bluuebunny/crossref_metadata_2025 huggingface dataset:
The Effect of Discharge by Breach on Exception Clauses
Authors: Coote Brian
Published: January 2009

It was perhaps never very likely that the proponents of fundamental breach would allow their doctrine to die just because of some obiter dicta on the subject from the House of Lords. In that respect, therefore, the recent decision of the Court of Appeal in Harbutt's “Plasticine” Ltd. v. Wayne Tank and Pump Co. Ltd. need cause no surprise. What had happened in that case, essentially, was that the defendants had agreed to manufacture some equipment and to instal it in the plaintiffs' factory under a contract, clause 15 of which limited the defendants' liability to the amount of the contract price (£2, 330). A small and easily corrected defect in the equipment caused a fire which destroyed the factory and resulted in a loss to the plaintiffs of some £150,000. The Court of Appeal held (Lord Denning M.R. dubitante) that on its true construction clause 15 covered the loss in the events which had occurred. The whole court nevertheless joined in holding that the destruction of the factory and consequent discharge by breach of the contract had the effect of making clause 15 inapplicable. Judgment was given for the full amount of the loss.
Ultra Vires and Agency Untwined
Authors: Baxter Colin
Published: January 2009

An act done by or on behalf of a company may be defective for a variety of reasons. It may be ultra vires the company itself: in which case it will be void. It may be within the powers of the company but outside the authority or powers of the agent (usually the directors) doing the act: in which case it will also be void, but may nevertheless in varying circumstances be ratified by the company. It may be within the powers both of the company and of the agent but be done for an improper purpose: in which case it may in some circumstances be set aside or afford some other remedy.
The Contact of Public and Private Law
Authors: Pollock Frederick
Published: January 2009

Looking for a definition of my subject, I find in my learned and lamented friend Professor Dicey's introduction to the second edition of his Law and Public Opinion in England, written in 1914, a sentence which will serve better than any definition of my own. “Since 1859”—the date of Mill's Essay on Liberty—“ almost every event which has happened has diverted public attention to the extreme difficulty, not to say the impossibility, of drawing a rigid distinction between actions which merely concern a man himself and actions which also concern society.” That is a clear statement in untechnical terms of the facts underlying the formal distinction between Public and Private Law, and of the fact that the relations of the two classes of actions and of the rules of law dealing with them have become in our own time, and are still becoming, more and more intimate and complex. It has more than once been observed of late that Public Law is encroaching on Private Law. Perhaps it has not been sufficiently noted that this process by no means obliterates the distinction between them, but on the contrary makes it all the more needful to bear it in mind. Confusion and trouble must arise when private rights arising out of legal or administrative rules established with a primary view to the public weal are treated as if they were matters of merely private interest, and when the framers or administrators of measures designed for the public good ignore the various ways in which private rights will be affected.
Equity in America
Authors: Beale Joseph H.
Published: January 2009

The first colonists in America might be divided roughly into two streams. Those that went to the North were of the Puritan stripe; those that went to the South were, so far as the ruling class is concerned, Englishmen quite in sympathy with existing affairs, who went only to better themselves. The middle colonies, between New England and Pennsylvania, were not first settled by Englishmen; they require different consideration. The people, then, who settled New England, and to a considerable extent the people who settled Pennsylvania, were not in sympathy with existing conditions in England; and they had as a result of their experience a certain antipathy to the English law as it had been administered. In Massachusetts Bay this antipathy was carried to the extent of forbidding any English lawyer to live in the colony; and they abolished the English law by ordinance, and provided that all matters should be settled by appeal to the Bible, which nreant, to them, the Old Testament. That continued for a while, but, of course, it was absolutely an unworkable condition. Men trained in the thoughts of Englishmen could not think like the ancient Jews, and could not really be governed by the law of Moses; and the ordinance rather passed out of their recollection. It was still true, however, that lawyers did not plead in their Courts. The Courts were magistrate Courts, presided over in the highest Court by the persons elected as governor and assistants, in the lower Courts by the lesser magistrates. The law administered—if one can call it law—was simply the whim or the good sense of the magistrate, along with such ordinances as had been passed. The same thing was true of the other New England colonies and—as time passed—was equally true in Pennsylvania.
The International Court of the League of Nations
Authors: Pollock Ernest
Published: January 2009

