Deconstructing Peter Goodrich’s Contract with Law

Abstract

Peter Goodrich has taught the law of contract for more than 25 years. This is not reflected in his huge body of writing, of which his papers directly on or relating to the law of contract are only a minor part. These papers, however, shed a light on the legal theory for which he is now famous because of the way their direct engagement with a body of conventional doctrine is conducted. Goodrich’s approach is, of course, critical and deconstructive, but an intriguing theme emerges. One finds that the erudition about literary and theoretical issues that characterises his work extends to an ability to convincingly address the detail of the doctrine he criticises, so that that criticism is far from being merely negative. Goodrich is perhaps the living legal academic of whom one can least say that he avoids rhetorical and comic flourishes in the way he expresses himself. But his writings on contract are further evidence of the seriousness of his approach to the criticism of law.

I. Introduction: A Little Known Fact

Of the many who know of Peter Goodrich as a very influential figure in law and linguistics, law and literature, law and philosophy, and cognate disciplines, there will be few who know of the considerable role that the common law of contract has played in Goodrich’s academic career. Indeed, the present writer cannot but think that Goodrich himself would be amused at the hint of uncovered scandal which attends what might be called this article’s exposure of the significance of the law of contract in the career of one who, arguably as much as anyone, brought deconstruction into the legal scholarship of the common law world.

But it must be told that Goodrich has taught the law of contract during most of the years of this century. This is not reflected in his now huge corpus, of which his writings directly on or significantly relating to the law of contract, written sporadically since 1989, ¹ are only a very minor fraction. But this small relative quantity is a function of the extent of Goodrich’s writing overall, for he has written, in my estimation, as many as a dozen articles or book chapters containing sustained arguments bearing on contract. ² He has also said things of interest about contract en passant in other writings, ³ but for reasons of space it is not possible to discuss these here. The scandal of Goodrich’s engagement with the law of contract is perhaps deepened by it further being the case that the dozen contract writings sometimes contain discussions of doctrine ⁴ and policy ⁵ in an almost conventional idiom. But the main significance of the dozen writings as a whole is the light they shed on Goodrich’s general theoretical position, which emerges from consideration of the manner of their direct engagement with conventional doctrine.

Goodrich’s approach is, of course, generally deconstructive and always critical, but an intriguing, if at first blush discordant, theme emerges. One finds that the erudition about literary and theoretical issues that characterises Goodrich’s work extends to an ability to convincingly address the detail of the laws of contract that he criticises, with the result that that criticism is far from being merely negative. Goodrich is perhaps the living legal academic of whom one can least say that he avoids rhetorical and comic flourishes in the way he expresses himself. But his writings on contract are further evidence of the seriousness of his approach to the criticism of law. To say that Peter Goodrich’s views run against the predominant currents of legal scholarship will hardly surprise, but it may be found even scandalous that his views on the common law of contract exemplify Derrida’s ‘exorbitant’ methodological demand of a ‘critical reading’ that it must ‘recognise and respect all [the] classical exigencies . . . of criticism’, for ‘Without this respect critical production would risk developing in any direction at all and authorise itself to say almost anything’. ⁶

II. The Postal Rule and Three Criticisms of Contract and Law

1 Three Criticisms of the Postal Rule

At the centre of Goodrich’s writing on the law of contract lies a doctrine which is, as he tells us, ‘universally’ ⁷ known to those with any familiarity with the common law of contract: the ‘postal’, or as it is called in the US the ‘mailbox’, ⁸ rule. This rule is traced to Adams and Others v Lindsell and Another, ⁹ a judgment handed down on 5 June 1818 in the Court of King’s Bench, and in the first, 1879, edition of the most enduring of the English textbooks on the law of contract, which is still being updated, ¹⁰ the rule is stated to be that, in regard of acceptance by post, ‘the moment of acceptance is the moment of despatch’. ¹¹ Adams v Lindsell concerned a sale of wool between parties both situate in the English midlands, but though we should be aware that the limited reliability even of domestic postal services at that time is conveyed by the case predating the introduction of the uniform penny post by 22 years, the rule is best appreciated by considering a hypothetical example of an international sale at the heart of the creation of the world market: a purchase by a Liverpool merchant of Bombay cotton for use in the Lancashire textile industry. ¹²

In 1818, a Liverpool merchant could initiate the sale only by sending a letter of offer which would be carried by sailing vessel on a voyage via the Cape of Good Hope. The voyage would take at least six months, and was attended with substantial risks of delay or even of the loss of the vessel. The eventuation of these risks would no doubt cause the merchant offeror some perplexity, but the rule that an offer must be communicated to be effective is merely a statement of common sense as an offer that is never received can never be acted upon. But an acceptance is the moment of the creation of contractual liability. If it is dated from the moment of despatch, postal acceptance by the Bombay cotton grower would become actually known to the Liverpool merchant at best six months later when the letter arrived, perhaps accompanied by the cotton itself. Dating acceptance from the moment of despatch thus binds the merchant, though it could not know it was bound for at least six months as the acceptance could, of course, have been delayed, lost, or rejected. This nevertheless is what the postal rule provides.

