the integrated and integral contract scholarship of - school of law

1

THEORY AS PRACTICE AND PRACTICE AS THEORY −

THE INTEGRATED AND INTEGRAL CONTRACT SCHOLARSHIP OF

PROFESSOR MICHAEL FURMSTON

Andrew Phang†

Introduction

The Task and A Brief Overview

The task I embark on in this essay is not an easy one as I attempt to analyse –

as far as I can – the entire corpus of contract scholarship by Professor Michael Philip

Furmston. Yet, daunting as this task may be (as he is one of the foremost and most

distinguished contract scholars in the world), it is also a pleasurable one inasmuch as

this essay also constitutes a personal tribute to Professor Furmston in honour of his

eightieth birthday.1 Indeed, our lives have been enriched – and, in fact, continue to

be enriched − by his scholarship as well as (for many of us present today) our

personal encounters with him. Singapore contract law has also been influenced –

both directly as well as indirectly – by Professor Furmston (a point to which I will

return a little later).

On a more general level, it will suffice for the moment to observe that

Professor Furmston is somewhat of ‘a legal polymath’. Although I will be focusing

on his contract scholarship in this essay, he is an expert in many other areas of the

law as well. He has written books on the law of contract in both its general2 as well

as specialist forms,3 the sale of goods

4 and construction law,

5 as well as articles,

comments and essays on the law of tort.6 His writings span virtually every genre

imaginable. As if this were not sufficiently impressive, Professor Furmston also

edits an influential series of specialist law reports, the Construction Law Reports.

However, his considerable contributions are not confined only to publications but

encompass both teaching as well as the highest levels of academic administration.

Insofar as the former is concerned, he was ranked as one of the top ten law teachers

† Judge of Appeal, Supreme Court of Singapore. I would like to express my gratitude to Mr Koo Zhi

Xuan, Senior Justices’ Law Clerk, Supreme Court of Singapore and Mr Goh Yihan of the Faculty of

Law, National University of Singapore for their helpful comments and suggestions. However, all

errors remain my own. Further, all views expressed in this essay are personal only and do not reflect

in any way the views of the Supreme Court of Singapore.

1 On 1 May 2013.

2 The principal work, discussed below, is the world-renowned Cheshire, Fifoot and Furmston’s Law

of Contract (presently in its sixteenth edition). He is also General Editor and Contributor to the

contract volume in the Butterworths Common Law Series, entitled The Law of Contract (presently in

its fourth edition). 3 See below, nn 84, 86 and 94.

4 See below, n 95. Reference may also be made to M P Furmston, ‘Romalpa clause now invalid even

against buyer’s unused stock’ [1984] Construction Industry Law Letter 98. 5 See below, n 97.

6 See eg below, n 107.

2

in the world in The Times of London,7 whilst, insofar as the latter is concerned, he

was Dean of the Faculty of Law at the University of Bristol8 as well as Pro-Vice

Chancellor,9 also at the University of Bristol. Somewhat further afield, he was also

appointed the founding Dean of the School of Law at the Singapore Management

University only some six years ago and has only recently stepped down from that

appointment.

The main title of this essay attempts to capture the true essence not only of

Professor Furmston’s contract scholarship (which is an integral part of any course on

contract law) but also the model of the ideal legal scholar to which budding faculty

members of law schools ought to aspire. In particular, at least some legal

scholarship in general and contract law scholarship in particular has, in my

respectful view, taken a turn for the worse insofar as they focus not only in a

proverbial ‘sliced salami’ fashion on the intricacies of an esoteric part of a topic or

even sub-topic (or sub-sub-topic) of the law of contract but also engage in the most

abstract and abstruse of academic discourse. This can (save as regards inherently

theoretical subjects such as jurisprudence) result in the undesirable divorce of legal

scholarship from its practical application.10

An ideal piece of legal scholarship

would be comprehensive as well as comprehensible but, most importantly, would

embody the potential at least for practical application. After all, this is what the

courts and lawyers are concerned with. And this would apply equally to law

students, only a tiny fraction of whom would enter legal academia, the majority

becoming practising lawyers or being engaged in work in the private or public

sectors. This is not to state that innovative as well as thought-provoking scholarship

is unimportant. That would be to throw the baby out with the bathwater. But I trust

that many of you would agree with me that the integration of theory and practice in

legal scholarship is probably the hardest task in legal academia. It is, however, the

ideal to which, in my view, all legal scholars should strive and (hopefully) achieve

in differing degrees. Professor Furmston, in my view, has achieved this ideal and is

therefore the ideal role model for the budding legal academic. I will attempt to

demonstrate during the course of this essay the manner in which Professor Furmston

has achieved this ideal. However, before doing that, I hope that you do not mind me

taking the liberty to speak briefly on how I first met Professor Furmston – if nothing

else, because it might also reveal any conscious (or, more importantly,

subconscious) bias on my part (although I hope that this will not be perceived to be

the case).

Two ‘Meetings’

On a more personal level, I should begin by saying that I had two quite

distinct ‘meetings’ with Professor Furmston. The first was in print form. I later had

the privilege of meeting (and then collaborating with) him in person some years

later. Let me begin by saying something about my first ‘meeting’ with him.

7 See The Times, 16 October 2007.

8 For two stints, from 1982 to 1984, and again from 1995 to 1998.

9 From 1986 to 1989.

10 And see, in the US context, Neil Duxbury, Jurists and Judges – An Essay on Influence (Hart

Publishing, 2001), pp 42–46.

3

When I first embarked on the study of contract law as a student

approximately three decades and a half ago, there were – in the Singapore context –

really only two contract textbooks which were utilised by students. The first was

Cheshire and Fifoot’s Law of Contract11

and the second was Anson’s Law of

Contract.12

There was a third, Treitel’s Law of Contract.13

However, this last-

mentioned work was perceived (by the students at least) to deal with too many

specialised points and was therefore to be referred to – if at all – after reading one or

both of the first two textbooks just mentioned. Even this last-mentioned work has

since evolved over the ensuing decades, but that is another story for another time.

There were other contract texts, of course. However, it was well-known that Chitty

on Contracts14

was – and continues to be – a practitioner’s text. There was also

Professor P S Atiyah’s An Introduction to the Law of Contract,15

but the title of this

book was (in my view at least) a misnomer. It was – then at least – more similar to

Trietel’s Law of Contract, albeit in a much more compressed format.

It seemed quite clear to many of us that if we wanted to read a text which

would not only furnish us with an understanding of the basic principles of the

common law of contract but also with the critical analysis that would prompt us to

reflect further (or, if adapted personally, would at least make it appear as if we had

reflected further on the relevant principles), then the text to read would be Cheshire

and Fifoot’s Law of Contract. As you might have guessed, that was indeed my

personal choice. The book I studied from was then in its ninth edition (I also recall

the distinctive purple cover, which was quite different from the staid light blue cover

of the previous (eighth) edition, published in 1972). It is hard to believe that the

book is now in its (very recently published) sixteenth edition, but, then again, many

decades have flowed by since my first encounter with the book. Most of you will, of

course, be familiar with the fact that the book was first published in 1945.

Professor Furmston commenced his involvement with this work with the sixth

edition to which I will refer (published in 1964). So this year also marks the forty-

ninth year in which he has been involved in this work. Extremely few legal scholars

can lay claim to such longevity, for this is not only more than a literal generation but

is also the average working life of an adult nowadays. Even more remarkably,

Professor Furmston continues to be very active not only in teaching (in more than

one university) but also in research. Indeed, he was, as mentioned above, founding

Dean of the Law School of the Singapore Management University (incidentally,

only the second law school in Singapore’s history), stepping down only recently.

He continues to teach and research as Professor of Law at the Singapore

Management University.

What, then, of my second ‘meeting’? As providence would have it,

Professor Furmston visited the Faculty of Law at the National University of

Singapore (where I was then teaching) in 1986. Not surprisingly, he delivered

lectures on the law of contract. I think that this particular visit was indeed

providential because, as I shall recount below, I was later to embark on a Singapore

11

Then in its ninth edition, and now in its sixteenth edition. 12

Then in its twenty-fourth edition, and now in its twenty-ninth edition. 13

Then in its fourth edition, and now in its thirteenth edition. 14

Then in its twenty-fourth edition, and now in its thirty-first edition. 15

Then in its second edition, and now in its sixth edition (updated by Professor Stephen A Smith,

since this latest edition).

4

and Malaysian edition of Cheshire, Fifoot and Furmston’s Law of Contract. This is

an appropriate juncture, in my view, to turn to a short biography of

Professor Furmston himself before proceeding to analyse his legal scholarship in the

law of contract.

A Short Biography

Professor Michael Philip Furmston was born on 1 May 1933. Educated at

Wellington School, Somerset, he proceeded to read law at Exeter College at the

University of Oxford, where he rendered a stellar performance, taking a first both in

his undergraduate law degree as well as in the BCL in 1956 and 1957, respectively.

Indeed, that particular cohort of BCL graduates represents a banner year for that

particular programme and is talked about till this day. This is not surprising as that

year included Lord Hoffmann,16

Professor F M B Reynolds and, of course,

Professor Furmston. First class honours in the BCL were then very rare but that

year had so many excellent candidates that an unprecedented number of firsts were

awarded – inter alia, to the persons just mentioned.

Professor Furmston commenced his academic career as a Lecturer in English

law at the University of Birmingham shortly after graduating from the BCL

programme in 1957, where he taught until 1962, when he joined Queens University,

Belfast, as a lecturer. In 1964, he joined Lincoln College, Oxford University as a

Fellow and was appointed University Lecturer in Law in 1965. He remained at the

University of Oxford till 1978, when he joined the University of Bristol as a

Professor of Law. He also held numerous visiting professorships at universities in,

inter alia, Belgium and Singapore. He retired in 1998 and was appointed Emeritus

Professor of Law and Senior Research Fellow at the University of Bristol. However

(and after a relatively short break), this, paradoxically, marked the beginning of an

equally (if not more) vibrant and busy schedule – but this time beyond the shores of

the United Kingdom. He was appointed the founding Dean as well as Professor of

Law of the School of Law at the Singapore Management University in 2007,

stepping down in 2012, and where he continues to research and teach as Professor of

Law. Professor Furmston was also McWilliam Visiting Professor in Commercial

Law at the University of Sydney and Senior Fellow at the University of Melbourne

Law School during this period.

Before I conclude this part of the essay, I would like to observe that

Professor Furmston’s prose and style makes for easy reading. In particular, he is

able to convey difficult concepts and/or arguments simply, albeit not simplistically.

This is not common in legal scholarship generally. More than that, his awareness of

the extralegal context also brings to bear a practical relevance that is at once both

instructive as it is refreshing. On occasion at least, his work also reveals his

interests outside the law as well. For example, it is well-known (at least amongst

some of us) that Professor Furmston follows the sport of association football quite

closely.17

One of his earlier pieces on a case involving the restraint of trade doctrine

in general and the footballer George Eastham in particular is of special interest in

16

Who was the Vinerian Scholar for that particular year. 17

He is an avid fan of Manchester United Football Club.

5

this regard. This was a perceptive comment18

on the decision of Wilberforce J (as

he then was) in the English High Court decision of Eastham v Newcastle United

Football Club, Ltd,19

in which the learned judge (soon to be elevated directly to the

House of Lords) held that the retain and transfer systems then in existence were in

unreasonable restraint of trade. Of interest are the first two paragraphs of the piece

itself. The very first sentence refers to the then forthcoming World Cup competition

which was to be hosted by England in a few years time (in 1966). The paragraph

itself is cautiously optimistic and, as it turned out, England did in fact win the World

Cup for the first (and, to date, only) time after a tough match against West Germany

(after extra time) in the final. It was also the first (and, to date, only) time that a

player (Sir Geoff Hurst) had scored a hat-trick in a World Cup Final20

although one

of the goals is still shrouded in controversy to this day as it was unclear whether

after striking the crossbar, the ball had in fact wholly crossed the line. The next

paragraph is a succinct description of the context in which the case concerned was

decided and is (if I may say so) an eminently clear description of how the English

Football League operated during that particular point in time. By way of a

denouement of sorts, as a result of Wilberforce J’s decision, George Eastham’s

transfer from Newcastle United Football Club to Arsenal Football Club proceeded

accordingly and changes were subsequently made to the transfer system. Eastham

himself was to also flourish in his international career and in fact was part of

England’s World Cup winning squad in 1966 although (unfortunately) he did not

have the opportunity to actually play. As a result, he did not receive a winner’s

medal under the rules at the time although he did belatedly receive, some thirty-three

years later, a winner’s medal as a result of a change of policy on the part of the

International Federation of Association Football (more popularly known as ‘FIFA’)

who decided to retrospectively award medals to all squad members in all the World

Cup competitions.21

I hope that the reader will forgive this little excursus into the

sphere of football as this is one of Professor Furmston’s interests (which,

incidentally, I happen to share as well). I should add that, insofar as the topic of

sports is concerned, Professor Furmston is an even more avid follower of cricket

but, unfortunately (and quite apart from my relative ignorance of the sport itself), I

could find no suitable case on which to base a further personal narrative.

On Theory and Practice

18

See M P Furmston, ‘Retain and Transfer System Offside’ (1964) 27 MLR 210. 19

[1963] 3 WLR 574. 20

There is one player, though, who had scored in every round of the World Cup (including the final),

viz, the great Brazilian winger, Jairzinho. This occurred in the next World Cup Finals held in Mexico

in 1970. 21

Shortly after the 1966 World Cup, Eastham was transferred to Stoke City Football Club, his final

club before retirement from playing in the English Football League, and with whom he won a League

Cup winners medal, scoring the winning goal in the 1972 Final against Chelsea Football Club. He

was – and remains – the oldest player to score as well as receive a winner’s medal in this particular

competition.

6

The Books

Introduction

Professor Furmston has been the author as well as co-author of numerous

books which I will refer to briefly in the course of this essay. Many, as we shall see,

deal with discrete areas of (principally) contract law. However, there is one which

may be justly described as the crown jewel in this entire corpus of work – to which

our attention must now turn.

Cheshire, Fifoot and Furmston’s Law of Contract

I have already referred to Cheshire, Fifoot and Furmston’s Law of Contract.

Indeed, like myself, innumerable students and lawyers the world over (and over a

great many generations) have had their first ‘encounter’ with contract law in general

and Professor Furmston in particular through this excellent textbook. Of all his

many scholarly works, this is the most well-known and most widely read.

Professor Furmston assisted and then ultimately assumed the reins for this world-

renowned work. Indeed, it is a tribute to him that he was handpicked by

Professor G C Cheshire to assist in a seminal work which would later become his as

well. By the time the eleventh edition was published (in 1986), the title Cheshire

and Fifoot’s Law of Contract had been changed to Cheshire, Fifoot and Furmston’s

Law of Contract.

Interestingly, the various Prefaces to this book tell, collectively (and,

unusually, as far as prefaces go), an extremely interesting – and I might add, very

personal as well as heart-warming – story. Before I elaborate, it might be

appropriate to begin – as they say – at the beginning. The first edition of

G C Cheshire’s and C H S Fifoot’s The Law of Contract was first published in 1945.

At that particular point in time, there were only a few other major contract texts, viz,

Anson’s Law of Contract;22

Pollock on Contract;23

and Chitty on Contracts,24

respectively. It was to be closer to two decades on before Sir Guenter Treitel’s book

on contract law would be published.25

There are of course so very many excellent

contract texts at present26

but, as at 1945, the situation was quite different. As I

22

The Nineteenth Edition was published in the same year (viz, 1945), the Eighteenth Edition having

appeared as far back as 1937. 23

Then in its Eleventh Edition (published in 1942); the Twelfth Edition was to appear a year later (in

1946). 24

Then in its Nineteenth Edition (published in 1937), with the Twentieth Edition published a couple

of years later (in 1947). 25

See G H Treitel, The Law of Contract (Stevens & Sons, 1962). 26

See, with regard to texts on the English law of contract, eg, E Peel, Treitel’s Law of Contract

(13th

Ed, Sweet & Maxwell, 2011); J Beatson, A Burrows & J Cartwright, Anson’s Law of Contract

(29th

Ed, Oxford University Press, 2010); Chitty on Contracts (31st

Ed, Sweet & Maxwell, 2012) (in

two volumes); E McKendrick, Contract Law – Text, Cases, and Materials (5th

Ed, Oxford University

Press, 2012); and, by the same author, Contract Law (9th

Ed, Palgrave Macmillan, 2011); M Chen

Wishart, Contract Law (4th

Ed, Oxford University Press, 2012); J Poole, Textbook on Contract Law

(11th

Ed, Oxford University Press, 2012); N Andrews, Contract Law (Cambridge University Press,

2011); and J O’Sullivan & J Hilliard, The Law of Contract (5th

Ed, Oxford University Press, 2012).

For Australian texts, see eg J W Carter, Contract Law in Australia (6th

Ed, LexisNexis, 2012);

N C Seddon & M P Ellinghaus, Cheshire and Fifoot’s Law of Contract – Ninth Australian Edition

7

alluded to earlier in this essay, Cheshire and Fifoot’s Law of Contract (now

Cheshire, Fifoot and Furmston’s Law of Contract) brought something different to

the reader. Indeed, this was reflected in the Preface in the very first edition where

the learned authors observed thus:27

PALEY, in the preface to his one celebrated Principles of Moral and Political

Philosophy, remarks that “when a writer offers a book to the public upon a

subject on which the public are already in possession of many others, he is

bound by a kind of literary justice to inform his readers, distinctly and

specifically, what it is he professes to supply and what he expects to

improve.” If we are to obey the first of these injunctions, we must say boldly

that we profess to examine the principles underlying the English law of

Contract, to indicate the difficulties which surround their application, to

illustrate them from the accidents of litigation and the practices of life,

and, where such a course seems profitable, to justify or excuse their

vagaries by a reference to their history. To answer the second and more

invidious injunction, we hasten to disown with Paley “any propensity to

depreciate the labours of our predecessors, much less to invite a

comparison between the merits of their performances and our own”; but

we suggest that, even on so well-trodden a road, there is room for a new

guide. Anson on Contract, for example, has directed the steps, not only of

the present authors, but of generations of pupils. But the very success which

has demanded the publication of eighteen editions has in some measure

impaired its utility, and a mode of treatment, apposite sixty years ago, may

be thought out of focus with present needs. Pollock on Contract, on the

other hand, while it retains through successive editions the inimitable

imprint of its distinguished author, does not profess to be comprehensive,

and for this reason cannot be offered without support to the student.

