bluuebunny/crossref_metadata_2025 huggingface dataset:
The Essence of the Contract
Authors: Jenkins Dafydd
Published: January 2009

There can hardly be any aspect of the law of contract which has in recent years exercised the ingenuity of the courts and the academic lawyers more than the effect of fundamental breach on exemption clauses. The doctrine which seemed to be emerging, that no exemption clause could relieve a party who was in fundamental breach, has been discredited by the House of Lords in Suisse Atlantique, but though the speeches in that case have clarified the position, there is still room for a general statement of the law. The present article is concerned with clear presentation of principle rather than exhaustive examination of authority, whether academic or judicial; and though most of the points have been anticipated at some time or another, it has not seemed desirable to clog the argument by discussing these anticipations. There may also be some value in considering, as aspects of a single problem, some features of the law of contract which are usually discussed in the books under different and widely separated heads such as “Conditions and Warranties,” “Exemption Clauses,” “Discharge by Performance,” and “Discharge by Breach.”
Two Petty Perpetuity Puzzles
Authors: Prichard M. J.
Published: January 2009

The Perpetuities and Accumulations Act 1964 might have been devised to please examiners. The promise of the Attorney-General to the House of Commons, on the Second Reading of the Bill, that “there will be plenty of caviar for those who have the privilege of attending to these fascinating problems” has proved true, not only for those whom the Attorney-General had in mind, but for students too. Moreover, they have to dissect the statute without hope of assistance from the courts for many years to come; for the fact that the Act applies only to instruments taking effect after 15 July 1964, coupled with the “wait and see” rule, renders (validly) remote the likelihood of judicial decision on some of its more stimulating provisions.
Crimes of Violence
Authors: Salmon Justice
Published: January 2009

I think that we all recognise that the enormous growth in crimes of violence is one of the most disturbing social phenomena of our time. In 1948 there were just over 5,000 such crimes committed in this country. In 1958 there were more than 12,000 such crimes and I understand that the figures are keeping up well in the current year. That means there has been an increase of over 100 per cent. on the 1948 figures. I would observe that in 1938 there were well under 3,000 such crimes; so there is an increase of over 400 per cent, on that figure. How—and this is a very pressing problem—how are we going to control and contract this wave of crime that threatens to engulf us and threatens the life and limb of so many ordinary, decent, law-abiding citizens?

There is a school of thought that considers that the reintroduction of corporal punishment is the answer. As you know, corporal punishment was abolished by the Criminal Justice Act of 1948 on the recommendation made by the Cadogan Committee in 1938. It is said that, if we can reintroduce corporal punishment, that will play a large part in overcoming this wave of crimes of violence. There is undoubtedly a very considerable popular clamour in favour of reintroducing corporal punishment. Now, that clamour is, I think, caused by an instinct for revenge. It is not surprising at all that our passion for revenge should be aroused.
New Developments in Mistake of Identity
Authors: Hall J. C.
Published: January 2009

It was only six years ago that C. J. Slade wrote his memorable article “The Myth of Mistake in the English Law of Contract” in which he placed the whole subject of mistake in a new and agreeable perspective. “Mistake as such,” he declared, “has no operative effect whatever at law.”

This was good news for the student; but problems of error in persona still had to be solved, and for these Mr. Slade proposed a simple application of the basic principles of offer and acceptance. The test was whether A's offer was addressed to B and B's acceptance addressed to A, their intention being construed objectively unless that of the one was known to the other, in which case the actual intention of the former determined the matter. The authorities, for the most part, ranged themselves in substantial support, and rationality, it seemed, had been injected at last into this confused branch of the law.

This reassurance has now been disturbed by the case of Ingram v. Little, which reminds us that the offer and acceptance test is no magic formula acting as a ready panacea for all the ills caused by error in persona.

