true that treatise writers from the late eighteenth century began to use a version of will theory as a general organizing principle for the law of contract, it is equally true that the detail of contract law was not simply deduced from this master principle. Instead, new doctrines appeared only when new problems came before the courts, and judges worked their way towards a solution of the immediate problem before them. For instance, the doctrine of mistake of identity in contract law, which is sometimes seen as an example of English treatise writers seeking to import civilian ideas, developed in a particular context, as courts were faced with new kinds of commercial frauds for which the existing law seemed to offer no clear solution.64 Similarly, many of the English rules on the role of offer and acceptance in the formation of contract, or on the effect of fraud, developed in response to company failures in the 1860s and 1870s, when share purchasers sought to avoid the liability which came with their efforts to buy shares.65 In such areas, the development of the doctrine often came from the arrival of an unusual fact situation which courts struggled to find a solution for. Judges and counsel developed solutions in an often ad hoc way, and left it to the jurists subsequently to theorize the case law as best they could. Treatise writers had an important role to play in digesting the mass of case law, and selecting which cases were more noteworthy. In so doing, they gave a shape to areas of law, which in turn fed back into the courts, as lawyers familiar with the treatises shaped their arguments in accordance with what they had read in them.They had great influence in selecting which cases would be cited in later courts, and how the cases would be understood. For, as has been seen, the amount of reported case law grew significantly in the nineteenth century, thanks to the proliferation of law reports, published by both private law reporters, and in the legal periodical press.66 The quality of this law reporting varied, and in many instances, it was necessary to read more than one report in order to get an accurate picture of the legal arguments m i cha e l lob ban 153 64 On mistake, see esp. C.MacMillan,Mistakes in Contract Law(Oxford, 2010); see also Cornish et al, Oxford History, vol. xii, pp. 452-70. 65 On offer and acceptance, see S. Gardner,‘Trashing withTrollope: a Deconstruction of the Postal Rules in Contract,’ Oxford Journal of Legal Studies vol. 12 (1992), pp. 170-94. See also Cornish et al, Oxford History, vol.xii, pp. 329-57.On fraud, see Oxford History, vol. xii, pp. 400-32. 66 Private law reporting (though not legal periodical reports) was superseded in1865 by the creation of the Council of Law Reporting. See Cornish et al, Oxford History, vol. xi, pp. 1215-22.
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