WITHOUT THE POWER TO DRINK OR

CONTRACT

WARREN SWAIN

Not drunk is he, who from the floor,

Can rise alone, and still drink more:

But drunk is he who prostrate lies,

Without the power to drink or rise.1

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to

regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of

magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility.

These sorts of issues are not of course unique to intoxication and also present the law of contract with

difficulties elsewhere, for example, in trying to work out the boundaries of economic duress.2 Yet intoxication

has some unique features. Alcohol consumption is a common social activity and perceptions of intoxication and

especially alcoholism have changed over time.

Writers in the ancient world were all too well aware of the effects of intoxication, Aristotle observed that ‘more

men are insolent when drunk than when sober’.3 Seneca described one Prefect of Rome who was so drunk at

Senate that he was, ‘overcome by sleep from which he could not be aroused, and was carried away’.4 Any

Professor, Faculty of Law, University of Auckland, Visiting Fellow, Clare Hall, Cambridge. 1 Thomas Peacock, The Misfortunes of Elphin and Rhododaphne (Macmillan, London, 1897) 16. 2 The obvious difficulty falls in distinguishing ordinary commercial pressure which is a proper aspect of a

capitalist economy from exploitation amounting to duress and which is illegitimate pressure. Examples include:

B & S Contracts and Designs Ltd v. Victor Green Publications Ltd [1984] ICR 419; Atlas Express Ltd v. Kafco

(Importers & Distributors) Ltd [1989] QB 833. 3 Rackham (trans.) Aristotle, Politics 1274 b 4 Seneca Epistle 83.14-15

condemnation of heavy drinking is couched in moral rather than physical or medical terms.5 Although there are

plenty of archaeological evidence that the Romans enjoyed the consumption of wine and beer drinking,6 legal

sources are almost entirely silent on drunkenness and say nothing at all about contracting while intoxicated.7 In

much later treatments, as a ground of incapacity, intoxication is sometimes equated with insanity. There are

rather more Roman texts on mental incapacity than there are on intoxication. The Digest for example states: ‘It

is clear in the nature of things that a lunatic whether he makes a stipulation or a promise, performs no valid act’.8

Nowhere is intoxication mentioned in this context. It is still possible, and likely, that intoxication was a relevant

factor in the contracting process. This is because many of the main Roman contracts, including sale, were

consensual and therefore required bona fides.9 As a result, as the Institutes explains, ‘In all actions bona fides

full power is given to the judge to determine, according to the rules of equity, how much might be restored to

the plaintiff’.10 Taking advantage of someone in a state of intoxication might very well reflect an absence of

good faith. For those other stricti iuris contracts (like stipulatio) an exceptio doli was available. Fraud defined as

‘every kind of cunning, trickery or contrivance practiced in order to cheat, trick or deceive another’11 might

conceivably catch a situation where one of the parties was intoxicated and the other took advantage. The

application of these principles can only be a matter of speculation, but it seems likely that it would involve at the

very least some fault on the part of the person seeking to enforce the contract, or in the case of fraud, some

advantage-taking. Merely contracting with someone who is intoxicated would not seem to be enough to vitiate a

contract in Roman law unless bad faith is given a broad meaning. In contrast to the silence of Roman law,

English and Scottish lawyers have a great deal to say about contracting whilst intoxicated, at least from the early

modern period onwards. Many leading writers including Coke and Stair have also contributed to the discussion.

INTOXICATION AND THE COMMON LAW OF CONTRACT

5 John F Donahue, Food and Drink in Antiquity Readings from the Graeco-Roman World A Sourcebook

(Bloomsbury, London, 2015) 248. 6 HEM Cool, Eating and Drinking in Roman Britain (CUP, Cambridge, 2006) 129-51. 7 For the handful of Roman texts see, Alan Watson, Studies in Roman Private Law (Hambledon Press, London,

1991) 243-49. 8 D 44.7.1.12. See also for example, G 3.106. 9 F de Zulueta, The Roman Law of Sale (Clarendon Press, Oxford, 1966) 8-9. 10 Inst 4.6.30. 11 D.4.3.1.2.

In Shakespeare’s, Othello, Iago observes that the English ‘are most potent in potting. Your Dane, your German,

and your swag bellied Hollander – drink ho! – are nothing to your English’.12 A reputation for heavy drinking is

not unique amongst European nations,13 but it is hardly undeserved either. In William Langland’s fourteenth

century allegory, Piers the Ploughman,14 Betty the Brewster entices Glutton into her tavern where he is

confronted with a good cross-section of humanity from fiddlers, rat-catchers, street sweepers, ditch diggers,

cobblers, Clarice (a prostitute) to a priest and the parish clerk. The allegory reflects the way that alcohol was

consumed at all levels of society during the Middle Ages, although the amount and quality of alcohol varied

according to social position.15 For the poor ale was an important source of energy and sustenance in what must

otherwise have been a miserable existence.16

Medieval English contract law was quite different from the one that we are familiar with today. The mandatory

requirement of a deed in the action of covenant from the mid-fourteenth century killed off the possibility of a

general contract action for informal contracts.17 Covenant withered and debt on a bond became an attractive

remedy for formal contracts following the invention of the conditional bond.18 On performance of the condition,

which might be performing an agreement or repaying a loan, the bond became void. The bond was dispositive

meaning that the bond and not the condition comprised the underlying debt.19 Defences were few – and those

that were available required the defendant to attack the validity of the deed by pleading non est factum. From the

fourteenth century a successful plea of non est factum rendered a bond void rather than voidable.20 The plea

covered the situation of a defendant who was unable to read the deed or who had the deed incorrectly read to

them.21 It was also broad enough to cover incapacity.22 The substance of the plea was put to a jury.23 More

precise clues about intoxication are harder to find. In the context of an action in trespass, which turned on the