The facts which gave rise to Ingram v. Little are by now well known. Three ladies who wished to sell their car were offered an acceptable price by a stranger, but they made it plain they would not accept payment by cheque. He then pretended to them that he was a certain P. G. M. Hutchinson and quoted an address which the ladies found to be the one shown beside that person's name in the telephone directory.
Conspiracy to Defraud
Authors: Hadden T. B.
Published: January 2009

The charge of conspiring to defraud is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be described as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is clearly useful in bringing to justice a significant number of persons involved in large-scale frauds who might otherwise escape prosecution. A thorough-going assessment of its place in the criminal law is nonetheless long overdue.
The Three Quotations from Homer in Digest 18.1.1.1
Authors: Daube David
Published: January 2009

In the opening fragment of Digest 18.1, Paul tells us that Sabinus and Cassius had not required a money price in sale. So long as you could distinguish buyer and seller, they had contended, the mere fact that the buyer paid with goods made no difference, but such a permutatio was sale. Sabinus had appealed to the authority of Homer, who says: ‘From there (i.e., from the ships sent by Euneus from Lemnos) the long-haired Achaeans procured wine, some for bronze, some for gleaming iron, some for hides, some for whole cattle and some for slaves’.

As these verses do not contain the term ‘sale’ at all, they are generally regarded as pointless; and it is held that all Sabinus can have meant to prove by them was that other things than money might be used for trading—a platitude for which he need not have-searched the ancient books. This, however, is doing him an injustice. As a matter of fact, he knew very well why he adduced just this passage. The word χαλκῷ here rendered as ‘for bronze’ was rendered as ‘aere’ by the Romans. Paul, in the very fragment under discussion, says that the Greeks obtained wine ‘aere ferrohominibusque’ One of the meanings of ‘aes’, as indeed of χαλκóς, was ‘money’. (One may think, for example, of ‘aes alienum’.) It was, therefore, possible to ascribe to χαλκῷ in the passage quoted the sense of ‘for money’, instead of ‘for bronze’. Sabinus translated: ‘They procured wine, some for money, some for gleaming iron,’ etc.
‘Quasi-Judicial’ and its Background
Authors: Wade H. W. R.
Published: January 2009

The epithet ‘quasi-judicial’ has become familiar, if not popular, in administrative law. It is commonly used to describe certain kinds of powers wielded by ministers or government departments but subject to a degree of judicial control in the manner of their exercise. Generally speaking, it is applied to powers which can be exercised only when certain facts have been found to exist, and it indicates that these facts must be found in conformity with a code of rules called ‘natural justice’. As a term ‘quasi-judicial’ has for some years been falling into disfavour. ‘I do not like it’, observed a learned judge to whom it had been a source of recurrent difficulty in the well-known series of cases under the Housing Acts. More recently the Master of the Rolls has spoken of ‘what is loosely called a quasi-judicial proceeding—an expression well adapted to mislead unless the context in which it is used is kept closely and accurately in mind’.
Licences, A Jonah's Gourd (continued)
Authors: Hanbury H. G.
Published: January 2009

Licence or lease?

As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as inErringtonv.Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to beHallv.Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not untilErringtonv.Erringtonthat a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.
Notes on Causation and Responsibility in English Law
Authors: Wright Lord
Published: January 2009

That eminent Law Lord, Lord Asquith, now, alas, no longer with us, was somewhat apologetic in comparing legal doctrines of Causation with those as he saw them of science and philosophy. I venture to question if there is any occasion for apology. The different sciences have developed in their own many ways in their efforts to satisfy the needs of human thought which have called them into life; this is particularly true of their treatment of what is called the relation of cause and effect. Lord Asquith truly said that “ the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge.” They are dealing with different problems and the solutions must differ. Certainly the solutions or explanations propounded by philosophers, scientists and lawyers are different from what is after all a relative and empirical problem. Law in particular has no reason to blush for the results of its age-long efforts.
The Duty Problem in Negligence
Authors: Dias R. W. M.
Published: January 2009

Textbooks on tort begin with the trite proposition that the commission of a tort requires a duty, breach of that duty and, generally, damage. In the tort of negligence, we are told, the duty is a duty of care. The usual way in which this is formulated is that if you can foresee that your conduct is likely to affect a given person, there arises the duty to take care that your conduct does not injure him. The idea seems to be taking root in Roman-Dutch law as well, which is remarkable in view of its Civil law origin. A good deal of controversy has arisen as to whether the notion of the duty of care is necessary or not. It is here suggested that the differences of opinion are reconcilable, but in order to do that we must examine the place which the duty of care occupies in negligence, both in English law and in Roman-Dutch law, since much comment on English law has been forthcoming from the latter quarter and comparison will be instructive. The basis of the proposed reconciliation is that the duty of care is a hybrid notion, combining a question of law and of fact, a dichotomy which is apparent in the language of judges and writers. Those who seek to defend its utility seem mindful of the element of law in it, while those who attack it are thinking of the element of fact. In order to elucidate these elements it is necessary to analyse the tort of negligence. This article will be confined to the examination of the legal element. It will be helpful to begin by appreciating what is meant by the “tort of negligence.”
Claim of Right and Dispute of Title
Authors: Gooderson R. N.
Published: January 2009

