Rejected from its nest [in the G vG thread], this may as well find a home here:
I haven't waded in fully to JLS' long post (for fear of drowning) but it
strikes me as confused in many respects and tendentious in all respects.
Some of it is also false:-
"For example, traditional hearsay doctrine holds that verbal acts, such as
contractual promises, defamation, and fraud, are not hearsay either because
they are nonassertive, or because they are not offered for the truth of the
matter asserted because
the statement has independent legal significance."
This is not correct, and the reference to "traditional hearsay doctrine" is
spurious and specious.
First, the terms of contracts do not escape the hearsay rule because "they are
non-assertive". They escape it for practical reasons: if they fell within the
exclusionary rule of hearsay, then it would be impossible to prove the terms of
any contract. The law is not so impractical as to insist on a rule of evidence
that makes it impossible to prove the terms of any contract. That would be a
terrible problem that would require a solution so as to render it easy enough
to prove the terms of contracts, otherwise the law of contracts would fail to
work properly. Problem-solving is the explanation for why contractual terms
escape the exclusionary hearsay rule.
That said, the lawyer/judge has various options as to how to rationalise [or
express] why proof of such terms escapes the exclusionary effect of the hearsay
rule. These options are of much less importance than their effect in solving
the (potential) problem of contracts being unprovable if their terms were
inadmissible hearsay. Again problem-solving is the explanation no matter what
option is taken. In practical terms it matters little, if at all, whether
contractual terms are proveable because they are (1) deemed non-hearsay (2)
deemed hearsay but admissible as an exception.
So contractual terms could be deemed an exception - i.e. hearsay but admissible
as an exception. In English law, the rationalisation is that they are not
hearsay and so fall outside the rule, because the terms of a contract are not
hearsay proof of its contents but constitutive of its contents. This still
leaves the hearsay rule in operation: if X and Y agree contractual terms then
testimony as to 'what they told each other to constitute terms' is not hearsay
testimony, but it would be hearsay to testify to what X or Y told others were
the terms of the contract. It matters not a jot whether we arrive at this
result, as English law does, by terming the contractual terms 'original
evidence' of the contract (rather than hearsay of it) or by regarding
contractual terms as a branch of admissible hearsay (that might be termed
'constitutive hearsay'). Note that contractual terms may be established orally
and these oral exchanges are subject to the same dangers of error and
dishonesty against which the hearsay rule is directed: so the reason they are
not excluded cannot be because there are no 'hearsay-type' dangers with such
evidence but is entirely because there is no other practical way to prove
contractual terms. Problem-solving, not CA, is the explanation.
[The mistaken assumption that only contracts in writing are binding is partly
based on confusing the dangers and difficulties of proof of oral contracts with
their validity].
Second, the promissory aspects of contracts may, or may not, be deemed
"non-assertive" - though this issue quickly becomes an idle 'conceptual' one.
But contracts, trusts and wills may contain non-promissory terms that are
assertive (unless we use a special stipulation to avoid this conclusion) - for
example, the term "My clock with the missing '4'", when used as part of
contract or will, is surely assertive that I have clock with a missing '4'. The
term "My clock with the missing '4'" is not hearsay when used within a contract
or will to 'prove' its terms but it may be a hearsay statement if used/asserted
outside of a contract or will. The explanation has already been given and it is
not conceptual but practical: it is not that it is non-assertive in one case
and assertive in the other but that it must be proveable when used within a
contract or a will if the terms of a contract or a will are, in practical
terms, to be proveable [and this is not a tautology either].
The reality is that the law must weaken or abandon hearsay strictures as to
proveability to ensure certain important things (like contracts and wills) are
not thereby rendered unproveable. This is not an exercise in CA but in
problem-solving.
There is a question that is often asked in the Oxford Contract paper: "How can
(the enforceability of) purely executory contracts be reconciled with the
doctrine of consideration?" Approached 'conceptually' there is no good answer
to this but of course there is a simple practical problem-solving approach that
provides a perfectly valid answer: we don't regard a contract as constituted
when promises are exchanged because the 'doctrine of consideration' tells us we
must or tells us we must not; we do it because all kinds of avoidable problems
would arise if we did not. There is much to be learnt from this practical,
problem-solving approach when discussing other rules, including hearsay. JLS'
efforts to explicate hearsay in terms of some kind of CA are not anything like
as helpful to proper understanding.
DL