Interestingly, the learned authors also proceed to furnish further background as to

the timeframe concerning the publication of the book itself, as follows:28

(LexisNexis Butterworths, Australia, 2008); J L R Davis, Contract: General Principles – The Laws of

Australia (2nd

Ed, Thomson Reuters, 2012); and D W Greig & J L R Davis, The Law of Contract (The

Law Book Company Limited, 1987). For New Zealand texts, see eg J Burrows, J Finn & S Todd,

Law of Contract in New Zealand – A successor to Cheshire & Fifoot’s Law of Contract Eighth New

Zealand Edition (LexisNexis NZ Limited, Wellington, 2008). For Canadian texts, see eg

S M Waddams, The Law of Contracts (6th

Ed, Canada Law Book Inc, 2010) and G H L Fridman, The

Law of Contract in Canada (6th Ed, Carswell, 2011). For Malaysian texts, see eg V Sinnadurai, Law

of Contract (4th

Ed, LexisNexis, 2011) (in two volumes); M F Cheong, Contract Law in Malaysia

(Sweet & Maxwell Asia, 2010); A M Ayus, Law of Contract in Malaysia (Sweet & Maxwell Asia,

2009) (in three volumes); and A B L Phang, Cheshire, Fifoot and Furmston’s Law of Contract –

Second Singapore and Malaysian Edition (Butterworths Asia, 1998). Finally, for Singapore, see eg

A B L Phang (Gen Ed), The Law of Contract in Singapore (Academy Publishing, 2012);

A B L Phang & Goh Yihan, Contract Law in Singapore (Wolters Kluwer Law & Business, 2012);

and Phang, above. Notice may be taken of the (literally) foundational influence of the earlier editions

of Cheshire & Fifoot’s Law of Contract in the Australian and New Zealand contexts and of Cheshire,

Fifoot and Furmston’s Law of Contract in the Malaysian and Singapore contexts. 27

See G C Cheshire & C H S Fifoot, the Law of Contract (Butterworth & Co (Publishers) Ltd, 1945),

p iii (emphasis in italics in the original text; emphasis added in bold italics). 28

See Cheshire & Fifoot, above, n 27, p iii.

8

The preparation of our book has been unduly protracted by the alarms and

excursions of the last six years. Set aside in the early stages of the war, it

was later resumed and had then to be largely rewritten. We are conscious

that it has suffered in the process and that signs of over-writing may be

apparent. Unexpected delays have aggravated the difficulty, always anxious,

of absorbing current developments in Parliament and in the Courts, in the

business world and in professional literature, and have accentuated the

feeling, ever present to authors of text-books, that they may pursue, but can

never overtake, the fleeting vision of the law. We may only hope that we

have set an established subject in a new perspective, neither disdaining older

authorities where they are valuable nor citing new cases merely because they

are novelties.

Four more editions of this work were to be published before – almost two

decades after the first edition had appeared on the scene – Professor Furmston, then

a relatively young law lecturer, was acknowledged as having contributed to it. In

particular, he is mentioned (in the Preface of the Sixth Edition) as one of ‘[t]he many

friends whose kindly interest has led them to make suggestions and to challenge

views’.29

However, Professor Furmston’s suggestions and views must have been

significant as he is one of only six specifically named in the Preface itself. He is

thanked again in the next edition (the seventh), some five years later, although, of

the six persons specifically mentioned in the previous edition, he is the only one

who is mentioned again in this edition.30

In fairness, though, it should be pointed

out that one of the persons mentioned in the previous edition, W A N Alstead, was

‘elevated’ to a special mention as having ‘directed [the authors’] faltering and

reluctant feet through the labyrinth’31

of the (then) UK Monopolies and Restrictive

Trade Practices (Inquiry and Control) Act 1948.32

However, as already alluded to above, by the time of the next (the eighth)

edition (published in 1972),33

Professor Furmston’s contributions were no longer to

be acknowledged merely in the Preface; his name now appeared on the title page of

the book itself (interestingly, W A N Alstead is still mentioned (now as the only

name) in the Preface to this particular edition (once again for his assistance in the

sphere of competition law)). This was a watershed moment of sorts and marks the

beginning of his formal academic relationship with the original authors and the book

itself which would ultimately lead to Professor Furmston taking over the reins of the

work completely by the time of the publication of the very next (the ninth) edition

(published in 1976).34

In his very first Preface, Professor Furmston gives us an

interesting history as to how he first came to be associated with the book, as

follows:35

29

See G C Cheshire & C H S Fifoot, The Law of Contract (6th

Ed, Butterworths, London, 1964), p v. 30


Ed, Butterworths, London, 1969), p v.

Interestingly, this also marks the first reference in the Preface to the Australian and New Zealand

editions of this work (as to which see also above, n 26); the learned authors stated (at p vi) thus: ‘We

wish especially to thank the editors of the Australian and New Zealand editions of our book who have

taught us so much.’ 31

See Cheshire & Fifoot, above, n 27, p v. 32

Chapter 66. 33


Ed, Butterworths, London, 1972). 34

See M P Furmston, Cheshire and Fifoot’s Law of Contract (9th

Ed, Butterworths, London, 1976). 35

See Furmston, above, n 34, p v.

9

IT was one summer evening in Chipping Campden in 1965 that it was first

suggested to me that I might like to collaborate in the editing of this work.

Fortunately eleven years and two editions passed by before I was called upon

to play more than a minor role and this is the first edition to appear without

the active participation of the authors. I had originally hoped that Cecil

Fifoot would oversee my work but his untimely death in January 1975 made

this impossible. I have been greatly fortified, however, by his aid and advice

in the past and by the continuing encouragement of Geoffrey Cheshire.

Their imprint remains, of course, firmly on the book and its continuing

merits are theirs. All errors and infelicities are mine alone.

But Professor Furmston did not seek to consciously limit his role as the new

editor of this famous work. And rightly so. However, as with all new hands,

wisdom (including a sense of balance) was also necessary. Professor Furmston

demonstrated – in no uncertain terms – his acute understanding of how he should

proceed in this new (and important) capacity in the following words:36

One who essays to edit another’s book has, no doubt, to steer between the

Scylla of publishing one’s own work under another’s name and the

Charybdis of excessive respect for the ipsissima verba of the original text.

Critics may judge to which side the rudder has lent but the moment seemed

appropriate for an anxious scrutiny of the whole text. It was soon clear to

me that the historical introduction needed extensive revision and even

more clear that I was incompetent to undertake it. I was exceptionally

fortunate therefore that my former colleague Brian Simpson, now Professor

of Law in the University of Kent at Canterbury agreed to undertake this task.

Professor Furmston then proceeded to elaborate upon the changes he had

undertaken vis-á-vis this particular edition:37

The most obvious change in the work is in the chapter on The Contents of

The Contract which has been completely recast. Substantial rewriting has

also taken place in the chapters on Agreement, Consideration, Unenforceable

Contracts and Privity of Contract. A good deal of new material has been

introduced but it has been possible to restrict the increase in the text to six

pages by leaving out some of the detailed discussion of implied terms in

contracts of sale and hire-purchase and by removing some material now

largely of historical interest, especially on the formalities for corporate

contracts at common law and on the capacity of married women to contract.

One can discern, right from the outset, the practical approach which is a

hallmark of Professor Furmston’s scholarship – an approach which is

simultaneously accompanied by a humility that is rare as it is precious in academic

circles. In particular, he has never shied away from taking whatever steps are

necessary to improve a particular piece of scholarship. More importantly, perhaps,

he has also never shied away from enlisting assistance from other legal scholars if,

36

See Furmston, above, n 34, p v (emphasis in italics in the original text; emphasis added in bold

italics). 37


10

in his view, to do would be to improve the work concerned. This is an excellent

illustration; indeed, the late Professor A W B Simpson was an excellent legal

historian whose contributions to the historical introduction of the book over the

years were invaluable. Such an attitude demonstrates, in my view, a humility that is

all too rare in the academic world. Indeed, the final part of this Preface epitomises

this attitude as well inasmuch as it contains a number of acknowledgments –

including one to Professor William Bishop with whom he would (together with

Professor Hugh Beale) later co-author a leading contract casebook (which I will

refer to briefly below38

). There is also a reference to what would become a

significant (and even expected) personal feature of the Preface of each succeeding

edition – an update on his family. This would furnish each edition with a personal

touch which is rare (or even non-existent) in other legal works. In this particular

edition, Professor Furmston expressed his gratitude ‘to my five daughters for

allowing me to work on many Sundays during the last year and to my wife but for

whose encouragement the conclusion of the work would not have been possible’.39

The following (the tenth) edition was published five years later (in 1981).

By this time, the last link to the original authors was finally gone. In the Preface to

this edition, Professor Furmston observed thus:40

Geoffrey Cheshire died in October 1978. His death marked the end of direct

involvement, even by way of encouragement, of the authors in the continued

editing of this work, though in content and style it remains predominantly

theirs. A preface is not the place for an obituary but I may be permitted to

record my abiding gratitude for the exceptional kindness consistently shown

me by both authors.

Professor Furmston continued to make substantive improvements to the

work as a whole, first, by way of very practical considerations; again, in his

words:41

There are major changes in the appearance of this edition with the

disappearance of the side notes and the abandonment of the division of the

book into parts. The decision to make these changes was dictated by a desire

to mitigate the ever-increasing costs of production, and in combination they

have saved perhaps as many as ninety pages.

Secondly, there were substantive changes to the text as well:42

The most important change in the law of contract since the ninth edition is

undoubtedly the enactment of the Unfair Contract Terms Act 1977 and this

has required extensive discussion. There have also been a number of House

of Lords decisions of particular importance, such as Photo Production v

38

See below, n 94. 39

See Furmston, above, n 34, p vi. 40

See M P Furmston, Cheshire and Fifoot’s Law of Contract (10th

Ed, Butterworths, London, 1981),

p v. 41

See Furmston, above, n 40, p v. 42


11

Securicor Transport;43

Johnson v Agnew44

and National Carriers v

Panalpina45

(the last of which vindicated the view adopted in the ninth

edition that the doctrine of frustration should be applicable to leases). The

incorporation of such new material has been the primary task of this edition

but I have also tried to keep under anxious review the whole fabric of the

work. The most obvious results of this will be found in chapter 2 (some

factors affecting modern contract law) and chapter 18 (performance and

breach). The first attempts to draw attention to a number of themes which

underlie many modern developments in the subject. The second arises from

my view that the complex rules about the effects of performance and breach

are best understood if they are considered together.

The importance of the (UK) Unfair Contract Terms Act 197746

is obvious,47

as were the House of Lords decisions referred to. What, in my view, represented a

real innovation in so far as this particular work in general and this edition in

particular are concerned is the (new) second chapter which Professor Furmston

included in relation to some factors affecting modern contract law. This represented

a tangible as well as significant acknowledgment of the extremely important need to

eschew a merely technical rule-bound view of the law of contract.

There are the (expected) acknowledgments – this time extended (unusually

for any textbook, let alone a leading one) to the ‘many correspondents from all over

the world, who have written to point out mistakes or to query debateable

propositions’.48

Equally significant in this regard, perhaps, is Professor Furmston’s

expression of thanks to ‘a number of reviewers of the ninth edition for their careful

and thought-provoking comments’ and to ‘many colleagues and students for

discussions which have illuminated dark corners’.49

There are specific thanks as

well to various persons (including, not surprisingly, Professor Simpson ‘for revising

his historical introduction’50

and also to Alex Alstead with regard to his assistance

on competition law). And there (once again) is that personal reference to his family,

as follows:51

My greatest debts are to my publishers and my family. ... My children (who

have increased in number from five to nine since the last edition) have borne

my frequent disappearances into my study at weekends and in the evenings

with remarkable fortitude, and my wife has provided that measure of

encouragement without which the work would not have been completed at

all.

43

[1980] AC 827. 44

[1980] AC 367. 45

[1981] AC 675. 46

Chapter 50. 47

This Act is also applicable in, inter alia, Singapore pursuant to Part II of the First Schedule of the

Application of English Law Act (Cap 7A, 1994 Rev Ed) (read with s 4 of that same Act). This Act

has since been reprinted and allocated a local chapter number in the Singapore context (as the Unfair

Contract Terms Act (Cap 39, 1994 Rev Ed)). 48





12

The next (the eleventh) edition (published in 1986), is another significant

milestone: as mentioned above, the title of the book itself was changed for the first

time in over four decades to include Professor Furmston’s name as well;52

Cheshire

and Fifoot’s Law of Contract would hereafter be known as Cheshire, Fifoot and

Furmston’s Law of Contract. This is also reflected in the very first words of the

Preface, as follows:53

1986 is the hundredth anniversary of Geoffrey Cheshire’s birth. It is perhaps

sufficient to notice that it finds in print textbooks bearing his name and

dealing with three of the most intellectually challenging topics in English

law. 1986 is also the 21st birthday of my own involvement with this work

(see the Preface to the 9th edition). I am grateful to the Publishers for

marking my majority by promotion to the title.

And, consistently with the approach adopted in previous editions,

Professor Furmston also stated that ‘[i]n addition to incorporating new material54

I

try in each edition to look again at some section of the book’ and that ‘[i]n this

edition I have attempted a significant reconsideration of the discussion of

remedies’.55

There are also the traditional thanks to various persons as well as categories

of persons (including, once again, ‘many generations of students who have patiently

listened to half-baked versions of what ultimately emerged in the text and

correspondents from all over the world who wrote to point out errors or debatable

propositions’56

as well as to Professor Simpson ‘for revising his historical

introduction’57

and, once again, Alex Alstead with regard to competition law).

There is also a reference to the then (recently published) first edition of the

casebook58

which he had co-authored with Professor Hugh Beale and

Professor William Bishop.59

As importantly, perhaps, is Professor Furmston’s now

traditional update with regard to his family, as follows (significantly, with an

express acknowledgment for the first time of the interest in updates on his family):60

Until I become the editor of this work I thought that only reviewers read

prefaces. Then I found complete strangers asking after my family. I ought

not to fail to report therefore the birth of my tenth child, Timothy, in January

1983. He and his brothers and sisters and above all my wife have been a

constant support.

52

See M P Furmston, Cheshire, Fifoot and Furmston’s Law of Contract (11th

Ed, Butterworths,

London, 1986). 53

See Furmston, above, n 52, p v (emphasis added). 54

In fact, sixteen House of Lords decisions were cited in the Preface: see Furmston, above, n 52, p v. 55




See H G Beale, W D Bishop & M P Furmston, Contract – Cases and Materials (Butterworths,

London, 1985). This casebook is presently in its Fifth Edition (see below, n 94). 59


See Furmston, above, n 52, p v (emphasis added).

13

The Preface for the next edition (the twelfth, published in 1991) is more

contemplative in nature:61

An author who departs for Rome with five hundred pages of proofs and a

stern injunction from his publisher not to return without a preface is

inevitably reminded of the final sentence of Gibbon’s great work penned at

Lausanne in June 1787, ‘It was among the ruins of the Capitol that I first

conceived the idea of a work which has amused and exercised near twenty

years of my life, and which, however inadequate to my own wishes, I finally

deliver to the curiosity and candour of the public.’

A daily walk across the Capitol serves to remind one of how much and how

little has changed. Contemplation of the progress of English contract law

over the last five years has much the same effect. There have been

significant case law developments in many areas ... In addition Parliament

has intervened by the Minors Contracts Act 1987; the Law of Property

(Miscellaneous Provisions) Act 1987 and the Companies Act 1989.

There follows the customary expression of gratitude to students as well as

audiences at lectures in many parts of the world as well as to, inter alia,

Professor Simpson for the revision of the historical introduction as well as (once

again as well) Alex Alstead with respect to competition law. That pertaining to the

family is more general this time (albeit no less warm and enthusiastic):62

My wife and children continue to be my staunchest supporters. My gratitude

to them is no less total because inarticulately expressed.

The next edition (the thirteenth, published in 1996) sees the Preface

composed in Singapore instead – in the summer of 1996 to be precise.63

Professor Furmston eloquently observes thus:64

[F]or those who know and love these two great cities65

(since both visits

were professionally connected with the English law of contract), it perhaps

serves as a metaphor both for the continuing conceptual strength of English

contract law and for its capacity for adaptation to rapid change.

He then refers to twenty decisions of the House of Lords or the Privy

Council before proceeding to draw the reader’s attention to the significance of this

particular edition thus:66

This edition marks the 50th anniversary of the first edition. It is appropriate,

therefore, to renew my public thanks to the original authors, both for

61


Ed, Butterworths,

London, 1991), p v. 62



Ed, Butterworths,

London, 1996), p v. 64


This was a reference to Rome (where the Preface for the previous edition was composed) and to

Singapore (where the Preface for this particular edition was composed). 66


14

entrusting their work to me and for their kindness during our collaboration

in various guises between 1965 and 1978. I should also record our gratitude

to the late Alex Alstead, who guided the three of us through the minefield of

competition law over many editions. I continue to be grateful to lecture

audiences around the world who have listened to earlier versions of some of

the accounts of the new cases contained in these pages and to correspondents

who write to point out mistakes or infelicities.

And there is, finally, a significant update on the family front, as follows:67

It was one of the pleasant features of earlier editions that one met people in

distant parts of the world who were well informed about the size of one’s

family. I should report, therefore, that since the last edition the ten children

have been joined by three grandchildren. Granted the anti-social nature of

the writing process, all my family and especially my wife, have provided

stoic support for which I am very grateful.

The next edition (the fourteenth, published in 2001) commences with an

update on the passage of the UK Contract (Rights of Third Parties) Act 199968

as

well as a reference to recent significant case law. There is also a reference to the re-

organisation of the material pertaining to competition law, together with an

acknowledgment of the assistance in this particular regard by Brenda Sufrin. Of

interest on the personal front is the following update:69

My wife, my ten children and my four grandchildren have all in different

ways provided support, encouragement and patience in the face of anti-social

absences.

The next edition (the fifteenth, published in 2007) saw a change in publisher.

Not surprisingly, therefore, Professor Furmston refers to this right at the outset of

the Preface:70

The first edition of this book was published in 1945, and over the following

60 years a further thirteen editions were published by Butterworths. This is

the first edition of the book to be published by Oxford University Press, and

all those concerned with the production of the edition have been friendly,

courteous, and extremely helpful.

There follows a reference to some important decisions as well as to

UNIDROIT Principles for International Commercial Law and the Principles of

European Contract Law. However, the main change was the deletion of the chapter

on quasi-contracts. As Professor Furmston explained:71

67

See Furmston, above, n 63, p v (emphasis added). 68

Chapter 31. 69




Press, 2007), p v. 71


15

This [the chapter on quasi-contracts] was entirely appropriate in 1945 but

now that restitution is clearly a subject in its own right, much of which falls

outside the boundaries of the law of contract, it seems an anachronism.

Questions along the boundary between contract and restitution continue of

course to receive attention in the text.