The common law recognises two defences to a criminal charge that an accused can plead, based upon a belief that the law permitted him to act as he did. First there is the well-known substantive defence of bona fide claim of right, which operates to negative mens rea, and thus absolves from criminal liability, and secondly the procedural defence, open to an accused summarily charged, that adjudication involves a decision as to his property or title and therefore the jurisdiction of the justices to determine in a summary manner is ousted. For the latter defence, the helpful phrase “dispute of title” has recently been coined. The basic problem is to distinguish this from the deceptively similar defence of claim of right. Writers are prone to dismiss the defence of dispute of title in rather cursory fashion before concentrating on claim of right, and to utter solemn warnings against confusing the two, but it is not unknown for a writer to disregard his own admonitions, and fall into the very pit he has observed yawning before his eyes. Judges, with one notable exception, have surmounted this original crevasse, but in matters of detail have shown that misunderstanding of the law is not confined to the accused. The object of this article is to reverse the usual practice, to dismiss the substantive defence of claim of right in a few lines, and thereafter to refer to it only so far as this is necessary to implement a detailed discussion of the procedural defence of dispute of title, either by way of comparison or as a means of showing the details of the procedural defence in sharper relief.
The Concept, the Idea, and The Morality of Law an Essay in Jurisprudence
Authors: King B. E.
Published: January 2009

I

The title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.

Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’
Acta Et Agenda
Authors: Lipstein K.
Published: January 2009

When I was first called upon to lecture during the darkest days of the war in 1941, because Hersch Lauterpacht was on some mission, I was still surrounded by my own teachers—Buckland, Duff, Gutteridge and McNair (Hazeltine had left). Of these Gutteridge and McNair influenced me most—the former by convincing me that foreign law was well worth studying, if not for its own sake, then in order to test the validity of one's own cherished notions and established techniques and to acquire the inspiration for new solutions, but not in order to discover an all pervading droit commun legislatif. McNair impressed upon me the reality of the rules of international law in the practice of states and in the administration of law by domestic courts. Not monism of a doctrinaire kind, but the age old tradition of the common lawyer to interpret English law so as not to conflict with international law was his inspiration, which has guided me ever since. I must not omit two other formative influences from times long passed. My teachers in Berlin included the last “Pandectist” (Th. Kipp), the broadly based Romanist, Greek scholar and modern comparatist as well as innovator of private international law (Rabel), and the superb exponent of private and private international law (M. Wolff) whose nephew, I am happy to think, will continue the propagation of the work which has been carried out in Cambridge since 1930 by Gutteridge, Hamson and myself. Gutteridge, Rabel and Wolff, whose works in the English language have enriched the fund of the common law, probably gave me the foundations on which most of my own work is based.
Penal Regressions
Authors: Radzinowicz Leon
Published: January 2009

Baron Raffaele Garofalo's memorable treatise Criminology ends (almost as an afterthought) with an Appendix entitled “Outline of Principles Suggested as a Basis for an International Penal Code”. In barely twelve pages he formulates: principles of criminal liability; an enumeration of categories of offenders; a system of penalties to be adopted to combat crime; and some basic rules of procedure for bringing offenders to justice. Garofalo was not a cranky, lofty or flamboyant idealist. Together with Cesare Lombroso and Enrico Ferri he was the founder of the famous Positivist School of Criminology launched in Italy towards the end of the nineteenth century. He was a High Court Judge, a tough realist with a sharp and incisive mind. Staunch traditional conservative that he was, he might instead have been expected to advocate that each nation should be free to express its unique individuality through its own distinctive legal and penal edifice.
The International Relations of Intellectual Property
Authors: Cornish W. R.
Published: January 2009