12 Kenneth Muir (ed), Shakespeare, Othello (Penguin, London, 1987) Act III.3. 13 Paul Jennings, A History of Drink and the English, 1500–2000 (Routledge, Abingdon, 2016) 1-2. 14 J Goodridge (ed), William Langland, Piers the Ploughman (Penguin, London, 1966) 70-71. 15 For a snapshot see: Christopher Dyer, Standards of Living in the later Middle Ages. Social Change in England

c1200-1520 (CUP, Cambridge, 1989) 56, 64, 153, 197. 16 James A Galloway, ‘Driven by drink? Ale consumption and the agrarian economy of the London region

c1300-1400’ in Martha Carlin and Joel L Rosenthal (eds), Food in Early and Medieval Europe (Hambledon,

London, 1998) 87-100. 17 David Ibbetson, A Historical Introduction to the Law of Obligations (OUP, 1999) 27-28. 18 AWB Simpson, ‘The Penal Bond with Conditional Defeasance’ (1966) 82 Law Quarterly Review 392 19 Which meant for example the fact that the agreement was performed could not be pleaded. The defendant

ought to have cancelled the bond: Waberley v. Cockerel (1541) Dyer 51. 20 Anon (1467) Pasch 7 Edw IV fo. 5b, pl. 15; Donne v. Cornwall (1486) Pasch 1 Hen VII fo. 14, pl. 2. 21 Anon (1422) Hil 9 Hen V fo. 15a, pl. 3. 22 For example, insanity and infancy on the pleading of which see: Anon (1313) 5 Edw III fo. 70b, pl. 131. 23 Northat v. Basset (1304) Pasch 32 Edw I (RS) fo. 507-08.

validity of ownership of some land, Moyle JCP stated that ‘even if one be ill or sick, yet he has his whole

memory, and so is one who is inebriated’.24

The suspicion that intoxication was no answer when faced with an otherwise valid deed was confirmed a

century and a half earlier by Britton who stated that:

Or he may say that he writing ought not to affect him, by reason that he executed it when he was not in

his right senses. This exception shall hold in the case of madmen and those who have lost their memory

by sickness or any other pain but not in the case of drunkards, or such as are light headed, although

they may sometimes be not in their right mind.25

In the hands of Sir Edward Coke in The First Part of the Institutes of the Laws of England, 26 this prohibition

became a general principle: ‘As for a drunkard who is voluntarius daemon, he hath (as hath been said) no

privilege thereby, but what hurt or ill soever he doth, his drunkenness doth aggravate it’.27 Coke was not

specifically addressing the problem of contracting whilst intoxicated but the phrase voluntarius daemon captures

the idea that intoxication is the result of a voluntary act, and so whilst it was classed along other types of non

compos mentis it ‘shall give no privilege or benefit to him’.28 By the late sixteenth century it seems to have

come to be doubted that any form of insanity could be pleaded against a bond. Fitzherbert in the New Natura

Brevium repeated Britton’s statement,29 but this view was expressly doubted in Stroud v Marshall, when the

court refused to even allow a plea of insanity against a bond.30 At no point does it seem to be suggested that

drunkenness provides a defence, however serious the intoxication.31 John Brydall in his Non compos mentis, or,

The law relating to natural fools, mad-folks, and lunatick32 having observed that ‘drunkenness is the vice of

British men’, notes that moralists distinguish between actual and habitual drunkenness.33 A habitual drunk was

one who ‘knowingly, and willingly, makes himself drunk’.34 Brydall made no distinction between degrees of

24 Anon (1461) Hil 39 Hen VI fo. 42a-43a, pl 5. 25In the modern translation: Francis Morgan Nichols (ed), Britton (John Byrne, Washington, 1901) I, 66 (b) 137. 26 (Society of Stationers, London, 1628) 247 27 Ibid. 247. 28 Coke (n 26) 247. 29 The New Natura Brevium (9th edn, A Strahan, 1794) 202. 30 (1595) Cro Eliz 398. This position was also supported in Cross v. Andrews (1598) Cro Eliz 622. 31 Beverley’s Case (1603) 4 Co Rept 123, 125. 32 (Richard and Edward Atkins, London, 1700). 33 Ibid. 121. 34 Brydall (n 32) 121.

intoxication as far as the law was concerned and simply quotes Coke to the effect that drunkenness ‘give no

privilege or benefit’.35

CONTRACTING WHILST INTOXICATED AND THE COURT OF CHANCERY

Brydall was writing at a time when gin was beginning to be distilled in large volumes. Some contemporary

observers saw economic benefits in this development.36 Others regarded the rise of public drunkenness as a

threat to public order. In the face of the moral panic that arose out of the gin craze there were several

Parliamentary attempts to curb consumption through licensing legislation. These were seen as an attack on

individual freedom37 although in practice there was a great deal of evasion.38 These debates were played out

against the backdrop of a conventional religious analysis in which excessive alcohol consumption was seen as

sinful. For some observers there were degrees of sin reflecting degrees of drunkenness. Immanuel Kant, for

example, was at pains to explain that there was a difference between drinking sociably and ‘drinking beyond

that stage’ or in solitude, which was a ‘beastly vice’.39 Medical men also began to explore the causes and

consequences of heavy alcohol consumption. George Cheyne in his The English Malady,40 who was himself a

doctor, described how having moved to London he found that his health suffered by excessive consumption of

alcohol by which, he ‘grew fat, short-breath’d, lethargic and listless’.41 Cheyne advocated abstinence and along

with some other contemporaries promoted the merits of water consumption.42 The main significance of his work

was not so much in the details but in the way in which it broke the link between excessive alcohol consumption

and sin or moral dissipation and lack of willpower.43

35 Brydall (n 32) 121. 36 A contemporary defence of the economic value of gin distillation and sale can be found in the writings of

Bernard Madeville, see Phillip Harth (ed), Bernard Mandeville, The Fable of the Bees (Penguin, London, 1989)