The observation just quoted is indeed both timely as well as perceptive. That

is why, whilst not wanting to delete the chapter on quasi-contract in the Singapore

and Malaysian edition of this work (it was, I felt, too drastic an approach to

contemplate, at least at that particular point in time, viz, 1998), I nevertheless added

a section referring to the law of restitution.72

Returning to this edition (viz, the

fifteenth edition), we also note the continued assistance of Professor Brenda Sufrin

in relation to competition law. Finally, there is, once again, the customary personal

note, as follows:73

My wife, my ten children and my five grandchildren continue to provide

support, encouragement, and patience as have new generations of students

around the world to whom I have tried to explain the problems which are

discussed in the text.

Finally, we come to the latest (sixteenth) edition, which was published

recently (in 2012). Professor Furmston commenced by noting that the six years

since this and previous (fifteenth) edition was published was ‘the longest gap in the

history of the book and was due principally to the demands of a return to full-time

teaching and administration’. I am sure that many of the participants at the present

Conference (held at the Singapore Management University) will understand the

meaning as well as context of this reference as Professor Furmston was, as already

mentioned, the founding Dean of the School of Law of the Singapore Management

University and had only recently stepped down from this weighty and responsible

post. However, this Preface was also a sad occasion; as Professor Furmston

observed:74

For me a major event since the last edition has been the death of Brian

Simpson before he was able to review Chapter 1. Brian and I were

colleagues at Oxford long ago and indeed for several years we and our

families shared the same house. He will be greatly missed. Professor David

Ibbetson has kindly reviewed the text of this chapter.

As was the case with the previous two editions, Professor Sufrin has

continued to review the materials on competition law. And, as before,

Professor Furmston paid tribute to his wife, children and grandchildren who, in his

words, ‘continue to display remarkable patience and tolerance’.75

This brings us up-to-date with the latest edition of Cheshire, Fifoot and

Furmston’s Law of Contract. I would like to pause here for more than a moment

72

See Phang, above, n 70, pp 1137–1138. 73




Press, 2012), p v. 75


16

and reflect a little more on the nature of textbooks in general and how these resulting

reflections prompt us to truly appreciate what we have always taken for granted and

which (as I will observe in a moment) even appears to have become (shamefully and

erroneously, in my view at least) underappreciated (especially nowadays, and

(thankfully) in only some quarters only).

I can do no better than to refer to the following observations I made in the

Preface to a recent book on the Singapore law of contract, of which I was the

General Editor:76

All of my co-authors have already published in the best international legal

journals. But that alone is not enough. To be able to paint – even exquisitely

– on tiny portions of the canvass is commendable. However, to be able to

both analyse and synthesise the relevant legal material as well as to place it

intelligently, creatively as well as intelligibly on the entire canvass itself is

even more commendable.

This is not to deprecate perceptive articles, comments as well as essays.

They, too, are the staple diet of the legal scholar. However, having had close to

twenty three years of experience in legal academia, it seems to me that it is much

more difficult to write a good textbook than a good article (or even a number of

good articles for that matter). Hence, the view expressed in some quarters (which I

hope is in a minority) that a textbook is merely a trade publication is one that is not

only misconceived but is also patently unfair. The legal scholar’s task is to both

analyse as well as synthesise.77

Articles and comments tend to focus on the former

and a textbook on the latter. However, the best textbooks are not a mere collection

of cases and statutes. On the contrary, an excellent textbook requires sifting the

wheat from the chaff and, when thousands of cases are involved, this is itself a task

requiring the utmost skill and perseverance. To then translate the materials thus

sifted into a coherent and integrated narrative is task requiring even more skill and

perseverance. Finally, to ensure that creative commentary as well as queries are

inserted in the appropriate parts of the text is not only to ensure that the textbook is

hearty legal fare but also a delicious one and is a task which requires one to already

have had the experience of writing perceptive articles and comments in law journals

in the first place. Even then, the task is not an easy one at all because, by its very

nature, a textbook requires economy of expression. In contrast, a lengthy article

(even one of the highest scholarship) does not. There are, of course, textbooks of

questionable qualities. But I am talking about excellent textbooks, such as Cheshire,

Fifoot and Furmston’s Law of Contract itself.

And an excellent textbook enriches the understanding and stirs the reflective

as well as creative juices not only of courts and lawyers but also students. The

audience is a very broad one. Indeed, given the very nature and development of the

common law in general and the common law of contract in particular, textbooks are

an essential part of the student’s curriculum and the lawyer’s legal armoury. As I

76

See ‘Preface’ in The Law of Contract in Singapore, above, n 26, p vii (emphasis in the original

text). 77

Cf Lord Goff of Chieveley, ‘The Search for Principle’ (1983) 69 Proceedings of the British

Academy 169 (reprinted in W Swadling & G Jones (Eds), The Search for Principle – Essays in

Honour of Lord Goff of Chieveley (Oxford University Press, 1999), pp 313–329).

17

have alluded to above, textbooks are, in the main, works of synthesis, although, as

also pointed out above, they contain elements of analysis as well at appropriate

junctures in the work concerned. With respect, those who deprecate the writing of

textbooks often have their heads stuck in the clouds. However, as I have observed

elsewhere (and in an actual case at that):78

Shorn of their theoretical roots, the relevant rules and principles will become

ossified. On the other hand, if one stays only in the rarefied atmosphere of

“high theory”, the danger of collapsing for the want of the “oxygen” of

practical reality is not only possible; it would be imminent.

Indeed, as I proceed to observe in that case, the relationship between theory

and practice is an interactive one. But this, you will recall, is precisely one of the

main themes of this essay. More importantly, applying what I have just said to what

is probably Professor Furmston’s most famous work, he has ensured that Cheshire,

Fifoot and Furmston’s Law of Contract continues to achieve that balance between

theory and practice. It is a work that is (if I may say so) brilliantly displayed across

the entire canvass – deeply textured as a result of meticulous craftsmanship. In the

circumstances, this work alone would have justified Professor Furmston’s status as

one of the most outstanding contract scholars in the common law world. As I have

already mentioned, however, this is just one of his many works. But it does stand

tall as a model which every aspiring textbook writer (particularly in the law of

contract) ought to strive to emulate.

As I mentioned right at the outset of this essay, I and many of my classmates

chose this particular book as our text precisely because it not only synthesised the

law in an excellent fashion but also contained critical analysis which prompted

further reflection as well as a desire to read further. Hence, I had no hesitation

suggesting to Butterworths Singapore that a local version of this textbook might be

appropriate. That suggestion was enthusiastically embraced and, before I knew it, I

had expanded the scope of this project to include the Malaysian cases as well as the

Malaysian Contracts and Specific Relief Acts.79

Little did I know what awaited me.

To cut a fairly long story short, I had not only to meticulously analyse the relevant

legislation but had also to wade through literally thousands of Singapore and

Malaysian cases touching on the law of contract. I should add that analysing the

Malaysian Contracts Act (which is, of course, based on the Indian Contract Act80

)

was particularly challenging, although the few commentaries that existed did assist

me as well. Indeed, the Malaysian Contracts Act is an excellent resource from

which much direct as well as comparative legal scholarship can (and ought to be)

written. But that is another story for another time. To return to this particular

project, in 1991 (during a sabbatical year), I visited Professor Furmston at the

University of Bristol. His hospitality and assistance then and right through to the

78

See the Singapore High Court decision of Sunny Metal & Engineering Pte Ltd v Ng Khim Ming

Eric (practising under the name and style of W P Architects) [2007] 1 SLR 853 (reversed, Sunny

Metal & Engineering Pte Ltd v Ng Khim Ming Eric [2007] 3 SLR 782, but without considering this

particular point) at [41]. 79

See the Contracts Act 1950 (Act 136; Rev 1974) and the Specific Relief Act 1950 (Act 137; Rev

1974). 80

See the Contract Act 1872 (No 9 of 1872). See also Dato’ R R Sethu, ‘The History, Impact and

Influence of the Indian Contracts Act 1872’ (2011) 28 JCL 31.

18

fruition of the project (and, I might add, to this day) has been impeccable. It made

what was already an arduous project a much more bearable one. The project

ultimately came to fruition with the first edition, which was published in 1994.81

A

second edition was published in 1998.82

In the meantime, the material had become

so enormous that I felt compelled to produce a shorter student’s text, also published

that same year.83

But I am digressing. We ought, at this juncture, to turn to consider the other

books which have been authored, co-authored and/or edited by Professor Furmston.

More books

As already mentioned, Professor Furmston also edited and/or authored or

co-authored a fair number of other books. Perhaps the most significant is one which

Professor Furmston is both General Editor of, and contributor to, is The Law of

Contract – an important volume in the Butterworths Common Law Series.84

Indeed,

this book brings together some of the foremost contract scholars in the common law

world. It is a veritable tour de force in relation to the exposition of contract law for

practitioners, weighing in at almost two thousand pages of text (sans preliminary

pages and tables) and is a more than worthy ‘competitor’ to the first volume of

Chitty on Contracts.85

Another important book (co-authored with Professor G J Tolhurst and with

Assistant Professor Eliza Mik as a specialist contributor on the important topic of

the formation of online contracts) is Contract Formation – Law and Practice.86

Although it is a new book, Professor Furmston generously acknowledges the debt

owed to its predecessor.87

In the present writer’s view at least, this particular book

is timely for several reasons.

Contrary to the popular perception in some quarters at least, the law relating

to contract formation is not useful merely for introducing law students to the

practice of legal analysis. As the authors themselves point out, right at the outset of

the book, ‘[i]t would … come as a surprise to many to learn that perhaps the most

81

See A B L Phang, Cheshire, Fifoot and Furmston’s Law of Contract – Singapore and Malaysian

Edition (Butterworths Asia, 1994). 82

See Phang, Cheshire, Fifoot and Furmston’s Law of Contract – Second Singapore and Malaysian

Edition, above, n 26. 83

See A B L Phang, Cheshire, Fifoot and Furmston’s Law of Contract – First Singapore and

Malaysian Students’ Edition (Butterworths Asia, 1998). 84

Presently in its Fourth Edition (2010), with the First Edition being published in 1999; see also

above, n 2. 85

Presently in its Thirty-First Edition, and published by Sweet & Maxwell in 2012. 86

Published by Oxford University Press in 2010. Assistant Professor Mik’s contribution is to be

found at Ch 6. 87

See the Preface to M Furmston and G Tolhurst (Contributor: E Mik), Contract Formation – Law

and Practice (Oxford University Press, 2010), p v. The predecessor work was M Furmston, T

Norisada & J Poole, Contract Formation and Letters of Intent (John Wiley & Sons, 1997). Indeed, in

the Preface to this particular book, Professor Furmston informs the reader that Professor Jill Poole,

one of the authors of the predecessor book, was supposed to co-author this book with him but was

ultimately unable to do so because of her other commitments. Professor Tolhurst, we are told,

willingly ‘[stepped] into the breach’.

19

litigated area of contract law is that of formation’.88

In Singapore at least, the Court

of Appeal has heard a number of significant cases over the last few years in the

context of contract formation. For example, the court has released a judgment in

which the finding of a fresh (and independent) contract formed the basis of its

decision.89

The court has also considered – in some detail – the formation of

compromise agreements and the nature of (as well as possible alternatives to) the

doctrine of consideration.90

There is also a more recent decision in relation to the

doctrine of past consideration and the exception to the rule against past

consideration.91

Secondly, as the authors also point out, the common law is no longer a

monolithic entity. Different jurisdictions might adopt a different (or modified)

approach to issues of (here) contract formation. As the task of the court is, I believe,

to decide on the best available principles, courts ought to (and, in fact, do) have

regard to developments in other jurisdictions.92

This book is particularly helpful

inasmuch as it assembles, in one venue, all the major cases from the various

jurisdictions. I also noticed the copious (and helpful) reference to academic works

as well (for example, on the topic of objectivity in contract, in one footnote alone,

there is a reference to no fewer than nine pieces of academic literature (including

three US works)93

).

Finally (and in a related vein), principles from the civil law are considered as

well – in the form of references to, for example, the Vienna Convention, the

Unidroit Principles as well as the principles of European Contract Law.

Yet another important book which I have briefly mentioned above is the

casebook on contract law co-authored by Professor Furmston, Professor H G Beale

and Professor W D Bishop – Contract – Cases and Materials.94

This casebook is an

innovative one. In addition to canvassing the main decisions and statutory

provisions as well as furnishing relevant notes and asking perceptive questions of

the reader (all par for the course insofar as contract casebooks are concerned), this

work goes further by, inter alia also focusing on the relationship between contract

and other legal categories (in particular, restitution and tort) as well as by furnishing

the reader with extracts from actual contracts and with readings on the economic

analysis of contract law as well as other interesting empirical work.

88

See Furmston & Tolhurst, above, n 87, p 1. 89

See Ang Sin Hock v Khoo Eng Lim [2010] 3 SLR 179. 90

See Gay Choon Ing v Loh Sze Ti Terence Peter [2009] 2 SLR(R) 332. See also Goh Yihan,

‘Compromising on Consideration in Singapore: Gay Choon Ing v Loh Sze Ti Terence Peter’ (2009)

Commercial Law Quarterly 11. 91

See Rainforest Trading Ltd v State Bank of India Singapore [2012] 2 SLR 713. See also Goh

Yihan & Yip Man, ‘Past Consideration or Unconnected Consideration? Rainforest Trading Ltd v

State Bank of India Singapore [2012] 2 SLR 713’ (2012) 24 SAcLJ 553. 92

See also A Phang, ‘Recent Developments in Singapore Contract Law – the Search for Principle’

(2011) 28 JCL 3. 93

See Carter & Tolhurst, above, n 87, p 2, n 2. 94

Presently in its Fifth Edition (Butterworths, London, 2008).

20

In addition to authoring a book on the sale and supply of goods,95

Professor

Furmston also recently co-edited (as well as contributed to) a book on commercial

and consumer law.96

Finally, as already alluded to above, Professor Furmston is also an expert in

construction law. In this regard, it is pertinent to note that the latest edition of

Powell-Smith and Furmston’s Building Contract Casebook was recently

published.97

Professor Furmston is, of course, also the editor of the Construction

Law Reports, which we will consider briefly below.98

There are yet other books as well, but these seem to me to be the most

significant. Let us now turn to a brief survey of Professor Furmston’s articles,

comments and essays.

Articles, Comments and Essays

Introduction

I have a confession to make. I had wanted to read each and every article,

comment and essay which Professor Furmston had written. However, there were

logistical as well as personal difficulties which rendered this unfeasible. On the

logistical side, I could not obtain copies of every work which itself bears testimony

to the vast variety of journals as well as books which Professor Furmston has

contributed to over the last half a century or so. On the personal side, I must state

that the workload at the courts also made it impossible to read (at least in the detail I

would have liked) even those publications which I was able to obtain. So all I can

offer is a sampling of sorts.

The Diversity

Before actually looking at some actual publications, it is important, in my

view, to reiterate a point I had made at the outset of the present essay – the

enormous diversity which characterises Professor Furmston’s various writings.

However, as this essay is being written in the context of a conference on contract

law, I will necessarily be brief.

A brief survey of Professor Furmston’s early writings reveals an uncanny

variety and diversity of areas covered. These range from a survey as well as

analysis of (then) recent decisions involving the issue of recognition of polygamous

marriages99

to the law relating to the doctrine of ultra vires100

(although, in this last-

95

See M Furmston, Sale & Supply of Goods (3rd

Ed, Cavendish Publishing Limited, 2000). The first

edition was published in 1994. 96

See M Furmston & J Chuah, Commercial and Consumer Law (Pearson Education Limited, 2010). 97

See M Furmston, Powell-Smith and Furmston’s Building Contract Casebook (5th

Ed, Wiley-

Blackwell, 2012). 98

See the text to nn 188–190, below. 99

See M P Furmston, ‘Polygamy and the Wind of Change’ (1961) 10 ICLQ 180. See also, by the

same author, in relation to another aspect of the conflict of laws, ‘Proof of Foreign Law’ (1959)

22 MLR 317. 100

See M P Furmston, ‘Common Law Corporations and Ultra Vires’ (1961) 24 MLR 518.

21

mentioned regard, there is an overlap with the law of contract, as evidenced by yet

another piece101

). But his interest in variety (and, more importantly, the ability to

master a great many areas of law) was not merely, it seems, the product of the

enthusiasm of youth but is the product, rather, of a considerable intellect (as well as

intellectual curiosity) which refuses to be confined to a limited area (which is,

unfortunately, common in much academic discourse both past as well as present).

In his inaugural lecture delivered before the University of Bristol on 1 February

1979, for example, Professor Furmston touched on the extremely important as well

as relevant topic concerning ignorance of the law.102

Significantly, perhaps, it was

also published in the inaugural issue of the new series of the influential journal of

the Society of Legal Scholars (formerly the Society of Public Teachers of Law),

entitled Legal Studies. Although this particular lecture does not deal (in the main at

least) with contract law as such, it embodies all the qualities which constitute what is

best in Professor Furmston’s legal scholarship in general and his contract

scholarship in particular – inter alia, his broad theoretical and practical vision

(including the ability to take into account the extralegal context) as well as the

ability to suggest equally sound theoretical as well as practical solutions to the

problem at hand. There are other examples as well – for example, pieces in relation

to the law of bankers’ commercial credits,103

arbitration,104

construction law,105

shipping law,106

and, of course, that other important branch of the law of obligations,

the law of tort.107

One other general point may be made at this particular juncture:

Professor Furmston has never shied away from lending his considerable expertise to

joint projects. As we have seen (with regard to my own experience), and will see,

this is evident in the great many joint publications he has been involved in. This is, I

might add, a rare quality in the sphere of legal academia and, indeed, in any other

aspect of life for that matter.

