By the end of the 19th Century, Gilmore writes, several “rules” of Contract law had been attached to what were once specific cases. The rules “had been generalized into abstractions that had little or nothing to do with the cases themselves.” (Ch. 1).
In the case of Stilk v. Myrick, two seamen deserted a ship and the master promised the remaining men the divided wages of the deserters if those remaining would continue on without additional help. When the master ultimately refused that promised payment and the seamen sued, the judge ruled that the plaintiffs were entitled to no more money than they originally signed on for.
In 1920, Professor Williston, in his treatise on Contracts, used the case name to label a rule on contract modifications, stating that no new contract can be formed based on work already required by a contracting party. Gilmore complains that Williston’s rule from Stilk v. Myrick makes no sense in light of the facts from the case, as, indeed, the seamen presumably took on much more difficult and different roles down two men. Gilmore dedicates 7 pages to the question: How did the name from one case came to stand for an abstract and un-fully-related rule? He explores maritime law and the “vagaries of early nineteenth century English case-reporting.” My impression from Gilmore’s telling is that something like a conventional wisdom built up around the reasoning in Stilk. By the time Williston used the case, the facts had dissolved and a common understanding remained – a nugget-sized principle that sparked in heads when hearing the case name arose. Sort of like Marbury‘s sparking the notion of judicial review.
In any event, Gilmore runs the reader through a couple more case-to-rule transformations. As the cases become rules, the forgotten facts seem to rub akwardly against the rules. Also, the rules conform with the theory of consideration that Williston believed essential to contract formation. In his second lecture, Gilmore discusses Justice Holmes’ belief that “the inevitable process of legal development” was from subjective to objective; from particular cases to generaly applicable rules. The trend amplifies what Gilmore noted in his first lecture as he described cases becoming rules. It is also clear that, if subjective/specific cases become objective/general rules, someone does the synthesizing – someone objectifies the legal principles. Gilmore makes that point, though I didn’t notice him making the point outright. Rather, we see consideration, a general avoidance of damages, and a hesitation to contract formation as what must have been biases among those that cemented Contract rules.