118-126. For a discussion of this point see: Paul Anderson, ‘Bernard Mandeville on Gin’ (1939) 54 PMLA 775. 37 For the social and political aspect see: James Nicholls, The Politics of Alcohol A History of the Drink

Question in England (Manchester University Press, Manchester, 2009) 34-50. 38 Henry Yeomans, Alcohol and Moral Regulation: Public Attitudes, Spirited Measures and Victorina

Hangovers (Policy Press, Bristol, 2014) 40. 39 JB Schneewind (ed), Immanuel Kant, Lectures on Ethics (CUP, Cambridge, 1997) 153. 40 (George Strahan, London, 1733). 41 Ibid. 326. 42 There were several works in this genre: J Smith, The Curiosities of Common Water (J Billingsley, London,

1723) and T Short, A Rational Discourse on the Inward Uses of Water (Samuel Chandler, London, 1725). 43 On this point see, Nicholls, 61; Roy Porter, Flesh in the Age of Reason (Allen Lane, London, 2003) 399-400.

On changing medical conceptions of drunkenness in the eighteenth century see, Roy Porter, ‘The Drinking

Man’s Disease: The Pre-History of Alcoholism in Georgian Britain’ (1985) 80 British Journal of Addiction 385-

96.

Chancery judges came from a different starting point from either medicine or morality, but Equity did recognise

that intoxication could, in some circumstances, undermine the validity of a transaction. Johnson v. Medlicott,

which has only survived as a brief note, summarised Equity’s approach to intoxication during the eighteenth

century: ‘The having been in drink is not any reason to relieve any man against any deed or agreement gained

from him in those circumstances; for this were to encourage drunkenness’.44 The situation was different,

according to Sir Joseph Jekyll, where through ‘management or contrivance’ he was ‘drawn into drink’. An

obvious ruse by someone seeking to gain an advantageous bargain is to supply the other party with alcohol. It

was one of the factors alleged in a much earlier authority, Stonehouse v. Stanshawe.45 The outcome on that

occasion is not recorded but intoxication was one of several factors alleged in the bill along with the fact that

Stonehouse was of weak intellect, without friends or family to call on for advice.

Writing in the late nineteenth century, Hugh Bellot and R James Willis observed that, ‘it is difficult to ascertain

whether they [the cases] proceed on any uniform principle’.46 They were describing unconscionable loan

transactions but the comment holds good more generally in relation to unfair transactions in Equity. In 1750 in

Earl of Chesterfield v. Janssen47 Lord Hardwicke sought to structure equitable relief under the heading of

fraud.48 Intoxication was not specifically mentioned as a ground for relief but it was something that could be

relevant to a finding of fraud by which an agreement might be set aside in Equity. At the same time Chancery

judges were still never over ready to set aside agreements for intoxication in the absence of additional factors.

Cooke v. Clayworth49 set out the limits of equitable intervention for intoxication. The plaintiff who had been

drinking for many hours signed a lease in the early hours of the morning. Sir William Grant MR explained that,

‘Equity ought not to give its assistance to a person, who has attained an agreement, or deed from another in a

state of intoxication; and on the other hand ought not to assist a person to get rid of any agreement or deed,

merely upon the ground of his having been intoxicated at the time.’50 On the facts the evidence of intoxication

was contradictory. There was no evidence that the plaintiff was drawn into drinking by ‘contrivance and

44 (1734) 3 P Wms 130 note. 45 From the reign of Henry VI. The bill appears in Calendars of the Proceedings in Chancery Vol. 1 (London

1827) 29-30. 46 The Law Relating to Unconscionable Bargains with Money Lenders (Stevens and Hayes, London, 1897) 35. 47 (1750) 2 Ves Sen 125, 1 Atk 301. 48 (1750) 2 Ves Sen 125, 155-57. 49 (1811) 18 Ves Jun 13. 50 (1811) 18 Ves Jun 13, 15.

management’. A group of men were involved in drinking and the plaintiff merely joined them. Nor was it found

that there was an ‘unfair advantage taken of his intoxication, to obtain and unreasonable bargain’.

Proving that a party seeking to escape a bargain was drawn into drink was a difficult but not impossible task. In

Say v. Barwick51 a lease was set aside. The plaintiff had just come of age when he signed the agreement which

was for a very inadequate rent. The defendant had ensured that for the previous twelve months the plaintiff was

consuming a good deal of alcohol. A lease was signed early in the morning following a night of heavy drinking.

The plaintiff here was drawn into drinking over a long period, but his youth and the unreasonableness of the

agreement were also important factors. The facts here shade into the second category in which Equity took note

of intoxication for taking an ‘unfair advantage’.

There are quite a large range of circumstances in which eighteenth century Equity granted relief which can be

characterised as unfair contracts and which fell within the rubric of fraud.52 Intoxication when combined with

other factors might provide powerful grounds to set aside an agreement. In Dunnage v. White,53 a deed with a

man who was ‘dissolute, illiterate and addicted to intoxication’ was set aside even though he was not drunk

when he entered into the agreement and there was no undue influence. The transaction was however highly

disadvantageous. In contrast a reasonable agreement entered into by someone in a state of intoxication could

just as easily be treated as valid.54 Intoxication when combined with other factors could be highly relevant in

setting aside an agreement. In Bennet v. Vade55 Sir John Lee was described as ‘full of bodily disorders, very

lame, quite blind in one eye, almost dark in the other’.56 He was found to suffer from mental impairment, falling

short of insanity, which was not refuted by the fact that he could repeat scraps of Latin and read classical

authors. The defendant would ‘very frequently’ drink with Sir John who was often drunk. There was evidence

that Sir John was coerced into a marriage and was too drunk to stand and the ceremony and had to be supported.