101

See M P Furmston, ‘Who Can Plead That A Contract Is Ultra Vires?’ (1961) 24 MLR 715. 102

See M P Furmston, ‘Ignorance of the law’ (1981) 1 LS 37. 103

See M P Furmston, ‘An Introduction to Bankers’ Commercial Credits’ (1991) 2 ICCLR 91. 104

See M P Furmston, ‘The Autonomy of The Arbitrator’ (1992) 58 Arbitration 75 and, by the same

author, ‘Uniformity in International Commercial Arbitration’ in Ch 8 of M D Evans, Remedies in

International Law – The Institutional Dilemma (Hart Publishing, 1998). 105

See eg M P Furmston, ‘Pirelli: Calendar Without Pictures?’ (1985) 1 Construction LJ 25 and, by

the same author, ‘The liability of contractors: principles of liability in contract and tort’ in H Lloyd

(Ed), The Liability of Contractors (Centre for Commercial Law Studies, Queen Mary College, 1986),

pp 10–16, ‘The implications of the House of Lords La Pintada case for the construction industry’

[1985] Construction Industry Law Letter 153 (dealing with a decision which was of course relevant

to the general law of contract as well (see eg Furmston, above, n 74, p 777)), ‘Departures in Contract’

in Ch 22 of J Uff & P Capper (Eds), Construction Contract Policy – Improved Procedures and

Practice (Centre of Construction Law and Management, King’s College, 1989); ‘Reliability and the

law’ in Ch 17 of D Blockley (Ed), Engineering Safety (McGraw-Hill Book Company, 1992); ‘Some

Thoughts on the Uses of Commonwealth and United States Cases’ [1995] Construction Law

Yearbook 13; as well as ‘“Pay When Paid” in England’ [2001] NZLJ 269. It should be noted that a

great deal of construction law comprises application of the basic principles of contract and tort law. 106

See M P Furmston, ‘Cancellation clauses and repudiatory breach’ in Ch 15 of D R Thomas (Ed),

The Evolving Law and Practice of Voyage Charterparties (Informa, London, 2009). 107

See eg M P Furmston, ‘Professional Negligence’ Chemistry in Britain, May 1984, p 421 and, by

the same author, ‘Can Customs rely on Barclays Bank?’ (2007)(3) Finance & Credit Law 1. See also

M Furmston (Ed), The Law of Tort: Policies and Trends in Liability for Property and Economic Loss

(Duckworth, London, 1986) (which Professor Furmston also contributed a perceptive ‘Introduction’

to (at pp 1–8)).

22

Let us turn now to a sampling of the many learned articles, comments and

essays published by Professor Furmston in the context of contract law. Constraints

of space preclude an in-depth analysis and I therefore propose to conduct only the

most general of surveys of Professor Furmston’s scholarship in the law of contract,

with a focus on his work in the area of illegality and public policy, whilst

commenting even more briefly on his work in the areas of discharge by breach,

privity of contract, good faith and comparative contract law.

A Sampling

A Preliminary Point – ‘Intra-Diversity’

A preliminary point might be apposite: Professor Furmston’s scholarship in

terms of his articles, comments and essays covers virtually every area of the law of

contract and, to this extent, the diversity just referred to extends to a kind of ‘intra-

diversity’ within contract law as well. This is not surprising, given his mastery of

the subject and its subsequent translation into general texts such as Cheshire, Fifoot

and Furmston’s Law of Contract. This was evident right from the outset of his

academic career (many of these pieces were in fact published in the prestigious

Modern Law Review). We find, in particular, a number of perceptive notes and

comments on various decisions in the context of, for example, damages,108

infants’

contracts,109

frustration (and quantum meruit),110

the legal position in relation to the

issue of performance following repudiation in the context of actions for a fixed

sum,111

the issue of minimum payments and penalties in the hire purchase context,112

the classification of terms,113

as well as the doctrine of restraint of trade,114

amongst

many others. Articles published later in his illustrious career include thoughtful

overviews115

as well as perceptive pieces on relief against forfeiture after breach of

an essential time stipulation,116

damages,117

frustration,118

umbrella agreements,119

as

well as on letters of intent.120

108

See M P Furmston ‘Two Problems in Damages’ (1960) 23 MLR 454. 109

See M P Furmston, ‘Infants’ Contracts – La Nouvelle Vague?’ (1961) 24 MLR 644. 110

See M P Furmston, ‘Contract Frustrated – Then Performed!’ (1961) 24 MLR 173. 111

See M P Furmston, ‘The Case of the Insistent Performer’ (1962) 25 MLR 364 (a then

contemporary comment on the (still controversial) House of Lords decision of White and Carter

(Councils) Ltd v McGregor [1962] AC 413; reference may also be made to J W Carter, A Phang and

S Y Phang, ‘Performance Following Repudiation: Legal and Economic Interests’, (1999) 15 JCL 97

as well as the recent English High Court decision of Isabella Shipowner SA v Shagang Shipping Co

Ltd (The Aquafaith) [2012] 2 All ER 461 (Comm) (noted in D Winterton, ‘Reconsidering White &

Carter v McGregor’ [2013] LMCLQ 5)). 112

See M P Furrmston, ‘Termination of Hire Purchase Contracts: Minimum Payments and Penalties’

(1964) 15 NILQ 235. 113

See M P Furmston, ‘The Classification of Contractual Terms’ (1962) 25 MLR 584 (a then

contemporary comment on the seminal Court of Appeal decision of Hongkong Fir Shipping Co Ltd v

Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26; see also below, n 172). 114

See Furmston, above, n 18. 115

See eg M P Furmston, ‘Contract and Tort after Denning’ [1987] Denning LJ 65 and (more

recently) ‘Singapore Contract Law – Themes from 2006–2010’ in T M Yeo, H Tjio & H W Tang

(Eds), SAL Conference 2011 – Developments in Singapore Law Between 2006 and 2010 (Academy

Publishing, 2011), pp 78–105. 116

See H Abedian & M P Furmston, ‘Relief Against Forfeiture after Breach of an Essential Time

Stipulation in the Light of Union Eagle Ltd v Golden Achievements Ltd’ (1998) 12 JCL 189.

23

Let me now turn – in the briefest of fashions – to some specific topics,

commencing with that most confused (and confusing) of topics, viz, illegality and

public policy.

Illegality and Public Policy

(1) Introduction

Of all the doctrines of the law of contract, perhaps that relating to illegality

and public policy is the most problematic. This is not perhaps surprising in view of

the nature of the subject matter involved. In this regard, clear analyses are of the

first importance but, because of the difficulties just mentioned, are in short supply.

Professor Furmston is one of the rare contract scholars to have tackled various issues

in relation to illegality and public policy in a manner that is refreshing as it is

illuminating. Indeed, one of his (perhaps the) best known articles on this topic was

published in 1966 in The University of Toronto Law Journal.121

In my view at least,

this article is a remarkable one, and especially so given that it was published almost

half a century ago. In particular, it clarifies not just one or two – but several –

difficult issues in the context of this very difficult and complex topic. It also

demonstrates an excellent balance between having a sound overarching

organisational framework on the one hand and dealing with discrete points within

that particular framework on the other. This is all the more – if I may say so –

commendable in light of the extremely ‘slippery’ nature of the topic itself. Indeed,

nobody is ever confidently – let alone absolutely – sure of how to deal with the very

amorphous nature inherent within the concept of public policy.122

As

117

See M P Furmston, ‘Damages – Diminution in Value or Cost of Repair? – Damages for Distress’

(1993) 6 JCL 64 and, by the same author, ‘The strange case of George Blake’ in E Dirix, P Senaeve,

W Pintens & S Stijns, Lober Amicorum Jacques Herbots (Kluwer, 2000), pp 147–154 (an essay on

the interesting case on restitutionary damages culminating in the House of Lords decision of Attorney

General v Blake [2001] 1 AC 268; reference may also be made to A Phang & P W Lee,

‘Rationalising Restitutionary Damages in Contract Law – An Elusive or Illusory Quest?’ (2001) 17

JCL 240) as well as ‘Actual Damages, Notional Damages and Loss of a Chance’ in Ch 17 of D

Saidov & R Cunnington, ‘Contract Damages – Domestic and International Perspectives’ (Hart

Publishing, 2008). 118

See M Furmston, ‘Drafting of Force Majeure Clauses – Some General Guidelines’ in Ch 4 of E

McKendrick, Force Majeure and Frustration of Contract (2nd

Ed, Lloyd’s of London Press Ltd,

1995). 119

See S Mouzas & M Furmston, ‘From Contract to Umbrella Agreement’ [2008] CLJ 37. 120

See M Furmston, ‘Letters of Intent and Other Preliminary Agreements’ (2009) 25 JCL 95 and, by

the same author, ‘Letters of Intent’ in Ch 2 of A Burrows & E Peel (Eds), Contract Formation and

Parties (Oxford University Press, 2010). 121

See M P Furmston, ‘The Analysis of Illegal Contracts’ (1965-1966) 16 U Toronto LJ 267. 122

As Burrough J put it in his oft-cited observations in the English decision of Richardson v Mellish

(1824) 2 Bing 229 at 252, public policy is ‘a very unruly horse, and when once you get astride it you

never know where it will carry you. It may lead you from the sound law’. And, in the House of

Lords decision of Janson v Driefontein Mines Ltd [1902] AC 484 at 500, Lord Davey expressed the

view that ‘[p]ublic policy is always an unsafe and treacherous ground for legal decision’. Not

surprisingly, therefore, Judge John Mowbray QC, in the English High Court decision of Sutton v

Sutton [1984] Ch 184, remarked (at 195) that ‘[he mounted] the unruly horse of public policy with

trepidation’. Reference may also be made to the observation of Lord Pearce in the House of Lords

decision of Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269, where the

learned law lord was of the view (at 324) that ‘[p]ublic policy, like other unruly horses is apt to

change its stance’. And Sachs LJ, in the English Court of Appeal decision of Shaw v Groom [1970] 2

24

Professor Furmston points out right at the outset of the article, ‘[s]o far ... academic

attention has tended to concentrate on the effect of illegality to the neglect of the

question whether a given contract is illegal’.123

This extremely perceptive

observation – made so very many decades ago – still holds good, in the main, today.

Indeed, whilst there are still difficulties with the issue of the effect of illegality, the

difficulties with respect to the prior issue as to whether or not there has been

illegality of the type which would render the contract void in the first place are

equally – if not more – vexing. Perhaps a brief elaboration in order to furnish the

reader with a clearer idea of the magnitude of the difficulty and complexity of this

particular area of contract law is in order.

(2) The Tangled Web of the Law relating to Illegality

The two primary problems in the law relating to illegality consist, first, in the

question as to when there is an illegality which renders the contract concerned void

and, secondly, the legal effect of illegality.

The (first) problem as to when there is an illegality which renders the

contract concerned void is perhaps best illustrated by reference to the topic of

statutory illegality. A key point of confusion has, in my view, centred around the

distinction between the category of ‘contracts illegal as formed’ and that of

‘contracts illegal as performed’. With respect (and for reasons which I have

elaborated upon elsewhere124

), I think that this particular distinction is apt to

confuse, particularly where the implied prohibition of contracts via statute is

concerned. Indeed, situations of express (statutory) prohibition necessarily fall

within the former category (viz ‘contracts illegal as formed’) since it is clear that the

statute concerned prohibits, by virtue of its plain language, the very formation of the

contract itself. However, situations relating to implied (statutory) prohibition are

(potentially at least) more problematic. Put simply, the concept of illegal

performance may lead one from the key question at hand, viz, is the contract

(impliedly) prohibited by the statute concerned? In a very general sense, there

would necessarily have to be some form of illegal performance (in the sense of

illegal conduct) to begin with before the issue of illegality can even be raised.

However, such illegal conduct does not necessarily, in and of itself, entail that the

contract is prohibited. If, indeed, it is the contract that is intended by the statute

concerned to be (here, impliedly) prohibited, then would it not be the case that the

QB 504, observed thus (at 523): ‘Public policy has been often spoken of as an unruly horse: all the

more reason then why its riders should not themselves in these changing times wear blinkers, be

oblivious to the scene around, and thus ride for a fall. Sound policy must be flexible enough to take

into account the circumstances of its own generation.’ Lord Denning MR, on the other hand, adopted

a far more optimistic approach, observing, in Enderby Town FC Ltd v The Football Association Ltd

[1971] Ch 591 thus (at 606): ‘With a good man in the saddle, the unruly horse can be kept in control.

It can jump over obstacles.’ See also generally P H Winfield, ‘Public Policy in the English Common

Law’ (1928–1929) 42 Harvard L Rev 76; W Gellhorn ‘Contracts and Public Policy’ (1935) 35

Columbia L Rev 679; D Lloyd Public Policy—A Comparative Study in English and French Law

(University of London, Athlone Press, 1953); J Shand ‘Unblinkering the Unruly Horse: Public Policy

in the Law of Contract’ [1972A] CLJ 144; C R Symmons, ‘The Function and Effect of Public Policy

in Contemporary Common Law’ (1977) 51 ALJ 185; and R A Buckley Illegality and Public Policy

(Sweet and Maxwell, 2nd Ed, 2009) at Ch 6. 123

Furmston, above, n 121 at 267 (emphasis added). 124

See generally A B L Phang, ‘Illegality and Public Policy’ in ch 13 of The Law of Contract in

Singapore, above, n 26 at paras 13.042–13.055.

25

statutory contravention has in fact struck (in substance) at the very root of the

contract itself? If so, would this not, in substance and effect, be a situation in

relation to a contract which is illegal as formed? As I have sought to argue

elsewhere,125

such an approach (which focuses essentially on the rubric of

formation) is in fact supported by the judgment of Devlin J (as he then was) in the

leading English High Court decision of St John Shipping Corporation v Joseph Rank

Ltd.126

To complicate matters further, there is (potentially at least) a new approach

towards the issue of implied (statutory) provision and which finds its source in the

English Court of Appeal decision of Phoenix General Insurance Co of Greece SA v

Administratia Asigurailor de Stat127

– particularly in the observations by Kerr LJ128

(where a distinction (which is, with respect, unsatisfactory, in my view) was drawn

between bilateral and unilateral prohibitions). Again, I have sought to argue against

such an approach elsewhere and will not rehearse them yet again.129

There is also the situation where there has been neither express nor implied

(statutory) prohibition. I have suggested elsewhere a qualification to the general

rule that, in such situations, the transaction concerned can proceed as planned –

which qualification centres on what precisely was the intention of the contracting

parties. Put simply, a ‘guilty party’ would not be able to enforce the contract

concerned, whereas an ‘innocent party’ would.130

Turning briefly to illegality under common law, the principal difficulties are

both general as well as specific.131

To elaborate, insofar as general difficulties are

concerned, these stem from the very fluid nature of public policy itself (a point

which we have, in fact, already noted132

). One major difficulty that flows from this

is the indeterminacy of the various heads of public policy: what is the role of the

courts in deciding whether or not to extend these heads? How should the courts

modify the existing heads of public policy? This last-mentioned question raises

specific difficulties peculiar to the head of public policy concerned. Again, a

discussion of these various difficulties is outside the purview of the present essay.

What is important is that all this underscores the need (which Professor Furmston

has emphasized in his article) to attempt at least to tackle the threshold issue as to

whether there has been, so to speak, an ‘operational’ illegality which renders the

contract concerned void in the first place. Only then, as we have mentioned, does

the issue arise as to the effect of that illegality.

Turning to the second problem, viz, the effect of illegality, the possible legal

categories are at least fairly clear. Put simply, the contract is void and, hence,

neither party may enforce the contract. However, there may remain the opportunity

to recover benefits which have hitherto passed under the contract (via a form of

125

See Phang, above, n 124, especially at paras 13.044–13.049. 126

[1957] 1 QB 267, especially at 284. 127

[1988] QB 216. 128

[1988] QB 216 at 273. 129

See Phang, above, n 124 at paras 13.034–13.040. 130

See generally Phang, above, n 124 at paras 13.051–13.055. 131

See generally Phang, above, n 124 at paras 13.056–13.113. 132

See above, n 122.

26

restitution), although this is obviously a somewhat less preferable alternative

compared to recovery under the contract itself as the full contractual loss could be

recovered in this latter situation. Even so, the legal route under the former situation

(viz, by way of a form of restitution) is a fairly limited one and comprises three

possible avenues – (1) recovery where the parties are not in pari delicto;

(2) recovery by way of an independent cause of action; and (3) possible recovery if

there has been repentance or timely repudiation. Avenue (1) itself comprises three

sub-categories, viz, (a) class protection statutes;133

(b) fraud, duress or oppression;134

and (c) mistake.135

Avenue (2) comprises two sub-categories, viz, (a) tort136

and

(b) collateral contract.137

Avenue (3) stands on its own, without any sub-

categories.138

With this background and context in mind, let us now consider

Professor Furmston’s article in order to demonstrate why it was not only ahead of its

time but has also continued to stand the test of time. Indeed, as we shall see below,

this article was cited by a court as recently as 2004139

and 2007.140

This essay is not the forum for canvassing the avenues – as well as the

accompanying difficulties – relating to the effect of the doctrine of illegality and

public policy – in any detail, if nothing else, because Professor Furmston’s article

(as already mentioned) focuses on the first problem (viz, the threshold issue as to

whether or not there has been an illegality of the type that renders the contract void

to begin with).141

In this last-mentioned regard, there are (as alluded to above) at

133

See eg the oft-cited East African Privy Council decision of Kiriri Cotton Co Ltd v Ranchhoddas

Keshavji Dewani [1960] AC 192. 134

See eg the oft-cited English decisions of Kearley v Thomson (1890) 24 QBD 742 and Shelley v

Paddock [1980] 1 All ER 1009 as well as the Singapore High Court decision of Chee Jok Heng

Stephanie v Chang Yue Shoon [2010] 3 SLR 1131. 135

See eg the oft-cited English decision of Oom v Bruce (1810) 12 East 225, 104 ER 87 as well as the

Singapore Court of Appeal decision of Aqua Art Pte Ltd v Goodman Development (S) Pte Ltd [2011]

2 SLR 865. 136

See eg the leading English Court of Appeal decision of Bowmakers, Ltd v Barnet Instruments, Ltd

[1945] KB 65 and the later House of Lords decision of Tinsley v Milligan [1994] 1 AC 340, as well

as the English Court of Appeal decision of Shelley v Paddock [1980] 1 All ER 1009. But cf the High

Court of Australia decision of Nelson v Nelson (1990) 70 ALJR 47 (see also A Phang, ‘Of Illegality

and Presumptions – Australian Departures and Possible Solutions’ (1996) 11 JCL 53). 137

See eg the oft-cited English Court of Appeal decision of Strongman (1945) Ltd v Sincock [1955] 3

All ER 90. 138

See eg the oft-cited English decisions of Kearley v Thomson (1890) 24 QBD 742 and Bigos v

Boustead [1951] 1 All ER 92. For a more recent English decision, see the English Court of Appeal

decision of Tribe v Tribe [1995] 3 WLR 913. For a further possible conceptual route towards

recovery of benefits conferred under contract in equity (particularly in the context of marriage

brokage contracts), see the English Court of Appeal decision of Hermann v Charlesworth [1905] 2

KB 123 as well as Phang & Goh, above, n 26 at paras 891–893. 139

See the English High Court decision of 21st Century Logistic Solutions Ltd v Madysen Ltd [2004]

2 Lloyd’s Rep 92 at [17] and [18]; see also below, nn 150 and 261. 140

See the English Court of Appeal decision of Anglo Petroleum Ltd v TFB (Mortgages) Ltd [2007]

EWCA Civ 456 at [81]; see also below, nn 151 and 261. 141

See generally Phang, above, n 124 at paras 13.114–13,158. The various problems and difficulties

relating to the effect of illegality and public policy include (but are not limited) to the following issues

in relation to a restitutionary claim with regard to independent causes of action in both tort (see eg B

Coote, ‘Another Look at Bowmakers v Barnet Instruments’ (1972) 35 MLR 38; N Enonchong, ‘Title

Claims and Illegal Transactions’ (1995) 111 LQR 135; and Phang, above, n 136) and the collateral

contract (see eg Phang & Goh, above, n 26 at para 886), as well as the doctrine of repentance or

27

least two types of (threshold) illegality, viz, illegality under statute and illegality

under common law, respectively. In fairness, much of the problem in this particular

regard pertains to the rather open-ended nature of the doctrine itself – a condition

that is inherent within the very nature of the subject matter of the doctrine itself.