Intellectual Property is not a term with a standard meaning. Traditionally it was used to describe the copyright protection of authors and to distinguish this from industrial property, i.e., Patents for inventions, industrial design rights, plant variety rights, trade marks and the like. Recently it has become an umbrella for copyright, rights related to it and the various forms of industrial property. The new generic grouping has been needed for a world where demand for these rights has risen to an altogether new pitch. In part this is the consequence of extraordinary advances in technologies which make recorded information easily and precisely reproducible; and partly it supports the quest of advanced economies to conserve superior knowledge as a weapon in international trade.
Justice and Fairness in Law's Empire
Authors: Allan T.R.S.
Published: January 2009

Two important themes in Ronald Dworkin's work have contributed much to an understanding of Anglo-American law. He has insisted on the inter-connection between law and morality, emphasising the role of the judge's political morality in his judgments about the law. He has also argued that individual rights should be understood as anti-utilitarian or anti-majoritarian in character: they operate as constraints on majority decisions about the public interest or general welfare. In combination, these theories have provided an explanation of the legitimacy, in a democracy, of leaving undeniably “political” questions to unelected judges. Judges determine legal rights by applying (legal and political) principle. Matters of policy—understood as raising questions of the general welfare or the public interest— are primarily the concern of the other branches of government. Though policy questions are of concern to judges in the context of statutory construction, where the courts must decide what the legislature has in its wisdom enacted, it is their creative and evaluative role in respect of principle—concerning the moral and legal rights of individuals—which is the hallmark of adjudication, properly understood.1
Public Interest Immunity: Recent and Future Developments
Authors: Forsyth Christopher
Published: January 2009

Public Interest Immunity—previously known as Crown privilege—is an exclusionary rule of evidence. When it applies, it excludes relevant evidence (usually but not exclusively documents) from production in court. Thus when the rule applies the public interest in the due administration of justice has given way to a greater public interest that calls for the evidence in question to remain secret. It has been much discussed recently, not least in the Scott Report which made several suggestions for reform and, more significantly, revealed in detail how PII claims were used by the government in litigation. The government has responded by announcing important reforms. A review of developments is thus appropriate.
Responsibility, Retribution and the “Voluntary”: a Response to Williams
Authors: Duff Antony , Hirsch Andrew Von
Published: January 2009

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g., deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.
Fair Trial or Free Press: Legal Responses to Media Reports of Criminal Trials
Authors: Naylor Bronwyn
Published: January 2009

In June 1993 in R v. Taylor the Court of Appeal quashed the murder convictions of two young women on grounds (inter alia) of prejudicial press coverage of the original trial. In October 1993 three police officers charged with conspiring to pervert the course of justice following the release of the Birmingham Six had their prosecution stayed. The court accepted the argument that adverse publicity made a fair trial impossible.
Obstacles in the Way of an International Criminal Court
Authors: Dugard John
Published: January 2009

The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.
The Personality of the Foreign State in English Law
Authors: Marston Geoffrey
Published: January 2009

The Daily Cause Lists at the Royal Courts of Justice disclose that from time to time foreign sovereign States appear as parties to civil litigation in the courts of England and Wales, mostly as plaintiffs but also, in cases often better known because of the issues of immunity to which they give rise, as defendants. In his judgment in the House of Lords inArab Monetary Fund v. Hashim(No. 3), Lord Templeman, eferring to the case concerning the financial collapse of the International Tin Council decided the previous year by the same tribunal,1observed:2“TheTin Councilcase reaffirmed that the English courts can only identify and allow actions by individuals, sovereign states and corporate bodies.”
Legal Procedure and Democracy
Authors: Goodhart A. L.
Published: January 2009

It was with the greatest pleasure that I accepted the invitation of the American Judicature Society to pay a tribute to the Supreme Court of the United States tonight. This tribute comes from both sides of the Atlantic because I know that what I am going to say represents the feelings of the whole English legal profession—the Bench, the Bar, and the Solicitors. I dare not speak for the Scottish legal profession as I have no authority to do so.
Some Problems about Fundamental Terms
Authors: Montrose J. L.
Published: January 2009

