states. What is striking about this decision is how easily—indeed, how much more easily—it might have been otherwise: a cursory reading of the case offers ample evidence that a sudden decline in the price of cotton had simply made the terms the defendant had negotiated economically disadvantageous to him. Insofar as they admitted as plausible the defendant’s suspiciously baroque account of how he had come to believe he was not obliged to accept the cotton delivered to him on “Peerless,” these judges displayed a willfulness of their own, a willfulness derived from, though certainly not reducible to, the pointedly narrative willfulness of the defendant’s claim that what motivated his refusal to pay was not the precipitous drop in cotton prices, but, rather, a confusion over how and when that cotton was to be conveyed to England. By rejecting the seemingly straightforward conclusion of breach of contract in favor of a verdict that became precedent-setting for Anglo-American contract law by revealing that law to be incoherent, the Raffles judges transformed a single lawyer’s momentary and apparently desperate manipulation into a rule of law.
For historians of Anglo-American contract law, the...