(3) The Article Proper

Returning, then, to Professor Furmston’s article, it is suggested that this very

comprehensive article can be read and applied on at least two levels. The first is to

apply specific parts of it which relate to discrete issues. Indeed, the article is

literally packed with specific analyses of specific aspects of the law relating to

illegal contracts which might furnish particular legal solutions to specific issues.

Looked at in this light, it would be inappropriate to even attempt to survey all these

various issues within the more modest remit of the present essay. However, as

alluded to above, there is a second – and more general and conceptual – level at

which this article may be read and applied. This level is at least equally important

for it, inter alia, assists in clearing away the underbrush, so to speak, that bedevils

this particular area of the law and, in helping the reader in achieving conceptual

clarity in this otherwise hazy (and even muddled) area of the law, simultaneously

aids him or her in the practical sphere of application as well. It might be apposite to

illustrate this by reference to a few examples which are (I should add) by no means

exhaustive and which I will also attempt to relate (as far as is possible) to some of

the general issues set out above by way of background.

First, although the article focuses on illegality under the common law,

Professor Furmston has also given some very important legal food for thought on

the relationship between this category of illegality and the other main category, viz,

statutory illegality. In particular, he points out that, in order to avoid confusing both

these categories, it is important to be clear that statutory illegality involves

‘situations where a statute expressly or impliedly prohibits the making of a

contract’, whereas where ‘a statute prohibits an act it is a question of common law

illegality whether or not a contract to that act is illegal’.142

However, as he

pertinently points out, there could be an overlap in analysis which involves both

categories; in his words:143

But if a statute prohibits an act, it may be argued that it impliedly prohibits

the making of a contract to commit that act. This should mean that where we

have a contract to do X and X is the subject of a statutory prohibition the

Court should usually consider, first, whether the statutory prohibition

impliedly prohibits the making of a contract to do X and, secondly, whether

an agreement to do X is illegal on common law principles as being an

agreement to commit a crime.

timely repudiation (see eg Phang & Goh, above, n 26, especially at para 890). There is also the

‘public conscience test’ which (for the time being in the law of contract at least) has been rejected

under English law (and see generally eg N Enonchong, ‘Illegality: The Fading Flame of Public

Policy’ (1994) 14 OJLS 295 and R A Buckley, ‘Law’s Boundaries and the Challenge of Illegality’ in

Ch 9 of R A Buckley (Ed), Legal Structures – Boundary Issues Between Legal Categories (John

Wiley & Sons, 1996), pp 235–237 as well as 240–241). 142

See Furmston, above, n 121 at 281 (emphasis added). 143

See Furmston, above, n 121 at 281 (emphasis added).

28

Secondly, Professor Furmston perceptively observes that ‘it is dangerous to

think of illegal contracts as consisting wholly or even mainly of agreements to do

acts contrary to the policy of the law’.144

In his view, ‘it is quite clear that

agreements which on their face are harmless, and which can be performed without

infringing any legal rule, may still be held illegal’.145

In illustrating this point,

Professor Furmston refers, inter alia, to the much cited English Court of Appeal

decision of Alexander v Rayson.146

In this case, there were, in the contract

concerned, two separate documents, one a lease (with the benefit of certain services)

at a rent of £450 per annum, the second requiring payment of £750 per annum for

the provision of various services. The second document, however, covered

essentially the same services as those embodied in the first document (except for the

provision and maintenance of a fridge). The object of this ‘double-document

arrangement’ was to reduce the amount of tax payable and thus defraud the revenue

authorities. The court therefore held the agreement to be illegal and void. The facts

and holding of the case are straightforward enough, but what is interesting is

Professor Furmston’s point, made in the article presently being considered, to the

effect that a contract may involve (as already mentioned) the doing of an act legal in

itself, but with the intention that it provide the setting for the ultimate effecting of an

illegal purpose. Such a transaction is thus not an illegal contract as such, although

public policy requires that the transaction be treated as if the contract itself were

illegal.147

This broad category has in fact received explicit judicial recognition in

recent times by Gibbs ACJ and Jacobs J in the leading Australian High Court

decision of Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd .148

Also (and

perhaps more) to the point is Professor Furmston’s analysis of the limits of such a

category; he was of the view that insofar as the contract is concerned, ‘it is clear that

there must come a point when the connection with the plaintiff’s intention is too

remote’.149

This is, of course, in essence a question of degree: when, in other words,

does the link between the contract (legal in itself) and the illegal purpose it is

supposed to effect become too remote? It should be noted that it was precisely this

passage (and point therein) which was cited, endorsed and applied by Field J in the

fairly recent English High Court decision of 21st Century Logistic Solutions Ltd v

Madysen Ltd150

and by Toulson LJ (with whom Smith and Mummery LJJ agreed) in

the even more recent English Court of Appeal decision of Anglo Petroleum Ltd v

TFB (Mortgages) Limited.151

There are a great many other points made in this seminal article but, from

just the two points just mentioned, it is clear that Professor Furmston has done much

144

See Furmston, above, n 121 at 285. 145

See Furmston, above, n 121 at 286 (emphasis added). 146

[1936] 1 KB 169. 147

See generally Furmston, above, n 121 at 286–287 and 306–308. Reference may also be made to

Alexander v Rayson itself (see [1936] 1 KB 169 at 182), the language of which contains the point that

is, however, very helpfully brought to the fore by Professor Furmston’s perceptive analysis and

elaboration. 148

See (1978) 139 CLR 410 at 413 and 432, respectively. See also the High Court of Australia

decision of Nelson v Nelson (1955) 70 ALJR 47 at 52 and 54 (per Deane and Gummow JJ) and at 78

and 79 (per Toohey J). See further Alexander v Rayson itself, above, n 146. 149


See [2004] 2 Lloyd’s Rep 92 at [17] and [18]. See also above, n 139 and below, n 261. 151

See [2007] EWCA Civ 456 at [81]. See also above, n 140 and below, n 261.

29

in furnishing the conceptual guidance (and ensuing clarity) which will aid in both

the study, analysis as well as clarification of many problematic aspects of this very

difficult area of the law of contract. It is true that there are many other difficulties

(briefly set out above) which are not dealt with directly by this article. However,

Professor Furmston himself is clear that his is not the last word on the topic.152

Indeed, as already mentioned, that it has stood the test of time (of almost fifty years)

as one of the leading articles in the field is a testament to its importance and

influence. Above all, Professor Furmston’s more general insistence in this article on

the need to be precise in one’s analysis and classification is salutary and ought, in

my view, to be constantly borne in mind (especially in this particular area of

contract law which is inherently susceptible of both linguistic as well as conceptual

slippage).

(4) Another Piece

There is, however, one other piece on illegality by Professor Furmston which

I would like to briefly consider – not least because it does deal directly with one of

the difficulties referred to above (viz, the significance (or otherwise) of the

distinction between ‘contracts illegal as formed’ and ‘contracts illegal as

performed’153

). It is a perceptive comment on an English Court of Appeal decision

which, whilst handed down over five decades ago, is still a leading case which is

cited in all the textbooks – Archbolds (Freightage) Ltd v S Spanglett Ltd.154

It was

published before the article just considered but contains some valuable points which

were elaborated upon in the subsequent article. Professor Furmston commences this

particular piece with an insightful description of some of the basic difficulties

underlying the entire law relating to illegality and public policy, as follows:155

Economy in juristic concepts is useful, promoting simplicity and clarity in

arrangement, but Occam’s razor can be applied too sharply, if the result is to

cast too many different situations within the ambit of a single rule. The law

relating to illegality in contract has been the victim of such a tendency. Until

recently, this topic was formally governed by a few maxims, very widely

stated and usually applied in a mechanical fashion, with little or no account

taken of the policy considerations causing the law to condemn the particular

contract or of how best they could be promoted. The pressure of events,

particularly the vastly expanding field of state intervention with the minutiae

of daily life, has compelled a reappraisal. Several commentators have

pointed out the need for a more flexible approach, and for a realisation that

there is not one or even two but many kinds of illegality.

His subsequent analysis of the case is equally – if not more – illuminating.156

It comes very close – in substance at least – to the approach which I have sought to

outline briefly above, viz, that the key issue is whether or not the contract (as

opposed to merely the conduct) has been prohibited. Indeed, in Archbolds

152


And see the analysis above in the text to nn 124–126. 154

[1961] 1 QB 374. 155

See M P Furmston, ‘Illegality – The Limits of a Statute’ (1961) 24 MLR 394 at 394. 156

See Furmston, above, n 121, especially at 396–398.

30

(Freightage) Ltd v S Spanglett Ltd157

itself, there is some support for the approach I

have proffered, particularly from the judgment of Devlin LJ. This is not surprising

in view of Devlin LJ’s earlier judgment in St John Shipping Corporation v Joseph

Rank Ltd,158

although the learned judge was, with respect, somewhat less clear and

emphatic in Archbolds (Freightage) Ltd v S Spanglett Ltd159

compared to his earlier

decision in St John Shipping Corporation v Joseph Rank Ltd.160

(5) Conclusion

Finally, it should be noted that Professor Furmston has also authored other

publications touching on the topic of illegality and public policy, albeit in somewhat

more specific contexts. One relates to illegality in the context of banking

transactions.161

The other, which is comparative in nature, is a powerful critique162

of the then recently enacted New Zealand Illegal Contracts Act 1970163

and which

ought, in my view, to be compulsory reading for any jurisdiction which is thinking

of reforming this very thorny area of the law of contract via legislation.164

However,

the two pieces discussed briefly above (in particular, the first165

) are, in my view, the

most important and influential.

Discharge by Breach

The law relating discharge by breach, as I have observed elsewhere, ‘appears

to be in a state of flux in many Commonwealth jurisdictions’.166

As I also observed,

‘the Singapore courts have developed a uniquely local set of jurisprudence and

principles that seeks to cut the legal Gordian Knot in relation to the central

conundrum that has cast a long legal shadow across this particular area of the

common law of contract’.167

This ‘central conundrum’ relates to the attempt to

reconcile to various tests which the courts employ in ascertaining whether or not the

innocent party can elect to treat itself as discharged from the contract as a result of a

breach by the other party of one or more of the terms of the contract. In this regard,

there are two basic tests, viz, the ‘condition-warranty’ approach and the ‘Hongkong

Fir approach’, respectively. Insofar as the latter approach is concerned, the seminal

decision is that of the English Court of Appeal in Hongkong Fir Shipping Co Ltd v

Kawasaki Kisen Kaisha Ltd168

in general and the equally seminal observations by

Diplock LJ (as he then was) in that very decision in particular.169

Indeed, it was

157

[1961] 1 QB 374. 158

[1957] 1 QB 267. See, especially, at 284. 159

[1961] 1 QB 374. 160

[1957] 1 QB 267. See, especially, at 284. And see, further, on this particular point, A Phang,

‘Illegality and Public Policy’ in Ch 5 of M Furmston (Gen Ed), The Law of Contract (Butterworths

Common Law Series) (2nd

Ed, LexisNexis UK, 2003), especially at para 5.26. 161

See eg M P Furmston, ‘Illegality and banking transactions’ [1997] Butterworths Banking and

Financial L Rev 148. 162

See M P Furmston, ‘The Illegal Contracts Act 1970 – An English View’ (1972) 5 NZULR 151. 163

No 129 of 1970. 164

On the topic of reform of the law relating to illegality and public policy, see generally Phang,

above, n 124 at paras 13.236–13.244. 165

See Furmston, above, n 121. 166

See Phang, above, n 92 at 11. 167

See Phang, above, n 92 at 11. See also generally at 11–15 (and the decisions cited therein). 168

[1962] 2 QB 26. 169

[1962] 2 QB 26 at 66.

31

from this particular decision that a third category of terms – in addition to

‘conditions’ and ‘warranties’ – emerged, viz, the ‘intermediate’ or ‘innominate’

term.170

Interestingly, as Professors Carter, Tolhust and Peden point out in their

article, ‘[t]he only hint of intermediate term is to be found in the catchwords in the

Queen’s Bench report which include the expression ‘intermediate stipulation’’.171

More importantly, for the purposes of the present essay, the learned authors also

observe that ‘[t]he innominate term expression appears to have originated in

M P Furmston (1962) 25 MLR 584’.172

However, as another writer has pointed out,

a leading textbook has attributed the origin of the expression ‘innominate term’ to a

leading casebook on contract law instead.173

It would nevertheless appear that, as a

matter of logic and timing, the honour in this particular regard ought to be given to

Professor Furmston.174

Privity of Contract

An oft-cited article in relation to the doctrine of privity of contract is an

article published by Professor Furmston more than half a century ago in The Modern

Law Review175

in which he explores the operation of this doctrine in relation to the

question of enforcement of a benefit made in favour of a third party through the

lenses of a couple of (then) recent decisions.176

What, however, is of special

interest, in the present writer’s view, is the author’s perceptive understanding of the

need to have regard to the practical consequences concerned; in his words:177

In the final analysis, however, legal rules must be tested, not by logic alone,

although the importance of that is not to be underestimated, but by the social

consequences to which they give rise. It is submitted that rigid adherence to

170

And for a recent decision (from the English High Court), see Wuhan Ocean Economic &

Technical Cooperation Co Ltd v Schiffahrts-Gesellscharft ‘Hansa Murcia’ mbH and Co KG [2013]

Lloyd’s Rep 273 at 281. 171

See J W Carter, G J Tolhurst & E Peden, ‘Developing the Intermediate Term Concept’ (2006) 22

JCL 268 at 271. 172

See Carter, Tolhurst & Peden, above, n 171 at 271, n 19. The piece by Professor Furmston was

actually a comment on the Hongkong Fir case itself: see M P Furmston, ‘The Classification of

Contractual Terms’ (1962) 25 MLR 584 at 586 (reference to an ‘innominate third class’ of terms; see

also above, n 113). 173

See Goh Yihan, ‘Towards a Consistent Approach in Breach and Termination of Contract at

Common Law: RDC Concrete Pte Ltd v Sato Kogyo (S) Pte Ltd’ (2008) 24 JCL 251 at 252, n 5. In

particular, the learned author, whilst referring to the reference by Carter, Tolhurst & Peden, above, n

171, also referred to the fact that ‘J Beatson [now Beatson LJ] in Anson’s Law of Contract, 28th

Ed,

Oxford University Press, Oxford, 2002, p 135 [see now p 140 of the latest (29th

Ed, Oxford

University Press, 2010) by J Beatson, A Burrows & J Cartwright)] attributes it to have been first used

by J C Smith and J A C Thomas in A Casebook on Contract, 4th

Ed, Sweet & Maxwell, London,

1969’. 174

This is because Professor Furmston’s piece, above, n 172 was in fact published first (it might be

usefully noted that the first edition was published in 1957, the second edition was published in 1961

and the third edition was published in 1966, so that the only edition to have first coined this

terminology would be the third edition, which was of course also published after Professor

Furmston’s piece (the second edition presumably being published before the decision in the

Hongkong Fir case had been handed down)). 175

See M P Furmston, ‘Return to Dunlop v Selfridge?’ (1960) 23 MLR 373. 176

Viz, Green v Russell [1959] 2 QB 226 and Midland Silicones, Ltd v Scruttons Ltd [1959] 2 QB 171

(subsequently affirmed by the House of Lords in Scruttons, Ltd v Midland Silicones, Ltd [1962] AC

446). 177

See Furmston, above, n 175 at 376.

32

the doctrine of privity of contract gives rise to unsatisfactory results. First,

there are a number of situations where it would seem that a person has a

legitimate interest, which ought to be protected, in seeking to confer a benefit

in futuro upon a third party. The most obvious example is insurance where

social pressures have already compelled statutory modification of common

law dogma. Secondly, the two-party contract is not an adequate tool to solve

the complexities of modern commercial life, where many transactions

involve a long chain or a complex web of parties.

Indeed, this practical as well as commonsensical approach towards the law in

general and this particular branch of the law of contract in particular appears to have

been vindicated subsequently both developments at both common law178

as well as

statute.179

I should also mention a couple of other (more recent) pieces which might be

of interest to the reader. The first deals with the law relating to the assignment of

contractual burdens.180

The second relates to contractual promises to indemnify

third party beneficiaries under the common law which was co-authored by

Professor Furmston and Professor J W Carter.181

Good Faith

The topic of good faith is an important – if controversial – one in the law of

contract. In this regard, note may be taken of an important article on good faith and

fairness in the negotiation of contracts which was co-authored by

Professor Furmston and Professor J W Carter and published (in two parts) in the

Journal of Contract Law.182

The authors acknowledge (correctly, in my view), right

at the outset, that ‘[t]he ‘good faith issue’ is both controversial and complex’.183

However, focusing on the issue relating to the negotiation of contracts, they proceed

to demonstrate – meticulously (and persuasively, in my view) – that, whilst the

traditional view that there is no general duty of good faith in the bargaining process

remains valid,184

the relevant legal rules and principles (including, but not limited to,

contractual rules and principles) nevertheless frequently serve to promote good

faith.185

178

See eg, in relation to exception clauses, the New Zealand Privy Council decision of New Zealand

Shipping Co Ltd v A M Satterthwaite & Co Ltd (The Eurymedon) [1975] AC 154 and the Australian

Privy Council decision of Port Jackson Stevedoring Pty Ltd v Salmond and Spraggon (Australia) Pty

Ltd (The New York Star) [1981] 1 WLR 138. 179

See above, n 68. 180

See M P Furmston, ‘The Assignment of Contractual Burdens’ (1998) 13 JCL 42. 181

See M P Furmston & J W Carter, ‘Indemnities for the Benefit of Others’ (2011) 27 JCL 82. 182

See J W Carter & M P Furmston, ‘Good Faith and Fairness in the Negotiation of Contracts – Part

I’ (1994-1995) 8 JCL 1 and, by the same authors, ‘Good Faith and Fairness in the Negotiation of

Contracts – Part II’ (1994-1995) 8 JCL 93. 183

See Carter & Furmston, ‘Good Faith and Fairness in the Negotiation of Contracts – Part I’, above,

n 182 at 1. 184

Cf the Singapore Court of Appeal decision of Ng Giap Hon v Westcomb Securities Pte Ltd [2009]

3 SLR(R) 518. And cf (in turn) C Liew, ‘A Leap of Good Faith in Singapore Contract Law’ [2012]

SJLS 416. 185

See also M P Furmston, ‘Is there a Duty to Negotiate in Good Faith?’ (1998) 114 LQR 362 (this is

a brief comment on the Federal Court of Australia decision of Hughes Aircraft Systems International

v Air Services Australia (1997) 146 ALR 1; reference may also be made to A Phang, ‘Tenders,

33

Comparative Contract Law

The need for an understanding of law from other jurisdictions is especially

imperative in light of the increased (and increasing) interconnectedness we find as a

result of both globalisation and internationalisation. In this regard,

Professor Furmston was ahead of his time, as evidenced by his personal interest in

comparative contract law on both systemic186

as well as specific levels (the latter in

the form of case comments on significant decisions emanating from jurisdictions

other than England as well as general articles which adopt a heavily comparative

approach187

).