Three lines of criticism emerge from Goodrich’s reflections on the postal rule. In the first, he is in a sense critical of the rule itself. The postal rule remains at the core of textbook statements and of the teaching of contract in, almost always, the first year of university legal education throughout the common law world, and so we ‘continue to imbue the decision with exceptional importance’. ¹³ But that this is so is a deplorable ‘archaism’, ¹⁴ for the rule itself is ‘archaic’. ¹⁵ The problem addressed by the rule was ultimately set by the then state of communications technology, and ‘Technology has overtaken the antique system of postal correspondence’, ¹⁶ so that the postal rule is ‘a now defunct fiction. ¹⁷ The Bombay cotton grower which by accepting created the contract of sale thereby had to, let us at this juncture put it this way, impose liability on the Liverpool merchant, but, save in special situations which diverge from the general principles of the law of contract, it is all but impossible to conceive of such an imposition now being legitimate when it is so easy to check what is happening more or less as it is happening.

The postal rule has had an in part malign effect on the way we have accommodated the concept of acceptance to the use of electronic communications technology, ¹⁸ but the malign effect of the rule on textbook statements and teaching has principally lain in the way that students were and are presented with the rule as if it was still a vital part of the contemporary law, even as textbook treatments became increasingly replete with qualifications and exceptions to it. The rule could be very valuably discussed in its historical context (as the present writer, in a desperate attempt to justify his conduct of his professional life, is anxious to say is what he does when obliged to teach the rule), but it isn’t. Goodrich outright asks the question ‘why continue to apply an archaic and anomalous rule’, ¹⁹ and his answer points to a ‘mutely resigned’ ²⁰ preparedness to live with the ‘simple sense of historical incomprehension’ ²¹ characteristic of a dominant approach which is conventional in a bad sense: ‘the balance of habit and reaction, tradition and deference to precedent, tips the scales imperceptibly towards continued adherence to the rule’. ²²

This first critical theme merges into a second which is focused, not on the postal rule itself, but on what it tells us about the common law. In the conventional approach, perhaps the purest expression of which is the formalist statement of the ‘method . . . of a distinctive legal science’ ²³ by Christopher Columbus Langdell, Dean of the Harvard Law School between 1870 and 1895, ²⁴ that still underlies the, ‘ironically named’, ²⁵ Socratic teaching of contract and other foundational subjects in US law schools, a ratio is derived from a judgment and then applied as a precedent to subsequent cases of similar facts, or distinguished from cases of dissimilar facts. But close scrutiny of Adams v Lindsell is uncomfortable for maintenance of the conventional approach.

The law report of the judgment in Adams v Lindsell by which the case is known to us is a scant foundation for so important a rule. Adams v Lindsell was decided more than a century before English and Welsh law reporting was put on a coordinated footing with the establishment of the Incorporated Council for Law Reporting, and the report of the case is in one of the series of ‘nominate’ reports, Barnewall and Alderson’s King’s Bench Reports. That almost all of the nominate reports are now most easily found in the general series of English Reports is the product of a great effort of later collection, and does not reflect a general plan for reporting. The nominate reports typically were written by legal professionals in combination with their main occupation, to standards which themselves reflect the recording equipment of the times: ears and a quill pen. They are of varying quality, and perplexing inadequacies or even errors are easily found.

The law reports by Richard Vaughan Barnewall and Edward Hall Alderson, in 1818 both practising barristers, are, however, in fact highly regarded, and no allegation of outright error has ever been made of the report of Adams v Lindsell. But that report is of its genus in being of but ‘a brief paragraph in length’, ²⁶ and that paragraph is much occupied with a misdirection of the letter of acceptance, ²⁷ when misdirection, as later cases clearly show but as was surely implicit from the start, forms one of the ‘exceptions’ to the postal rule. The cotton grower could not avail itself of the rule it if it increased the risk of delay or loss by its own ex hypothesi avoidable fault. The rule is all about the unavoidable risk, but the prominence of the consideration of misdirection in Adams v Lindsell itself makes it hard to relate the case to contemporaneous authority, ²⁸ or for it to be translucently clear how Adams v Lindsell itself relates to unavoidable risk. ²⁹

If all this were not enough, the conceptualisation of the legal rule was not an achievement of the common law at all but of the civilian tradition. Leaving aside possible Roman antecedents, ³⁰ Goodrich accepts, on the authority of two of the greatest post-war legal historians, ³¹ that the postal rule as formulated in Adams v Lindsell is derived from Pothier. ³² Robert Joseph Pothier was an eighteenth century French judge and legal academic who wrote a number of treatises with the intention of systematising the various uncollected laws of France, and whose success in doing so led to him having an important influence in England and the US. This is a bit embarrassing for those who take rather literally the Anglo-Saxon lineage of Our Lady of the Common Law.

