When Law Stands Still: Land Contracts in English Law and Law's “Abandonment” of Everyday Life

IGOR STRAMIGNONI

WHEN LAW STANDS STILL: LAND CONTRACTS IN ENGLISHLAW AND LAW’S “ABANDONMENT” OF EVERYDAY LIFE

ABSTRACT. After the 1989 reform on land contracts – the Law of Property (Miscel-laneous Provisions) Act 1989 – a contract for the sale or other disposition of an interest inland could only be made in writing. Behind what appears to be merely a “technical” ruleof private law lies, hidden, something that is rather more serious than that – the figure itselfof nothing less than the relationship between law and everyday life in Europe’s systemsof private law. Text and context, alone, are necessary but insufficient analytical steps touncover such a figure. Instead, it is here suggested, one must rethink the relationshipbetween law and everyday life in terms of “abandonment”. Building on (without neces-sarily fully endorsing) philosophical insights from Heidegger, Nancy and Agamben, thepaper provides a first inroad into one of the most troubling aspects of the modern nationstate – law’s abandonment of everyday life.

KEY WORDS: abandonment, land contracts, part performance, Statute of Frauds, voidcontracts

INTRODUCTION∗

What is the relationship between law and everyday life? Individual rulesengage with everyday life in different ways – still, is it possible to think of afigure exposing them all? And can we do that without implying a normativejudgement and therefore incurring into the risk of excommunication bythose who feel committed to law’s rule? Indeed, we might have to suspendbelief before engaging with any answer to such questions.1

On first approximation, today’s relationship between law and everydaylife appears to be marked, on the one hand, by a considerable displace-ment of the traditional equation between law and society – if, by society,one understands the state or a state-related community.2 In particular, we

* Several amongst friends and colleagues have kindly accepted to read earlier drafts ofthis paper – but a special grazie goes to Alain Pottage who has provided much intellectualsympathy and encouragement.

1 P.W. Kahn, The Cultural Study of Law (Chicago: The University of Chicago Press,1999), 30.

2 J. Vanderlinden, Anthropologie juridique (Paris: Dalloz, 1996), 24.

Law and Critique 12: 105–134, 2001.© 2001 Kluwer Academic Publishers. Printed in the Netherlands.

106 IGOR STRAMIGNONI

are warned that law is not just about ‘central authority, codes, courts, andconstables’,3 and that we should, therefore, look beyond the institutionallegal system as such.4 Correspondingly, there seems to be today unprece-dented alarm about the fact that the institutional legal system appearsto have itself been traditionally preoccupied with only one aspect of anincreasingly complex society. Some, on the other hand, might say that lawand everyday life are distinguished, today, by the impact on them of certainbroader, “modern” predicaments – for example, a no-longer recognizableconceptual mapping inherited from Enlightenment;5 or the way the legalsystem reassesses itself in the attempt to survive and increase its power;6

and so on. One central point in this paper is thus to suggest how “abandon-ment” might be the original figure of the particular relationship that bindslaw and everyday life – law’s abandonment of everyday life. Here, as wewill see, by abandonment I mean one that is of law as well as to law –but not by law. Nor, for that matter, law’s abandonment of everyday life isalways, everywhere, or to the same degree.

Law’s abandonment of everyday life can be best captured when lawstands “still”. This is a moment (when law stands still) that is hardly evernoticed by lawyers – who are obsessed with causation and, therefore, withthe consequences of legal rules (with change) rather than with the rulesin their own right. So, in particular, focus on institutional change (lawreform) usually leads lawyers either to inward preoccupations such as thelegal system’s inner rationality, and the conditions at which this rationalitycan continue to be validly sustained. Or else it leads them to outwardpreoccupations such as the legal system’s relationship with the other andthe matter of inclusion, or interpenetration, or autopoietic closure. On theother hand, focus on non-institutional change is usually concerned with theanalysis of how we cope with normative instructions of a non-legal nature(for example, desire or the process of civilization), and of the horizons setby such alternatives with respect to existing institutions and institutionalchange.

By contrast, law’s abandonment of everyday life is best seen whenlaw stands still. This is when law’s promise seems, suddenly, to vanish.One might argue that law hardly makes any promise. Still, law seems to

3 B. Malinowski, Crime and Custom in Savage Society (London: Routledge & KeganPaul, 1926), 14.

4 S. Roberts, “Law and the Study of Small Scale Societies”, Modern Law Review 39(1976), 663ff.

5 A. Dupront, Qu’est-ce que les Lumieres? (Gallimard, 1996), 11–60. On the “criseconstitutionelle de toute la objectivite”, B. Latour, in Politiques de la nature (Ed. LaDecouverte, 1999); Nous n’avons jamais ete modernes (Ed. La Decouverte, 1991).

6 N. Luhmann, Social System (California: Stamford, 1985), 357ff.

WHEN LAW STANDS STILL 107

be one of the best stories we have ever been able to come up with sofar and, as such, it seems to represent – and to continue to represent – ahighly promising myth.7 On the other hand, it is precisely as a promisingmyth that law’s promise seems, now and again, briefly to disappear. Thishappens when law’s promise has finally turned into legal rules that nowfully occupy this space and this time and nothing else. By exhibiting, atlast, what is positum as opposed to what was possible, legal rules brieflyreveal territories that lie, unsettled, in the twilight of law’s original promise– and before any other promise becomes possible instead.

So, why do we want to look at moments where law stands still?Because to focus merely on change (as lawyers do) is to remain entangledwith binary oppositions such as tradition and progress, past and present,past and future, internal and external, inward and outward, inclusion andexclusion, and so on. This is all very well and good – but it does hidefrom sight the fact that, at the edges of law, there are moments whenlaw’s promise has fully come through and, for a while, nothing moreseems anymore possible. These are strange moments in that, in suchstillness, law’s “abandonment” becomes suddenly visible – then, rapidly,disappears. Until, that is, what is abandoned slowly re-surfaces to nourish,again, the possibility of a new promise.

To identify such moments is not easy. One must look through thefabric of law and separate those tiny little threads that have come to anend – those promises that can no longer be fulfilled because they havenow fulfilled themselves.8 The case study, here, is a recent reform in theU.K., the highly technical nature of which ensured that the reform wentlargely unnoticed – the Law of Property (Miscellaneous Provisions) Act1989 (briefly, “LPA 1989”). The reform involved all contractual promisesconcerning land (“land contracts”). Section 2 of the Act reads as follows:

A contract for the sale or other disposition of an interest in land can only be made inwriting and only by incorporating all the terms which the parties have expressly agreed inone document or, where contracts are exchanged, in each.

In short, all unwritten (and unsigned) land contracts are now void bythe law.9 Two points should be preliminarily noticed. First, “disposition”

7 On modern demands over such myth, L. Friedman, “Legal Culture and the WelfareState”, in G. Teubner, ed., Dilemmas of Law in the Welfare State (Berlin: de Gruyter, 1986),13–27. On its desirability as a constrain over a reformed capitalism, L. Boltanski and E.Chiappello, Le nouvel esprit du capitalisme (Paris: Gallimard, 1999).

8 I am here concerned with the “original” possibilities of legal institutions – not theirdurability.

9 Law Com No 164, section 4.1.


should be understood in the widest possible way10 – while “interest inland” includes any estate, interest or charge in or over land, or in or overthe proceeds of sale of land.11 Considering, therefore, the centrality ofproperty law in English law, as well as the scope of section 2, the 1989reform, in fact, seems hardly marginal. In particular, the reform concernsnot only contracts for the sale of land but also any contract regarding, oneway or another, “land” or whatever else law might deem to be “land” – forinstance, tenancy agreements. The second point regards the meaning ofsection 2. The provision in section 2 was described by the Law Commis-sion as ‘[a] simple, straightforward rule’12 – but is it really so? The historyof land contracts in English law is neither simple nor straightforward.13

English judges had to deal for over three hundred years with the problemof the validity of land contracts – and the point is that this reveals someimportant aspects of the English law and legal culture worth noting. Howso? What is hidden behind the “technical” character of a legal rule that,simply, provides that certain contracts (here, unwritten land contracts) arevoid? An identical disposition exists in other legal systems – the Italianlegal system, to mention but one.14 But what does the English law do withthese contracts – of the trust, creativity, loyalty, imagination, etc., of thosewho take those contracts seriously?