In finding the agreement could not stand the key factor was that the defendant had ‘absolute management’ of Sir

John’s affairs and used that position in order to exercise influence over him. It wasn’t too difficult on the facts to

find grounds to set aside the agreement. Intoxication was one factor amongst many. There are a number of other

51 (1812) 1 V & B 195. 52 These are examined in detail in W Swain, ‘Reshaping Contractual Unfairness in England 1670-1900’ 35

Journal of Legal History 120, 123-331 53 (1818) 1 Swan 137. 54 Cory v. Cory (1747) 1 Ves Sen 19. 55 (1742) 2 Atk 324, 9 Mod 312. 56 9 Mod 312, 316.

examples in which habitual intoxication is alleged alongside the inadequacy of price.57 The mere fact that one of

the parties was in a habit of intoxication, without more, was not in itself sufficient to set an agreement aside.58

THE COMMON LAW AND INTOXICATED CONTRACTING

In the seventeenth century Coke had written that ‘no privilege or benefit’ be gained by intoxication. There was

little direct eighteenth century authority on the point. It did however begin to be accepted that insanity could be

raised under a plea of non est factum against a bond.59 There were also the beginnings of a more sustained

discussion of intoxicated contracting. Francis Buller in his, An Introduction to the Law Relative to Trails at Nisi

Prius, mentions Cole v. Robins, an unreported decision of Holt CJ of 1703 in which it was held that a defendant

might plead that they were so intoxicated that they did not know what they were doing.60 In Chancery in 1737,

Lord Hardwicke noted that ‘particular acts of excessive drinking are not sufficient; and if the excess was so

great as to amount to imbecility the position is open at law’.61 Henry Ballow in his Treatise of Equity,62 states

the traditional position and at the same time foreshadows what would become the orthodox view a century later.

Having stated the traditional position that self-induced intoxication ‘shall not turn to his avail’, Ballow went on

to observe that: ‘he be so excessively drunk, that he is deprived of the use of reason or understanding: for it can

be no means be a serious and deliberate consent; and without this no contract can be binding by the law of

nature’.63 It is unsafe to draw any firm conclusions about the state of the law in the mid-eighteenth century from

Ballow. His treatment of contract law generally drew heavily on the work of the natural lawyer Samuel

Pufendorf and did not necessarily accurately describe English law of his own times.64 Although Ballow purports

to be describing Equity it is difficult to find an example in the courts where intoxication on its own was enough

to be grounds for relief. It is on the other hand a good example of borrowing from the work of Samuel

Pufendorf, who in the standard eighteenth century translation of Of the Law of Nature and Nations stated:

57 Jordan v. Sawkins (1793) 4 Bro CC 477; Gowland v. De Faria (1810) 17 Ves Jun 20, 23; Stilwell v. Wilkins

(1821) Jacob 280, 281. 58 Evans v. Brown (1810) Wright 102. 59 Thomson v. Leech (1695) 1 Ld Raym 313, 3 Salk 300; Yates v Boen (1738) 2 Stra 1104 citing Smith v. Carr

(1728). For the modern law on insanity see: The Imperial Loan Company Ltd. v. Sone [1892] 1 QB 599. 60 (London, 1767) 172a. 61 Smith v. Downing (1737) West T Hard 90, 92-93. 62 (Nutt and Gosling, London 1737). 63 Ibid. 8. 64 D Ibbetson, A History of the Law of Obligations (OUP, Oxford, 1999) 218-19.

For it can be by no means be esteemed a real and deliberate consent, if a man should with never so

much eagerness, and express his agreement by Signs which would at other times be valid whilst his

mind lies as it were under a stupefying charm and he is bewitched out of his reason.65

Pufendorf accepted that the situation was quite different when a man had enjoyed ‘the merriment of a cheerful

cup’ in which case his consent was not impaired.

In the first decades of the nineteenth century two things happened which are relevant to the place of the

intoxication defence in English contract law. The first concerned the way that the issue of alcohol consumption

was brought to prominence by the emergence of the temperance movement in the 1820s.66 There were different

strands in the temperance campaign. Some advocated complete prohibition whilst others favoured better

regulation and control of alcohol consumption.67 More intrusive licencing regulation which restricted opening

hours was achieved by the 1870s.68 Alcohol consumption was once more a political issue. The second, and

perhaps more important, change concerned legal doctrine. In the early nineteenth century the way that contract

law was rationalised began to shift.69 Drawing on the writings of the French lawyer, Robert Joseph Pothier,

English legal writers and judges began to be influenced by the idea that contracts were formed by a meeting of

wills. The principle was expressed quite simply in Sir William Evans’s English translation of Pothier’s, Traité

des obligations: ‘An agreement is the consent of two or more persons to form some engagement, or rescind or

modify and engagement already made’.70 It wasn’t too difficult to explain intoxication as an instance of absent

consent. Pothier suggested that if drunkenness is such as to ‘absolutely destroy the reason’ that ‘renders him

incapable of consent’.71 Evans in his extensive notes repeats Ballow’s statement to the effect that where

intoxication is severe then there is no consent.72

65 Basil Kennett, Samuel Pufendorf, Of the Law of Nature and Nations (J Walthoe, London, 1729) 3.6.3. 66 For a detailed treatment, see Brian Harrison, Drink and the Victorians: The Temperance Question in England,

1815-1872 (Keele University Press, Keele, 1994). 67 Yeomans (n 38) 66-72. 68 Licensing Act 1872. 69 For a detailed account see, W Swain, The Law of Contract 1670-1870 (CUP, Cambridge, 2015) 172-230. 70 Sir William Evans, A Treatise on the Law of Obligations or Contracts Vol 1 (A Strahan, London, 1806)

1.1.1§1. 71 Ibid. 1.1.1§4. 72 Sir William Evans, A Treatise on the Law of Obligations or Contracts Vol 2 (A Strahan, London, 1806) 28.