Conclusion

Moving from my more particular observations in relation to

Professor Furmston’s articles, comments and essays, this might be an appropriate

juncture to draw some of the general threads underlying his scholarship in this

particular area together. It is clear that, right from the outset of his academic career,

Professor Furmston demonstrated (if I may say so) the highest standards of

excellence in academic scholarship. This is evident not only in the quality of his

scholarship but also in the venues in which they were published. This is not, of

course, to state that the venue in which a publication appears is conclusive of its

quality. However, at that particular point in time (and given, especially, the

relatively small number of top journals compared to what we have on offer today),

that was a fairly reliable indicator of the quality of the work concerned. I should add

that the survey also demonstrates that Professor Furmston was – and this is

consistent with one of the main themes of this essay – never really concerned about

the venue of publication but, rather, about whether or not it was a substantive (in

particular, practical) contribution to the scholarship in that particular area of the law.

I fully endorse this approach for that is the approach which I also adopted

throughout my own academic career. There are, in fact, a number of articles

published of mine published in so-called ‘lesser’ journals which I am especially

proud of. Whilst academics should strive to publish in the most reputable journals,

this ought not to be an end in itself, lest there result an unhealthy obsession which is

(unfortunately) often coupled with an intellectual snobbery that is the very antithesis

of the ideals of scholarship in general and legal scholarship in particular. If I may be

permitted to say so, university administrations also need (if they have not already

done so) to adopt a more enlightened and nuanced approach. Given the small

number of top journals worldwide, if they adhered dogmatically and mechanistically

Implied Terms and Fairness in the Law of Contract’ (1998) 13 JCL 126). See, further, M P

Furmston, ‘The case of the Rhodian Corn’ in I Schwenzer & G Hager (Eds), Festschrift Für Peter

Schlechtriem Zum 70.Geburtstag (Mohr Siebeck Gmbh & Co K, 2003). 186

See eg Furmston, above, n 162 and, by the same author, ‘An English View of the UNIDROIT

Principles of International Commercial Contracts’ (1998) 3 Unif L Rev (ns) 419; ‘United Kingdom’

in M J Bonnell (Ed), A New Approach to International Commercial Contracts: the UNIDROIT

Principles of International Contracts (Kluwer Law International, 1999), pp 379–385; as well as

‘Unification of the European Law of Obligations – An English View’ in Mélanges offerts à Marcel

Fontaine (Larcier, 2003) and above, n 185. Cf Furmston, ‘Some Thoughts on the Uses of

Commonwealth and United States Cases’, above, n 105. 187

See eg M P Furmston, ‘Subject to finance’ (1983) 3 OJLS 438 and, by the same author, ‘Letters

of Intent and Other Preliminary Agreements’, above, n 120 and ‘Is there a Duty to Negotiate in Good

Faith?’, above, n 185.

34

to the granting of tenure and promotion based mainly – if not solely – on publication

in these journals, then I fear that, based on the law of averages alone, many bright

legal scholars might never have succeeded in obtaining tenure and/or promotion.

Whilst they should publish in top journals whenever they can, their work must

surely be assessed based on the quality of the content rather than just by where they

were published. The test is one of substance over form and in no way detracts from

the imperative need for academic excellence to be demonstrated by all aspiring legal

scholars in the work that they produce. I should also add that (except in the clearest

cases) what constitutes a top-tier journal is itself controversial, thus underscoring the

point just made to the effect that one ought, in the final analysis, to look to the

substance rather than the form alone.

Returning to Professor Furmston’s scholarship, one is also struck by a point I

have already made – the sheer variety of topics which he has covered not only

across various legal disciplines but also within the law of contract itself. It is no

wonder, then, that he is also ideally suited to edit one of the most widely read

contract texts in the Commonwealth (viz, Cheshire, Fifoot and Furmston’s Law of

Contract).

Another feature of Professor Furmston’s articles, comments and essays

(which is also reflected in his book publications) is his willingness as well as ability

to collaborate with others. This is a quality that ought to be seen more in legal

academia. As iron sharpens iron, so also does intellectual collaboration, especially

insofar as academic publications are concerned. But such collaboration also requires

humility – in particular, a willingness to give as well as to receive. Whilst easy to

state, it is not easy to practise. Professor Furmston is an excellent model to look to

in this particular regard. As already mentioned, I have been a personal beneficiary

of his expertise and (more importantly) humanity as well as kindness. May we all

learn to be more like him as well.

Finally (and perhaps most importantly), Professor Furmston’s articles,

comments and essays have also been cited extensively by other legal scholars. It is

impossible to even begin to list the innumerable books, articles, comments and

essays in which his work has been cited. However, an even more important indicia

of academic excellence – the highest, in fact, in my view – is whether or not the

work concerned has been cited in the courts. On this score, Professor Furmston’s

work is perhaps one of the best illustrations of such achievement. However, before

proceeding to touch on the influence which his publications have had on the law via

their very extensive citation in numerous courts across the Commonwealth, I would

like to consider (in the briefest of fashions) yet another category of publication

which Professor Furmston has also been responsible for close to three decades – a

specialist series of law reports.

Law Reports

As already mentioned, Professor Furmston is also the editor of the

Construction Law Reports. Although it is a specialised area of the law, there is not

insignificant overlap with the principles of contract and tort law. It is therefore

especially appropriate that Professor Furmston is the editor of this series of law

35

reports covering an area that is of great importance not only to lawyers but also to all

who are in the industry as well. The practical bent as well as versatility of

Professor Furmston also comes once again to the fore. Indeed, this series of reports

began as far back as 1985 and was first published by the Architectural Press and,

commencing with the twelfth volume in 1989, by Butterworths, who has remained

the publisher right to the present date. This series was in fact inaugurated by both

Professor Furmston and the late Mr Vincent Powell-Smith. In the very first volume,

the editors, in their Preface to the Series, elaborated on why such a series of reports

was necessary:188

It is one of the paradoxes of English law that although it develops through

decided cases, it lacks any systematic programme for the reporting of cases.

The construction industry has been particularly badly served in this respect,

many important and interesting cases not being reported at all. The situation

was greatly improved some years ago by the appearance of Building Law

Reports but this excellent venture has not been able to close all the gaps in

the system.

As was in fact later revealed, the idea for this series of reports in fact came

originally from Judge John Newey QC; in Professor Furmston’s and Mr Vincent

Powell-Smith’s words:189

In a very real sense [Judge Newey] was the founding father of the series and

always gave the editors every possible co-operation, despite the heavy

burden of his office. We are proud to be honoured by his friendship.

Unfortunately, Vincent Powell-Smith passed away suddenly in Kuala

Lumpur on 18 May 1997 and Professor Furmston has been the sole editor since.190

Let us turn now to an extremely important aspect of Professor Furmston’s

scholarship – its influence on the development of the law itself.

The Influence of Professor Furmston’s Scholarship on the Law

As I have already alluded to above, the true measure of academic scholarship

lies not only in its value as a resource for students, lawyers, judges as well as other

legal scholars but also in the practical influence it has on the development of the law

itself. Indeed, in my view, the highest accolade that can be paid to a piece of legal

scholarship occurs when it is considered sufficiently important to be cited by a

court.191

I have already referred to Cheshire, Fifoot and Furmston’s Law of Contract

in some detail during the course of this essay. Indeed, the book has not only been of

use to students and lawyers. It has also been cited literally hundreds of times in

188

See (1985) 1 Con LR, p vii. 189

See M Furmston & V Powell-Smith, ‘Retirement of his Honour Judge John Newey QC’ in (1993)

35 Con LR, p ix. 190

And see his tribute to Mr Vincent Powell-Smith in (1997) 53 Con LR, p viii. 191

It is submitted that this is the case despite the caveats mentioned by Professor Duxbury: see

generally Duxbury, above, n 10 at Ch 2.

36

cases across the world (and I am referring only to the editions which bear

Professor Furmston’s name192

). So numerous were the citations in a check I

conducted on the Lexis and Westlaw databases that it was possible (given the

constraints of time) to look only in the briefest of fashions at each and every entry

that was retrieved and even this exercise took a considerable number of hours.

Subject to inevitable human error (although I did endeavour to reduce this via a third

party check193

), here is a sampling which is (if I may be permitted to say so) quite

staggering (I should add that I have only excluded citations within cases cited, not

least in order to avoid double-counting and have also referred to paragraph numbers

available within the Lexis as well as Westlaw versions wherever possible).

Put simply, the book has been cited in numerous jurisdictions (as well as the

different courts and tribunals within each of those jurisdictions).

In the British Isles and the European Union, the book has been cited by the

House of Lords (now the UK Supreme Court),194

the English Court of Appeal,195

the

English High Court,196

the Judicial Committee of the Privy Council,197

the Northern

Ireland Court of Appeal,198

the UK Employment Appeal Tribunal,199

the UK VAT

192

On occasion, his name has been given (mistaken) attribution as well! In this regard, reference

may be made, for example, to the New Zealand editions of Cheshire and Fifoot’s Law of Contract –

to which Professor Furmston’s name (as with the Australian edition, but in contrast with the

Singapore and Malaysian edition) never attached. However, there are a number of New Zealand

decisions which nevertheless attach his name to the title to the book: see eg the New Zealand Court

of Appeal decisions of Minister of Education v De Luxe Motor Services [1990] 1 NZLR 27 at 31and

Savill v NZI Finance Ltd [1990] 3 NZLR 135 at 145 as well as the New Zealand High Court

decisions of Stratulatos v Stratulatos [1988] 2 NZLR 424 at 436; Walmsley v Christchurch City

Council [1990] 1 NZLR 199 at 205; Clasper v Lawrence [1990] 3 NZLR 231 at 239; HEB

Contractors Ltd v Verrissimo [1990] 3 NZLR 754 at 761; Brown v Langwoods Photo Stores Ltd

[1991] 1 NZLR 173 at 176; DFC Financial Services Ltd v Abel [1991] 2 NZLR 619 at 633; Newmans

Tours Ltd v Rainer Investments Ltd [1992] 2 NZLR 68 at 103; TA Dellaca Ltd v PDL Industries Ltd

[1992] 3 NZLR 88 at 98; and Hatea Motors Ltd v Foote [1993] 1 NZLR 629 at 634. 193

I acknowledge, once again, the kind assistance of Mr Koo Zhi Xuan. 194

See eg Total Gas Marketing Ltd v Arco British Ltd [1998] CLC 1275 at 1289 and Fisher v

Brooker [2009] 1 WLR 1764 at [26]. 195

See eg Spiers v Taylor (1984) 271 EG 196 at 197; Banque Keyser Ullmann SA v Skandia (UK)

Insurance Co Ltd [1990] QB 665 at 788; Foalquest Limited v Roberts [1990] 1 EGLR 50 at 53;

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1 at 20; Royscot Trust Ltd v

Rogerson [1991] 2 QB 297 at 300 and 306; William Sindall plc v Cambridgeshire County Council

[1994] 1 WLR 1016 at 1042; Courage Ltd v Crehan Byrne [1999] 2 EGLR 145 at 154; Tekdata

Interconnections Ltd v Amphenol Ltd [2010] 1 Lloyd’s Rep 357 at [24]; and Proactive Sports

Management Ltd v Rooney [2011] EWCA Civ 1444 at [113]. 196

See eg Lemenda Trading Co Ltd v African Middle East Petroleum Co Ltd [1988] QB 448 at 458

and 459; Associated Japanese Bank (International) Ltd v Credit du Nord SA [1989] 1 WLR 255 at

267; Apple Corps Ltd v Apple Computer Inc [1992] FSR 431 at 443 and 475; Fillite (Runcorn) Ltd v

APV Pasilac Ltd (22 April 1993; transcript available on Lexis); Seven Seas Properties Ltd v Al-Essa

(No 2) [1993] 1 WLR 1083 at 1088; and Gordon Samuel Duff v Wilfred Egerton (23 January 2002;

transcript available on Lexis). 197

See eg Phillip v Attorney General of Trinidad and Tobago [2009] UKPC 18 at [17] and [18] (on

appeal from the Court of Appeal of Trinidad and Tobago). 198

See eg Sweeney v Lagan Developments Ltd [2007] NICA 11 at [19]. 199

See eg Burns International Security Services (UK) Ltd v Archer (EAT/1229/96, 19 June 1997;

transcript available on Lexis) and Henry v Governors of Lambeth College (EAT/430/96, 4 July 1997;

transcript available on Lexis).

37

and Duties Tribunal,200

the Northern Ireland High Court,201

the Republic of Ireland

Supreme Court,202

the Republic of Ireland High Court203

and the Court of Justice of

the European Communities.204

In Oceania, the book has been cited by the High Court of Australia,205

the

Federal Court of Australia,206

the New South Wales Court of Appeal,207

the Supreme

Court of New South Wales,208

the New Zealand Supreme Court,209

the New Zealand

Court of Appeal210

and the New Zealand High Court.211

In Canada, the book has found an impressive following in the Supreme Court

of Canada,212

the Federal Court of Appeal (Ontario),213

the Federal Court of

Canada,214

the British Columbia Court of Appeal,215

the Ontario Court of Appeal,216

200

See eg Town & Country Factors Ltd v Commissioners of Customs and Excise (4 April 1997;

transcript available on Lexis). 201

See Day and Day v McCrum and Mcrum [1996] NI 607 and McOscar v Loughran [2012] NIQB

40 at [15]. 202

See eg Avonmore Creameries v An Bord Bainne Cooperative Ltd [1991] 3 CMLR 477 at [69] and

Analog Devices BV v Zurich Insurance Company [2005] 1 IR 274 at [14]. 203

See eg Doolan v Murray & Others & Dun Laoghaire Corporation (21 December 1993; transcript

available on Lexis). 204

See eg Grant v South-West Trains Ltd [1998] ICR 449 at [31]. 205

See eg Lipohar v R (1999) 168 ALR 8 at [217]. 206

See eg Damevski v Giudice (2003) 202 ALR 494 at [83]. 207

See eg Macquarie Generation v Peabody Resources [2000] NSWCA 361 at [75]. 208

See eg Malouf t/a Gerard Malouf & Partners v Jazairy [2003] NSWSC 762 at [18]. 209

See eg Dysart Timbers Ltd v Nielsen [2009] 3 NZLR 160 at [24] and Westpac New Zealand Ltd v

MAP and Associates Ltd [2011] 3 NZLR 751 at [13] and [14]. 210

See eg CBI NZ Ltd v Badger Chiyoda [1989] 2 NZLR 669 at 674 and Savill v NZI Finance Ltd

[1990] 3 NZLR 135 at 145. 211

See eg Howick Parklands Building Co Ltd v Howick Parklands Ltd [1993] 1 NZLR 749 at 762

and Polymer Developments Group Ltd v Tilialo [2002] 3 NZLR 258 at [52]. 212

See eg Scotsburn Co-op Services v WT Goodwin Ltd [1985] 1 SCR 54 at 63; Canadian Pacific

Hotels Limited v Bank of Montreal [1987] 1 SCR 711 at 767; Keneric Tractor Sales Limited v

Langille [1987] 2 SCR 440 at [25] and [36]; London Drugs Ltd v Kuehne & Nagel International Ltd

[1992] 3 SCR 299 at 416; Hongkong Bank of Canada v Wheeler Holdings Ltd [1993] 1 SCR 167 at

196; Continental Bank Leasing Coporation v R [1998] 2 SCR 298 at [87] and [93]; Guarantee

Company of North America v Gordon Capital Corporation [1999] 3 SCR 423 at [40] and [41];

Friedmann Equity Developments Inc v Final Note et al [2000] 1 SCR 842 at [25]; and Donald

Norman Evans v Teamsters Local Union No 31 (2008) 292 DLR (4th

) 577 at [99]. 213

See eg Royal Winnipeg Ballet v Canada (Minister of National Revenue) [2007] 1 FCR 35 at [76]. 214

See eg Streeting v Canada (Minnister of Employment and Immigration) [1988] 2 FC 426 at 432;

Abenstein v Canada [1990] FTR Lexis 544 at [31] and [32]; Canada v Continental Bank Leasing

Corp [1996] 3 FC 713 at [37] and [39]; Sail Labrador Limited v The Owners, Navimar Corporation

et al [1996] 3 FC 821 at [63]; and Abbott et al v Canada [2001] 3 FC 342 at [67]. 215

See eg No 14 Sail View Ventures Ltd v Alpha Ventures Ltd [1989] Carswell BC 15 at [14];

Lehndorff Canadian Pension Properties Ltd v Davis Management Ltd [1989] Carswell BC 107 at

[96]; Mayer v Mayer et al (No 2) [1993] BCAC Lexis 4979 at [13]; Hamelin v Seven Mile High

Group Inc [1994] BCAC Lexis 4395 at [33]; Paulin v Computer-Tech Consultants Ltd et al [1994]

BCAC Lexis 4407 at [91]; Toby (Ken) Ltd v British Columbia Buildings Corp [1999] BCAC Lexis

258 at [41]; Can-Dive Services Ltd et al v Pacific Coast Energy Corp et al [2000] BCAC Lexis 124

at [116]; Loughlin v Nichol [2004] BCJ No 1184 at [11]; and Athwal v Black Top Cabs Ltd [2012]

BCJ No 420 at [43]. 216

See eg Brisebois v Chamberland (1991) 1 OR (3d) 417 at 432; Trigg v MI Movers International

Transport Services Ltd (1991) 4 OR (3d) 562 at 568 and 569; Zeitel v Ellscheid (1991) 5 OR (3d) 449

at 461; Bossé v Mastercraft Group Inc et al [1995] OAC Lexis 4073 at [42]; Downtown King West