ON THE WOUNDED FORMALISM OF THE ENGLISH LEGAL SYSTEM:SPACE AND TIME IN LAND TRANSACTIONS

1. “Inventing” the written land contract. Our story begins with what canbe regarded as the “invention” of the written land contract by means ofthe 1677 Statute of Frauds and Perjuries. The Act famously sought toprevent many fraudulent practices, which were perpetrated ‘by perjuryand subornation of perjury’.15 To look at the Statute merely as an instru-ment to protect the innocent defendant against the fraudulent plaintiff is,however, to miss the very meaning of that distant Act. Instead, the Statuteis more profitably seen in the context of a broader change from formalismto consensualism triggered by the rise of the action of assumpsit during the16th century and early 17th century. Within that context, the “invention”

10 Law of Property Act 1925 (section 40).11 Section 2(6).12 Law Com No 164, section 4.2.13 The best introduction to the niceties of property law in England remains, to this day,

F.H. Lawson and B. Rudden, Law of Property (Oxford: Clarendon, 1982).14 Art 1350 cc.15 29 Charles II, c.3.


of the written land contract constituted a decisive move forward, contrib-uting in no marginal way to the success of the new action of assumpsit –and the Statute therefore represented a productive, institutive occasion forsuch move rather than a ‘reactionary measure’, as it has been described,16

designed to prevent the rise of that action.The Statute was divided in twenty-five sections concerned with various

matters – inter alia wills, trusts, real property, contracts, conveyancing,inheritance, and procedure. There were (1) contracts by executor or admin-istrator to answer damages out of his own estate; (2) contracts to answerfor the debt, default or miscarriages of another person; (3) contracts madeupon consideration of marriage; (4) contracts for the sale of land or anyinterest in land; (5) contracts not to be performed within one year fromstipulation; (6) contracts for the sale of goods if priced 10 pounds sterlingor more. While the first five types of contracts were grouped in section 4,sale of goods constituted the concern of section 17. Section 4.4, however,concerned specifically land contracts and provided thus:

[N]o action shall be brought . . . unless the agreement upon which such action shall bebrought, or some memorandum or note thereof, shall be in writing, and signed by the partyto be charged there with, or some other person thereunto by him lawfully authorized.

Holdsworth influentially argued that section 4 and section 17 ‘haveroused the greatest number of divergent criticism’.17 Partly, this was dueto what was later thought to be the Statute’s poor draftsmanship.18 Moresubstantially, the criticism concerned the function of the required formali-ties (why a signed written document?) and their meaning (should thewriting be ad substantiam or merely ad probationem?).

The “political” function and “technical” meaning of section 4.4 haveafflicted English judges throughout. As to the function of section 4.4, theview held throughout (one authoritatively kept today by A.W.B. Simpson)is that the Statute was necessary for “public order” reasons. This thesis hastaken various forms. Holdsworth, for example, argued that in the courseof the 17th century ‘trial by jury was in a transitional state’, in that a jurycould hardly be controlled by any form of checks and balances; jurorswere allowed to decide cases simply by relying on their own knowledgeof the facts; and, finally, the law of oral evidence was at a primitive stage– since, amongst other things, it did not allow into the witness box parties,their husbands and wives, or generally anyone having a vested interest in

16 A.W.B. Simpson, A History of the Common Law of Contract (Oxford: Clarendon,1987), 610.

17 W.S. Holdsworth, History of English Law (London: Methuen, 1923–1931), vol. 6,387.

18 C. Browne, The Construction of the Statute of Frauds (Boston, 1857), x–xi.


the result of the litigation.19 Accordingly, the imperfect state of the lawof evidence during the 17th century would provide an explanation alsofor the inclusion in section 4 of contracts of guarantee, of contracts notto be performed within the year, and of special promises of executors oradministrators to answer for damages out of their own estate. Finally, theremaining types of contracts encompassed by section 4 and section 17would be included because they would all ‘lead up to some transfer ofproperty; and, therefore, they fell within the principle of the clauses of thestatute which required certain conveyances to be in writing’.20 All of this,in Holdsworth’s opinion, made the enactment of the Statute a desirablecourse of action – indeed, ‘a considerable improvement in the law of thatperiod’21 – particularly, in a time of considerable political instability.22

No doubt, the Statute had a specific “public order” goal in view(its immediate goal).23 Those were indeed tormented times24 – and thepreoccupations of a number of Acts preceding the 1677 Act seem toconfirm this.25 A considerable degree of economic expansion, moreover,must have increased one’s marginal benefit in ignoring unwritten promises.

However, the traditional focus on fraud (the Statute’s “public order”goal) fails sufficiently to illuminate its significance in relation to whatland transactions had been perceived to be in everyday life imagery. Tothat date, legally binding transactions concerning land would routinely“happen” in writing. This was true of conveyances, but it was also true ofcertain agreements to pay damages in case of non-conveyance – as thesehad to be accompanied by a specialty to be legally enforceable. Althoughformal covenants were relatively frequent, the writ of covenant was in fact‘something of a rarity’ – for parties would rather resort to debt.26 The writ

19 Supra n. 17 at 388.20 Supra n. 17, at 392.21 Supra n. 17, at 389. W. Fox, Simple Contracts and the Action of Assumpsit (London,

1842), 186.22 Against, E. Rabel, “The Statute of Frauds and Comparative Legal History”, Law

Quarterly Revue 63 (1947), 174–187.23 For D. Ibbetson, “Sixteenth Century Contract Law: Slade’s Case in Context”, Oxford

Journal of Legal Studies 4 (1984), 295, 313, the abolition of the Star Chamber hadworsened the situation. Contra, J.H. Baker, English Legal History (London: Butterworths,1990), 137.

24 Supra n. 16, at 599. Trust must then have been at its lowest. P.S. Atiyah, Freedom ofContract (Oxford: Clarendon, 1979), 29; Veall, The Popular Movement for Law Reform1640–1660 (Oxford: Clarendon, 1970), 61–62; B. Shapiro, “Law Reform in SeventeenthCentury England”, American Journal of Legal History, 91 (1975), 280.

25 32 Henrici VIII Ch. 9; 5 Elizabetae Ch. 9; 13 Elizabetae Ch. 5; 13 Elizabetae Ch. 10;17 Elizabetae Ch. 4; 43 Elizabetae Ch. 6.

26 Supra n. 16.


of debt, however, was again available on formal promises to pay penaltymoney in case of non-conveyance (debt “sur obligation”) as well as oninformal promises (“contracts”) often employed in connection of sales ofland or leases of land for years. In a sale of land, however, the practicewas that the seller would normally make a formal promise to pay penaltymoney in case of non-conveyance (so the buyer had an action in debt “surobligation”), whereas the buyer could well be sued on the informal promiseto buy, but he could then plead that conveyance should take place beforeany payment was made.27 So, land transactions had, on the whole, a strongformal element to them which suggests that, in the layman’s as much asin the jury’s expectations, legally enforceable land transactions would benormally defined by the physicality of a written instrument of one sort oranother – more than by any other consideration. The written instrument,that is, must have been perceived actually to embody each particular landtransaction by drawing out its latitude both in terms of space (the where ofthe transaction), and in terms of time (the when of the transaction) – and,in so doing, to facilitate its proof, should the need for it occur.28

This unitary notion of the legally enforceable land transaction began tobreak down when the Common law finally moved on, and recognized thatall oral promises were enforceable by an action on the case on assumpsit.In England the law of oral contracts begins to blossom during the 16thcentury and until 1602, when the Slade’s Case was decided, one could noteven conceive of the possibility that legally binding land transactions might“happen” other than in writing. In that sense, the written land contract,as such, did not properly “exist” – for no land transaction had ever beenpossible without a substantial modicum of written formality. Assumpsit,then, could have the effect potentially to disrupt the now largely estab-lished perception and practice of land transactions as events anchored inspace and time to particular scripta – indeed, leading to an age wherebysuch transactions could be enforced independently of any past, concurrent,or subsequent writing embracing at once the point in time of the eventoccurring (the when of the transaction), and its spatial perimeter (the whereof the transaction). In the context of the 17th century, this might well beequal to (returning to) chaos.

One can now begin to see the Statute in its unintended move towardsthe overall enhancement of the legal system by way of increasedefficiency. We shall call this the Statute’s “structure-molding effects”. If“public order” concerns were per se conservative and directed inwardly

27 S.F.C. Milsom, Historical Foundations of the Common Law (London: Butterworths,1981).

28 M.T. Clanchy, From Memory to Written Record (Oxford: Blackwell, 1979), ch. 4.


to improve government as adjudication, the Act’s “structure moldingeffects” resulted in the “invention” of the written land contract. In thatsense, then, the invention by the Statute of the written land contractcontributed importantly to the institution of assumpsit – and was notmerely a consequence of it. The proponents of the Statute were probablyworried by the growing amount of litigation in the courts of CommonLaw (notwithstanding, that is, the many local, customary, and manorialcourts) and so it is possible that the drafters of the Statute wanted todo something about the rise of an action permitting all oral promisesto be legally binding. However, quite independently of the intentionsof the individual actors concerned, the Statute functioned as a powerfulresponse to a now pressing problem of inclusion concerning certain landtransactions – whether or not the newly developed action of assumpsitshould encompass them or not. The Statute responded to the rise ofassumpsit by rapidly differentiating those legal transactions that should beprotected by law despite being wholly unwritten, from those that shouldnot be so protected. To “invent” the written land contract was, in fact, toexclude oral land contracts from the protection of law. Now that oral landcontracts were excluded from protection, assumpsit could flourish safely.