The doctrine of “fundamental term” has been recently invoked in yet another case concerned with the hire-purchase of a car in order to enable the borrower to obtain damages despite the presence in the agreement of an exemption clause. In this case, Charterhouse Credit Co., Ltd. v. Tolly a new point of law was decided. It may be said to be established law that a party to a contract who commits a breach of a fundamental term cannot escape liability for such breach by reliance on an exemption clause. But is the position altered if the innocent party, notwith-standing discovery of the breach, acts in a manner consistent with the continuance of some contractual relations? In the Charterhouse case the borrower of the car on discovering the breach, instead of returning the car, retained it, and indeed entered into negotiations about the time of payment of instalments.
The Minimum Payment Clause Muddle
Authors: Ziegel Jacob S.
Published: January 2009

The value of hire-purchase transactions has remained at a fairly steady level during the past few years, and it would be pleasant to think that the law affecting them has reached a comparable stage of maturity and stability. This is unfortunately not the case. Instead, the number of legal problems continues to multiply and some aspects of the law of hire-purchase have reached a state of complexity which must baffle even the most expert lawyer. Of these none is more confusing than the law relating to the so-called “minimum payment clause.”
Who Made Notable Contributions to the Development of English Law or its Literature
Authors: Hollond H. A.
Published: January 2009

These notes on thirty-six judges and chancellors, prompted by memory of my own requirements fifty years ago, were prepared for distribution on stencilled sheets to the students attending my lectures on legal history at the Inns of Court. My aim was to provide both indications of the principal achievements of each of the lawyers named, and also references to readily accessible sources of further knowledge.

The editor of this journal has kindly suggested that it would be useful to its readers to have my notes available in print.

It is not nearly as difficult as it used to be for beginners to find out about the great legal figures of the past. Sir William Holdsworth, Vinerian professor at Oxford from 1922 to 1944, placed all lawyers in his debt by his book, Some Makers of English Law, published in 1938. It was based on the Tagore lectures which he had given in Calcutta.

Sir Percy Winfield, Rouse Ball professor at Cambridge from 1926 to 1943, gave detailed information as to the principal law books of the past and their editions in his manual The Chief Sources of English Legal History (1925) based on lectures given at the Harvard Law School. Twenty-four of my judges and chancellors have entries in his book as authors.

By far the most numerous of my references are to Holdsworth's monumental History of English Law, in thirteen volumes, cited as H.E.L. The other works most referred to are The Dictionary of National Biography cited as D.N.B.; Fourteen English Judges (1926) by the first Earl of Birkenhead, L.C. 1919–1922; and The Victorian Chancellors (1908) by J. B. Atlay.
Proprietary Claims and Their Priority in Insolvency
Authors: Oakley A. J.
Published: January 2009

Two recent successful appeals to the Privy Council from the Court of Appeal of New Zealand have once again emphasised the importance of proprietary claims in conferring priority in insolvency over the claims of the general creditors of a bankrupt. Attorney-General for Hong Kong v. Reid1 concerned land in New Zealand purchased with the proceeds of bribes accepted by a Hong Kong Public Prosecutor as an inducement to exploit his official position to obstruct the prosecution of certain criminals. The Privy Council imposed a constructive trust where the Court of Appeal of New Zealand had, in accordance with precedent,2 denied one and thus enabled the Government of Hong Kong to recover the land in priority to any other creditors of the Public Prosecutor. In Re Goldcorp Exchange3 concerned the liquidation of a gold-dealer which had offered its purchasers the option of leaving their gold in its custody as “non-allocated bullion”.
Prison Administration
Authors: Jackson R. M.
Published: January 2009

During the war the publication of the ordinary annual reports from government departments, including the Reports of the Prison Commission and the Criminal Statistics, was suspended as a matter of economy. There have now been published Prison Commission Reports for 1939 to 1946 and Criminal Statistics in an abridged form for 1939 to 1945. A new and most welcome step has been the publication in 1945 of a booklet Prisons and Borstals, described as a ‘statement of policy and practice in the administration of prisons and Borstal Institutions in England and Wales’.
Tenancy of Purchaser (Digest 19.2.21)
Authors: Daube David
Published: January 2009

Javolenus libro undecimo epistularum. Cum venderem fundum, convenit ut, donec pecunia omnis persolveretur, certa mercede emptor fundum conductum haberet: an soluta pecunia merces accepta fieri debeat? respondit: bona fides exigit ut quod convenit fiat: sed non amplius praestat is venditori quam pro portione eius temporis quo pecunia numerata non esset.
Dunn v. The Queen Revisited
Authors: Nettheim Garth
Published: January 2009