Development Corp v Massey Ferguson Industries Ltd (1996) OR (3d) 327 at 337; Lang Transport Ltd

v Plus Factor International Trucking Ltd and Canadian Tire Corp (1997) 32 OR (3d) 1 at 18; Fraser

http://www.lexis.com/research/buttonTFLink?_m=5149a654fc6e0edba00996ef01920bbd&_xfercite=%3ccite%20cc%3d%22CAN%22%3e%3c%21%5bCDATA%5b%5b2008%5d%20O.J.%20No.%205969%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=12&_butInline=1&_butinfo=%3ccite%20cc%3d%22CAN%22%3e%3c%21%5bCDATA%5b1992-3%20S.C.R.%20299%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=101&_startdoc=101&wchp=dGLbVzB-zSkAl&_md5=536beb22f99d581f02d12ad8416a6a73

http://www.lexis.com/research/buttonTFLink?_m=5149a654fc6e0edba00996ef01920bbd&_xfercite=%3ccite%20cc%3d%22CAN%22%3e%3c%21%5bCDATA%5b%5b2008%5d%20O.J.%20No.%205969%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=12&_butInline=1&_butinfo=%3ccite%20cc%3d%22CAN%22%3e%3c%21%5bCDATA%5b1992-3%20S.C.R.%20299%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=101&_startdoc=101&wchp=dGLbVzB-zSkAl&_md5=536beb22f99d581f02d12ad8416a6a73

38

the New Brunswick Court of Appeal,217

the Alberta Court of Appeal,218

the

Manitoba Court of Appeal,219

the Saskatchewan Court of Appeal,220

the Nova Scotia

Court of Appeal,221

the Quebec Court of Appeal,222

the Newfoundland and Labrador

Court of Appeal,223

the British Columbia Supreme Court,224

the British Columbia

Jewellers (1982) Ltd v. Dominion Electric Protection Co (1997) 148 D.L.R. (4th) 496 at [30];

Friedmann Equity Developments Inc v Final Note Inc (1998) 41 OR (3d) 712 at 724; Bank of

Montreal v Duguid (2000) 47 OR (3d) 737 at [25]; Scanlon v Standish (2002) 57 OR (3d) 767 at [18];

Belton v Liberty Insurance Co of Canada (2004) 72 OR (3d) 81 at [33]; 473807 Ontario Ltd v TDL

Group Ltd [2006] OJ No 3050 at [54]; and Barber v Vrozos [2010] OJ No 3697 at [94]. 217

See eg Tucker Estate v Gillis [1988] NBR (2d) Lexis 573 at [12], [30] and [35]; Great Lite

Electric Ltd v VCI Controls Ltd [1995] NBR (2d) Lexis 969 at [9]; Béton Brunswick Ltée v Martin

[1996] NBR (2d) Lexis 1872 at [12]; Lee et al v OCCO Developments Ltd [1996] NBR (2d) Lexis

2017 at [27]; Steeves v Steeves [1997] NBR (2d) Lexis 1050 at [9]; Capital Safe & Lock Service Ltd

et al v Steeves et al [2000] NBR (2d) Lexis 483 at [37]; Kenmont Management Inc v Saint John Port

Authority [2002] Carswell NB 35 at [56]; and Girouard v Druet [2012] NBJ No 136 at [33]. 218

See eg LK Oil & Gas Ltd and XL Food Systems Ltd v Canalands Energy Corp [1989] AR Lexis

4466 at [26]; 216927 Alberta Ltd v Fox Creek (Town) [1990] AR Lexis 53-8 at [5]; Radhakrishnan v

University of Calgary Faculty Assn [2002] Carswell Alta 943 at [34]; Ron Ghitter Property

Consultants Ltd v Beaver Lumber Co [2003] AJ No 912 at [12] and [13]; Kary Investment Corp v

Tremblay [2005] AJ No 1030 at [20]; Schmidt v Guarantee RV Centre Inc [2007] AJ No 279 at [4]

and [5]; Merrill Lynch Canada Inc v Soost [2010] AJ No 955 at [40]; and Globex Foreign Exchange

Corp v Kelcher (2012) 337 DLR (4th

) 207 at [46] and [55]. 219

See eg 2774880 Manitoba Ltd v Superior Management et al [2000] Man R (2d) Lexis 460 at [16]

and Gendis Inc v Canada (Attorney General) [2006] MJ No 242 at [117]. 220

See eg Dome Construction Ltd v Solarsystems Industries Ltd [1987] Sask R Lexis 629 at [7];

Taylor v Scurry-Rainbow Oil [2001] Sask R Lexis 422 at [132]; and Van De Geer Estate v Penner

[2006] SJ No 46 at [27]. 221

See eg Teleflex Inc v IMP Group Ltd [1996] NSR (2d) Lexis 2020 at [36], [46] and [54]; D’Orsay

v Nova Scotia Confederation of University Faculty Associations [1997] NSR (2d) Lexis 964 at [6];

Hazmasters Environmental Equipment Inc v London Guarantee [1998] NSR (2d) Lexis 389 at [15];

Sinanan v Woodyer et al [1999] NSR (2d) Lexis 166 at [27]; and White v EBF Manufacturing Ltd

[2005] NSJ No 518 at [87], [88] and [89]. 222

See eg CSL Group v St-Lawrence Seaway Authority [1996] Carswell Que 1110 at [84]. 223

See eg Redmond v Densmore and French [1997] Nfld & PEIR Lexis 649 at [111]; Healey v

Gardner [1998] Nfld & PEIR Lexis 229 at [19]; Eco-Zone Engineering Ltd v Grand Falls-Windsor

(Town) [2000] Carswell Nfld 315 at [8]; Bradbury v Newfoundland (Attorney General) [2001] Nfld

& PEIR Lexis 411 at [71]; Matchim v BGI Atlantic Inc [2010] NJ No 41 at [76]. 224

See eg No 14 Sail View Ventures Ltd v Alpha Ventures Ltd [1988] Carswell BC 58 at [32];

Norman Estate v Norman [1990] Carswell BC 29 at [43]; Seppanen v Seppanen [1991] Carswell BC

206 at [7]; Kainz v Bleiler Estate (1993) 108 DLR (4th

) 483 at [20] and [21]; Heritage Hospitality

Supply & Design Ltd v Bear Creek Sales Ltd [1993] Carswell BC 2022 at [12]; Sandbar Construction

Ltd v Pacific Parkland Properties Inc [1994] Carswell BC 1133 at [33]; Witzke (Guardian ad litem

of) v Dalgliesh [1995] Carswell BC 1822 at [60]; Tabory v Atom Delivery Ltd [1996] Carswell BC 94

at [9]; Pacific Vangold Mines Ltd v Consolidated Samarkand Resources Inc [1997] BCTC Lexis

4429 at [19]; Aloha Pools Ltd v Ng [1997] BCTC Lexis 5228 at [11]; Coastland Wood Industries Ltd

et al v 528428 British Columbia Ltd et al [1997] BCTC Lexis 5991 at [56]; No 1 Collision Repair &

Painting (1982) Ltd v Insurance Corp (BC) et al [1998] BCTC Lexis 243 at [62]; Montane Ventures

Ltd v Schroeder [2000] BCTC Lexis 162 at [7]; Shenzhen City Luohu District Industrial

Development Co v Yao et al [2000] BCTC Lexis 863 at [186]; Mitchell v Mitchell [2000] BCTC

Lexis 1855 at [42]; Board of Education of School District No 91 (Nechako Lakes) v Patrick et al

[2002] BCTC Lexis 307 at [49] and [59]; Nesbitt (cob Nesbitt Consolidated Farms) v Vander Kooi

[2003] BCJ No 308 at [7]; Re 356533 BC Ltd [2003] BCJ No 946 at [15]; Pisoney v London Life

Insurance Co [2003] BCJ No 1691 at [71]; Millar v Millar [2003] BCJ No 1814 at [91]; North West

Value Partners Inc v Vancouver Hong Kong Properties Ltd [2004] BCJ No 1186 at [68]; Davis & Co

v Jiwan [2006] BCJ No 1009 at [152]; Osooli-Talesh v Emami [2008] BCJ No 155 at [266]; Terasen

Gas Inc v Surrey (City) [2009] Carswell BC 1230 at [32]; Kittirath v Doan [2009] BCJ No 323 at

[183] and [191]; Western Homes & Management Ltd v Yusuf [2009] BCJ No 1666 at [135]; Lau v

Ogilvie [2010] BCJ No 2192 at [28]; Kobelt Manufacturing Co v Pacific Rim Engineered Products

39

Provincial Court,225

the British Columbia Labour Relations Board,226

the British

Columbia Expropriation Compensation Board,227

the Ontario Superior Court of

Justice,228

the Ontario Court of Justice,229

the Ontario Divisional Court,230

the

Ontario Unified Family Court,231

the Ontario District Court,232

the Ontario

Arbitration Board,233

the Alberta Court of Queen’s Bench,234

the Alberta Provincial

(1987) Ltd (2011) 84 BLR (4

th) 189 at [110]; and CIT Financial Ltd v Mike Closs Logging Ltd [2011]

BCJ No 1226 at [12]. 225

See eg Bankowski v Hansen [2002] BCJ No 2286 at [47]; Rayne v Martin [2006] BCJ No 2040 at

[42]; PAB v KMB [2006] BCJ No 3376 at [15]; Tootill v UA Upholstery Arts Inc [2007] BCJ No 1156

at [39]; and Hao Yi Feng v Fan Yang [2012] BCJ No 923 at [18]. 226

See eg Health Employers Assn of British Columbia v HSABC [2002] Carswell BC 3350 at [25]. 227

See eg Telep v Maple Ridge (District) [1992] Carswell 2496 at [104]. 228

See eg Ignagni v Ignagni [1990] Carswell Ont 1312 at [27]; Braithwaite v Centro Communitario

do Divino Esprito Santo da Communidade Portuguesa Ottawa-Carleton [1991] Carswell Ont 2677 at

[130]; Superior Acceptance Corp v 22 College Street Inc [1992] Carswell Ont 595 at [112]; Sign-O-

Lite v Henry [1993] Carswell Ont 4454 at [21]; Onex Corp v Ball Corp [1994] Carswell Ont 228 at

[26]; Rubenstein Brothers (Ontario) Ltd v Capmore Capital Corp [1994] Carswell Ont 2582 at [9];

Venpro Consulting Inc v Computer Methods Corp [1994] Carswell Ont 3199 at [19]; Tannous v

O’Donnell [1995] Carswell Ont 2852 at [6]; Kotarba Technologies Inc v Process Industrial Co

[1995[ Carswell Ont 3784 at [23]; Classified Directory Publishers Inc v Image Management

Technologies Inc [1995] Carswell Ont 2449 at [17]; Dunlop v Major [1996] Carswell Ont 152 at

[30]; Kinbauri Gold Corp v IAMGOLD International African Mining Gold Corp [1999] OTC Lexist

1206 at [20]; Hutcheson (W Robert) Sand & Gravel Ltd v Taylor et al [1999] OTC Lexis 2156 at

[11]; McMaster Estate v Imark Corp [2000] OTC Lexis 2842 at [8]; Wilson (Jane) Towers Ltd v

Panton [2000] OTC Lexis 3027 at [18]; Sherritt v 690624 Ontario Inc et al [2000] OTC Lexis 3396

at [30] and [32]; Piskor v Piskor [2000] OTC Lexis 3508 at [12]; P (ML) v P (GW) [2000] Carswell

Ont 3937 at [12]; Michon v Renic-Cully [2001] OTC Lexis 1867 at [15]; Millar v General Motors of

Canada Ltd [2002] Carswell Ont 2325 at [44]; Schutt v Schutt [2003] OJ No 1596 at [22]; Mason

Homes Ltd v Oshawa Group Ltd [2003] OJ No 3826 at [208]; Whaley v Dennis [2005] OJ No 3174 at

[31]; 1175777 Ontario Ltd v Magna International Inc [2006] OJ No 4732 at [158]; Tregunna v Gauld

[2007] OJ No 67 at [58]; Clarke v Insight Components (Canada) Inc [2007] OJ No 5671 at [30];

Mega Wraps BC Inc v Mega Wraps Holdings Inc [2008] OJ No 221 at [91]; Golob v Byczkowsky

[2008] OJ No 3350 at [26]; Morgan v John Bear Pontiac Buick Cadillac Ltd [2010] OJ No 4848 at

[14] and [17]; and Manor Windsor Realty Ltd v Bank of Nova Scotia [2011] OJ No 3434 at [33]. 229

See eg Re Heyl and Lac Minerals Ltd (1985) 50 OR (2d) 535 at 556; Glengorm Enterprises Inc v

Johnson & Johnson Inc [1989] Carswell Ont 1478 at [104]; Downtown King West Development Corp

v Massey Ferguson Industries Ltd (1993) 14 OR (3d) 528 at 536; Bank of Montreal v Bale (1994) 19

OR (3d) 187 at 195; Beer v Townsgate I Ltd (1995) 25 OR (3d) 785 at 796; Kuhn v Thiebault et al

[1996] OTC Lexis 4340 at [12]; Harper v Kami’s Eating & Meeting Place et al [1996] OTC Lexis

3816 at [8]; Nesbitt v Phipps et al [1997] OTC Lexis 3562 at [10]; Triple ‘R’ Demolition Inc v

1186468 Ontario Ltd [1998] OTC Lexis 635 at [18]; Showmart Management Ltd v 853436 Ontario

Ltd [1998] OTC Lexis 1094 at [32]; Pike’s Tent and Awning Ltd v Cormdale Genetics Inc [1998]

OTC Lexis 1629 at [17]; Fraser v Knox et al [1998] OTC Lexis 2121 at [42]; and Welch Foods Inc v

Cadbury Beverages Canada Inc [1999] OTC Lexis 983 at [219]. 230

See eg Newcourt Credit Group Inc v Hummel Pharmacy Ltd et al [1997] OAC Lexis 2771 at [29]. 231

See eg Harthauer v Harthauer [1990] Carswell Ont 252 at [31] and [32] as well as Anderson v

Anderson [1992] Carswell Ont 1659 at [17] and [20]. 232

See eg Sheppard v Czechoslovak (Toronto) Credit Union Ltd [1988] Carswell Ont 620 at [11];

Growing Investments Ltd v 618578 Ont Ltd [1988] Carswell Ont 2660 at [32], [33] and [44]; and

Marks v Canadian Imperial Bank of Commerce [1990] Carswell Ont 3080 at [29]. 233

See eg Metropoltian Toronto Commissioners of Police v Police Assn (Metropolitan Toronto)

[1977] Carswell Ont 661 at [60]; University of Windsor v CUOE, Local 100 [1979] Carswell Ont 981

at [10]; Ontario Racing Commission v AMAPCEO [2001] Carswell Ont 4826 at [19] and [38];

Outdoor Outfits Ltd v UFCW, Local 175 [2011] Carswell Ont 9038 at [25]; and Re Metropolitan

Toronto Apartment Builder Assn and Universal Workers Union (LIUNA, Local 183) [2012] Carswell

Ont 14062 at [25]. Reference may also be made to the Financial Services Commission of Ontario

(Arbitration Decision) in Wachmenko v Primmum Insurance Co [2005] Carswell Ont 2665 at [29].

40

Court,235

the Manitoba Court of Queen’s Bench,236

the Saskatchewan Court of

Queen’s Bench,237

the Saskatchewan Labour Relations Board,238

the Nova Scotia

Supreme Court,239

the Nova Scotia Small Claims Court,240

the Newfoundland and

Labrador Supreme Court,241

the Newfoundland and Labrador Provincial Court,242

234

See eg Burntwood Holdings Ltd v Salt [1988] Carswell Alta 486 at [37]; Paddon Hughes

Development Co v Pancontinental Oil Ltd [1992] AR Lexis 4264 at [41] and [46]; 370105 Alberta

Ltd v Brazos Petroleum Corp [1992] AR Lexis 4564 at [15] and [16]; Alberta Agricultural

Development Corp v Smith et al [1993] AR Lexis 4902 at [32]; Opron Construction Co v Alberta

[1994] AR Lexis 5494 at [553]; Pawluk et al v Bank of Montreal et al [1994] AR Lexis 5074 at [67];

Petrone v Marmot Concrete Services Ltd [1996] AR Lexis 3805 at [28]; Greenley v Xerox Canada

Ltd [1997] AR Lexis 1539 at [124]; Royal Bank of Canada v McLean [1997] AR Lexis 2387 at [41];

Matthews v Accent Lines (1988) Ltd et al [1998] AR Lexis 1113 at [56]; Canada Southern Petroleum

Ltd v Amoco Canada Petroleum Co [2001] AR Lexis 1139 at [126]; Parrish & Heimbecker Ltd v All

Peace Auctions Ltd [2001] Carswell Alta 1819 at [67]; Herman v Alberta (Public Trustee) [2002]

Carswell Alta 308 at [21]; Nystoruk v Precision Diversified Services Ltd [2003] AJ No 332 at [30];

Xerex Exploration Ltd v Petro-Canada [2003] AJ No 1104 at [100]; Dirom v Perera [2004] AJ No

990 at [222]; Turner v Uniglobe Custom Travel Ltd [2005] AJ No 945 at [74]; Strand v Emerging

Equities Inc [2007] AJ No 43 at [66]; Mystar Holdings Ltd v 247037 Alberta Ltd [2009] AJ No 877 at

[84]; and Meads v Meads [2012] AJ No 980 at [467]. 235

See eg Kuny v Wigle [1994] Carswell Alta 988 at [3]; Orazietti v Star Service of Banff (1977) Ltd

[1999] AR Lexis 1376 at [29] and [31]; Langill v Totem Building Supplies Ltd [1999] AR Lexis 1303

at [12]; and Rajakaruna v Campbell [2006] AJ No 219 at [8]. 236

See eg 4 Seasons Electrical Mechanical Contractors of Canada (1979) Ltd v Apex Realty

Properties Inc [1993] Man R (2d) Lexis 1178 at [8] and Steingarten v Burke [2003] MJ No 95 at

[26]. 237

See eg Dome Construction Ltd v Solarsystems Industries Ltd [1984] Sask R 390 at [52]; Miller v

Miller [1994] Carswell Sask 515 at [27]; Freeman v General Motors Acceptance Corp of Canada Ltd

[1999] Sask R Lexis 752 at [21]; 101008161 Saskatchewan Ltd v Saskatchewan Wheat Pool [2002]

Carswell Sask 343 at [42]; Lewis (cob Lewis Logging) v Cross (cob Bill Cross Pulp and Logging)

[2003] SJ No 359 at [14]; Saskatchewan Wheat Pool v Grain Services Union [2003] SJ No 521 at

[15]; Fitzpatrick v Estevan Credit Union [2003] SJ No 711 at [48]; Haus v Harper [2004] SJ No 270

at [8]; Woytowich v United Grain Growers Ltd [2004] SJ No 429 at [11] and [15]; May v

Saskatchewan [2006] SJ No 164 at [51]; and Murphy v Tapp [2008] SJ No 740 at [44], [55] and [56]. 238

See eg CUPE v Potashville School Division No 80 [2000] Carswell Sask 907 at [46]. 239

See eg Marathon Realty Co v Toulon Construction Corp [1987] NSR (2d) Lexis 1253 at [39] and

[62]; Federal Savings Credit Union Ltd v Walker [1988] Carswell NS 205 at [12];Sprague’s Well

Drilling Ltd v Mills [1990] NSR (2d) Lexis 1143 at [15]; Muise v Whalen [1990] NSR (2d) Lexis

1081 at [25] and [36]; Uniacke Properties Ltd v Hartling (JG) Ltd [1992] NSR (2d) Lexis 2064 at

[25]; Dudka v Smilestone [1994] NSR (2d) Lexis 1730 at [37];Southwest Properties Ltd v Radio

Atlantic Holdings Ltd [1994] NSR (2d) Lexis 2005 at [33]; Mitsui & Co (Point Aconi) Ltd v Jones

Power Co et al [1999] NSR (2d) Lexis 210 at [74]; Re Keddy Motor Inns Ltd (Bankrupt) [1999] NSR

(2d) Lexis 353 at [42] and [45]; Desmond v McKinlay [2000] NSR (2d) Lexis 246 at [41]; Eastern

Canada Coal Gas Venture Ltd v Cape Breton Development Corp (2001) 200 NSR (2d) 201 at [359];

Le Car GmbH v Dusty Road Holdings Ltd [2004] NSJ No 140 at [19]; Laurie v Jones [2004] NSJ No

168 at [14]; Key Equipment Finance Ltd v Jacques Whitford Ltd [2006] NSJ No 76 at [156]; Saturley

v Lund [2007] NSJ No 577 at [11]; and Total E-com Home Delivery Inc v Smith [2008] NSJ No 62 at

[44]. 240

See eg Edwards Dean & Co v University of King’s College [2007] NSJ No 422 at [69]. 241

See eg Unified Systems Ltd v Clearwater Lobsters Ltd [1986] Nfld & PEIR Lexis 382 at [29];

Dove v S & M Carpet Limited and James [1988] Nfld & PEIR Lexis 609 at [29]; Abitibi-Price Inc v

Westinghouse Canada Inc [1988] Nfld & PEIR Lexis 608 at [128]; Pelley et al v Morguard Trust Co

[1989] Nfld & PEIR Lexis 815 at [13]; Howe Richardson Inc v Newfoundland Scale Co [1990]

Carswell Nfld 51 at [11] and [12];Campbell v Campbell (No 2) [1990] Nfld & PEIR Lexis 752 at

[26], [28] and [67]; Ibis Products Ltd v Newfoundland [1992] Nfld & PEIR Lexis 963 at [18] and

[21]; Mac Investments and Consultants Ltd v Gittens/Casey Management Co et al [1993] Nfld &

PEIR Lexis 1078 at [24]; Collins v Collins [1993] Nfld & PEIR Lexis 1211 at [17]; Village Green

Landscaping Ltd v Murphy [1994] Nfld & PEIR Lexis 1053 at [19]; Finn v St John’s (City) [1995]

Nfld & PEIR Lexis 1047 at [15]; United Food and Commercial Workers, Local 1252 Fishermen’s

41

the Prince Edward Island Supreme Court,243

the New Brunswick Court of Queen’s

Bench,244

the Northwest Territories Supreme Court,245

the Yukon Territory Supreme

Court,246

the Tax Court of Canada247

and the Canada Arbitration Board.248

The book has also been cited in the Caribbean – in particular by the Court of

Appeal of Trinidad and Tobago.249

Last but not least, in Asia, the book has also been cited by the Supreme

Court of India,250

the Hong Kong Court of First Instance,251

the Hong Kong High

Court,252

the Hong Kong District Court,253

the Federal Court of Malaysia,254

the

Malaysian Court of Appeal,255

the Malaysian High Court,256

the Singapore Court of

Appeal257

and the Singapore High Court.258

Union v Cashin et al [1996] Nfld & PEIR Lexis 1272 at [336]; Ming Minerals Inc v Blagdon et al

[1998] Nfld & PEIR Lexis 162 at [29]; Philpott v Sullivan [2007] NJ No 263 at [45]; Midnight

Marine Ltd v Lloyd’s Underwriters [2010] Carswell Nfld 3 at [58]; and Quinlan Brothers Ltd v

Coady [2012] NJ No 27 at [28]. 242

See eg Saunders v Baccalieu Auto Sales Ltd [2007] NJ No 287 at [16]. 243

See eg Murphy v Alberton (Town) [1993] Nfld & PEIR Lexis 1222 at [13]; Cumberland Trust v

Maritime Electric Co [2000] Nfld & PEIR Lexis 41 at [37]. 244

See eg Angers v Duguay [1988] Carswell NB 544 at [12]; Stewart v Complex 329 Ltd et al [1990]

NBR (2d) Lexis 859 at [52]; Nyle International Corp v Depow [1991] NBR (2d) Lexis 788 at [63];

Maritime Orthopedic Co v Moncton Prosthetics and Orthotics Clinic et al [1992] NBR (2d) Lexis

917 at [90]; Albert Estate v Gionet et al [1993] NBR (2d) 952 at [63] and Air Liquide Canada Inc v

Ichiboshi LPC Ltd [2005] NBJ No 105 at [35]. 245

See eg Arctic Co-operatives Ltd v Sigyamiut Ltd (Receiver of) [1991] Carswell NWT 2 at [20]. 246

See eg Ketza Construction Corp v Mickey [1999] Carswell Yukon 12 at [69]. 247

See eg Shaw v Minister of National Revenue [1985] Carswell Nat 254 at [26]; Coopers & Lybrand

Ltée v Ministre du Revenu National [1994] Carswell Nat 1066 at [159]; and Edwin Witzke v S A

Majeste La Reine 2008 Can Tax Ct LEXIS 1296 at [13]. 248

See eg Babin v Day & Ross Inc [2001] Carswell Nat 4435 at [26]; Transit Windsor ATU v ATU,

Local 616 [2004] Carswell Nat 5465 at [68]; and Re Société Centrale D’hypothéques et de Logement

et Baudran [2012] Carswell Nat 4010 at [148]. 249

See eg IMH Investments Ltd v Trinidad Home Developers Ltd [1994] FSR 616 at 655. Reference

may also be made to the Privy Council decision of Phillip v Attorney General of Trinidad and

Tobago [2009] UKPC 18 at [17] and [18] (on appeal from the Court of Appeal of Trinidad and

Tobago), and cited above, n 250

See eg MD, Army Welfare Housing Organisation v Sumangal Services Pvt Ltd [2003] 4 LRI 387

at [124]. 251

See eg HCK China Investments Limited, Investment Austasia Limited v Wah Nam Group Limited

[2000] HKCU 592. 252

See Chan Juen v Yu Fook Shung [1987] 3 HKC 539 at 542. 253

See eg Chu Wai Man v Poon Kin Ming [2010] CHKEC 145 at [37]. 254

See eg Khaw Poh Chuan v Ng Gaik Peng & Ors [1996] 1 MLJ 761 at 775; Yap Hong Too and

Anor v Wong Ah Mei and Anor [1997] 1 MLJ 545 at 550; and Damansara Realty Bhd v Bungsar Hill

Holdings Sdn Bhd [2011] 6 MLJ 464 at [62]. 255

See eg Bank Bumiputra Malaysia Bhd v Mohamed bin Salleh [2000] 2 MLJ 412 at 415. 256

See eg Malayan Flour Mills Bhd v Saw Eng Chee (Administrator of the Estate of Saw Cheng

Chor, Deceased) [1997] 1 MLJ 763 at 772; Kinta Medical Centre v Foo Yet Kai Foundation [1997]

MLJU 258; Foreswood Timber SB v Rajang Line SB [1999] MLJU 159 at [52]; Awan bin Chin v

Salleh bin Sudin [2001] MLJU 695; Mahfar bin Alwee v Jejaka Megah Sdn Bhd [2004] MLJU 107;

Kok Swee Chin v General Factoring & Credit Sdn Bhd [2004] 6 MLJ 276 at [22]; KM Quarry Sdn

Bhd v Ho Hup Construction Co Bhd [2006] 7 MLJ 203 at [38]; and Hong Leong Bank Bhd v Sum-

Projects (Brothers) Sdn Bhd [2010] 7 MLJ 39 at [33]. 257

See eg K-Rex Finance ltd v Cheng Chih Cheng [1992] 3 SLR(R) 296 at [17]; National Aerated

Water Co Pte Ltd v Monarch Co, Inc [2000] 1 SLR(R) 74 at [43]; Man Financial (S) Pte Ltd v Wong

Bark Chuan David [2008] 1 SLR(R) 663 at [93] and [104]; Robertson Quay Investment Pte Ltd v

Steen Consultants Pte Ltd [2008] 2 SLR(R) 623 at [53]; Family Food Court (a firm) v Seah Boon

42

It should also be noted that other books co-authored259

as well as edited260

by

Professor Furmston have also been cited by the courts, as have his articles.261

Lock and another [2008] 4 SLR(R) 272 at [29]; Ng Giap Hon v Westcomb Securities Pte Ltd and

others [2009] 3 SLR(R) 518 at [54] and Joseph Mathew v Singh Chiranjeev [2010] 1 SLR 338 at

[26], [27] and [29]; Ang Sin Hock v Khoo Eng Lim [2010] 3 SLR 179 at [68] and [71]. 258

See eg Fazlur Rahman v Bombay Trading Co (Pte) Ltd [1992] 2 SLR(R) 529 at [20]; China

Insurance Co (Singapore) Pte Ltd v Liberty Insurance Pte Ltd [2005] 2 SLR(R) 509 at [60]; Koon

Seng Construction Pte Ltd v Chenab Contractor Pte Ltd and another [2008] 1 SLR(R) 375 at [70];

Mano Vikrant Singh v Cargill TSF Asia Pte Ltd [2012] 1 SLR 311 at [55]. 259

See eg M Furmston & G J Tolhurst (Contributor: E Mik), Contract Formation – Law and Practice

(Oxford University Press, 2010; see also above, n 87), cited in the Supreme Court of New South

Wales decisions of Western Export Services Inc v Jireh International Pty Ltd [2010] NSWSC 622 at

[197] and [199] as well as Tadrous v Tadrous [2010] NSWSC 1388 at [5]. 260

See eg M Furmston (Gen Ed), The Law of Contract (Butterworths Common Law Series) (4th

Ed,

LexisNexis, 2010), cited by the Singapore High Court in Mano Vikrant Singh v Cargill TSF Asia Pte

Ltd [2012] 1 SLR 311 at [55]. The third edition of this work (published in 2007) was cited by the

Federal Court of Australia in University of Western Australia v Gray [2009] FCAFC 116 at [91],

[135] and [144] as well as Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (2009)

261 ALR 501 at [364], [455] and [456] and the Alberta Court of Appeal in Brick Protection Corp v

Alberta (Provincial Treasurer) (2011) 337 DLR (4th

) 154 at [48]. The second edition of this work

(published in 2003) was cited in the High Court of Australia decision of Butcher v Lachlan Elder

Realty Pty Ltd (2004) 212 ALR 357 at [213] and [221], the Federal Court of Australia decisions of

Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd [2005] FCAFC 49 at [55]; Pacific Brands Sport

& Leisure Pty Ltd v Underworks Pty Ltd (2006) 230 ALR 56 at [31], [32], [40], [59], [67] and [112];

Martech International Pty Ltd v Energy World Corporation Ltd (2006) 234 ALR 265 at [159];

Martech International Pty Ltd v Energy World Corporation Ltd [2007] FCAFC 35 at [22] and Fadu

Pty Ltd (ACN 007 815 090) v ACN 008 112 196 Pty Ltd as Trustee of the ‘International Linen Service

Unit Trust’ [2007] FCA 1965 at [15], the Supreme Court of New South Wales decision of Lahoud v

Lahoud [2009] NSWSC 623 at [363] as well as in the Singapore Court of Appeal decisions of Man

Financial (S) Pte Ltd (formerly known as E D & F Man International (S) Pte Ltd v Wong Bark Chuan

David [2008] 1 SLR(R) 663 at [45] and Family Food Court (a firm) v Seah Boon Lock and another

(trading as Boon Lock Duck and Noodle House) [2008] 4 SLR(R) 272 at [30]. The first edition of

this work (published in 1999) was cited in the House of Lords decision of Johnson v Unisys Ltd

[2003] 1 AC 518 at [21]; the Hong Kong Court of Appeal decision of Shanghai Tongji Science &

Technology Industrial Co Ltd v Casil Clearing Ltd [2003] HKCU 637 at [38]; and the British

Columbia Supreme Court decision of No 151 Cathedral Ventures Ltd v Gartrell [2003] BCJ No 2715

at [200]. See also Beale, Bishop & Furmston, above, n 94; the 1990 edition of this work was cited in

the Malaysian Court of Appeal decision of Anvest Corp Sdn Bhd v Wong Siew Choong Sdn Bhd

[1998] 2 MLJ 30 at 43. 261

See eg M P Furmston, ‘The Analysis of Illegal Contracts’ (1965-1966) 16 U Toronto LJ 267 (see

also above at n 121), cited in the English High Court decision of 21st Century Logistic Solutions Ltd v

Madysen Ltd [2004] 2 Lloyd’s Rep 92 at [17] and [18] (see also above, nn 139 and 150) as well as

the English Court of Appeal decision of Anglo Petroleum Ltd v TFB (Mortgages) Ltd [2007] EWCA

Civ 456 at [81] (see also above, nn 140 and 151) and, by the same author, ‘The Assignment of

Contractual Burdens’ (1998) 13 JCL 42 (see also above at n 180), cited in the Federal Court of

Australia decision of Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd (2006) 230 ALR

56 at [32]. See, further, M P Furmston, ‘Damages – Diminution in Value or Cost of Repair? –

Damages for Distress’ (1993) 6 JCL 64 (see also above at n 117), cited in the House of Lords

decision of Farley v Skinner [2002] 2 AC 732 at [26] as well as H Abedian & M P Furmston, ‘Relief

Against Forfeiture after Breach of an Essential Time Stipulation in the Light of Union Eagle Ltd v

Golden Achievements Ltd’ (1998) 12 JCL 189 (see also above at n 116), cited in the High Court of

Australia decision of Tanwar Enterprises Pty Ltd v Cauchi (2003) 201 ALR 359 at [105]. The joint

article by Professor Carter and Professor Furmston, ‘Good Faith and Fairness in the Negotiation of

Contracts – Part I’ (1994-1995) 8 JCL 1 (see also above at n 182), was cited in the Federal Court of

Australia decision of Vivian Fraser & Associates Pty Ltd v Shipton [1999] Aust Fedct Lexis 174.

Professor Furmston’s article, ‘Return to Dunlop v Selfridge?’ (1960) 23 MLR 373 (see also above at

n 175), was cited in the High Court of Australia decision of Trident General Insurance Co Ltd v

43

Significantly, in this regard, a few of his earliest pieces have stood the test of

time.262

Finally, it should be noted that Professor Furmston has also been active as a

consultant and practitioner. Indeed, he appeared – most notably – in the leading

House of Lords decision in Ruxley Electronics and Construction Ltd v Forsyth.263

Appearing with Mr Bryan McGuire, they successfully persuaded the House to allow

the appeal in favour of their clients.

Conclusion

As the title of the present essay clearly states, Professor Furmston’s

scholarship in the law of contract is both an ‘integrated’ as well as an ‘integral’ one.

It is ‘integrated’ inasmuch as it has successfully blended both theory and practice

into one seamless and organic whole.264

It is at once both scholarly as well as

practical. This balance is not easy to achieve at all, as some academic writing tends

(unfortunately, in my view) to be unnecessarily abstract and simply not very useful

to courts, lawyers and law students alike. Professor Furmston’s work is the rare

exception. Indeed, as we have seen, the citations of his work by the courts –

especially of Cheshire, Fifoot and Furmston’s Law of Contract – is staggering,

given the citations literally across the globe and the sheer number of cases contained

in those citations. I did not even attempt to locate the citations to his work in the

academic literature for it would have been a task that would have literally taken

years to accomplish (if at all).

Professor Furmston’s scholarship in the law of contract is also an “integral”

one. I do not think that any person who claims that he or she has a firm grasp of the

principles of contract law can justify that claim without having read the enormous

corpus of his work in this field. Indeed, as I pointed out at the commencement of

this essay, Professor Furmston is a ‘legal polymath’ whose scholarship extends to

other fields as well.

McNiece Bros Pty Ltd (1988) 80 ALR 574 at 579, whilst his article, ‘Who Can Plead That A Contract

Is Ultra Vires?’ (1961) 24 MLR 715 (see also above at n 101), was cited in the English High Court

decision of Bell Houses Ltd v City Wall Properties Ltd [1966] 1 QB 207 at 220 as well as in the New

Zealand Court of Appeal decision of Cabaret Holdings Ltd v Meeanee Sports and Rodeo Club Inc

[1982] 1 NZLR 673 at 676. And Professor Furmston’s review in [1994] All England Annual Review

at 112 was cited in the Federal Court of Australia decision of Flanagan v Commissioner of Australian

Federal Police (1996) 134 ALR 495 at 555. 262

See eg M P Furmston, ‘Who Can Plead That A Contract Is Ultra Vires?’, above, nn 101 and 261

as well as, by the same author, ‘Return to Dunlop v Selfridge?’, above nn 175 and 261‘The Analysis

of Illegal Contracts’ (1965-1966), above, nn 121 and 261. 263

[1996] 1 AC 344; and see, especially, at 349, where Professor Furmston’s arguments before the

court are set out. See also A Phang, ‘Subjectivity, Objectivity and Policy - Contractual Damages in

the House of Lords’, [1996] JBL 362. 264

Indeed, after an initial draft of this essay had been prepared, a joint article by Professor Furmston

and Professor Mouzas was published in the most recent issue of the Journal of Contract Law which

epitomizes this very point. In it, the learned authors propose a classification of contracts based on

their real-life usage (see S Mouzas & M Furmston, ‘A Proposed Taxonomy of Contracts’ (2013) 30

JCL 1).

44

All this would be sufficient to justify his status as one of the top legal

scholars of both the twentieth and twenty-first centuries. But, if I may add a

personal note, what marks Professor Furmston out as a truly great man is not only

his legal scholarship but also his humanity as demonstrated in his deep and abiding

concern for his family as well as for others (such as myself). And this does not

come naturally – especially to persons of such sterling intellectual ability. We are

fortunate that that ability is accompanied by great humility and an ability to

appreciate as well as enjoy the simple pleasures in life. It is therefore a great honour

and privilege to present this essay to Professor Furmston on the occasion of his

eightieth birthday, to whom our very best wishes go for many more fruitful years

ahead.

the integrated and integral contract scholarship of - school of law

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