Adams v Lindsell is, then, a clear illustration of an important feature of the common law of contract: that a case becomes regarded as a ‘leading case’ often cannot really be attributed to the derivation of a clear ratio from the case, and that ‘The significance of the case is often less a matter of what it determined than of what subsequent courts took it to mean’. ³³ On the basis of a scholarly description of the reception of Adams v Lindsell in the nineteenth century case law, ³⁴ Goodrich concludes not merely that the case ‘was nothing in itself’, ³⁵ but that it ‘would count for nothing were it not for the later case law’, ³⁶ and, we should add, textbook commentary. Reception in later cases is, of course, what ultimately matters, but I do wonder whether Goodrich has for once not expressed himself as forcefully as he might, for if the source of the rule is in substantial part traceable to Pothier, then the rule’s adoption is a function not merely of subsequent case law but, even worse for the conventional understanding, both of theorising in a prior civilian treatise, and of the huge influence of the textbook on the shape of the common law of contract.

Criticism of common law reasoning has, however, by no means constituted the limit of Goodrich’s ambition, and the third criticism which emerges from consideration of the postal rule is that the rule ‘uneasily testifies to the intrinsically social character of contract’ ³⁷ because understanding the rule requires us to recognise that:

legal contract [is a] legal [form] of association, or societas and [implies] participation in a tradition within a system of communication, or better, of transmission governed by law. ³⁸

This particular way of putting a point which is, as we will see, a difficult one for the conventional depiction of agreement and the approach to the law of contract that lies behind it, draws heavily on theories of deconstruction. In a ‘summary’, i.e. an abstract, added to the French version of Goodrich’s first discussion of the postal rule, either André-Jean Arnaud, the then Editor-in-Chief of Droit et Société, or Françoise Michaut, the translator of Goodrich’s piece, accurately told us that ‘Peter Goodrich undertakes a post-modernist deconstruction of the modernist claims to autonomy of analytical and pure theories of law as contract’. ³⁹ But here we must be clear by what we mean by deconstruction. The reception of deconstruction in common law legal scholarship has insufficiently distinguished two themes. Deconstruction has been largely identified with a theme of hermeneutic irrationality traceable to Nietzsche, ⁴⁰ and the work for which Goodrich is noted is a striking elaboration upon this theme. But his work on contract elaborates the less well known theme of a structuralist criticism of individualism, traceable to Saussure, ⁴¹ which focuses on the social institutional dimension of forms of communication.

Contractual agreement is conventionally depicted as a ‘consensus ad idem, or a meeting of minds’, ⁴² and it would seem to be simply entailed in this that ‘it is necessary for the substance of both offer and acceptance to be brought to the notice of the relevant party either by explicit words or by conduct or behaviour that can be deemed to have the same communicative effect’. ⁴³ If this is so, then the postal rule has the ‘paradoxical character’ ⁴⁴ that ‘the contractual act . . . may have an existence independent both of its sender and of its destination’. ⁴⁵ The rule ‘terminates the need for notification, or proof, of actual receipt of communication . . . by binding the offeror before, and sometimes in the absence of, any actual communication of acceptance’. ⁴⁶ An ‘agreement’ which has ‘the temporal character [of] communication [which] comes afterward,’ ⁴⁷ or comes even in the absence of subjective knowledge, ‘constantly threatens to undermine the subjective theory of contracts’ ⁴⁸ by exposing its ‘linguistically unrealistic ideology of communication’. ⁴⁹ Such agreement can be accounted for only by a deconstructionist approach to the formation of speech or will within linguistic or social structures:

To use the post is in the first instance to enter into a specific, centrally regulated jurisdiction, a specific domain of discourse subject to rules of both lexical and semantic scope . . . The letter or signum becomes a token of participation in a juridically defined sociality. It betokens at the very least that we come after and are faithful to – are users of – the postal network, or more generally of the tradition, of the system of commerce and communication. ⁵⁰

2 An Evaluation of Goodrich’s Criticisms of the Postal Rule

In this writer’s opinion, some of Goodrich’s criticisms of the postal rule are successful and some are not. Though it is quite wrong that the postal rule continues to occupy the place it does especially in textbooks and in teaching, and its influence on how historically we have approached contracting by electronic communication has been bad in significant ways, the rule itself is highly commendable. Goodrich relates the unfavourable verdicts of a number of commentators on the reasons long given for the rule, ⁵¹ and he himself notes ‘the absence of any plausible, let alone satisfactory, justification for’ ⁵² an ‘arbitrary’ and ‘illogical’ rule. ⁵³ But I believe that the reasons long given for the rule were largely very sound. ⁵⁴