2. Unwritten land contracts: “void” or “unenforceable” contracts? Thesecond arduous problem that afflicted English judges for a long periodof time was the “technical” interpretation of section 4.4. of the Statute.The emergence of the relationship between assumpsit and the Statute,the Statute’s “public order” goal and, on the other hand, its “structure-molding” effects, are factors that help elucidate the main aspect of thisdebate – regarding the fate of pleaded unwritten land contracts. In partic-ular, it is unclear whether such contracts would be radically “void” (i.e.non-existing), or merely “unenforceable” (i.e. with no action at law). Aremark common among 19th and 20th century lawyers is that section 4would seem to refer to a matter of “procedure” rather than “substantivelaw” – with the consequence that unwritten section 4 contracts wouldbe “unenforceable” rather than “void”. If section 4 is regarded as a mererule of procedure, then recourse to the prescribed formalities would givethe interested party an action at law, whilst failure to comply with thoseformalities would make the contract simply unenforceable. If, by contrast,section 4 is regarded as a matter of substantive law, formalities would beconstitutive.29 Here, like for the Roman stipulatio, the inscription of words

29 In favour, C. Viner, General Abridgement of Law and Equity (1791–1794), V, 524–525; H. Blackstone, Commentaries on the Laws of England (Oxford: 1775), iii, 157–158;and supra at n. 16, 612.


on paper reduces everyday life into an entirely different sort of patterns,codes and instructions. It carves a legally binding promise out of the imme-morial unity of a piece of land or the fixity of its buildings. It makes the resbelong to the paper rather than the paper to the res, and the promise to thewritten words more than the latter to the former. Accordingly, pleaded lackof compliance with such constitutive formalities would unmask the allegedcontract as one that is void ab initio – that is, one indicating a spatial andtemporal absence rather than a vitiated presence.

So, was lack of the required written formalities an indication of theunenforceability by action of the land contract, or was it, more radically,an indication of its voidness? Was it an indication of a presence, or was itan indication of an absence? And how could an answer to such a questionexplain the conflicting ideational contents of section 4 versus section 17 ofthe Act?

One answer to what is undoubtedly a difficult question comes whenone understands section 4 as an attempt to reconstitute, in the collectiveimagination of everyday life, the seemingly vanishing physicality of landtransactions. As I earlier suggested, by the end of the 17th century theemergence of the oral contract as a legally enforceable transaction wasthreatening to displace, in particular, the established conception of landtransactions as events consisting inter alia of the exclusionary activationof certain written formalities – exclusionary in that those transactionsmust be made, and could have only been made, in writing (or they mustrefer, or could only refer, to a written document). The Statute, then, hadthe effect of re-locating land transactions within the unified space andtime boundaries of the written instrument – whereupon it was now clearlyunderstood that land transactions must take place there and then (theStatute’s “disciplinary effects”). Secondly, the advent of the oral contractwas now likely to determine the dispersal of the land transaction intopotentially rather different enclosures of time and space – the access towhich could then become difficult to achieve (hence, the Statute’s “publicorder” goal) and difficult to ascertain (hence, the Statute’s “structuremolding” effects). This double fragmentation was, potentially, a source ofgreat confusion. It explains why, however, in the eyes of the legal system,pleaded failure to comply with section 4 formalities must have meant,as Viner and Blackstone indicate and as much of the case law in pointseems to confirm,30 that an allegedly unwritten land contract could not betaken to have come to light at all – that is, there either was the required

30 Buckmyr v. Darnall (1704) 2 Raym, R, 1085; Fish v. Hutchinson (1759) 2 Wils 94;Matson v. Wharam (1787) 2 Durn & East; Anderson v. Hayman (1789) 1 H Black 121;Chater v. Beckett (1797) 7 Term R 201.


signed written document, or there was nothing (i.e., no legally protectedpromise). The Statute, in other words, was concerned not so much withthe sanction as with establishing the “normality” for land transactions.Thus, the signed written document had to be a constitutive requirement to“exhibit” the contract (form of the act) rather than a requirement merelyto facilitate the evidence of it (form of the evidence). In establishing such“normality”, the Statute of Frauds was not only seeking to restore peacein the realm, but “outwardly” drawing a line apt more sharply to visualizethe scope of the new-born assumpsit and, therefore, eventually increase itslong-term chances of success.31

3. The struggle begins: The equitable doctrine of part performance. Insummary, the research traditionally devoted to the specific problem ofthe Statute’s “political” function and “technical” interpretation has largelyovershadowed one of the most important events in the history of 17th–18thcentury English private law – that is, the emergence of the written landcontract as a conditio-sine-qua-non for the “existence” of the oral contract.English judges knew their craft well and rapidly found a solution. Onlythe “abandonment” of the land contract that had not been subsequentlyembodied in a signed written document – in other words, the abandonmentof a whole series of everyday situations whereby trust, creativity, loyalty oreven the imagination of the persons involved could otherwise merit law’srecognition and protection – only such abandonment, and the voidnessaccompanying it, could root successfully the possibility itself to conceiveof, and therefore legally protect, the oral contract introduced, at the turn ofthe century, by assumpsit.

By and large, the Statute was indeed a success – at least, initially. So,Lord Nottingham is famously reported to have said that ‘every line of itwas worth a subsidy’, and Lord Kenyon too, we are told, held the 1677Act to be ‘one of the wisest laws in our statute book’.32 Plaintiffs wouldnow think twice before embarking on legal proceedings – knowing that,should they fail to produce the required documentation, there would behardly any hope to win against a party choosing to plead the Statute. That,on the other hand, section 4 was built on the abandonment of instancesof everyday life deserving protection became almost immediately clear.33

31 U.-I.A. Stramignoni, Form in Contract Law – A Silent Revolution (Oxford: D. Phil,1995).

32 S.M. Leake, “Principles of Legislation Involved in the Statute of Frauds”, in PapersRead Before the Juridical Society (London, 1856), 274.

33 U-I.A. Stramignoni, “At the Dawn of Part Performance: A Hypothesis”, Journal ofLegal History 18(2) (1997), 32–46.


Thus, the undesirable practice soon developed whereby one party, havingcome to an oral agreement within section 4 of the Statute (that is, one thatshould be in writing to be legally binding), would then decide to withdrawdespite having in the meantime induced and accepted (or simply accepted)performance by the other party – who had performed in reliance on theseriousness of the agreement.34 The point, however, is that, at law, theresimply was no contract.

The Lord Chancellor, by contrast, might well decide to enjoin defend-ants to take steps consonant with the alleged promises or agreements.This came to be known as the equitable doctrine of part performance.35

“Fraud” was then a rather capacious concept – and instances were includedwhereby the refusal by the defendant to perform the agreement wouldperhaps today fall under quite different headings. What Chancellors reallymeant to restrain, however, was injustice – in that context, the schismbetween formal and substantive justice. The idea was simple: certain actsof part performance by the plaintiff may take the place of the requiredwritten documents signed by the fraudulent defendant.

The question, at this point, became: what acts done in connectionwith unwritten agreements within the Statute should take the place of therequired signed written document; what acts could be taken to amount toacts of part performance?36 By 1739, however, the doctrine was finallyestablished,37 and the question became one of what restrictions it ought tohave in point of application.38

Once again, what so far has escaped notice is perhaps the most inter-esting aspect of the relationship between the doctrine and the Statute.Here was an experiment with the possibility of enforcing unwritten landcontracts on express pre-defined grounds (qualified reliance) at a timewhen another department of the English constitutional system had, bycontrast, clearly rejected that very possibility. Why this paradox? Becausethe doctrine of part performance was, in its broader movement, itselfsupporting the position, or “invention”, of the written land contract andso, ultimately, securing the foundation of the legally binding oral contract.In so doing, the doctrine amounted, together with the Statute of Frauds, toa movement of a fundamentally progressive nature whereupon the legally

34 ‘Performance’ could here be the payment of a deposit – Lacon v. Mertins (1743) 3Atk 1 – or the acting in reliance on the agreement.

35 Sanderson v. Graves (1875) LR 10 Exch 234, 241.36 Supra n. 33.37 J. Williams, The Statute of Frauds (Cambridge, 1932), 235.38 E. Fry, Specific Performance (London: Stevens, 1921; 6th edn., London, 1921), 174.