The Will Theory was never completely adopted by English lawyers or judges. Although they were glossed over

there were some aspects of contract doctrine which were even impossible to square with the idea that contracts

gained legal force from the assent of the parties. Notwithstanding these obstacles to the application of Will

Theory, it proved to be particularly well-suited when used to explain vitiating factors. These developments do

not mean that even in the common law that these issues were entirely novel. In earlier times vitiating factors

were raised in evidence under the general issue by which the defendant denied liability. In assumpsit, the main

action for informal contracts (those without deeds), the general issue took the form of the blank denial of ‘non-

assumpsit’. In effect this meant that the defendant was arguing that there was never an agreement. Because of

the use of jury trials in civil actions it is difficult to say with absolute confidence how decisions were made

when reasons are not recorded. Although earlier authorities had ruled out a specific plea of intoxication, Cole v.

Robins may tentatively represent a shift in legal doctrine but may also reflect the practice of some juries who

may have been less willing than writers like Coke to exclude intoxication. During the early nineteenth century

many of what we now think of as vitiating factors appear on the surface of litigation for the first time. This

occurred because of the firming up of the boundary between law and fact at the same time as judges began to

exercise greater control over juries. An issue like intoxication became a question of law (what type of

intoxication vitiated a contract) and fact (did the intoxication present fall within that definition). Only the second

was a matter for the jury. Once matters like intoxication became questions of law it was clear that there was a

place for legal doctrine to develop in a coherent fashion.

Intoxication and other vitiating factors, which later on would include mistake, were situations in which Will

Theory recognised that assent was impaired in some way. The Anglo-Indian writer, Henry Colebrooke was

perhaps the most enthusiastic of the new generation of legal writers in his adoption of this analysis of

contractual liability. He had this to say about intoxication:

Intoxication, suspending reason, incapacitates a person from contracting since it renders him incapable

of consent. It suffices to render an engagement null, if the party was reduced to the state of not

knowing what he did. For persons in a state of absolute drunkenness, and consequently deprived of the

exercise of reason, cannot oblige themselves.73

73 HT Colebrooke, Treatise on Obligations and Contracts (London, 1818) 31-32.

Colebrooke continued that intoxication falling short of the sort that suspends a person of reason might still be a

form of advantage-taking – which did in fact accord with the position in Equity. Colebrooke could quite easily

justify this position as a matter of consent. He refers to both Pothier and Pufendorf in his marginal notes. When

it came to English authority, Colebrooke confined himself to a reference to Buller’s note on Cole v Robins. In

fact by this time there was some English authority and it supported Colebrooke’s analysis.

THE EMERGENCE OF INTOXICATION AS A DEFENCE IN CONTRACT

Writing in 1826 in the first edition of his contract treatise, Joseph Chitty described what he saw as a change in

the way that the law dealt with intoxicated contracts. It was no longer the case, he argued, that for intoxication to

be relevant it had to be the result of advantage-taking. Serious intoxication which ‘deprives a person of the use

of his reason’, ought to avoid a contract even when ‘produced by his own folly’.74 In his treatment of intoxicated

contracting Chitty referred to a recent authority, Pitt v Smith75, in which Lord Ellenborough stated that: ‘He had

not an agreeing mind. Intoxication is good evidence upon a plea of non est factum to a deed, of non concessit to

a grant and of non-assumpsit to a promise’.76 Lord Ellenborough’s analysis conforms with Pothier’s approach.

The following year the same judge said of the Frenchman that he was ‘a most learned and eminent writer upon

every subject connected with the law contracts, and intimately acquainted with the law merchant in particular’.77

Although Lord Ellenborough doesn’t acknowledge his source it is perfectly possible that he was influenced by

Pothier. The absence of recent English authority in the other direction made it easier to take the initiative in this

way. Pitt v. Smith is still not a very strong authority. The decision was only a nisi prius trial judgment rather

than a decision in banc. The enforceability of the contract was only a secondary issue. Lord Ellenborough made

these statements in the context of a libel action in which the defendant had alleged that the plaintiff had entered

into a contract for the sale of land with him when he was in a drunken state. A second nisi prius decision, also of

Lord Ellenborough, and of similar vintage held that an intoxicated agreement was a ‘nullity’.78 Once again the

existence of an agreement was a second order question. The plaintiff was seeking to recover on an action for

74 Joseph Chitty, A practical treatise on the law of contracts not under seal (London, 1826) 30. 75 (1811) 3 Camp 33. 76 Ibid. 34. 77 Hoare v. Cazenove (1812) 16 East 391. 78 Fenton v. Holloway (1815) 1 Stark 126.

work and labour which was only possible in the absence of a contract.79 These authorities in themselves are

hardly conclusive but they do describe a softening attitude towards those who contract whilst very intoxicated.

Speaking in Chancery in Cooke v. Clayworth80 around the same time, Sir William Grant suggests that in cases

of very severe intoxication a deed is invalidated at law.81

Society had various and sometimes conflicting attitudes towards excessive drinking during the nineteenth

century. In the early part of the century the Prince of Wales and his circle made heavy drinking fashionable in

aristocratic circles.82 Meanwhile with the emergence of the temperance movement there was a strong moral

element to the campaign against drinking and a belief that alcoholism was something over which an individual

was responsible for their own actions. At the same time the alcoholism was also coming to be medicalised. In a

book length treatment on the subject, An Essay Medical, Philosophical and Chemical on Drunkenness and its

Effects on the Human Body,83 Thomas Trotter observed that, ‘the habit of drunkenness is a disease of the

mind’.84 Despite a recognition amongst writers like Trotter that alcoholism was a disease there remained a very

strong moral element in the way that alcoholism was viewed even by the medical profession.85 In the criminal

law the position of intoxication which in the early nineteenth century had been inconsistent began to be

formalised in the middle of the century and as part of the process restricting the ways in which intoxication

could be pleaded as a defence to a crime.86 Whilst ambiguities towards alcohol remained present in other

branches of knowledge, by the 1840s the position in contract law had become quite settled.