The judgment in Adams v Lindsell itself is mainly concerned with considering an alternative to the rule, and it rightly concludes that there isn’t one. The Liverpool merchant is placed at risk because acceptance takes place in Bombay. Let us, then, apply the basic rule to which the postal rule is seen as an exception, that acceptance is effective only when received, so that acceptance would take place in Liverpool. But the Bombay merchant will not know of this acceptance. If we therefore have a further rule that the acceptance is effective only after the Liverpool merchant acknowledges its receipt, though this would add at least a year to the negotiations even if the correspondence is successfully carried, at the end of the year the Liverpool merchant will not know whether the Bombay cotton grower has received the acknowledgement of receipt! As a way of avoiding a process that would proceed, as it was put in the judgment, ad infinitum, ⁵⁵ and keeping that process to the technologically possible minimum, the postal rule is a success.

Nor is there a difficulty specific to the postal rule in identifying the offeror’s agreement to it. Knowing the risk of sending its offer to Bombay, the merchant must either decide to send it, or not. Such knowledge as we have of the practical working of the rule is evidence for what a general understanding of the nineteenth century law of contact would lead one to expect: the rule was an attempt, not actually to impose a rule upon commercial parties, but to give legal expression to, and thereby reinforce, spontaneously developed commercial practices. The Liverpool merchant was not alone. Not merely the expansion of domestic contracting but the creation of the global market took place through voluntary choices to participate in, and thereby in the sociological sense reproduce, the legal framework provided by the English law of contract, of which the postal rule was an important component.

And if the Liverpool merchant chose to contract but did not want to negotiate on the basis of the postal rule, it was not legally obliged to do so. For our purposes here, it is not misleading to say that the law of contract has very few mandatory rules. Its rules are default rules which the parties can agree to oust. The postal rule is such a rule, and there are numerous reported cases in which it has been ousted. But the merchant could not oust the rule unilaterally; it had to obtain the agreement of the cotton grower to do so. And if there were other merchants prepared to contract on the basis of the postal rule, ceteris paribus the cotton grower would not agree to give up the advantage conferred by the rule which it would enjoy by contracting with those others. It was not because it was a mandatory law but because its general use was the result of competition over the choice of legal rules that led to the postal rule playing a role of such importance.

Nor does the postal rule cause common law reasoning too much embarrassment. At a first blush, what Goodrich tells us of Adams v Lindsell seems to be strong evidence for the claim he made in 1993 that ‘The only occasions on which common law makes much substantive sense are those when it is borrowed directly from continental law’. ⁵⁶ I believe I can understand why, and I certainly admire the courage with which, Peter Goodrich advanced this claim on the occasion of his inaugural lecture as the founding professor of a new English law school, the Department of Law at Birkbeck College of the University of London. But this claim, which runs counter to the basic seriousness of Goodrich’s work which this article is trying to illustrate, will just be put to one side, though it must be acknowledged that this is hardly an adequate way of dealing with it. In an attempt to compensate for this inadequacy, let us consider as important a criticism as has ever been made of the common law of contract.

For Max Weber, England’s commercial success was a puzzle, though it was the most important fact his history and sociology of the economic and cultural success of the West, which he believed to be of ‘universal significance’, ⁵⁷ had to explain. His view was that ‘it may indeed be said that England achieved capitalistic supremacy among the nations not because but rather in spite of its judicial system’. ⁵⁸ Weber stressed the role of the law in facilitating rational economic action, but the common law seemed to defy the emphasis on formal rationality central to his views. ⁵⁹ This ‘England problem’ has occasioned much debate, but whilst that debate’s interest is shown by its remaining unresolved, it can confidently be said that the problem is not England’s but Weber’s. The creation of the global market on an institutional basis of which English mercantile law was an essential part raises the difficulty that Weber’s views on rationalisation or the common law of contract or both must be wrong in a significant way. Of course, we learn a great deal from the difficulties of one such as Weber, and if it is now amusing rather than terrifying to think of bureaucracy as the institutionalisation of ineluctable efficiency, it is in good part through reflection upon Weber’s concept of rationalisation that we have advanced our understanding of the transaction costs of hierarchical order. But this writer at least is left of the opinion that the principal characteristic ‘defects’ of the common law are the mark of the particular suitability of such order as it can produce to deal with the ‘irrational’ elements of human action, found even within the rationality of economics, emphasised by Goodrich when in deconstructive mien.