By mid-1973 the Watergate scandal was reaching towards the highest levels of the United States' Administration. Elliot Richardson was nominated as Attorney General with a particular mandate to sort out the affair. The Senate Judiciary Committee, in its hearings on Richardson's nomination, was vitally concerned to ensure that the Office of Watergate Special Prosecutor should have maximum effectiveness and independence. The formula eventually agreed upon was promulgated by the Attorney General as a regulation under powers vested in him by Statute to prescribe regulations for the Justice Department. On the question of independence, it provided:

… The Special Prosecutor will carry out these responsibilities with the full support of the Department of Justice, until such time as, in his judgment, he has completed them or until a date mutually agreed upon between the Attorney General and himself. … The Special Prosecutor will not be removed from his duties except for extraordinary improprieties on his part.
Notice of Contractual Terms
Authors: Clarke Malcolm
Published: January 2009

One hundred years have passed since Mr. Parker went to collect his bag from the cloakroom at Charing Cross station, found that the bag was missing and that the cloakroom ticket bore a clause limiting the liability of the railway company to £10. The resultant litigation was neither the first nor the last of what have become known as the ticket cases, but the judgment of Mellish L.J. in the Court of Appeal in Parker v. S.E.Ry. has become the point from which most later judgments begin. Whether this centenary is a cause for celebrations or for shudders is a question that the reader must answer himself. This article seeks to trace and delineate the “embellishment and gloss” that have been added to the principles set out in Parker v. S.E. Ry. over the last century.
Judicial Discretion and the Concept of Law
Authors: Steiner Joseph M.
Published: January 2009

In a series of recent papers Professor Ronald Dworkin has presented a critique of the legal positivist's analysis of law as typified by the work of H. L. A. Hart. Dworkin argues that the “model of rules” provides an incomplete and inadequate characterisation of the nature of legal argument and judicial reasoning and, hence, of law, by virtue of its failure to recognise that judges are bound, in making decisions, not only by rules, but also by principles which have rather different logical properties.
Fiduciary Relationships
Authors: Sealy L. S.
Published: January 2009

The branch of equity which deals with fiduciary relationships does not receive a great deal of attention in legal works, and what has been written is not usually very full or very precise. It is proposed, therefore, in this article, first, to explore something of the background and development of this topic, secondly, to discuss the problem of defining a fiduciary situation and, thirdly, to suggest, in outline at least, a classification of the relationships and the principles which apply to each class.
The Redress of Grievances
Authors: Bradley A. W.
Published: January 2009

The decision of the Eden Government in November 1955 to appoint a Committee on Administrative Tribunals and Enquiries initiated a review of administrative procedures which throughout was confined to those areas of the administration where either an administrative tribunal or the ministerial inquiry procedure was already available. The Franks Committee's terms of reference, and it is possible that they were intentionally limited to reduce the scope of the inquiry to reasonable proportions, did not allow any consideration of those administrative decisions not subject to one or other of these procedures. One critic of the Committee's Report, Professor J. A. G. Griffith, commented that the inquiry had been directed in exactly the wrong direction, the procedures under examination already being predominantly open, fair and impartial; but “into the closed, dark and windowless procedures the Committee was not asked to let air and light.”
Creditors' Promises to Forgo Rights
Authors: Gordon D. M.
Published: January 2009

I. ProblemsCreated byTheseCases

TheHigh Trees and Tool Metal cases have this in common: both deal with rights that a creditor is said to confer on his debtor by gratuitously agreeing to suspend periodic payments. Beyond that, they present differences more striking than their similarities.
Treason in Rhodesia
Authors: Wharam Alan
Published: January 2009

Throughout the Rhodesian crisis it has been repeatedly asserted that the Unilateral Declaration of Independence constituted treason. In the House of Commons on 12 November 1965, the Attorney-General himself said:

It is right that I should point out in general terms that there is abundant authority for the conclusion that the conduct of the kind that has taken place is treasonable.
Francis Moore's Reading on The Statute of Charitable Uses
Authors: Jones Gareth
Published: January 2009

