Paul Davies. JC Smith's The Law of Contract (2018 2 ed). p. 441.

       In Blake, Lord Nicholls made it clear that the gain-based remedy will be granted only in ‘exceptional circumstances’. Te usual remedies for breach of contract should be ‘inadequate’, and the claimant should have a legitimate interest in preventing the defendant’s proft-making activity and depriving him of his proft. Lord Steyn said that ‘[e]xceptions to the general principle that there is no remedy for disgorgement of profts against a contract breaker are best hammered out on the anvil of concrete cases’.8 That anvil has rarely been struck. Indeed, it now looks like the decision of the House of Lords in Blake is something of an outlier.

8 Blake, 291.

Although I don't understand this symbolism with anvils, I can surmise the meaning: Steyn is saying that exception to this general principle ought be developed in cases in the future dealing with this legal issue. Then Davies is saying that there haven't been such cases.

But I still yearn to understand the metaphor to anvils.

  1. I'm assuming that 'anvil' isn't referring to gavels which aren't used in English courts barring the Inner London Crown Court, but they may be in the future. Courts and Tribunals Judiciary:

    Although they’re often seen in cartoons and TV programmes and mentioned in almost everything else involving judges, the one place you won’t see a gavel is an English or Welsh courtroom – they are not used there and have never been used in the criminal courts.

  2. Why symbolize "judge-made law developed on a case-by-case basis" by hammering on an avail?

  3. What's the figurative meaning of "That anvil has rarely been struck"? What does not striking an anvil symbolize?

I read these articles on hitting the anvil when blacksmithing, but I don't understand them: Quora, Reddit, Today I Found Out.


It’s an metaphor, not a legal term

Blacksmiths hammer things out on an anvil and the phrase “hammer it out” means to work it through (whatever ‘it’ is) like a blacksmith works steel.

What Lord Nicholls is saying is that he is unwilling to articulate a general principle of law regarding divestment of profits in the abstract and that each actual (concrete) case needs to be considered on its merits. He is also stating that such a remedy has been very rare - continuing the metaphor.

  • A metaphor (a description two analogous things without using like or as) and not an allusion (a reference to something else, usually a famous work of fiction), but same difference. – ohwilleke Apr 23 '19 at 2:14

Supplementing @DaleM's correct and excellent answer, here is a picture of metal being hammered on an anvil.

enter image description here

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