Steven Gallagher is a Professional Consultant, Professor of Practice in Law, and Associate Dean (Teaching & Learning) at CUHK LAW. Steven’s research interests include property law, the development of policy and law intended to promote and protect art, antiquities and cultural heritage, and innovative ways to teach law- including using superhero films.
The Common Law option not to perform
Since the beginning of the 16th century and the rivalry between the common law and equity embodied in Sir Edward Coke and Lord Ellesmere LC, a dispute has persisted in the common law. This concerns what Coke regarded as the defendant’s fundamental freedom to elect whether to carry out his promise or to pay damages for not keeping his promise. The common law has followed Coke’s principle, while equity, as keeper of conscience, has persisted in enforcing the obligations of the parties in some circumstance using the remedy of specific performance and developing doctrines linked to estoppel. This paper considers the development of the principle that the defendant has the option not perform in the common law and considers when the law will make him keep his promise today.