The reading was an integral part of the education of the medieval law student, and a necessary exercise for the utter barrister who cast covetous eyes to the Bench of his Inn, the Order of the Coif and a judgeship in the Common Pleas or King's Bench. At one time each reader discoursed on one of the “old” statutes before Edward III (especially Magna Carta, Merton, Marlborough, Westminster I, Gloucester and Westminster II) but during the sixteenth century readers acquired a wider range of choice; so Coke and Bacon were to read on the Statute of Uses 1535 and Moore on the Statute of Charitable Uses 1601. The “antient readings” are said to have served the apprentices well, particularly as an introduction to the dark intricacies of medieval land law. Coke esteemed them as having five excellent qualities:

First, they declared what the common law was before the making of the statute, as here it appeareth. Secondly, they opened the true sense and meaning of the statute. Thirdly, their cases were briefe, having at the most one poynt of the common law and another upon the statute. Fourthly, plaine and perspicuous, for then the honour of the reader was to excell others in authorities, arguments, and reasons for proofe of his opinion, and for confutation of the objections against it. Fifthly, they read, to suppresse subtill inventions to creepe out of the statute.

How more favourable than their modern counterparts, mused Coke, which

having lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, liker rather to riddles than lectures, which when they are opened they vanish away like smoke, and the readers are like to lapwings, who seeme to bee neerest their nests, when they are farthest from them, and all their studie is to find nice evasions out of the statute.
Products Liability: Consumer Protection in America
Authors: Legh-Jones P. N.
Published: January 2009

The Law Commission is currently scrutinising the legal liability of manufacturers and sellers of consumer goods under the English law of sale, and it may possibly recommend reform of the existing law to provide greater protection for consumers. A convenient means of assessing the effect and scope of such proposals will be to compare them with the doctrines of current American “products liability law.” These doctrines have subjected sellers of consumer products in America to a strict liability towards their consumers in respect of defective products. This article is intended to be a survey and analysis of the different causes of action provided by American law. It will be necessary to distinguish the different features and origins of each doctrine since the principles of products liability law have been evolved from case to case by the American state courts in a manner which calls to mind the remark of Holmes that “it is the merit of the common law that it decides the cases first and determines the principle afterwards.”
Vagaries in Liability for the Escape of Fire
Authors: Ogus A. I.
Published: January 2009

The vexed question of liability for the escape of fire, described by Winfield as a “confusing medley of remedies for the same wrong,” has re-emerged recently with all its customary vigour. The reason for the bewildering complexity of this branch of the law is clear: whereas other fields of tortious liability were allowed to advance within the expanding nineteenth-century doctrine of negligence, the development of liability for the escape of fire was hindered by section 86 of the Fires Prevention (Metropolis) Act 1774, a provision which was relevant only to a form of liability which had become outmoded in the nineteenth century. The initial confusion resulting from the conflicting and unhistorical approaches of the courts was aggravated by an irrational flirtation with the doctrine of Rylands v. Fletcher. The object of this study is to place the statutory provision in its true historical context, to extract and explain the various threads of development which have been indiscriminately intermingled by the judges and finally to propose that section 86 be repealed, leaving negligence or nuisance as the basis of liability.
Certain Uncertainties of Trusts and Powers
Authors: Hopkins John
Published: January 2009

“It is striking how narrow and in a sense artificial is the distinction … between … trust powers and powers.” That distinction (whatever it may have been) and its consequences have, in recent years, led to a good deal of judicial bewilderment; the distinction still exists but, afterRe Baden, certain of its principal consequences have disappeared.
The U.S. Supreme CourtAn Introductory Note
Authors: Denenberg R. V.
Published: January 2009

Immediately after the 1970 Congressional elections in America,The Timesnoted that proposals to lower the voting age were rejected by the voters in ten of the fifteen states where these proposals had been put to a referendum. It was then observed: “The issue will be decided this term by the Supreme Court, which will almost certainly take the result of the state elections into account.” To the English reader this may seem to be sociological jurisprudence carried to a ludicrous extreme or some primitive system of adjudication by popular acclamation. Of course, when the constitutionality of the federal statute fixing the voting age at 18 was challenged in the Court, the petitioners were not obliged to cite the election statistics in their brief, but the saying that the justices “follow the election returns” is a maxim of American politics on which constitutional lawyers rely. What that maxim implies—Something that foreign observers may misunderstand—is that the United States Supreme Court is not just a court, at least not in the usual sense of the word. To describe it merely as a court is to ignore the most important implications of its work, for it is very much a part of the political process.
Reform of the Sentencing Process
Authors: Low Peter W.
Published: January 2009