See also supra n. 33, at 134–177.


binding oral contract should now shine sovereign – and, in my view, the1681 decision in Potts v. Turvin seems to confirm this.39 On the otherhand, the boundaries of “exceptional normality” set by the Statute for landcontracts now become those that are defined by the written contract andcertain increasingly pre-determined grounds of qualified reliance. Whatso far has escaped notice, then, is how this illuminates importantly theintensity of the “abandonment” of law, as well as to law, in relation tothose instances of everyday life that might otherwise merit considerationand protection – and how, on the other hand, this was done, precisely, toensure such consideration and protection for all other oral contracts. Aswe will see, this led, in time, to the necessity of reconsidering the line ofseparation between the legally binding oral promise, in general, and thewritten land promise itself.

REFLEXIVITY AND “CHOCS EXOGENES”

4. Leroux v. Brown, or the dissolution of the norm into the exception.The 19th century witnesses the start of a decisive, if somewhat unnoticed,“turning inward” of the legal system – a slow fall into solipsism, aclear shift from systematic evolution to systemic involution, a seeminglyinexorable move from progress to reflexivity. This is not to say that such amove affected every and each part of the legal system equally, nor thatit affected every and each part of the legal system at the same time.This is only to say that much of the 19th century history of the Englishlegal system can be seen to amount both to the highest point in a long-standing, forward-looking, progressive movement and to the beginning ofa transition into newer, inward-looking, more reflexive preoccupations.40

The 19th century shift to reflexivity can be appreciated by a closerlook at pleaded non-compliance with section 4 of the Statute of Frauds.During the first half of the 19th century, a few cases make their appearancewhereby pleaded unwritten land contracts were regarded unenforceableby action.41 The reasons for the shift from generic invalidity to (the morespecific concept of) unenforceability by action are difficult to pin-down –though, in fact, the very absence of any apparent justification for treatingdifferently section 4 and section 17 might well be one of the triggering

39 Supra n. 33.40 On some 19th century transformations, see R.M. Unger, “Legal Analysis as Institu-

tional Imagination”, in R. Rawlings, ed., Law, Society and Economy (Oxford: Clarendon,1997).

41 Crosby v. Wadsworth [1803–1813] 535; 6 East 602; Laythorp v. Bryant (1836) 2Bingh NC 735, 747.


considerations that in 1837 led to a come-back to previous positions.42 Thepoint is, however, that such conflicting decisions reveal a new instabilitycharacterizing the English legal system at the time. Such instability could,of course, have stabilized itself both ways: either around the strict voidnessoption or around the unenforceability option.43 In 1852, Leroux v. Brownwas decided and the issue finally settled.44

The decision in Leroux concerned service rather than land contracts.Under section 4, however, service contracts and land contracts requiredthe same kind of formalities. So, Leroux almost immediately functionedas a “choc exogene”45 for the whole of section 4 contracts (including landcontracts) – and, later on, for many other areas of private law. Leroux, inparticular, managed to refine the generic concept of contract invalidity sofar associated with unwritten contracts – to replace it with the concept of“unenforceability by action” and, by difference, with the concept of thepossible, radical “voidness” of those contracts. Now, section 4 contracts,for which formalities had not been met, might be seen to be not simplygenerically invalid, but specifically (and merely) unenforceable by actionor, else, specifically void. We will see shortly how this made a lot of sense,and what precisely it entailed. Here, it is important first to record how,eventually, the decision in Leroux became indeed the specific, establishedauthority for unwritten section 4 land contracts – which would now benormally viewed as unenforceable by action and no longer as genericallyinvalid.46

The twist from generic invalidity to unenforceability turned out to befar from yet another mere mishap in the history of Victorian law and its“Spirit”.47 Once again, what has gone largely unnoticed amongst thoselimiting themselves to the “technical” aspects of Leroux is that, fromthen on, all those instances of everyday life excluded from a section 4action would no longer be totally irrelevant for the legal system. Instead,those instances could now be recognized independently of their not being

42 Carrington v. Roots (1837) 2 Mees & Wels 248, 254–255.43 Carrington was then followed up in 1851 by Raede v. Lamb (1851) 6 Exch R 130.

Indeed, Carrington might be regarded to be more satisfactory than Crosby. That is, absentan express provision to the contrary, or a special policy justifying a different treatment,the same requirements in the same statute for the same acts (contracts for the sale of land)should be treated in the same way.

44 Leroux v. Brown (1852) 22 LJ, CP 1. See also supra n. 33, at 187–193.45 M. Kerchove, F. Ost, Legal system between order and disorder (Oxford: Oxford

University Press, 1994), 159.46 Supra n. 33, at 187–198.47 A.W.B. Simpson, Victorian Law and the Industrial Spirit (London: Selden Society,

1995).


actionable as enforceable land contracts. This is because, by looking at thesanction rather than the norm, Leroux discovered (somewhat accidentally)not only the “valid and enforceable written land contract” and, by differ-ence, the “radically void land contract”, but also, somewhere in betweenthem, the “valid yet still unenforceable (unwritten) land contract”. Thediscovery of the valid yet still unenforceable (unwritten) land contract wasconceptually revolutionary. Effectively, it signified, on the one hand, thecollapse of the particular boundaries of the land contract (so far, always awritten contract – except when acted upon by the promisee according to,and within the limits of, part performance) within the broader encompassof the contract in general. As a particular sub-type of contract (written orunwritten), the land contract becomes now somewhat internal to contractand no longer the old external rule that it used to be (sustaining “frombefore” the oral contract to make that contract possible). Here, the oldregular exception for land contracts reflexively collapsed into its nowexceptional rule – or, to put it differently, exceptionality finally becomesa type of the normal (the unwritten contract) to the point that the specificboundaries between the normal and the exceptional eventually dissolveinto the background. No longer could regular land contracts (writtencontracts) be usefully opposed to irregular ones (unwritten contracts), forland contracts would be legally binding whether or not they were put ina signed written form or, else, left unwritten. The Statute, and its insist-ence on formalities, had, it will be recalled, the effect of re-subjecting thespace and time of certain land transactions to the formal and substantivelimitations of a signed written instrument – and this had been beneficial forassumpsit and consensualism. By dealing with the sanction rather than thenorm, Leroux now manages to push away any public interference (whichthe requirement of set formalities imply) with those particular transactions(land contracts), and with any connected antecedent, coeval or subsequentarrangement until the very last (and not necessarily ensuing) stage of litiga-tion. Leroux, then, returns those particular land contracts to the contractingparties in that they can now do something with them irrespective of whatcourts could and would do if asked to look at those contracts as enforceablecontracts. Leroux, one might say, allowed a split between land contractsas things, and land contracts as viable forms of action – and this, ofcourse, was made possible, but also reinforced, by such now well estab-lished doctrines as “sanctity” of contract or “privity” of contract. Onemust bear in mind that consensualism had, by then, fully established itselfand no longer needed to rely on certain clear exceptions to make sure offlourishing safely. At the same time, the successful discovery of a newspace and time (between a prior valid-but-not-yet-enforceable contract and


a later valid-and-enforceable contract) could now apply – firstly, withinthe sphere of the legally valid expanding, as it were, the legal space andtime defined by those transactions (parties could now be held to be boundeven before the relevant formalities had been met). This could be bene-ficial, for example, for all sorts of arbitration practices.48 Secondly, thediscovery of the new space and time could operate outside the traditionalboundaries of the legally valid into the realm of the already differentiatedand continuously self-differentiating 19th century economic sub-system,“importing” the space and time of possible economic transactions intothe legal sphere. So, for example, there would be now no risk in buyerspaying moneys to sellers (even before meeting the necessary formalitiesto make the contract legally enforceable), whilst sellers might promptlyuse such moneys to invest elsewhere. Buyers knew that, because an oralpromise had been validly made, they would be able to recover what theyhad paid should the seller, later, fail to convey.49 Likewise, sellers couldnow invest moneys paid by buyers on the basis of unwritten contracts, forthey knew that they would be allowed to keep such moneys, should thebuyer default on their promise.50 Indeed, the now rapidly self-assertingeconomic subsystem probably benefited from the re-conceptualization ofland contracts as “things” circulating more rapidly than ever before. Landcontracts could now be safely assumed to “be on” after a minimum levelof legally critical initial contact (the legally valid promise) and yet before,if at all, any written formality had been met for those contracts to be fullyenforceable by action. Yet another set of economic transactions dependenton the “mobilization” of land could thus be agreed upon, and made towork, earlier and quicker than ever before. Finally, individual free deter-mination, operating within that new space and time, should later, if needbe, be able to undo such contracts before any definite written formalitywas met – thereby ensuring that business imagination is not thwarted withadministrative circumspection.