I hope that I shall not either dissatisfy you or disappoint you in what I have got to say to-night, in offering you some observations on the Permanent Court of International Justice, but I confess that it is a pleasure to me to feel that I can cast away all such taints and disadvantages as may attach to a member of the Government, and speak to you as a Trinity man.
The History of Conspiracy and Abuse of Legal Procedure
Authors: Pound Roscoe
Published: January 2009

Looked at with respect to subject-matter these two books are more truly two parts of one work, the former being the historical introduction and the latter the dogmatic and critical exposition of the present law. Indeed they were intended originally to be one volume and separation resulted from inclusion of the historical portion in the Cambridge Studies in English Legal History, to which the dogmatic and critical portion, perhaps with excess of scrupulousness, was thought inappropriate. It must be said, however, that the line has been drawn skilfully between the two volumes and those who have occasion to use the second for practical purposes may very likely prefer the arrangement as it stands.
War and Law
Authors: Higgins A. Pearce
Published: January 2009

The publication of a new edition of the late Professor Oppenheim's second volume on International Law, which deals with “War and Neutrality,” will raise in some minds the question as to the applicability of the maxim inter arma silent leges. If it be true, how can there be a law and laws of war?
Some Aspects of Judicial Life
Authors: McCardie
Published: January 2009

Instead of dealing with technical matters, I shall take a different path to-night, because you may like to hear from a judge something of the reality of his everyday life, the actual decisions that he has to make and the actual problems that he has to face. Will you, therefore, go with me upon one of the circuits? As you know, the whole country is divided into seven circuits, and the one that I should like to choose for the purpose of this evening is the North Eastern circuit—Newcastle, Durham, York and Leeds.
Estates Tail Under the New Law
Authors: Sanger C. P.
Published: January 2009

The Law of Property Act, 1922, to a very considerable extent assimilates the law of real and personal property, except so far as their physical natures render this impossible or undesirable. But the assimilation is not carried out, as some reformers wished, by making the law of real property correspond to the law of goods. That would have been too great a change. It would have upset the well-recognised method of settling land by means of life estates followed by successive estates tail. The plan was therefore adopted of permitting personalty also to be entailed. This will save much trouble when, as often happens, it is desired to settle the family pictures or heirlooms to go with the mansion house. The trusts now used to achieve this are complicated and, as numerous cases show, sometimes fail to bring about the result desired. Now in a deed, an estate tail can be created in three ways: by a grant (1) to A. and the heirs of his body, (2) to A. in tail, or (3) to A. for life with remainder to the heirs of his body. (These estates can be limited to heirs male or heirs of a particular class, such as the heirs of the body of two named persons.) Of the three forms of words: (1) is the old and correct form based on the Statute De Donis, 13 Ed. I., c. 1, which says that the will of the donor should be observed; (2) is possible as an alternative form by virtue of Section 51 of the Conveyancing Act, 1881; (3) is curious; it is due to the Rule in Shelley's Case, that if land is limited in remainder to the heir or heirs of the body of a person to whom a preceding estate of freehold is given, the words “heirs” or “heirs of the body” are words of limitation.
The Happy State of the Modern Law Student
Authors: MacKinnon Justice
Published: January 2009

The title which I suggested for this address was prompted by some enquiries which I had recently been making into the history of my Inn—which you will forgive me for regarding as the best of the Inns of Court—the Inner Temple. In its records I had been struck with the contrast that was apparent between the life of the law student as there depicted and that of the law student of to-day. I think that in the old times for a man to come to Oxford or Cambridge, before going to London and becoming either a barrister or a solicitor, was very much less common than it is to-day. A certain number of law students no doubt went first to Oxford or Cambridge, but few of them seem to have taken a degree. I had occasion to look into the life history of seven or eight barristers at the end of the 18th century, and I found that each of them was a member of a college, either here or at Oxford, but only two of them took a degree. In those times it was much commoner for a man to spend a year or two, either here or at Oxford, and then to go on to London. The poorer ones, I think, went first to an Inn of Chancery, of which there were about ten attached to the various Inns of Court. The Inner Temple had four of the attached to it—Clement's Inn, Clifford's Inn, New Inn, and Lyon's Inn.
Some Reflections on the Philosophy of Law
Authors: Amos Maurice Sheldon
Published: January 2009

It is recorded in the annals of Ouchronia that Robinson Crusoe, shortly after his return home, met a college friend, who forthwith invited him to deliver a public lecture to his constituents on the “Principles of Political Science as exhibited in an Island State’. Ignorance, eagerness to mix once more with his fellow citizens, and an hypnotic state superinduced by the splendour of the topic proposed, concurred to make the unwary traveller accept the invitation. A very few days of reflection were sufficient, however, to reveal to him the full extent of his impotence and of his audacity; and the chronicle goes on to record that he hastily put his affairs in order, and set sail without delay. upon his second voyage. I have felt much sympathy in the last few weeks with Robinson Crusoe in his quandary; but unlike him, I propose to throw myself upon your indulgence, only asking you to make allowance for a nearly life-long absence from the atmosphere of universities, libraries, and great tribunals.
Trusts For Sale
Authors: Lightwood John M.
Published: January 2009

Of the various devices for facilitating the disposition of property which conveyancers have invented, the trust for sale has been in the past one of the most useful, and its utility has been greatly extended by the Property Acts of 1925. Most students of the law first come across it in the famous argument of Lord Eldon, then John Scott, in Ackròyd v. Smithson (1780, 1 Bro. C.C. 503), and the rebuff he received when, a little later, he argued, or tried to argue, on the other side. “Mr. Scott,” the Chancellor of the Lancaster Chancery Court said to him, “I have read your argument in that case of Ackroyd v. Smithson, and I defy you or any man in England to answer it.” That was on the doctrine of conversion, the immediate result of a trust for sale, and the refinements to which the doctrine led formed, till the recent legislation, one of the most important branches of equity. With the abolition of the heir at law, and the distribution, in cases of intestacy, of the proceeds of real estate among the new statutory next of kin, these refinements have become obsolete so far as regards the property of persons dying after 1925, but the immediate operation of a trust for sale—the power conferred on the trustees of making a title to the land—remains.
The Criminal Responsibility of Corporations
Authors: Winn C. R. N.
Published: January 2009

Where it has been sought to impose on a corporation liability for crimes committed by its agents in the course of its business and their employment, all the intellectual obstacles which had to be surmounted before imposing corporate liability for tort have been at least equally obstructive, besides the further difficulty that the criminal law knows no such doctrine as ‘respondeat superior.’ A man is criminally liable for his own acts and for them alone; and in order to establish his guilt it is necessary to show that two elements concur: the actus must be reus, and the mens, rea. Again there is the difficulty that a corporation is not susceptible to corporal punishment.
Third Parties: Rationalising a Right to Sue
Authors: Kincaid Peter
Published: January 2009

In a revolutionary but unsatisfactory recent decision, the High Court of Australia has allowed a third-party beneficiary of an insurance contract a right to sue the promisor. The decision casts doubt upon the whole doctrine of privity and ultimately upon bargain as the theoretical basis of promissory liability. The Trident case is unsatisfactory not because it allowed a third-party beneficiary a cause of action or because it challenges privity and bargain, but because it offers no satisfactory replacement for the theory of bargain. The reasons the court gave for recognising a right to sue are weak and inconsistent with the common law's approach to questions of civil liability. That approach is to give a plaintiff a cause of action against a defendant not solely because of something the defendant has done, but because there is a legally relevant link between what he has done and the plaintiff's condition. That is, the plaintiff must, in order to establish a right, satisfy some criterion for linking the defendant's behaviour to his complaint.
The Judicial Settlement of Industrial Disputes.
Authors: Brown Jethro
Published: January 2009

The subject upon which I have the honour to address you is so wide that within thetime at my disposal I can only hope to touch upon elementals. My task will be less onerous if I limit myself to the system of public control of industrial relations in South Australia. Each State of the Commonwealth has its own system. There is also a Commonwealth Court of Conciliation and Arbitration for the purpose of the settlement of industrial disputes which extend beyond the limits of a single State. This dual system of control by Courts of co-ordinate control has led to much conflict in the past. I can only say, speaking of time present, that practical necessities tend towards a co-ordination of the principles which underlie the decisions of Commonwealth and State Courts.
Why Conventionalism does not Collapse into Pragmatism
Authors: Simmonds N. E.
Published: January 2009

In this paper I propose to defend legal conventionalism against the attack mounted on it in Chapter 4 of Ronald Dworkin's bookLaw's Empire. I do not propose to defend legal conventionalism against other arguments which might conceivably be deployed against it. Nor do I propose to say anything of great substance about the positive merits of the position.
Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984
Authors: Allen C.J.W.
Published: January 2009

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.
Insurance: The Proximate Cause in English Law
Authors: Clarke Malcolm
Published: January 2009

The proximate cause, whether an event covered by a policy (“peril”) or an event excluded from a policy (“exception”), “is the dominant or effective or operative cause.” So says MacGillivray and Parkington.1 So say the courts. It is hard to disagree. It is also hard to understand what it means and hence hard to apply it. The result is that most judges are reluctant to commit themselves to greater precision and that those lawyers who press further, judges or writers, do not agree.
Freedom, Unrequested Improvements, and Lord Denning
Authors: Matthews Paul
Published: January 2009

The common law doctrines relating to mixtures and improvements of personal chattels give the impression, to most English lawyers, of being somewhat mysterious. Proprietary interests come and go like ships in the night, now mingled with rights to possession, now quite separate. But although cases involving proprietary claims are not common, the issue often arises as to A's personal rights against B, where B has without A's consent expended effort on A's property, and B's personal rights against A (if any) in respect of the improvement.
Covenants, Privity of Contract, and the Purchaser of Personal Property
Authors: Tettenborn Andrew
Published: January 2009

This article discusses an old but vexed question in the law of obligations: to what extent can a purchaser of personal property find himself bound to observe covenants relating to that property to which he was not party? Put shortly, how far can covenants bind personal property?

This question can, of course, arise in many guises. The issue may be whether a purchaser of shares in a private company is bound by a right of pre-emption in respect of those shares held by other shareholders in the same company; whether the seller of goods can impose restrictions on the price at which remote purchasers may resell those goods; whether the mortgagee of a ship can be prevented from using the vessel inconsistently with the rights of one who has booked space in her: issues whose sheer diversity makes it most difficult to achieve the aim in this article of developing general principles in this area of the law.
The Status of Rules of Precedent
Authors: Evans P. J.
Published: January 2009

In a recent article in the Cambridge Law Journal, Laurence Goldstein argues that four problems of legal theory which are supposed to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed by Goldstein: that concerning the status of the rules of precedent. I agree with Goldstein that this problem has a reasonably simple solution: but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct solution to this problem. The solution proposed is one which has already been suggested by A. W. B. Simpson in 1961 in “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent” but there is, I believe, a defect in Simpson's formulation of the argument for it, which has impeded its general acceptance. In any event, as there is clearly still controversy about the issue, it seems worthwhile restating this solution with fresh arguments. I will first discuss the problem, then its proposed solution, then Simpson's discussion of the topic, and finally some further questions which are suggested by the proposed solution.
Part XI of the Law of the Sea Convention and Third States: Some General Observations
Authors: Vasciannie Stephen
Published: January 2009

On 30 April 1982, after almost a decade of careful negotiations at the Third U.N. Conference on the Law of the Sea, the Law of the Sea Convention was adopted by the positive votes of 130 States. In one of its main sections, Part XI, the Convention sets out a detailed regime for the exploration and exploitation of the deep seabed and its resources and firmly places deep seabed mining under the regulatory control of the International Seabed Authority, to be established in Jamaica. However, as is well known, the United States and certain other Western countries have adopted a negative posture towards various aspects of Part XI and, for this reason, they are unlikely to ratify the 1982 Convention in the near future. Against this background, the question whether the provisions in Part XI may be binding evenvis-à-visnon-parties to the LOSC has assumed considerable importance in contemporary international law.
John Bryt's Reports (1410–1411) and the Year Books of Henry IV
Authors: Baker J. H.
Published: January 2009

The anonymity of the year books has puzzled historians for over a century, and generated an extensive literature. Contemporary users of the year books cannot have been much interested in the identity of their authors; and this in itself is a historical fact of some interest. By 1600 there was an obvious difference in quality and authority between the reports of judges, or distinguished lawyers such as Plowden, and the scrappy notes of students below the bar. Both kinds of report circulated in manuscript, but their users were well aware of their relative merits and took notice of the reporters' identities. Why, then, did the medieval lawyer not show the same interest in names? Was it because the production of year books was so much a collaborative effort that identification of individual reporters would have been meaningless? Or was it, on the contrary, because so few reporters were involved that everyone knew who they were? Or was there simply no notion of authority, either legal or historical, to which the reporters' qualities might be relevant? In other words, were the reports evaluated solely on their intrinsic merits as books of potential arguments and procedural moves?
Equitable Liens Under Hire-Purchase Agreements
Authors: Hollond H. A.
Published: January 2009

The provisions of the Law of Property and Land Charges Acts, 1925, in regard to the registration of land charges, havt modified, almost to the extent of annihilation, the dependence of equitable interests on the question whether ihe legal estate owner had actual notice, or was affected by constnuctive notice, of their existence. The exact scope of those land charges which aro included by the Land Charges Act, 1925, s. 10, sub-s. 1, Class C (iii), under the term ‘general equitable charges’ remains to be delimited. The editors of the eleventh edition of Wolslenholme and Cherry's Conveyancing Statutes comment with characteristic caution: ‘This paragraph sweeps up the remaining equitable charges, not otherwise specifically named, which require protection.’ This does not help us very much. It is presumed that the lien which an unpaid vendor of land has for the purchase-money is a general equitable charge, and requires to be registered. But what about the charge which a cestvi quc trust has on land which has been bought out of a mixed fund consisting partly of trust money and partly of the trustee's money, for the amount of the trust money laid out in the purchase? The new rule does not seem exactly appropriate to such a case.
Dr. Johnson and the Old Bailey
Authors: Mathew Theobald
Published: January 2009

We all know the Old Bailey—now, by statute, the Central Criminal Court—in Newgate Street. The Old Bailey as Dr. Johnson knew it is no more, and the present building is still in its infancy—blooded, it is true, but an infant. Its predecessor—a gloomy and forbidding structure—had had a long, busy and unwholesome career before its disappearance some twenty years ago.
Alternative Elements and Included Offences
Authors: Williams Glanville
Published: January 2009

The Decision of the House of Lords in Clarence Wilson alters the law of included offences, but the extent of its impact is unclear. The decision is of unhappy importance not only as a disconcerting specimen of the functioning of our final court of appeal but also because of its possibly serious effect on the. theory of indictments. It has been subjected to devastating criticism by Professor Smith, and awkward questions upon it have been raised by Mr. Emmins. This article will seek both to underline the criticisms by a closer examination of the opinion and to suggest a more limited interpretation of it than has previously been considered.
Status: Problems of Definition and Use
Authors: MacCormack Geoffrey
Published: January 2009

Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.
Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation: English Law
Authors: Jolowicz J.A.
Published: January 2009

If a pebble is dropped into a pool of water, ripples will spread on the surface of the water; how far the ripples will spread and with what strength depends on a variety of factors, but there will always be a ripple of some kind. The same is true of a decision of a court of law. Notwithstanding what Professor Chayes has accurately described as the “bipolar” character of traditional civil litigation, it is almost inconceivable that the outcome of a civil action will affect no one but the parties to it: unless an exception can be found to John Donne's famous axiom that "No man is an Island, entire of itself”—and such a man, if he exists, is unlikely to bring an action in the first place—the ripple effect even of, say, a simple decision that an individual defendant must pay a sum of money by way of damages to an individual plaintiff will extend to their respective families and beyond. It is not wholly absurd to say of such a case that, for example, the retail traders, the banks, and so on with whom the parties have dealt or may deal in the future have an “interest” which an action by an injured individual may “protect” and, if they do, that interest is certainly "diffuse" and "fragmented" even if it is not “collective.”
Wednesbury Unreasonableness: The Expanding Canvas
Authors: Peiris G. L.
Published: January 2009