From a legal point of view the consensual analysis began to become imbedded orthodoxy. Charles Addison

began his treatment of intoxicated contracting with two quotations.87 One was taken from the work of Pothier

79 What we would now term restitutionary or unjust enrichment claims could not be brought in the absence of a

contract covering the same activity: W Swain ‘Cutter v. Powell and the Pleading of Claims of Unjust

Enrichment’ (2003) Restitution Law Review 46-56. 80 (1811) 18 Ves Jun 13. 81 Ibid 16. 82 Charles Ludington, The Politics of Wine in Britain A New Cultural History (Palgrave Macmillan, London,

2013) 183-220. 83 (TN Longman, London, 1804) 84 172. 85 For a discussion see, M Valverde, Diseases of the Will: Alcohol and the Dilemmas of Freedom (CUP, New

York, 1998) 43-67; G Johnstone ‘From Vice to Disease? The Concepts of Dipsomania and Inebriety, 1860–

1908’ (1996) 5 Social and Legal Studies 37. 86 Arlie Loughnan, Manifest Madness: Mental Incapacity in the Criminal Law (OUP, Oxford, 2012) 181-86. For

an overview see also, David McCord, ‘The English and American History of Voluntary Intoxication to Negate

Mens Rea’ (1990) 11 Journal of Legal History 372. 87 CG Addison, Treatise on the Law of Contracts and rights and liabilities ex contractu (London, 1847) 872-73.

already referred to. The second quotation came from a recent decision, Gore v. Gibson.88 The plaintiff had

received a bill of exchange which was indorsed by the defendant. Indorsing a bill made the indorser liable to

pay. The defendant argued that he was intoxicated when he indorsed the bill and as a result should not be liable.

The Court of Exchequer gave a strong endorsement of Pothier’s analysis. Parke B stated that: ‘[W]here the

party, when he enters into the contract, is in such a state of drunkenness as not to know what he is doing, and

particularly when it appears that this was known to the other party, the contract is void altogether, and he cannot

be compelled to perform it’.89 There were nevertheless degrees of intoxication. Pollock CB referred to someone

who ‘does not know the consequences of his act’.90 A person in a lesser state of intoxication was still required to

show that there was a fraud on them or advantage was taken of their condition.91 Pollock CB also drew a

distinction between what he called express and implied contracts. The former he explains require assent. The

later do not. He seems to have in mind a claim in money had and received which during the nineteenth century

had been loosened from its equitable foundations and treated as a kind of implied contract.92

By this time intoxication was usually equated with incapacity due to insanity.93 However as Alderson B

observed during the course of argument in Molton v. Camroux,94 in cases of intoxication the incapacity is

‘patent’ whereas in insanity it may not be visible. The awkward fit with insanity was not the only difficulty. As

everyone recognised there were plainly degrees of intoxication. Gore v. Gibson appeared to accept that where

the intoxication was sufficiently serious such as to prevent the drunken party from consenting, then the contract

was void. The position in Equity was that when advantage was taken of someone’s drunken condition the

contract was merely voidable. This reflected the way that Equity used the remedy of rescission. One

consequence of the Common Law Procedure Act 1854,95 was that equitable defences could be raised in common

law actions. This brought the problem of a court distinguishing varying degrees of intoxication into sharp relief.

Pollock complained that the distinction between the two ‘is too fine and doubtful to be convenient in practice’.96

88 (1845) 13 M & W 623. 89 (1845) 13 M & W 623, 626. 90 (1845) 13 M & W 623, 625. 91 Addison (n 87) 878. 92 W Swain ‘Moses v Macferlan (1760)’ in C Mitchell and P Mitchell (eds.), Landmark Cases in the Law of

Restitution (Hart, Oxford, 2006) 19, 30-34. 93 For example, see the treatment of the subject in Stephen Leake, The Elements of the Law of Contracts

(London, 1867) 249-50; Frederick Pollock, Principles of Contract at Law and in Equity (London, 1876) 74,

‘drunken men and lunatics are in the same position’. 94 (1848) 2 Ex 478, 491 95 (1854) 17 & 18 Vict. C 125 s83-86. 96 Pollock (n 93) 77.

By the time that Pollock was writing a solution had been found to his concerns by the simple expedient of

holding that both intoxication which destroyed consent and intoxication of a lesser gravity were grounds to treat

a contract as voidable rather than void.97

THE LAW IN SCOTLAND AND INTOXICATED CONTRACTING

Joseph Chitty observed in 1826 that the new willingness of English judges to allow serious intoxication, even

when self-induced, to be raised as a defence mirrored the position in Scotland.98 Intoxicated contracting features

heavily in the work of the Scottish Institutional writers. Scots law developed a more coherent approach towards

intoxicated contracting earlier than happened south of the boarder. Viscount Stair certainly recognised that

intoxication was a form of contractual incapacity in the 1690s when he observed that, ‘Those who

through...drunkenness…have not for the time, the use of reason, do not legally contract’.99 In common with

many of his fellow countrymen of the time Stair may have enjoyed claret imported from France.100 As far as

legal doctrine was concerned, given the silence of Roman law on the issue the work of the Natural lawyers is a

more natural source for Stair – although if they were an inspiration it was not one that he acknowledged on this

issue.101 Towards the end of the seventeenth century a number of Scottish authorities on intoxicated contracting

began to appear. They did not entirely speak with one voice. In Lord Halton v. Earl of Northesk,102 it was

suggested in argument that drunkenness only deprived someone of consent if he has ‘not use of his reason’. On

the facts it was held that a sufficient degree of drunkenness was not proven. Twenty years later a more detailed

statement of intoxicated contracting was provided in Gordon v. Ogilvy.103 Having accepted that when a man is

‘so supinely drunk’ he has ‘not the use of his reason’, the Lords of Sessions continued:

97 Matthews v. Baxter (1873) LR 8 Ex 132. 98 Chitty (n 74) 30. 99 David M Walker (ed), James, Viscount of Stair, The Institutions of the Law of Scotland (Edinburgh and

Glasgow University Presses, Edinburgh and Glasgow, 1981) (originally published in 1693) 1.10.12, see also

4.20.49. 100 On the growing popularity of claret in Scotland see, Ludington (n 82) 104-118. Ludington gives an example

of Lady Grisell Baillie purchasing a hogshead of ‘Pontack’ wine from the Second, Viscount Stair see, Robert

Scott Moncrief (ed), Lady Grisell Baillie’s Household Book 1692-1733 (Edinburgh, 1911) 109. This was wine

produced by Arnaud III de Pontac and was what is now Haut-Brion in Bordeaux:

https://www.decanter.com/features/history-in-a-botttle-248958/ 101 For the influence of Natural Law on Stair more generally see: GM Hutton, ‘Stair’s Philosophical Precursors’

in David M Walker, Stair Tercentenary Studies (The Stair Society, Edinburgh, 1981) 87, 89-90. 102 (1672) 2 Stair’s Repts. 111. 103 (1693) 1 Fountain Hall Decisions 554.

[K]nowledge and consent, as acts of the judgment and will, are both requisites when one contracts; and

if these be obfuscate and wholly asleep, it is unjust to tie him then as if he were mad or an infant. Yet

this bears reflection on one party, that he filled him drunk to take advantage of him, and the other, that

he should have given way to his own intoxication.

At the very least these remarks suggest a degree of ambiguity in the courts attitude. Whilst on the one hand it

seems to be accepted that a very drunken person is deprived of reason, at the same time they are not seen as

blameless and advantage taking is stressed. An anonymous decision of 1682, like those in Chancery in England,

seems to require advantage taking in order to challenge a bond.104

A few generations later, Lord Bankton followed Stair, at least in substance: ‘drunkenness, unless to that degree

that it deprives the party of the use of reason, will not annul his contract’.105 Bankton’s emphasis was however

different because he stressed the default position that even a drunken contract was generally valid. His fellow

Institutional writer, John Esrkine, was also at pains to stress that there was a difference between, a ‘state of

absolute drunkenness’ by which someone was ‘deprived of the exercise of reason’ and ‘a lesser degree of

drunkenness, which only darkens reason’.106 Erskine accepted that even where someone had become drunk by

their own folly the law should still protect them ‘from the fraud or circumvention of others’.107 Scots law in this

respect was seemingly settled on a principle ahead of English law: if someone was sufficiently drunk they were

unable to consent.

This general approach continued into the nineteenth century and beyond.108 At the same time Bell was careful to

stress that in the absence of advantage-taking, intoxication ‘only darkens reason’ and does not in itself vitiate a

contract.109 There was nevertheless a very evident tension in the authorities between on the one hand protecting

those who contracted when intoxicated and yet recognising the sanctity of contract. This issue is exposed in two

early nineteenth century decisions concerned the sale of sheep. In Jardine v. Elliot,110 both parties had been

104 Anon (1682) Hardcarse 38. 105 Lord Bankton, An Institute of the Laws of Scotland (1751) 1.342§66. 106 John Erskine, An Institute of the Law of Scotland vol 2 (1773) 3.1.16. 107 Ibid. 4.4.5. 108 For example: Patrick Shaw, Principles of the Law of Scotland Contained in Lord Stair’s Institutions (T & T

Clark, Edinburgh, 1863) 82. 109 George Joseph Bell, Commentaries on some detached branches of the law of Scotland (Edinburgh, 1828)

124. 110 (1803) Hume 684.

drinking and there was no evidence that the price for the sale was greatly below the market value of the type of

sheep nor was there advantage-taking. The sale did nevertheless involve the entire stock of sheep which was an

‘extraordinary and quite inadvisable proceeding’.111 Having endorsed the words of a witness that the sale ‘was a

drunken ramble’ the contract was not enforced. In the second case, Hunter v. Stevenson,112 the defendant

Stevenson, although not drunk to the point that he didn’t know what he was doing, was an alcoholic who made a

‘foolish and prejudicial’ bargain which involved the sale of all of his sheep. In holding that the contract would

be enforced it was said that that ‘there is no evidence of a serious deliberate bargain’.113 These decisions are not

easy to rationalise. The justification seems to rest on an absence of the requisite contractual intention. Both sales

were extraordinary ones of the whole livestock and it was found that the agreements were not seriously

intended. These cases are examples of judges trying to find pragmatic responses to perceived unfairness rather

than the application of strict legal doctrine as it was then understood in Scotland. The option to utilise intention

in this way was not yet open to judges in England. A doctrine of intention to enter into legal relations was

arguably not fully established until 1919.114 Yet these might be just the sort of case which even in their

diminished nineteenth century role an English juror might be unwilling to find on examining the general issue

that the parties had entered into an agreement.115

The place of intoxication was rather clearer in Scotland than it was in England in the early nineteenth century,

but just as in England it was definitively settled in the mid-nineteenth century in Taylor v. Provan.116 Provan

made an offer to purchase Taylor’s cattle at £14 per head. Taylor refused as this was below the £15 he wanted.

Having failed to purchase cattle elsewhere and having consumed alcohol, Provan offered £15 which was

accepted. The contract was upheld. Lord Cowan stated that the passage of Lord Stair quoted above ‘was the

foundation of the whole law on the subject’.117 All three judges pointed out that the intoxication was not of the

kind where the defendant had lost the use of his reason nor was there any fraud or advantage-taking. Jardine v.