However, it is precisely the fundamental change in the relationshipof “abandonment” inscribed in section 4, and triggered during the 19thcentury by the twist from generic invalidity to unenforceability by action,that one can see emerging as not only the beginning of the end of thedoctrine of part performance but also, somewhat more importantly, as themeaning itself of that particular “end”.

48 H.W. Arthurs, Without the Law (Toronto: University of Toronto Press, 1985).49 Pulbrook v. Lawes (1876), 1 QBD 284.50 Monnickendam v. Leanse (1923), 39 TLR 445.


5. The effects on part performance: The beginning of the end. From thebeginning, certain acts of part performance had been taken to constitutea tabula in naufragio: they functioned as an alternative to writing as aform of the contract (rather than as an alternative to writing as a form ofthe evidence of that contract). After Leroux, courts hastened to discoverthe internal consistency of the doctrine. They did not, however, ask them-selves whether the doctrine should be left to function as an alternativeto invalidity, or else twisted to cover what was between the valid and,possibly, the enforceable contract (part performance as an alternative towriting as a form of the evidence of a valid contract). Instead, courts simplyassumed that certain acts of part performance constitute an alternative formof evidence – for this seemed to follow from the fact that, under Leroux,written formalities had been declared to amount to a matter of evidenceand no longer of contract validity sic et simpliciter.

The effects of this can be seen in Maddison v. Alderson – concerningan agreement by one Ms Maddison to work unpaid, in exchange for hermaster’s promise to leave her, upon his death, a life interest in his house.51

In that much talked-about case there seemed to have been no doubt thatMaddison had worked unpaid until the end of her master’s life. But it wasdecided that no interest in her master’s house had ever come into existence– and that she had done the work out of either urbanity or naiveté.

This was a somewhat disconcerting conclusion – but one which hadbeen allowed by the link established in Leroux between the function of thewriting required by section 4 and the function of the acts of part perfor-mance. At one level, therefore, Maddison can no doubt be regarded as anearnest attempt to rationalize the existing law – something that HigginsJ. famously described as ‘a heroic effort to bring order to the chaos, togive system to the unsystematic’.52 In particular, no longer can certain actsof part performance be regarded as taking the place of a land contract:rather, they must now be understood merely to refer back to a land contract(and function as an alternative to the signed written instrument required bythe Statute to give an action to the contract). At another level, however,Maddison rested on a rather risky move – whereby the acts of part perfor-mance are now assumed to function as an alternative to writing (that whichimplies the presence of a valid contract) rather than as an alternative toinvalidity (implying, by contrast, the absence of a valid contract). Nodoubt, the move was dictated by the need to cope with the new, unintendedspace and time invented by Leroux, distinguishing between validity andenforceability by action. However, the move was risky in that the decision

51 8 AC 467 [1881–1885].52 Cooney v. Burn (1922) 30 CLR 216, 239.


pushed the doctrine to its limits – to the risk of self-destruction. This isbecause, on the one hand, it reduced the space and time within whichsufficient acts of part performance could now be successfully discovered.On the other hand, that very contraction of space and time had the oppositeeffect of intensifying the possibility of those acts altogether – makingthings considerably more complex. In relation to the first point, that derivesfrom the fact that now it is only after the point in space and time wherea valid contract is made that one can hope to find sufficient acts of partperformance useful to give full legal protection to an otherwise valid butunenforceable contract. As to the second point, the increase in the overallcomplexity of the doctrine derives from the fact that the discovery ofappropriate acts of part performance was now to become more heavilydependent on contract than ever before. Also, it would be now much moreproblematic than ever before to separate ordinary non-legal activity from alegally valid act of part performance.

For the time being, it was thus settled that legally significant acts ofpart performance could be successfully found only in connection with,and within the limits of, a particular, pre-existing, legally valid contract– and that such acts could be successfully referred to ad probationem.Also, because the acts of part performance should now refer to a partic-ular contract, it is now understood that there can be no part performanceof a contract whose legal validity could not be prima facie established.That was, however, the beginning of the end for the doctrine of partperformance. That is, the instability of the first half of the 19th centuryhad been employed systemically to achieve a particular structuring orderdisplacing part performance long before the 1989 Reform. Initially the“abandonment” of certain situations of everyday life had helped the newlyborn assumpsit establish itself. In that sense, the doctrine of part perfor-mance belonged to the same progressive gesture – ultimately freeingthe legal system from the fetters of ancient formalisms. By contrast,the subsequent tempering, implied by the concept of “unenforceabilityby action”, of the separation between the regular (the oral contractualpromise) and the irregular (the written land contract) marked the begin-ning of an inward-looking turn into more reflexive preoccupations – bothpermitting and permitted by an ever-expanding economic rationality. Theimmediate price for this was the dispersal of part performance into a moreand more Common-law dominated legal system – yet another instanceof Equity’s progressive “peripheralization” eventually leading to paralysisand corruption.53 The longer-term price, however, was thus to contribute

53 On paralysis and corruption, see C.K. Allen, Law in the Making (Oxford: Clarendon,1964), 403ff.; Atiyah, supra n. 24, at 392–393.


to the forth-coming, relentless obliteration of the individual from law’simmediate preoccupations, as well as to foster “operational justice” –whereby adjudication proceeds concentrically from due process ratherthan hierarchically, or “penetratively”, by way of enlightened dispensa-tion.54 The doctrine’s displacement is well illustrated by the misfortunesof Steadman v. Steadman.55 In it, the House of Lords unsuccessfullyattempted to modernize the organising principles of part performance –in order to maintain or restore the progressive mode out of which thatdoctrine had been born and in which the legal system was still largelyembedded.56

ABANDONMENT

6. The paradox of reflexivity. So, by the 20th century, part performancehad become a progressive institution within a not so progressive, indeedincreasingly reflexive legal system. The level of internal complexityreached on the matter of part performance was expressly acknowledged inSteadman – where it was fully acknowledged that the first clear indicationof such complexity could be found in Maddison.57 However, that distantdecision was regarded as ‘now so embedded in the law’ as to discourageany attempt to depart from it even if one felt it to be ‘wrong’ – as ‘it wouldbe impracticable to foresee all the consequences of tampering with it’.58

The paradox, then, was that while a reform of the doctrine was no doubtneeded, the system’s now increasingly reflexive nature was such that areform was in fact a near-impossibility.

Thus, the effort in Steadman to reform thoroughly the doctrine of partperformance ended in failure. On the other hand, by 1989 the need toreform the concept of contract unenforceability by action had, too, becomesomewhat irresistible – considering, in particular, the risk of “lack of mutu-ality” between the parties concerned.59 The law that had emerged fromthe concept that unwritten land contracts are unenforceable by action,had come to be regarded as ‘indefensibly confusing’ – as the illogical

54 Several erudite references to this can be found in W.T. Murphy, The Oldest SocialScience? (Oxford: Clarendon, 1997).

55 [1974] 2 All ER 977; [1976] AC 536; 29 P & CR 46, HL.56 Supra n. 33.57 Lord Reid (982). Lord Morris (985).58 Steadman v. Steadman, [1974], 982.59 ‘The operation of the requirement is often lopsided and partial. In a contract between

A and B, if A has signed a sufficient memorandum but B has not, B can enforce the contractwhereas A cannot’ – Working Paper no 92, Part III, s 3.2(5).


outcome of decisions such as Morris v. Baron,60 or Tiverton Estates Ltd. v.Wearwell Ltd.61 seemed to confirm. So, for example, in Morris a contractwhich complied with the required formalities was superseded by a secondcontract which did not so comply. It was held that neither contract couldbe enforced – the first, because it was validly rescinded by the second;the second, because, owing to its purely oral character, no action could bebrought on it. ‘This was a result which the parties could not possibly haveintended’.62

The concept of contract unenforceability by action was, of course, inline with the necessities of an “ultra-liberal” state and, so, with an “ultra-private” private law. A state that wishes to interfere as little as possiblewith the economic sphere is prone to regard a contractual promise as an“asset”, whose economic exploitation should be legally protected “as muchas possible” – starting, that is, from a minimum level of initial formalities(e.g., the simple “shaking of the hand” and the utterance of the words “thedeal is on” etc.) but, at the same time, irrespectively of the availability ofany subsequent legal action. However, things had become quite differentduring the 20th century.63 Fresh legislation was needed – and unenforce-ability came to be replaced by strict voidness. The advantages seemed tobe of internal consistency. Yet, a closer look reveals how, in the absence ofthe concept of mere unenforceability by action, strict voidness recursivelymeans nothing else than generic invalidity – just what it used to mean upto the beginning of the 19th century.

