Why did Asquith LJ metaphorize unaccepted repudiation as 'a thing writ in water'?
O'Sullivan & Hilliard's The Law of Contract (2018 8 ed). p. 373.
15.50 It was famously declared in Howard v Pickford Tool Co Ltd (1951) that an ‘unaccepted repudiation is a thing writ in water’. This vivid metaphor is almost entirely accurate. If the innocent party elects to keep the contract alive, it is as if the repudiation never occurred. Of course, where there has been an anticipatory breach and the contract is not terminated, the repudiating party is likely to breach again by not performing on the due date. For example, if one party says in January that he is pulling out of a contract due for performance in June and, when June comes round, he duly refuses to perform, the innocent party may claim damages. However, in the meantime, the contract is alive and the innocent party runs the risk of breaching his own obligations, whereupon he
p. 374
may (to use a colloquial phrase) ‘kick himself ’ that he did not accept the other party’s repudiation in January. He may likewise regret his decision to reject the repudiatory breach if the contract is subsequently frustrated, as in Avery v Bowden (1855). If this situation arose today, the innocent party might be able to argue that, had he opted instead to accept the repudiation and terminate the contract, the ‘frustrating’ event might have occurred anyway and thus should be taken into account in reducing his damages, since the reasoning in The Golden Victory (2007), discussed at para 15.44, could in an appropriate case cover frustration as well as a contractual ‘war clause’.
As it's impossible to write in water with a customary pen or pencil, "thing writ in water" means zilch. Right?
But why was this metaphor used? Are there other "dimensions, attributes or variables which may be mapped or transferred back onto the tenor [unaccepted repudiation] and hence create new meaning"?
Was Asquith LJ alluding to Chapter 134 of Melville's Moby Dick that features thing writ in water?
Here be it said, that this pertinacious pursuit of one particular whale, continued through day into night, and through night into day, is a thing by no means unprecedented in the South sea fishery. For such is the wonderful skill, prescience of experience, and invincible confidence acquired by some great natural geniuses among the Nantucket commanders; that from the simple observation of a whale when last descried, they will, under certain given circumstances, pretty accurately foretell both the direction in which he will continue to swim for a time, while out of sight, as well as his probable rate of progression during that period. And, in these cases, somewhat as a pilot, when about losing sight of a coast, whose general trending he well knows, and which he desires shortly to return to again, but at some further point; like as this pilot stands by his compass, and takes the precise bearing of the cape at present visible, in order the more certainly to hit aright the remote, unseen headland, eventually to be visited: so does the fisherman, at his compass, with the whale; for after being chased, and diligently marked, through several hours of daylight, then, when night obscures the fish, the creature's future wake through the darkness is almost as established to the sagacious mind of the hunter, as the pilot's coast is to him. So that to this hunter's wondrous skill, the proverbial evanescence of a thing writ in water, a wake, is to all desired purposes well nigh as reliable as the steadfast land. And as the mighty iron Leviathan of the modern railway is so familiarly known in its every pace, that, with watches in their hands, men time his rate as doctors that of a baby's pulse; and lightly say of it, the up train or the down train will reach such or such a spot, at such or such an hour; even so, almost, there are occasions when these Nantucketers time that other Leviathan of the deep, according to the observed humor of his speed; and say to themselves, so many hours hence this whale will have gone two hundred miles, will have about reached this or that degree of latitude or longitude. But to render this acuteness at all successful in the end, the wind and the sea must be the whaleman's allies; for of what present avail to the becalmed or wind-bound mariner is the skill that assures him he is exactly ninety-three leagues and a quarter from his port? Inferable from these statements, are many collateral subtile matters touching the chase of whales.
Unaccepted repudiation of a contract is where the other party doesn't agree to release the other party from their half of the contract.
Therefore it's writ(ten) in water: Something that has no legal standing. The opposite of something writ(ten) in ink or carved in stone. When you write something in ink or carve it in stone it stays around.
Imagine dipping a pen in water instead of ink. Write on paper and it dries and disappears.
Most likely it's an allusion to John Keats's epitaph:
This Grave / contains all that was Mortal / of a / Young English Poet / Who / on his Death Bed, in the Bitterness of his Heart / at the Malicious Power of his Enemies / Desired / these Words to be / engraven on his Tomb Stone: / Here lies One / Whose Name was writ in Water. 24 February 1821