It is an essential aspect of the English legal tradition in public law that judicial review should be based upon procedural standards. Lord Brightman has recently insisted that judicial review involves simply an appraisal of the manner in which an administrative decision is made. However, judicial attitudes during the last three years indicate a changing philosophy which appears to admit of greater scope for substantive review. The principle which is referred to succinctly in modern law as Wednesbury unreasonableness has proved, in the hands of some contemporary judges, a uniquely effective instrument for the exercise of this extended jurisdiction. The central problem posed by recent developments relates to the danger of a “surrogate political process” which may erode the foundations of legislative supremacy and political responsibility. Unbridled judicial review, in accordance with some emerging approaches, has basic implications for the future of the relationship between the administration and the courts.
Similar Facts—Makin Out?
Authors: Mirfield Peter
Published: January 2009

It is the purpose of this article to demonstrate that Lord Herschell's famous statement in Makin of the law relating to similar fact evidence was and is valueless, that it continues to exert a baneful influence both upon the cases and upon much of the academic commentary on them, and that it is overdue for commitment to the scrapheap. The essence of my argument is that English law does not, in truth, regard reasoning from disposition as illegitimate. Hence, there is no negative principle from which positive exceptions need to be carved out and no rational basis for applying different law according to whether or not the prosecution seeks to place reliance on the nature of the accused's disposition. An attempt will be made to explain why, even after Lords Wilberforce and Cross had, in identifying some or all of these truths in Boardman, made the crucial “intellectual breakthrough,” they have not been grasped by the rest of the judiciary.
Common Law Marriage
Authors: Hall J. C.
Published: January 2009

To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.
A Reappraisal of Quasi-Estoppel
Authors: Wilson J. F.
Published: January 2009

In a recent article in the Cambridge Law Journal, Dr. D. M. Gordon, q.c., sets out systematically to demolish the theory of quasi-estoppel propounded by Denning J. in Central London Property Trust Ltd. v. High Trees House Ltd. In his closely reasoned argument he seeks to prove that no authority is to be found in case-law, either before or after 1947, to support any principle of this type, which he believes has been totally discredited by dicta in the later case of Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. He further goes on to assert that the results of the implementation of such a principle would be arbitrary and undesirable in contrast with what he believes to be the clear rule of law laid down in the two nineteenth-century cases of Jorden v. Money and Foakes v. Beer. In short, it appears to be his view that a creditor who promises to forgo contractual rights without consideration and then subsequently retracts his promise and seeks to enforce his strict legal rights is both legally and ethically justified in doing so.

These are sweeping allegations which call for an answer. The object of this paper is to examine the validity of these arguments and to reassert that not only does authority exist to support a principle of quasi-estoppel of the type outlined by the writer on a previous occasion, but also to suggest that the implementation of this principle is most desirable if the rule of law is to be brought into line with commercial expectation and commercial practice.
Volenti Non Fit Injuria
Authors: Jaffey A. J. E.
Published: January 2009

The recent decision of the House of Lords in Titchener v. British Railways Board (which will be considered below) is a reminder of the uncertainty that strangely still surrounds the defence of consent or volenti nonfit injuria to an action in negligence. It is clear that the defence at least includes the case where there is an agreement, not necessarly constituting a contract, between the plaintiff and the defendant under which the plaintiff foregoes, in advance, a claim for negligence which might otherwise accrue to him, i.e., the plaintiff agrees that conduct of the defendant which would otherwise be actionable will not be so. The principal uncertainty is whether the plaintiff's mere voluntary exposure of himself to a danger already created, or likely to be created, by the defendant's negligence can give rise to the defence of volenti, either on the basis that such conduct of the plaintiff constitutes the requisite agreement to forgo a claim, or on the basis that no such agreement is necessary. This and other problems in regard to the nature and scope of the defence will be considered in this article.
Set-Off and Agency
Authors: Derham S. Rory
Published: January 2009

The purpose of this article is to examine when a right to set off independent cross demands may be available in a case in which an agent acting on behalf of a principal has contracted with a third party. Three particular situations are considered. The first involves the series of cases dealing with undisclosed principals, in which the third party was not aware at the time of the contract that the person with whom he was dealing was merely acting as an agent on behalf of another. The principal subsequently sues the third party on the contract, and the question is whether the third party may bring into account a debt owing to him by the agent on a separate and independent transaction. The second situation arises when the agent, rather than the principal, is the person in whose name the action against the third party is being prosecuted. The third party may wish to set off in that action a debt owing to him by either the principal or the agent on another transaction. Finally, the question of a right to set off independent cross demands may arise in an action brought by the third party against the agent.
The Validity of Marriage and the Proper Law
Authors: Fentiman Richard
Published: January 2009

Contemporary convention has it that the essential validity of marriage in the conflict of laws is governed by the law of each partner's pre-nuptial domicile. But this is contestable. The present argument is that the cases which are said to authorise the traditional conceptual pattern are in reality examples of the proper law of status at work in English law.
Passing-Off, Goodwill and False Advertising: New Wine in Old Bottles
Authors: Naresh Suman
Published: January 2009

Commentators upon the English common law relating to the protection of trade symbols have frequently remarked the uncertainty concerning the true scope of the action for passing-off: its place in the scheme of English tort law has been said not to have been finally determined, and its capacity for growth not to have been exhausted. It is true that this uncertainty has not prevented greatly increased use of the action in recent years; but this is no reason to be complacent, for the judicial extensions of liability under this head owe more to the manipulation of verbal formulae than to a clarification of its foundations. Inconsequence, as passing-off has come to be employed as the vehicle for novel assertions of right-such as those of groups to a shared symbol, of foreign traders to international reputations that have preceded them to these shores, or of pop stars and other ephemera of our culture to the value of their names and likenxsesses in the marketplace—the risk of important interests being ignored, simply through failing to be recognised, has increased rather than decreased.
From the Old Law Courts to the New
Authors: Maitland F. W.
Published: January 2009

There were some persons perhaps who on the 4th of December last, when the Queen went in pomp to open the new Law Courts, betook themselves not to the new hall, but to the old. Possibly they had no choice but to put up with the less gorgeous of the two pageants, for they were neither jurors in the Belt case nor otherwise persons of mark. Or it may be they preferred to see the end of an old story—a very old story—to the beginning of a new. For such a choice there was something to be said. They may live to see many noteworthy sights in Mr. Street–s new Courts; they will hardly see another procession of judges in Westminster Hall, and when the procession had passed, they may have felt that they had seen what was worth remembering. Not that there was any excuse for profound emotion, but still something had happened; the curtain had fallen on a scene which began who shall say how long ago? Possibly some readers may be so far like-minded with these spectators, that having seen through the artist–s eye something of the judges as they sit in their new Courts, and being of the sound opinion that a good picture needs no bush of words, they will be willing to throw a glance back on Westminster Hall.
Litigation-Mania in England, Germany and the USA: Are We So Very Different?
Authors: Markesinis Basil S.
Published: January 2009

This paper was prompted by thefeelingthat the differences between the systems under comparison are not as great as they are commonly believed to be and by theknowledgethat lawyers in each of these countries tend to have a vague if not distorted picture of each other's laws. The way I have tried to approach my subject has been through the use of statistics so, before I say anything about the differences between the systems, real or apparent, let me make some cautionary remarks.
Sterilisation and the Courts
Authors: Grubb Andrew , Pearl David
Published: January 2009

In recent years courts in the common law world have been concerned with their protective jurisdiction in the area of medical treatment; for example, the rights and status of the unborn foetus, the withholding of treatment from handicapped children, sterilisation, the provision of contraception, and the availability of abortion in relation to healthy and handicapped children and young adults.
The Policy/Operational Dichotomy—A Cuckoo In The Nest
Authors: Bailey S. H. , Bowman M. J.
Published: January 2009

In the case of Anns v. Merton London Borough Council,1 Lord Wilberforce, in considering the negligence liability of a local authority arising out of the exercise of its statutory powers to inspect buildings under construction, drew a distinction between the “policy” and “operational” aspects of the authority's functions and suggested that liability would more readily arise in respect of the latter. Since that time it has become common to consider the liability of public authorities generally in the tort of negligence by reference to this “policy/operational” dichotomy.
The Foundations of Property and Property Law
Authors: Coval S. , Smith† J. C. , Coval‡ Simon
Published: January 2009

Explicit rights and freedoms such as those of thought, assembly, life, liberty and security of person occur in constitutional charters because they are activities and states which are necessary for any successful action. It is through the protection of its necessary conditions that freedom of action is itself protected. Moreover, without the inference that freedom of action is the basic value being protected we cannot justify the above rights and freedoms. If we accept this hypothesis about the justificatory structure of constitutions it provides us with a test of the completeness of the list of explicit rights and freedoms. We argue that no charter could justifiably include the usual explicit rights and freedoms and not include the right of the individual to property since the latter is no less a condition of free action than are the former.
Bourhill v. Young
Authors: Goodhart A. L.
Published: January 2009

