Positivism in the English Law of Contract

Abstract

While there has been no paucity of theoretical discussion on the law of contract, there has, in English law at least, been little clear evidence from the courts themselves which particular jurisprudential approach is favoured.' This is not surprising, given the rather formal nature of the English legal system.3 Herein, perhaps, lies a clue that English law in general and its contract law in particular are generally oriented towards so-called 'black letter law'; or, to be more precise, that the generally favoured conception of law is that of positivism.4 As already mentioned, however, there has been little express acknowledgement of this approach by the courts. This is why two important cases decided by the Court of Appeal5 merit consideration. Each of these decisions has had (for the time being at least)6 a profound influence upon its own particular area of the English common law of contract. The first, Kleinwort Benson Ltd v Malaysia Mining Corp Bhd,7 concerned the legal effect of a specific clause in a letter of comfort; the second, Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd, The Good Luck,8 was a lengthy