Of course, the Liverpool merchant and the Bombay cotton grower did not agree, much less devise, the postal rule themselves. Their agreements were with the law of contract, and it is agreements of this sort that constitutes the institutional or social character that Goodrich’s deconstruction of the rule sought to reveal. This is a profound criticism of the conventional understanding, in which an express agreement entirely made by individual parties is the ideal type of a contract, and, to the extent that a profane economic consideration of this sort is ever allowed to obtrude into the ethereal realm of the juridical, of exchange and market. But the express contract is only possible because of the existence of an ontologically prior social institutional framework, of which important constituents are the law of contract, and ‘individuals’ who can contract only because as contracting parties they are not merely individuals but contracting parties conducting themselves in accordance with the social duties required by that law.

III. The Postal Rule and a Defence of the Common Law

In order to complete our evaluation of Goodrich’s three criticisms of the postal rule, it is necessary to address a remarkable article in which the part played by the postal rule was clearly positive. In September 1992, very shortly after the original German publication of Between Facts and Norms, ⁶⁰ the Cardozo Law School, which Goodrich was then visiting from Birkbeck, held a major conference at which thirty two international scholars from a range of disciplines commented on the book. In his contribution, entitled ‘Habermas and the Postal Rule’, Goodrich argued that the institutional aspect of the rule, acutely manifested in its being an agreement which could not possibly be the result of actual communication between the parties, represented an insurmountable obstacle to what Habermas tried to achieve in Between Facts and Norms.

Following what has come to be known as the ‘linguistic turn’ in his thought, Habermas posited an ‘ideal speech situation’ derived from a philosophic anthropology of human communication as a universally valid criterion of social criticism. In an ideal speech situation, discourse is completely unhindered, and whilst one naturally thinks of hindrances in terms of hermeneutic issues, forms of inequality can be described as social hindrances. But whilst one might assume that actors have a common interest in the removal of hermeneutic hindrances, surely this is just what one cannot assume, save at a level of analysis which makes inequalities disappear into a common human species being, about actors on opposite sides of social hindrances, and so it was claimed that ‘discourse ethics’ turned on an inappropriately ‘psychoanalytic’ model of critique. Between Facts and Norms was Habermas’ principal attempt to respond to this criticism by directly stating his views in terms, not of moral principle, but of legal doctrine ‘mediating’ the ‘tension’ between the ‘facticity’ of empirical forms of life and the ‘legal norms’ of ‘validity’ which guide the conduct, the criticism, and the improvement of those forms.

In this writer’s prosaic view, the proof of this pudding is in the eating, and the first question one must ask is whether the account of legal doctrine yielded by the philosophy is accurate. To the extent that the Habermas of Between Facts and Norms is the Habermas of ideal speech, his views were likely to be a red rag to Goodrich the proselytiser of deconstruction, and so it proved. That ideal speech reflected ‘a totalising desire to see an end to non-rational communication [and] a quest to explicitly define the indefinable and so bring communication to a rest’ ⁶¹ were but two of the critical remarks directed at Habermas the philosopher. And the postal rule, with its acceptance in principle of the impossibility of communication, exposed even greater corresponding shortcomings in Habermas the legal analyst:

In place of the ideal speech situation . . . the postal rule tells a more complicated and less optimistic story. The postal rule always potentially binds the offeror to a contract of which he or she is not aware. The rule binds the parties objectively, and imposes a fiction of consent upon what is potentially a failed communication. . . . Far from simply evidencing the possible failure at the heart of all communication, the postal rule indicates the inequality of communication . . . the model of transmission that is heuristically relevant is one which recognises more than the placid comfort of the unhurried and unconstrained speech situation’. ⁶²

Goodrich concluded his article thus:

It is, in sum, appropriate and commendable that a theorist of communicative rationality and of ideal speech situations should turn to the analysis of law and to legal forms of constitution and communication. It is less commendable that, in turning to law and to the discourse of law, Habermas evinces no knowledge either of the specific qualities of legal discourse or of the substantive rules which govern legal communication. ⁶³

This was tantamount to telling Jürgen Habermas, at a major conference lauding his work, that he had no idea what he was talking about, and this was in keeping with the general tone of Goodrich’s article, addressed passim to the unfortunate ‘Jürgen’. One does wonder whether Goodrich’s powers of rhetoric had, as is not unknown, caused him to lose control over the form of his argument, even if one has once again to admire the courage that made it possible to express oneself like this. ⁶⁴ But, in this writer’s view, such wondering does not really detract from it being the case that Goodrich’s point is substantively a good one. Habermas’ rationalism does fail to maintain the degree of appreciation of the inevitable opacity of communication and of the legitimate diversity of viewpoints that is essential to the practice of good government. That ‘deliberative democracy’ has proven to be fundamentally anti-democratic would seem to indicate that it is mistaken to maintain that ‘the universal . . . meaning of truth . . . is determined by the demand of reaching a rational consensus’. ⁶⁵ It is noteworthy that the basis of Goodrich’s argument is the wisdom about this that can be obtained from an, in its time, hugely valuable doctrine of the common law of contract.

IV. Goodrich and the Current Law of Contract and Its Theory

1 Three Recent Cases

In the context of the discussion so far, Goodrich’s comments on three US cases of this century which, whilst by no means being leading cases, have certainly enjoyed their fifteen minutes of fame, or better notoriety, can be seen to display a significant common theme. Before describing this theme, it will be convenient to give synopses of the cases and the discussions.

In a case which at one time was the subject of international media hullaballoo, Leonard v Pepsico, ⁶⁶ which Goodrich discussed in 2005 in ‘The Importance of Being Earnest: Satire and the Criticism of the Law’, the defendant corporation embarked upon a sales campaign which encouraged customers to collect ‘Pepsi Points’, and in one advertisement showed a teenager flying a Harrier jump jet which he had acquired by collecting seven million points, a figure the defendant thought out of the question. The claimant actually managed, by organising the collection of other customers’ points, to amass seven million points, but the summary dismissal of his claim for a jet on the ground that the advertisement was merely, as the defendant claimed, ‘zany humour’, ⁶⁷ and so, as long usage in the law of contract has it, ‘mere puffery’, was affirmed on appeal. I am afraid I cannot agree with Goodrich that this decision ‘went contrary to the usual rules of contract law’, ⁶⁸ or with his view that liability should be recognised in cases like this. ⁶⁹ But neither this, nor the humour with which Goodrich expresses his position, ⁷⁰ detract from the interest of the question why advertising like this, which after all must induce sales, i.e. real contracts, to be made, or why are vast sums spent on it, should not be seen as zany in another sense which Goodrich’s impressive philology uncovers, of being ‘cross-biting or cunning-catching’. ⁷¹

In Register.com, Inc. v Verio Inc., ⁷² discussed in 2013 in ‘The Political Theory of Private Law’, the claimant obtained an injunction stopping the defendant’s use of information about applicants for internet domain names which the claimant had been paid to collect and make freely available under a contract with, in effect, a public agency. This agency intended free use to be confined to consumer purposes, but Verio pursued a commercial purpose by simply extracting information made publicly available in just the way the agency had envisaged and Register.com, acting on the agency’s instructions, had made possible. Goodrich’s demolition ⁷³ of a justification of the injunction based on the law of unjust enrichment offered by the court which heard the appeal ⁷⁴ is, in my opinion, compelling, but need not detain us here. Arguments on this basis are, however, typically offered to upset the result that the law of contract would itself yield, and Goodrich has much fun with an ‘invocation of justice’ which ‘required a return to the garden of Eden’ to get around it being ‘hard to find a bargained for exchange’ as it was ‘impossible to find [a] manifestation [of an agreement not to pursue a commercial purpose] in the extraction [by Verio]’. ⁷⁵ Such justification, if any, as there may be for Register.com v Verio must be sought outside the law of contract. Contract would not support it.

The absurd elements of the conventional doctrine of agreement were manifest in ProCD, Inc. v Zeidenberg, ⁷⁶ which Goodrich discussed in 2015 in ‘Mos Americanus or Common Law In Partibus Infidelum’, though on this occasion the hullaballoo which arose was more confined within legal circles. The claimant purported to sell software under conditions which were to be found ‘shrink-wrapped’ within the physical package of software sent to a consumer. The defendant bought a package of software sold at a consumer price which the conditions would have restricted to consumer use, but used it for a commercial purpose. On appeal, a refusal to grant an injunction against the defendant was reversed on the ground that the defendant had agreed to the condition, but, of course, he had had to buy the software and open the package before he could read that condition! A mesalliance of consumer lawyers and contract doctrinalists excited at the rare sight of a commercial practice that seemed to allow them to straightforwardly apply what their textbooks said about the communication of offers was outraged, their feelings heightened because the appellate opinion was written by Judge Frank Easterbrook, who had in his former academic life been a leading member of the University of Chicago Law School when the influence of Richard Posner, who had recently preceded Easterbrook to the Court of Appeals for the Seventh Circuit, was at its peak.