What the above principally shows, then, is a significant case where theshift to reflexivity has made legal change more dependent on the environ-ment – and so more complex and less effective – than ever before. To putit differently, the 1989 Reform seems to have spelt out what had, in fact,long become unavoidable because of the supposedly simplifying effect ofLeroux. That, in turn, suggests limited effectiveness and higher complexity.On the one hand, only reflexive, internal, inward-looking, very limitedchange can now obtain. So, here, the 1989 Reform attempts to replacepart performance with estoppel (already present in the system and similarto part performance) and not, say, with good faith – which, instead, wouldneed to be “systematised” before being allowed to operate.64 On the other

60 [1918] A C 1.61 [1975] Ch 146 CA.62 Supra n. 50 at 6–7.63 A. Offer, Property and Politics 1870–1914 (Cambridge: Cambridge University Press,

1981); A. Pottage, “The Originality of Registration”, Oxford Journal of Legal Studies, 15(1995), 371ff; J. Stuart Anderson, Lawyers and the Making of English Law (1832–1940)(Oxford: Clarendon, 1992), 161ff.

64 G. Teubner, “Legal Irritants”, Modern Law Review 61(1) (1998), 11–32.


hand, fresh case law separating “section 2 contracts” from other contiguouscontracts is now needed. This adjustment is likely to take some time – butsigns of it happening can already be detected concerning agreements togrant an option relating to land; or collateral contracts; or “supplementalagreements”; and so on. Secondly, no less problematic appears to be thematter of the consequences of lack of compliance with section 2 formal-ities – in particular, whether the contract should be void as in non-existing.This is, again, the paradox of which the 1989 Reform seems to constitutesome evidence. So, then, now the worrying question becomes how open thefuture of the legal system can be – when legal change is either impossibleor, at least, a severely limited possibility.

After the 1989 Reform, assessment of the validity of land transactionsdepends on a heterogeneous set of references ranging from the notion ofinvalidity as non-existence to that of rectification, promissory estoppel,proprietary estoppel, collateral contracts, tort, restitution etc. Far fromsimplifying the law, this adds to its complexity. It becomes thus all themore urgent to see what is really hidden behind the “voidness” by lawof a contractual promise. The problem goes beyond whatever textual orcontextual interpretations one might offer of any given legal rule (thoughsuch interpretations are useful and, to a degree, have precedence). Instead,we must ask a different question: What does the law do with thosepromises that it considers to be “void” promises?

7. Abandonment. The above suggests at least three important points. First,legislative change, in a more reflexive legal system, seems to be moreconstrained than ever before. In this respect, traditionality (for example)seems to be somewhat besides the point. Indeed, the problem today seemsto be not so much whether the ‘post-Enlightenment’ opposition of traditionand change was ever true – rather, what is the quality of change withincontemporary legal traditions.65 This, incidentally, might also account forthe disappointment surrounding the Reform. So, for example, the Act hasbeen described to embody a ‘much maligned reform’66 and to amountto some ‘self-contradictory half measures which leave a lot to chance’.67

Others have spoken of dangerous ‘pitfalls’ for the conveyancer68 or, more

65 But see M. Krygier, “Law as Tradition”, in Law and Philosophy 5 (1986), 237–262.66 R.J. Smith, “Contracts for the Sale of Land”, Law Quarterly Review 108 (1992), 217–

221.67 L. Bently, P. Coughlan, “Informal Dealings with Land after Section 2”, Legal Studies

10 (1990), 325–343.68 C.J. Davis, N.P. Gravells, A.M. Prichard, “New Conveyancing Pitfalls”, New Law

Journal (Jan 26, 1990), 105–108.


generally, raised doubts as to one or another aspect of the Reform.69

And someone has even suggested to refer to the 1989 legislation by theshorthand expression “Miscellaneous Problems Act” 1989.70 The LawCommissioners, it is true, examined the possibility of alternatives – but,eventually, insisted on the requirement of mandatory written formalitiesrather than exploring the possibilities of a reformed formality. Clearly, areformed formality would have made a more imaginative option – in thatit could have included far more than, simply, orality or else the traditionalsigned written instrument.

The second point is that the 1989 Reform appears thus to embody amove by the legal system to deal with entropy more than to offer a freshalternative to the status quo ante.71 In that way, legislation seems to serve asomewhat different purpose in a common law jurisdiction from that whichseems to be generally (albeit not always) the purpose of legislation in acivil law jurisdiction. It might be useful to add that the specific reason whythe 1989 Reform seems to be, in this respect, especially relevant is that theLaw Commission explicitly set out to tackle the matter of formalities forland contracts, with a view to going beyond the simple repeal of currentregulation.72 The desirability of ‘slight amendments’ was rejected too.73

So the initial, if unachieved task was really to produce a radical reform –rather than to offer some sort of temporary relief.

Thirdly, and finally, the Reform appears to be one significant placewhere the workings of the modern Western legislative process becomemost troubling – one significant place where the reflexive impasse oftenreached by the legal system best reveals its “price”. The rest of the paperfocuses on this third point.

In terms of “black-letter” law, the Reform concerned the technicalmatter of contract unenforceability by action and the related, equallytechnical matter of the doctrine of part performance. The Reform, inother words, dealt with the consequences of the lack of the formalitiesrequired by law for land contracts. Indeed, many would probably beperfectly satisfied that the LPA 1989 was about nothing more than amerely technical point – and a minor point, at that. To others, the callfor some stricter formal requirements will no doubt appear simply toconstitute a (not necessarily very significant) belated instance of that

69 J. Howell, G. Hill, “Law of Property (Miscellaneous Provisions) Act 1989”, LawQuarterly Review 106 (1990), 396–402.

70 J.B. Simmonds, “Lenders”, Solicitors Journal 134 (1990), 273–275.71 Supra n. 5.72 Law Com 164, Part II.73 Law Com 164, Part III, 3–2 to 3–5.


broader, “anti-consensualist” movement which reflects, at least in part, theneeds of a post 18th–19th century, more and more interventionist welfarestate. In fact, nothing in this paper is meant to deny any of that. Instead, theeffort is to show how the Reform seems to expose something deeper thanwhat interpretations based on “text” or on “context” alone may warrant.Once again, this is about the relationship between law and everyday life.In short, there seems to be emerging, in the particular instance of theLPA 1989, law’s recursive abandonment of certain interpellations fromthe environment – but we will see shortly what must be here understoodby “abandonment”.74 Meanwhile, the point is that such seems to be thenecessary “price” for a more reflexive legal system – and that, on the otherhand, this price seems higher than that exacted by a more progressive legalsystem in the past. If progress seems now to have turned into reflexivity,that is, the broader (or inner) figure for the new predicament continuesto be that of the ineluctable abandonment of everyday life by the legalsystem – then such abandonment seems today to be sharper than everbefore. At the end of part performance (when for a moment the promise ofthat doctrine is fulfilled, its possibilities realized, and its limits apparent),in that suspended moment between one end and a new beginning, betweenone struggle and the next, the abandonment by the English legal systemof the possibilities of the “unwritten” suddenly reveals itself while, at thesame time, dramatically reaffirming the centrality of (real) property inthe U.K. as the ultimate ideogram and refuge for individual rights andliberties. But what is really behind the continued abandonment of thepossibilities of the “unwritten” throughout the history of English privatelaw – from assumpsit to this day? What is it, hidden behind a seemingly“technical” legal rule (behind its text as well as its context) which,however, somehow appears to refuse to see those many other “truths” ofeveryday life – like trust, creativity, loyalty, imagination, etc. – that wouldotherwise seem fully to merit recognition from the legal system?

8. The promise “miserable”. Law, of course, is an especially sensi-tive representation of Western thought. Because law re-presents Westernthought, to think law can, in fact, be taken to be one way of thinkingthought itself. Here, to think the abandonment of or to law of certainaspects of everyday life (trust, creativity, loyalty, imagination, etc.)becomes, therefore, one way of thinking thought – of thinking law –as abandonment. In which way thought, through law (but also throughgiven aesthetic forms, certain language, or certain institutions like prisons,

74 Supra n. 5, 282ff.


schools or hospitals), “abandons” certain aspects of everyday life thatwould otherwise seem fully to deserve protection from the law?