Professor Davis has generated renewed debate on the subject of “discretionary justice” by the recent publication of his book by that title. His thesis, basically, is that the subject is capable of study, and that we should devote more of our resources to the study and less to the traditional court- and rule-oriented approach that is so characteristic of the legal profession and of legal scholarship. He is surely right that the manner in which discretion is exercised—by the policeman deciding whether to arrest; by the prosecuting officials determining whether to prosecute—more frequently constitutes the relevant “law” of a given situation than the formal rules that we write down in statute books and in judicial opinions.
The Liar Paradox in Legal Reasoning
Authors: Hicks J. C.
Published: January 2009

“All Cretans are liars,” said Epimenides—at first sight a common-place scrap of mild xenophobia; about equal to “Taffy was a Welshman, Taffy was a thief” in charity and acumen. Not, one would suppose, a statement calculated to attract close attention from philosophers or logicians, or (despite the introduction of the offence of incitement to racial hatred) from lawyers.

But Epimenides' statement was widely discussed by the best thinkers of classical times and has kept its importance for the foundations of logic until the present century. To understand why, it is necessary to add two facts. First, Epimenides was himself a Cretan. Secondly, his statement was taken to mean not just that all Cretans lied from time to time but that everything ever said by any Cretan was false. It thus implies, in particular, that it is itself false. Not only can this be shown to lead to absurd consequences; it also suggests a simpler form of sentence which heightens the absurdity and best introduces the following discussion. It is: “This statement is false.” If that is true it is false, and if it is false it is true. So we have the paradox of a sentence which breaks no rule of formal grammar, is composed entirely of words whose sense is well understood, combines those words in such a way as to produce an apparently normal and meaningful statement, but turns out on investigation to have something radically wrong with it. We feel inclined to say that it has proved to be “meaningless” or “self-contradictory,” or to involve a “vicious circle.”
Solicitors and the Law of Maintenance 1590–1640
Authors: Baker J. H.
Published: January 2009

The surviving image of the Elizabethan and Jacobean solicitor was created for us by the pamphleteers and playmongers, who could be sure of immediate applause or popular sympathy by introducing into their work a few caricatures drawn from the seamier recesses of the legal world. We are encouraged by these writers to imagine a London plagued by these vermin of the law, scurrying in and around the Temple and lurking in the shadows of Westminster Hall, waiting to pounce on the unsuspecting bumpkin who had the misfortune to wander near their reach. Whether and to what extent these portraits bear any relation to reality are questions which social historians have yet to answer. Legal historians have made but a slight contribution to the history of solicitors during the period which, for them, was the most critical of all. To this period may be assigned the beginning of a process of demarcation between the functions of barristers and solicitors, and when we understand how this came about we shall have traced for the first time the origin of the solicitors' branch of the profession.
Duress as a Vitiating Factor in Contract
Authors: Beatson Jack
Published: January 2009

The notion that a real consensus ad idem is necessary in the formation of a contract valid at common law is currently an unfashionable one. It is, perhaps, for this reason that in recent years little attention has been paid to the effect of duress on the validity of contracts.
The Running of Covenants in Equitable Leases and Equitable Assignments of Legal Leases
Authors: Smith R. J.
Published: January 2009

It has long been established that covenants in legal leases are enforceable where there is privity of contract or privity of estate. Privity of contract exists where the litigants are the original parties to the lease and where the benefit of the covenant has been assigned. Privity of estate applies where the parties are in the relationship of landlord and tenant. Thus an assignee of the landlord's freehold reversion and an assignee (but not sub-lessee) of the lease are in privity of estate. The traditional view is that privity of estate requires a legal lease. This limits the running of covenants in equitable leases (there will be an equitable lease if the necessity for a deed has been overlooked or if there is merely an agreement for a lease). The principle that an equitable lease does not give rise to privity of estate has several important exceptions. Before these are considered, however, it is expedient to examine the general principle.

In recent years the principle has come under attack. The source of the attack emanates from the celebrated dicta of Jessel M.R. in Walsh v. Lonsdale, describing the effect of the Judicature Act 1873:

There are not two estate as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease.