1

Source: p 115, The Law of Contract, 5 ed (2012), by O’Sullivan and Hilliard

Lord Blackburn was even more troubled by the result [in Pinnel's Case (1602)], tantalisingly hinting that he had prepared a dissenting speech but decided against delivering it [in Foakes v Beer (1884)]:

What principally weighs with me in thinking that Lord Coke made a mistake of fact is my conviction that all men of business, whether merchants or tradesmen, do every day recognise and act on the ground that prompt payment of a part of their demand may be more benefi cial to them than it would be to insist on their rights and enforce payment of the whole. Even where the debtor is perfectly solvent, and sure to pay at last, this often is so. Where the credit of the debtor is doubtful it must be more so. I had persuaded myself that there was no such long-continued action on this dictum as to render it improper in this House to reconsider the question. I had written my reasons for so thinking; but as they were not satisfactory to the other noble and learned Lords who heard the case, I do not now repeat them nor persist in them.

How do you determine/deduce the right definition of action from the sentence?

1. [mass noun] The fact or process of doing something, typically to achieve an aim:
5. Legal proceedings; a lawsuit:

Does Lord Blackburn mean that he found no measures in general (not just legal, but maybe legislative, politicial, or social) that opposed and repealed 'this dictum', so definition 1;

or that no lawsuits were filed to try to overturn 'this dictum', so definition 5?

  • I think he means that there had been no accumulation of case law built upon the superstructure of Lord Coke's dictum in this instance. A dictum (or "mere dictum" as judges and attorneys hostile to a particular instance of it are wont to to say) can be a very touchy subject in British and (especially) U.S. law because these legal systems rest on actual court decisions and rulings on specific points of law, not on theoretical discursions by judges on points that are not, strictly speaking, at issue in a case. The situation is very different from that of a code-based civil law system. – Sven Yargs Nov 18 '14 at 10:57
2

I would take it to have a meaning in keeping with 5. Specifically, I take his comment about "no such long-continued action" to mean that the cause of action (i.e., the specific kind of breach of contract) that was relied on in the present case had not been brought before the courts, or relied on in court, in the recent past. Given that it had not been recently considered, and previous doctrine had not recently been relied on, it was open to the present court to reconsider it. That is in keeping with the double-negative of "no action ... to render it improper ..."

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