Whatever one thinks of ProCD v Zeidenberg, Goodrich’s criticism of ‘a judicial determination in the heyday of law and economics’ that was ‘contrary to common law’ because it turned on ‘inverting the established rules of offer and acceptance’, ⁷⁷ demands attention. That the views of Judge Easterbrook ‘are deemed more binding, of greater regulatory force, and in sum more lawful then the common law rules of offer and acceptance’ ⁷⁸ called to Goodrich’s mind a ‘warning against . . . “brave Magnificoes [who] under pretence of law become almost lawless”’. ⁷⁹ The warning had been given by one Abraham Faunce in his Lawiers Logike of 1588! ⁸⁰ Not a lot of people know that! ⁸¹

The theme which emerges from Goodrich’s discussion of these cases is indeed a critical one: in Goodrich’s view, these cases are very poor. But the criterion of criticism is the common law of contract, and the reason these cases are so poor is that they do not reach the conclusion which that law required them to do. To be sure, the criterion of criticism is not the positive common law of contract. Goodrich is arguing that in the positive law Pepsi can act in a cunning-catching way towards teenagers, Register.com can limit others’ actions without their agreement, and Easterbrook J. can act as a brave magnifico. But Goodrich is treating the common law as a ‘regulative principle’ arising ‘from the interest of reason in regard to a certain possible perfection of the cognition of [an] object’. ⁸² One’s basic stance towards the common law will be determined by the weight, if any, one gives to its foundational claim to legitimacy, that it works itself pure, ⁸³ and Goodrich’s writings on contract give this claim great weight. To the extent that this writer, who has only limited knowledge of the work through which Goodrich has exercised such influence on a range of legal disciplines, is able to form an opinion, he would say that, though it would be a mere affectation to deny that Goodrich has focused far more on impurity than purification, the animating spirit of his work is not deconstructive nihilism but affirmation of the purifying quiddity of the common law, which must be turned against conventional understandings and practices. It is only on this basis that we can fully grasp the significance of almost the first words of the book that in 1990 ⁸⁴ announced the entrance ⁸⁵ of a formidable deconstructive force into the lists of English legal scholarship:

the common law tradition has failed to understand itself as a language and imagery of . . . the transmission of a mode of institutional life and of all that institution implies. It implies the effective attachment of the order of institutional existence. It implies also the continued creativity, the continued life and productive power of that order, of that plan, of the “law of the persistence of the plan” . . . it is apparent that the common law has repressed the productive power of the plan; it has failed to . . . transmit an understanding of the memorial language as a code, as an index of lived existence, of historical forms that cannot be emulated but must be transformed, reinterpreted, repeated in the genuine sense of the practice of tradition[. But] the common law denied any authoritative place to scholarly commentary [on] or intellectual interpretation of the tradition. There is no place . . . for a jurisprudence that genuinely interprets as opposed to merely systematises the tradition[, and so] the common law tradition closes the possibility of dialogue with the past[. But the] structures of positive law are mobile structures; they exist to be deconstructed, to be reinhabited, to be read and so be changed. ⁸⁶

2 Goodrich’s Two Most Recent Writings on Contract

The two most recent pieces Goodrich has written on the law of contract further uncover the institutional or social dimension of that law. The moral, or amoral, aspect of failing to grasp the social dimension of contract is that a merely solipsistic self-interest is taken to be the legitimate motivation of the contracting individual. As it is impossible for an enduring market order to rest on this foundation, the modern law of contract has at its core a failure to come to terms with its own nature. Its rules all require the parties to recognise other-regarding duties; why on earth do we have such rules if the point of the law of contract is to allow self-interested license? Though the social dimension of contract can be apprehended by adequate reflection on the conditions of existence of freedom of contract, the main way in which the necessity of other-regarding conduct has been partially apprehended in the positive law of contract is that a number of requirements of ‘good faith’, always expressly denied by the conventional approach and in judgments taking that approach, have always been present in that law.

In 2017 in ‘The Wrecking Ball: Good Faith, Pre-emption and US Exceptionalism’, Goodrich argued essentially this, the wrecking ball being good faith’s subversive impact on conventional understandings, by contrasting recent developments in the law of good faith in England and Wales to the lack of such developments in the US. ‘The Wrecking Ball’ was a chapter in a collection on Comparative Contract Law, one of the ‘research handbooks’ with which the English publisher Edward Elgar is having considerable success. This writer has to confess that he was unaware of this piece until embarking on the research for this article, but it is a, to this writer’s knowledge, unique and, in his opinion, very interesting account of the current state of the common law of contract in its principal jurisdictions. Though it was merely a High Court judgment, the 2013 judgment in Yam Seng Pte. Ltd. v International Trade Corporation Ltd. ⁸⁷ was intended by its author, Sir George Leggatt, who subsequently enjoyed a meteoric rise to the UK Supreme Court, to encourage wide-ranging acknowledgement of the role played by good faith, and this has indeed occurred. A considerable number of subsequent High Court judgments have moved towards creating an express doctrine of good faith in the English law, albeit that, in developments which largely postdate Goodrich’s chapter, these judgments have been and are being met with hostility by the Court of Appeal, Yam Seng having not yet been discussed by the UK Supreme Court, though that court unarguably has had the opportunity to do so.