Elliot118 and Hunter v. Stevenson119 were distinguished. It was stressed that in those decisions both parties were

111 Ibid 686. 112 (1804) Hume 686. 113 Ibid. 688. 114 In Balfour v. Balfour [1919] 2 KB 571, see Swain (n 69) 190. 115 And indeed in Scotland after civil juries were reintroduced in 1815: I D Willcock, The Origins of the

Development of the Jury in Scotland Stair Society, vol. 23 (Satir society, Edinburgh, 1966), 252–57. 116 (1864) 2 M 1226. 117 Ibid. 1232. 118 (1803) Hume 684. 119 (1804) Hume 686.

drunk and as Lord Glencorse put it the question ‘was whether the parties had seriously made a bargain’. In

contrast the transaction before him was ‘an ordinary everyday proceeding between such parties’.120 Lord

Benholme pointed out that ‘here it is in vain to say that one of the parties was not sober, and was not serious’. 121

There was still one matter which had to be settled: whether when intoxication was an appropriate plea it made a

contract void or voidable. In England in 1873 it was held that intoxication made a contract voidable. Two years

later the courts in Scotland Pollock v Burns122 reached the same conclusion.123 The outcome is less interesting

that the reasoning. The plaintiff Sir Hew Pollock had, it was later claimed by Burns, bought a horse on credit,

for which Pollock later gave Burns a bill. Sir Hew later said that he was too intoxicated to understand what he

was doing when he signed the bill. Sir Hew was an alcoholic and it was clear that despite the conflicting

evidence that the sympathy of the Court of Sessions was with the horse dealer. This was perhaps clearest in the

judgment of Lord Neave who held that, ‘For an habitual drunkard to plead privilege in respect of his own

infirmity and vice is not to be countenanced’.124 What seems to be critical in that for a period after the bill was

signed Sir Hew made no attempt to deny liability for six months. Lord Moncrieff stated that: ‘Where the plea of

intoxication is taken by the person who says he was intoxicated and incapable when he did the act which he

wishes to repudiate, he is bound, the moment his sober senses return and he knows what he does, to take his

ground at once. That is essential.’125

THE MODERN LAW OF INTOXICATED CONTRACTING

In the modern law the way that the courts in England and Scotland deal with intoxication is very similar.126

There is a good doctrinal reason for this. By different routes the law in both jurisdictions was derived from a

common source in the writings of the Natural lawyers. In England this was filtered through Will Theory. In

Scotland the same ideas were present in the important statement of principle of Viscount Stair. A nineteenth

century in the report of Butler v. Mulvihill127 made much the same point. There is something else that is shared

120 (1864) 2 M 1226, 1232. 121 (1864) 2 M 1226, 1233. 122 (1875) 2 R 497. 123 For a discussion see, William Gloag, The Law of Contract A Treatise on the Principles of Contract in the

Law of Scotland (1st ed, W Green, Edinburgh, 1914) 130. 124 Ibid 504-505. 125 (1875) 2 R 497, 503. 126 For short summaries see: Ed Peel, Treitel The Law of Contract (14th ed. Sweet & Maxwell, London, 2015)

12-062; William McBride, The Law of Contract in Scotland (3rd edn, W Green, Edinburgh, 2007) 3-49-3-55. 127 (1819) 1 Bligh PC 137, 161-62.

too. Although intoxication was recognised as a defence, in varying degrees, in both jurisdictions in the

eighteenth century there is a palpable unease in making it too easy to allow an intoxicated party to escape from

their contractual obligations in the absence of any fraud or advantage-taking. This residual feeling that

alcoholism is in some ways a moral failing and one that should not allow the unravelling of bargains is evident

from decisions like Gore v. Gibson128 and Taylor v. Provan.129 It can be illustrated by a Chancery decision of the

1850s. In Shaw v. Thackray130 Stuart VC explained that: ‘The doctrine of that Court was, that, if a man, by

habits of drunkenness, had entirely destroyed his capacity as a man of understanding, so far as to be incapable of

executing a deed, any instrument executed by him was entirely invalid; but, on the other hand, a man in the habit

of drinking to excess, but who had not wholly destroyed his faculties, if he entered into a contract with another

individual, was not to derive to himself any advantages from those habits which had lowered him in the scale of

humanity’. He continued that, ‘The Court was disinclined to interfere in such cases’.131 There are almost no

modern reported attempts to avoid an agreement on the grounds of intoxication alone.132 In both jurisdictions it

is a seemingly high bar to show that on the grounds of intoxication alone that a contract can be avoided.

Views on alcoholism have changed further since the mid-nineteenth century but it is still difficult to establish

intoxication as a vitiating factor by itself. In practice intoxication is rarely a factor on its own. The leading

modern authority is found in a decision of the High Court of Australia. In Blomley v. Ryan133 the sale of

agricultural land at an undervalue by an ‘old man, whose health and faculties had been impaired by habitual

drinking to excess over a long period, who was at the material time in the middle of a prolonged bout of heavy

drinking of rum, and who was utterly incapable of forming a rational judgment about the terms of any business

transaction’.134 The High Court refused specific performance because it fell within the category of an

unconscionable bargain. English law has not developed a doctrine of unconscionable bargains in quite the same

way but it seems likely that such a transaction would still be caught for similar reasons.135 Equally in Scots law

this is the sort of transaction that falls under the doctrines of facility and circumvention.136 The difficulties of

establishing intoxication that nullifies consent is such that the views of Stair and Pothier are for the most part a

128 (1845) 13 M & W 623. 129 (1864) 2 M 1226, 130 (1853) 17 Jur 1045. 131 Ibid. 132 It was unsuccessfully argued in Irvani v. Ivarni [2000] 1 Lloyd’s Repts 412. 133 (1956) 99 CLR 362. 134 Ibid, 407 (Fullagar J). 135 Either under the narrower English unconscionable bargains doctrine or as a form of undue influence. 136 See McBride (n 126) 16-12-16-21.

dead letter. As a result the law relating to intoxicated contracting is little changed from that which was applied

by eighteenth century English Equity judges.