To be sure, the continued abandonment of all promises related to landand not inscribed in a signed written document is a cause of embarrass-ment for the legal system – much as it simultaneously represents oneimportant condition to avoid entropy and ensure survival. This explainsperhaps how the 1989 Reform could rather interestingly introduce thesanction of absolute nullity for oral land contracts while, at the sametime, “abolishing” part performance and endorsing estoppel (’One prin-cipal justification for perpetuating formalities for contracts dealing withland is the need for certainty’75) – for ‘there are clearly circumstances inwhich injustice could be caused through the inability to plead part perfor-mance’.76 Such a patently illogical outcome, in other words, is somewhatexplicable and even to be expected – quite apart, that is, from whether oneagrees that ‘the life of law’, as O.W. Holmes most famously put it, ‘has notbeen logic: it has been experience’.77 Abandonment, on the other hand,could not be here satisfactorily explained in terms of non-existence, or interms of some sort of (rejected) local “transplant”,78 or as an evolutionarydynamic unleashing “irritant” with which the legal system must deal.79

What seems to escape the proponents of such views is that, in each of thecases envisioned by them, the focus recursively lies either within or outsidethe legal system – and so it does little to let the legal system come to itsrules. More intimately than either of such views, the continued abandon-ment of the “unwritten” (whereby “unwritten” means, here, any way torepresent commitment beside the traditional signed document required bysection 4 of the Statute of Frauds or by section 2 of LPA 1989) envisageswhat is possibly one of the innermost deeds of law. Within the realm ofprivate law, such deed is best seen – in fact, hidden – into the void contract(though not, of course, only there). In the void land contract and by appro-priating the end of part performance, the (English) legal system repeats anun-avoid-able move that elsewhere, too, constitutes the generative act oflaw as well as the redemptive announcement of a struggle to come. Thatis, the abandonment by law of the richness of everyday life turns chaos intoorder – but, eventually, it brings order to justice. In the matter, in partic-

75 Law Com 164, section 2.7.76 Law Com 164, section 5.4 (italics are mine).77 O.W. Holmes, Common Law (New York: Dover, 1991), 1.78 Watson’s celebrated concept first developed in A. Watson, Legal Transplants (Edin-

burgh: Scottish Academic Press, 1974; 2nd edn., Athens: University of Georgia Press,1993).

79 Supra n. 64.


ular, of land contracts, what the void contract does by an act of imperiumis to hide away those understandings, utterances and dealings that mightbe meaningful to the parties concerned but would be out-of-order, ab-normal and therefore an intolerable provocation for the legal system torecognize. At the same time, the void contract helps the “normal”, signedwritten contract gain in visibility whilst, correspondingly, embodying orreaffirming the relevant discourse of law. What does such discourse tell us?It tells us that land, and land related promises, are of great importance –and that everyone should know this. Such promises must be more seriouslyintended than others, and so they should be written and signed in a certainway. When it comes to land, law’s discourse assures us, such things as, forexample, trust, creativity, loyalty, or imagination – all that must be equal to“madness” (either the madness of people or the madness of things). Time,then, should be given to life – so as to allow people to become reasonableand things to get back in control according to the “real” value of land.Surely, this (legal) time must be the linear measure of people and thingswhich can be found between the promise and the signature – a time, thatis, for judiciousness and discipline and self-restraint.

But what is it meant, here, by abandonment? Heiddeger did notunderstand abandonment (being abandoned) in terms of separation ordismissal – the separation or dismissal of being (das Seinde) by Being(Sein). Instead, Heidegger understood abandonment as (Being’s) being-abandoned-and-restored-to-itself.

Thus this is shown: that Being should abandon being means: Being hides itself in being’sbeing-manifest. So Being itself becomes essentially determined by such withdrawing-in-hiding.80

Abandonment, in other words, is the temporary disappearance of theSein and correspondent emergence of das Seinde – abandoned and restoredto itself. This simple, fundamental figure in Heidegger’s work allows us tobegin to think law’s abandonment – here, the abandonment inscribed in thevoidness of certain contractual promises – in a radically new way. Promisesare about being bound. If, therefore, the Being of every being-promisingis a bound-Being, the abandonment of certain unwritten promises (andwhat they represent) means, firstly, the law-enforced withdrawing-in-hiding of our bound-Being behind our being-bound-not-in-writing. Ourbeing-bound-not-in-writing becomes manifest, it comes forth, it emerges– abandoned and restored to itself. This helps us clarify what it is that lawasks us to do when it tells us that certain promises are void – when, that is,

80 M. Heiddeger, “Beiträge zur Philosophie”, in M. Heiddeger, ed., Gesamtausgabe(Frankfurt am Main, 1989), 65, 115. Translation is mine.


it indicates that certain promises are void promises. In particular, law asksus temporarily to forget our feelings, our commitments, our promises, ourbound-Being. In a Heideggerian way, law asks us temporarily to abandonourselves to the “unwrittenness” of that particular promise – forsaking,for a moment, its binding character as a promise. Law, in fact, asks us toabandon ourselves to our being-bound-not-in-writing. Law, for example,asks us temporarily to forget that even land-related promises are first of allpromises and, therefore, binding acts. This is perhaps the long-forgottensense of the “void” (unwritten) promise. The void promise is one in whichthe being-binding of a particular promise disappears underneath its unwrit-tenness. This is, therefore, not about the parting, division or severance ofwhat is inside and what is outside the legal system. This is not about theseparation between protected and unprotected promises – as if there couldbe no place in society for certain promises (and what they represent). Noris this about, as it often has been said, non-existing promises. The promiseexists but is left aside or pushed into the shadow, as are trust, creativity,loyalty, imagination, etc. – neither inside nor outside the legal system.

In a void contract, the law normally refuses to take notice of certainaspects of everyday life. The point is, however, that by asking normally toabandon certain promises, to abandon ourselves to their being unwritten(temporarily to disregard their binding character) – law ends up not onlyabandoning (making us abandon) those promises but, also, forgetting(making us forget) the abandonment of those promises. That is, law makesus forget – subtly – not so much that promises are promises, but rather, thatpromises (certain promises) are binding. On the other hand, such beingabandoned is not what constitutes the essence of the abandoned promise.Rather, the abandonment represents what one could call the promise’s“condition miserable”.81 There is the abandonment of everyday life for lifein the palace or, to put it in another way, the abandonment of memory forthe written record. One can perhaps now better understand the innermostsense of the old ‘ex nudo pacto non oritur actio’ – as well as gauge anindication of some of the legal system’s hidden and most enduring values.When it comes to matters of importance (land), promises must follow(and be able to follow) the relevant ceremonies of law. The nakedness ofthe promise is repulsive to the palace and makes it forget not so muchthat that is a promise (after all, it is still, ambiguously, re-presented as avoid contract), but that that is a binding promise. It is the utter poverty ofthe “nudum pactum”, the condition that explains law’s abandonment and,eventually, law’s oblivion.

81 J.L. Nancy, L’imperatif categorique (Paris: Flammarion, 1983), 144.


In a void contract, law conceals and forgets. It is not occasional, excep-tional of the law to do so (exceptions have nothing exceptional for thelaw). Rather, here there is law’s original act – law’s abandonment and law’sresulting in-dif-ference about everyday life. Here the act is original in thevery sense that it is hence that law is originated (instituted). It is only uponthe abandonment of certain alternative ways in which everyday life is orga-nized (upon the abandonment, say, of trust, creativity, loyalty, imaginationetc.) that law can become law. On the other hand, the act is original also inthat life is never abandoned in a void. Everyday life is never left outside thecitadel of law. On the contrary, everyday life constitutes the foundations oflaw – inseparably, the very dungeons on which the courtrooms and thecorridors of law are built to shine. According to J. L. Nancy:

Abandonner, c’est remettre, confier ou livrer à un tel pouvoir souverain, et remettre, confierou livrer à son ban, c’est-à-dire à sa proclamation, à sa convocation et à sa sentence. Onabandonne toujours à une loi. Le dénuement de l’être abandonné se mesure aux rigueurssans limites de la loi à laquelle il se trouve exposé. L’abandon ne constitute pas une citationà comparaître sous tel ou tel chef de la loi. C’est une contrainte à paraître absolutement sousla loi, sous la loi comme telle et en totalité . . . L’abandon respecte la loi, il ne peut faireautrement.82

So, “abandonment” means to return completely to law – to law as awhole. Abandonment, that is, ‘respects the law, it can do nothing else’.“Abandonment” means to be absolutely before the law as well as subjectto it. It means to be taken within and, at the same time, to be left without.Or, from an external perspective, “abandonment” is the dark ink withwhich the enlightened page of legal taxonomy and discipline is inscribed.It is with such ink that the architecture of law is beautifully sketched outbefore law’s palaces, piazze, schools, temples, tribunals and prisons – canrise to be admired and then to be feared. It will be useful to repeat that,historically, there always are “technical” reasons for such abandonment.Section 4 of the Statute of Frauds, for example, aimed to protect theinnocent defendant (those who had made no promise) and, also, to fosterconsensualism by establishing, precisely, the norm for land contracts. Onthe other hand, the generic invalidity by the Statute is, today, replacedby the radical voidness of LPA 1989. LPA 1989 aimed to solve a “tech-nical” problem (the notion of “unenforceability by action” had become‘indefensibly confusing’). Once more, though, the decision was to abandonunwritten land contracts – that is, to reject and then to forget the bindingcharacter of those contracts and what they represent. The voidness admin-istered by law is absolute. The abandonment is absolute – and nothing less

82 Supra n. 81, at 149–150.


than this abandonment is at stake when private law understands certaincontracts as void contracts.

