the Irish for rights

Contract law and the slave trade

Simon Schama, Rough Crossings, book cover, via the Harper Collins website.Nate Oman, on Concurring Opinions, writes that he has just finished Simon Schama‘s Rough Crossings: Britain, Slaves, and the American Revolution (cover left) (Harper Collins, 2007). He is not sparing in his praise for the book, and then comments:

As a contract geek, however, the most fascinating part of the book was the story of The Zong, an episode that surely must stand as the most hideous example of perverse incentives in the history of contract drafting.

The case is Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf). It related to a claim against an insurer for the value of cargo thrown overboard from The Zong as a matter of necessity to survive an emergency. The claim succeeded at first instance, but on appeal, Lord Mansfield and Willis and Buller JJ ordered a retrial on the grounds that the evidence as adduced was unsatisfactory. So far, so ordinary. What makes this case extraordinary is that the ship’s cargo consisted of slaves, and the emergency consisted of a lack of water for them to drink when the ship’s captain’s navigation skills failed him and he missed landfall in Jamaica. Nate concludes:

All and all, it is perhaps the worst contract that I have ever read about. By covering the cost of dead slaves in some circumstances, the insurance created an incentive for slavers to kill off their “cargo” when doing so would result in an insurance recovery that exceeded their returns from sale of the slaves.

Triangular Trade, via wikipedia.Lord Mansfield had famously held in the earlier Somersett’s Case (R v Knowles, ex parte Somersett) (1772) 20 State Tr 1; (1772) Lofft 1) that slavery was unlawful in England (The case is crying out for a movie treatment similar to Amistad; and there seems to be a good discussion on this wikipedia page). The ratio in Somersett’s Case was a conclusion as to English law which did not extend to the rest of the British Empire; and so The Zong was unexceptional in contemporary terms, though it has absolutely no modern traction. However, there is an almost contemporary case which has remained a leading contract law authority. It is Cutter v Powell (1795) 101 ER 573, [1795] EngR 4125 (pdf), [1795] EWHC KB J13 (9 June 1795).

A signficant trade route in that period consisted of the sale of goods from western and southern European ports to West Africa, the transport of slaves from Africa to the Americas (this middle passage was The Zong‘s journey), and the export of American crops (the fruits of slave labour) to European ports, when it would all begin again. Cutter v Powell concerned a voyage on the third leg of this triangular trade (pictured above left). A sailor had contracted to serve on a ship between Jamaica and Liverpool, and be very well paid 10 days after arrival. He died en route, and his widow sued for a proportionate part of the agreed sum. However, the court held that, as the defendant’s promise to pay depended on a condition precedent to be performed by the sailor, the condition had to be performed before the sailor (and thus his widow) would be entitled to receive anything under it. Cutter v Powell therefore stands for the proposition that, where a contract is “entire”, a partial performance will not give rise to a contractual claim for a proportionate recompense.

3 Responses to “Contract law and the slave trade”

  1. […] the Slave Trade and its Abolition; it’s a powerful blogpost that puts my much shorter post on Contract law and the slave trade into […]

  2. […] running out of water. The captain claimed he acted out of necessity; and in the infamous case of Gregson v Gilbert (1783) 3 Doug 232, 99 ER 629, [1783] EngR 85 (22 May 1783) (pdf | National Archives), the claim […]

  3. […] but failed on appeal before Lord Mansfield and Willis and Buller JJ. I have already blogged about Nate Oman’s review of Simon Schama’s Rough Crossings: Britain, Slaves, and the American […]

Leave a Reply



Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

Academic links


  • RSS Feed
  • RSS Feed
  • Subscribe via Email
  • Twitter
  • LinkedIn

Archives by month

Categories by topic

My recent tweets

Blogroll (or, really, a non-blogroll)

What I'd like for here is a simple widget that takes the list of feeds from my existing RSS reader and displays it here as a blogroll. Nothing fancy. I'd love a recommendation, if you have one.

I had built a blogroll here on my Google Reader RSS subscriptions. Google Reader produced a line of html for each RSS subscription category, each of which I pasted here. So I had a list of my subscriptions as my blogroll, organised by category, which updated whenever I edited Google Reader. Easy peasy. However, with the sad and unnecessary demise of that product, so also went this blogroll. Please take a moment to mourn Google Reader. If there's an RSS reader which provides a line of html for the list of subscriptions, or for each RSS subscription category as Google Reader did, I'd happily use that. So, as I've already begged, I'd love a recommendation, if you have one.

Meanwhile, please bear with me until I find a new RSS+Blogroll solution




Creative Commons License

This blog is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. I am happy for you to reuse and adapt my content, provided that you attribute it to me, and do not use it commercially. Thanks. Eoin

Credit where it’s due

The image in the banner above is a detail from a photograph of the front of Trinity College Dublin night taken by Melanie May.

Others whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and Antoin Ó Lachtnáin.

Thanks to Blacknight for hosting.