Goodrich passes a favourable verdict on what we might call the Yam Seng trend, and is critical of, as he describes it, the lack of any such trend in recent US cases as another instance of an unwelcome US ‘exceptionalism’. This is an interesting reversal of the common perception that good faith, which is mentioned in the Restatement and the Uniform Commercial Code, ⁸⁸ is more a part of the US law of contract than the English. Justice Samuel Alito Jr, who was responsible for a number of the cases which Goodrich criticises, and in particular wrote the US Supreme Court majority judgment in Northwest, Inc. v Rabbi Binyomin Ginsberg, ⁸⁹ comes in for treatment highly reminiscent of that meted out to Easterbrook J. Justice Alito similarly merely sets aside those parts of the common law that do not suit his views, so that ‘his reasoning is unimpeded by any sound understanding of the private law doctrine that generates the concept of good faith’. ⁹⁰ The point is that Ginsberg ‘is wrong’, ⁹¹ and what is fundamentally wrong is its handling of the common law: ‘In misunderstanding the history and the doctrine, the [US Supreme Court] itself slipped dangerously close to a species of decisional bad faith all of its own’. ⁹²

And finally, whilst this article was being written Goodrich was in process of reviewing this writer’s Contractual Relations: A Contribution to the Critique of the Classical Law of Contract, which had appeared in September 2022. ⁹³ This book is an attempt to give a general statement of the ‘relational theory of contract’ advanced principally by Stewart Macaulay and the late Ian Macneil which has been, in this writer’s opinion, the most successful challenge to the conventional law of contract, which is often described as the classical law. ⁹⁴ What has been said in this article of the moral inadequacy of solipsistically self-interested individualism, of the inadequacy of conventional legal reasoning committed to such individualism to ex post explain or ex ante guide developments in the common law of contract, and of the way that an always expressly denied good faith has always unsettled that commitment, will serve to describe the argument of the book.

Goodrich gave his review the title ‘Against the Spirit of the Age: The Rationale of Relational Contracts’, and this was acute. Though the specific reference to its argument being counter to the spirit of the age was made in another connection, ⁹⁵ Contractual Relations is an assertion of the potential of the common law to generate an economically, morally and politically, and therefore legally, adequate law of contract, something essentially denied by the progressive ‘welfarism’ that has underpinned post-war, often statutory, attempts to reform that law, of which Contractual Relations is highly critical. And Goodrich can not only see this, he can sympathise with it, and intelligently evaluate it. Such criticisms as he has, which are framed around a discussion of the relational contract issues arising in an unreported decision of the Court of Chancery of Delaware, ⁹⁶ are criticisms of whether the relational theory adequately captures the potentials of the common law of contract. To speak frankly, this writer suspects there is no-one else on the left-wing of legal scholarship more committed than he to the common law because of the way it legally institutionalises the classical liberal values that undoubtedly have been regarded with scepticism or contempt by central representatives of deconstruction. Whilst I must say that I do not think Goodrich’s review engages with the ‘liberal socialist’ thread of Contractual Relation’s argument as fully as it might, the extent to which there is productive engagement is possible only because Goodrich’s views on the law of contract may be deconstructive, but are by no means destructive of the common law. They are, in fact, quite the other thing.

V. Conclusion: Goodrich and Post-post-modernism

In sum, it is hoped that this article on a small part of Peter Goodrich’s work will stimulate consideration of a neglected dimension of his work overall. Even given the limits of this writer’s knowledge of that overall work, he feels able to say that the predominant interpretation of it is focused on its deconstructive criticism of law. This is, of course, justified, both by Goodrich’s learned felicity with the theory of deconstruction, and by the power with which he is able to express his critical views, ⁹⁷ which we have seen was felt by figures ranging from Easterbrook and Alito to Habermas. But in the end Goodrich articulates a post-modernism which is not mere criticism but something posterior to this.

At the beginning of this article I suggested that Goodrich’s views on the law of contract had a seriousness which accorded with Derrida’s ‘exorbitant’ demands of ‘critical reading’. Derrida was, of course, capable of the most unsettling critical statements. ⁹⁸ But did he ever unsettle an audience more than when he told a famous roundtable event held at Villanova University in 1994 that his ‘love’ of institutions meant that he was ‘a very conservative person’. ⁹⁹ Goodrich’s writings which have been examined here, whilst always critical of conventional understandings, display a similar love of the institution of the common law of contract. I have also suggested that demonstrating this would create something of a scandal. How much more of a scandal would it be if examination of those of Goodrich’s writings which are far better known than his writings on contract revealed them to be post-post-modernist because they are also possessed of this love?