In English law it has been often questioned whether, in the case of land-related contracts, compliance with mandatory written formalities shouldbe regarded as a condition of existence rather than one of validity –such a proposition being problematic not only in terms of formal legalrationality but also in terms of its own apparent counterfactuality whencompared with analogous propositions drawn from daily life. Yet, thepuzzlement could never and can never be fully dispelled until one under-stands what, precisely, the recursive transformation of the unenforceableunwritten contract into a void contract allows suddenly, if briefly, tocapture. That is, how the Foucauldian ‘figure sans mouvement’83 separat-ing the facts of life that are to be relevant for the legal system from thosethat are not, can be taken to be generally coextensive with what one couldcall a sort of systemic “limen” (threshold, border, “soglia”). Voidness(the void contract) is “limen” in that this is a space of “inclusive exclu-sion” of everyday life by the legal system. As such, the void contract isneither inside nor outside the legal system. The oxymoron, that is, reflectshow trust, creativity, loyalty, imagination, and other implicit and explicitbinding understandings concerning one’s own or some other person’svital space (the place where one lives or works) have to be inscribed inpaper or remain unprotected by the legal system. In a void contract, thelegal system implicates trust, creativity, loyalty, imagination etc., and yetit then withdraws from them, abandons them, thus generating a “void”between everyday life and the legal system. Any decision over the factsof everyday life so captured and then rejected becomes, therefore, oneover an “exception” in the etymological sense of the word – more gener-ally, a Schmittian act of sovereignty or government on which the system’slegitimacy inescapably depends.84 According to G. Agamben:

The decision [over the exception] concerns neither a quaestio iuris nor a quaestio facti,but rather the very relation between law and fact . . . Life, which is thus obliged, can inthe last instance be implicated in the sphere of law only through the presupposition ofits inclusive exclusion, only in an exceptio. There is a limit-figure of life, a threshold inwhich life is both inside and outside the juridical order, and this threshold is the placeof sovereignty . . . Law is made of nothing but what it manages to capture inside itselfthrough the inclusive exclusion of the exceptio: it nourishes itself on this exception andis a dead letter without it . . . The sovereign decision traces and from time to time renewsthis threshold of indistinction between outside and inside, exclusion and inclusion, nomos

83 Preface, in M. Foucault, Folie et Deraison. Histoire de la folie a l’âge classique (Paris:Plon, 1961), i–xi.

84 C. Schmitt, Politische Theologie, Vier Kapitel zue Lehre von der Souveränität(Munchen-Leipzig, 1922). See G. Agamben, Homo Sacer (Stamford: California), ch.1.


and physis, in which life is originally excepted in law. Its decision is the position of anundecidable.85

Void land contracts thus hide a decision on the exception. At the endof part performance, decided by the 1989 Reform, this becomes all tooclear. Even the cases so far protected by the doctrine are now abandonedto themselves (‘to law’s rigour’). There is here a particularly clear decisionof “inclusive exclusion” from the protection of the law of a wide range of“normally” meaningful binding utterances, behaviours and understandingswhich, in this case, are not afterwards written and signed by the parties.The need to track down the citizen upon her identification via an up-to-datemapping of her links with easy-to-locate land-related property – the need tokeep under control and to tax such a citizen – can explain only in part whatseems to be, more precisely, a problematic exercise of sovereignty, themore one understands how such an exercise is fundamentally exclusive.Law’s objective is, of course, precisely this. On the one hand, law mustwarrant the legitimacy of government by fostering social harmony andensuring a satisfactory organization of society. On the other hand, law mustsecure the survival of the majority.86 Nevertheless, what is interesting hereto see is how it is a relationship of “abandonment” between legal rules andeveryday life which lies thus at the roots of sovereignty. Such abandonmentis sharper when sovereignty is still to be established – and to abandontrust, loyalty, creativity, imagination etc., is to push significant aspects ofeveryday life into a limbo, “limen”, or a “soglia d’indifferenza” that, assuch, is neither inside nor outside the legal system. Finally, this exposesone of the most troubling aspects of Western legal systems of private law– one which may indeed be decisive in the current confrontation betweenWestern democracies and the so called “Eastern values”.87

CONCLUSION

The genealogy suggested in this paper of some of the arrangements leadingup to the 1989 Reform on land contracts seems to provide an indicationof a deeper structural reorientation of the English legal system around areflexive rather than, as in the past, a more progressive mode. In partic-ular, the Reform seems to suggest how much of today’s legislation mayamount to little more than a self-referential quasi-technological exercise

85 Agamben, supra n. 84, at 26–27.86 Supra n. 2, at 28–31.87 J. Habermas, Faktizität und Geltung. Beiträge zur Diskurstheorie des Rechts und des

democratischen Rechtsstaats (Frankfurt am Main: Suhrkamp Verlag, 1992), ch. 3.


to stabilize instability by virtue of backward-looking provisions apt todefuturize future as an ‘obtruding’ mode in the temporal horizon of ourcontemporary society – whereby the past has no beginning and the futurecannot begin.88 If this is accurate, then, a first point is that it may bethat complexity and, therefore, uncertainty can no longer be dealt withas effectively as classical law set out to do. The main point, though, is thatif progress has been replaced by reflexivity, it is nonetheless the figure of“abandonment” that best appears locally to characterize the legal systemin either of such modes (progressive or reflexive). “Abandonment” is prob-ably at the heart of progress – but even more abandonment is at the heartof reflexivity. In private law, one critical locus for such abandonment isthe void land contract – through which law pushes aside and then forgets(it makes us push aside and then forget) trust, loyalty, creativity, imagin-ation and other explicit or implicit – but “unwritten” – ordering systemsthat make everyday life and that might otherwise merit protection. Thecontinued abandonment of the “unwritten” is probably a constitutive and,therefore, necessitated act of government. In this paper, however, the goalwas not so much to assess critically such an arrangement, but rather tosuspend judgement and simply attempt to uncover what seems to lie behindsome “fundamental” legal rules. One might wonder, then, whether thecurrent predicament concerning land contracts could or should be toler-ated, should the legal system prove unable to offer sufficient protection incases of hardship. It was thought by the Law Commission that protectionwould come from the combined effect of section 2 and estoppel. Yet, evenwhen section 2 and estoppel were understood to be, together, the only waythe normal exception could be successfully conceived of and dealt with, thepoint is that the “exceptional normality” of everyday life might be just toomuch for law to decide. Agamben suggests that the intimate relationshipbetween nomos e phýsis is such that, under exceptional circumstances,the rule becomes indiscernible from the exception – so that, from hisperspective, any question as to whether or not what happens does happenunder the domain of the rule of law, or that of its exception, no longermakes sense. Rather, the localisation (Ortung) of the state of exceptionturns out to be one of a hybrid of fact and law. But, then, in seekingto decide that which cannot be decided (the voidness of the contract),section 2 and estoppel might paradoxically engender a sort of systemicarea of exception whereby the exceptional suspension of the “normal” rulebecomes the rule – and those that should have been protected by the lawend up, then, suffering the very prejudice that the law had initially set out to

88 N. Luhmann, The Differentiation of Society (New York: Columbia University Press,1992), 271ff.


fight. This is, in part, what eventually happened with the Statute of Fraudsand the equitable doctrine of part performance. This, too, is what is nowlikely to happen with section 2 and estoppel. The problem appears in all itscomplexity if, for example, one attempts to decide where the “gazumped”or the “gazundered” stand in respect of the law. At a closer look, theseunfortunate situations are neither inside nor outside the law. Instead, theylie in law’s limen – they are neither a matter of law nor a matter of fact. Assuch, then, they are undecidable. This is why both the return to the voidcontract and the purported eradication of part performance together withthe endorsement of estoppel seem to constitute little more than an attempttemporarily to stabilise instability – while, on the other hand, they bothlead to, and reflect, an overall increase of systemic complexity. In the end,this seems to be the dilemma – a dilemma that the 1989 Reform could not,and did not, overcome. One is therefore left to wonder whether certainlegal categories and institutions may have to be rebuilt so as to reflectthose innumerable situations (those many situations pushed aside and thenforgotten by law) whereby the traditional distinction between fact and law,between what is inside and what is outside the legal system, between equityand law, can never perhaps be successfully separated.

Department of LawLondon School of Economics and Political ScienceHoughton StreetLondon WC2A 2AEUKE-mail: [email protected]

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When Law Stands Still: Land Contracts in English Law and Law's “Abandonment” of Everyday Life