Book reviews

William McBryde
PUBLISHER: W Green
ISBN: 0 414 01606 4
PRICE: £175

It is now 20 years since McBryde on Contract first appeared. We knew then that a great work had appeared. In measured tones, it provided a clear exposition of the principles of Scottish contract law. It appeared to bear the hallmarks of a treatise. But we were cautious about its long-term status. It is only when a work is “field tested” that its true worth can be determined.

That testing has now been carried out and McBryde has passed with flying colours. Initially, practitioners pried themselves with reluctance from their copies of Gloag. They found, however, that McBryde not only identified the modern thinking and authorities, it also provided an analysis of the underlying concepts. In other words, it was not just a set of signposts; it contained a map of the contractual terrain.

But the value of a legal text must ultimately be judged by the judges. Again the track record of McBryde is impressive. It is cited, almost always with approval, in the majority of contract cases that come before the Scottish courts. It has even penetrated other areas of the law. The discussion on waiver, for example, was cited by Lord Hope in Robertson v Higson 2006 SC (PC) 22, a case on human rights before the Judicial Committee of the Privy Council.

Law textbooks are not intended to be read sequentially. Even diligent reviewers baulk at the task. For the purposes of this review, I have decided to focus on one topic, that of construction. Disputes about what the contract means lie at the heart of contract law. Frequently, the courts state that the use of case authority is of limited assistance, because the words of each contract must be considered against the backdrop of the parties’ conduct and the context in which the contract was made.

Accordingly, the treatment of this topic demands a great deal from a contract textbook. The reader looks for guidance on the relevant principles which will inform the correct approach to the dispute which has arisen. Chapter 8 of McBryde admirably rises to the challenge. It begins with a short history of the topic and confronts the canard that construction involves ascertaining the mutual intention of the parties.

Professor McBryde then states the central principle of construction: “A contract is construed by considering the whole express terms of the contract and any admissible surrounding circumstances.” He goes on to lay out the guidelines which yield the correct result. In particular, he considers the approach developed by Lord Hoffmann in a series of cases in the House of Lords, which suggested that the whole “matrix of fact” has to be considered in each case. Professor McBryde suggests six potentially adverse consequences of that approach and concludes: “It may be better to rely on the common sense of judges who may take the view … that the words of the contract are paramount. There are some indications that this is becoming the normal Scottish approach.”

This echoes a theme in the book that Scots contract law continues to be distinctive and indeed is in rude good health. In Chapter 1, Professor McBryde illustrates that thesis by suggesting that Bank of Scotland v Dunedin Property Investment Co Ltd 1998 SC 657, rather than Lord Hoffmann’s approach, should be taken as the starting point in cases of interpretation of contracts.

Inevitably, there are some areas of the law which are found wanting, either in terms of clarity or in terms of underlying rationale. An example is the topic of interest on damages, which McBryde characterises as “not easy to understand” and “unsatisfactory” (22-120). However, in this instance the reader may reasonably doubt the author, because he himself then remedies the problem by identifying five principles which emerge from 200 years of case law (22-122).

I believe that contract provides the spine of civil and commercial law. Accordingly, in my view this is an essential work for Scots lawyers. Nor is it expensive given its size (some 800 pages) and when its price is compared with its English counterpart, Chitty on Contracts. McBryde is justifiably a modern classic.

Stephen Woolman