In an article in the Canadian Bar Review on the recent case of Bourhill v. Young Dr. Cecil Wright says that this is ‘one of the most important decisions in the law of tort which has appeared since Donoghue v. Stevenson.’ But, as he points out thereafter, it is difficult to determine from the speeches of the law lords exactly what principles it has established concerning the ‘ambit of risk’ or the extent of liability for nervous shock. That this doubt is fully justified is shown by the fact that Professor Winfield in his Text-book of the Law of Tort deals with the case in the section entitled ‘Remoteness of consequence (or damage)’ while Dr. Stallybrass suggests that it is primarily authority on the problem of negligence. Perhaps this difference of opinion reflects a certain degree of uncertainty in the judgments themselves, for their Lordships, although reaching the same conclusion, do not seem to have been in complete agreement concerning the grounds on which they did so.
Warranties of Land in the Thirteenth Century
Authors: Bailey S. J.
Published: January 2009

In its ordinary form, the warranty of land was an obligation, owed to the tenant of certain land, to defend him in his possession of that land against all men. This obligation to warrant was primarily, therefore, an obligation to come into Court, if called upon (‘vouched’) by the tenant, in order to defend some action brought against him for the possession of that land.
A Century of the McNaghten Rules
Authors: Barnes H.
Published: January 2009

The subject falls conveniently into two parts, (I) comment made during the century since McNaghten's Case in 1843 on the answers given by the judges to the questions put to them by the House of Lords, and (II) discussion of the defence of irresistible impulse. For the convenience of readers the Questions and Answers are reprinted from the tenth volume of Clark and Finnelly's Keports, 200, 209–212.
Precedents
Authors: Wright Lord
Published: January 2009

It may seem odd at a crisis like this in the history of the empire and of mankind to be thinking and writing of academic questions of law, but the Editor has asked me to contribute an article to the University of Toronto Law Journal as a token of the sympathy and fellow-feeling of lawyers on both sides of the Atlantic. I am glad to be able to comply with his request and I do so also as a token of appreciation of the noble efforts that Canada is making for the cause which is so dear to the hearts of all of us. What Canada is doing is also being done by the other sister nations of the empire—the great Dominions—the colonies and India. All are united not by material or formal bonds, but by ties of kindred and by a common devotion to the cause of the free spirit and dignity of man, of the supremacy of law over tyranny, treachery, and brute force. The common law which binds together the English-speaking countries has been well called the law of the free peoples. We are confident that the forces of evil are ephemeral compared with that law. We can without impropriety forget for a brief space the pressing evils and dwell a little on that which will survive them, the common law.
The Wapping Dispute and Labour Law
Authors: Ewing K. D. , Napier B. W.
Published: January 2009

A decade ago the conflict between George Ward, proprietor of Grunwick Processing, and the Association of Professional, Executive Clerical and Computer Staff (APEX) provided a platform for an extended debate about the role of the law in industrial relations, the right of employers to refuse to recognise trade unions for collective bargaining purposes and, in particular, the efficacy of legislation as a means of promoting such recognition. In 1986 the decision to move the printing of various newspapers within the News International Group (the chairman of which is Mr. Rupert Murdoch) from Fleet Street to a new purpose-built printing plant at Wapping in London's docklands occasioned another set-piece battle between labour and a strong-minded employer. The issues and the climate of industrial relations in which the dispute took place are very different but, like Grunwick, the Wapping dispute provides rich material for all interested in how the law can be used as part of the strategy of industrial conflict.
Moot Case on Murder and Arson
Authors: Jackson R. M.
Published: January 2009

William styles was tried at the Oxbridge Assizes on charges of murder and arson. The evidence for the prosecution showed that Styles was the owner and manager of a shop with extensive storerooms, and that at 10 p.m. on the 21st June, Styles deliberately set fire to the building in order to claim the insurance money. John Doe, a storekeeper employed by Styles, was burned to death. No evidence was produced as to why Doe was in the building at that hour. The staff usually left at 6 p.m. though it was not unknown for members to stay later, although no instance of anyone staying as late as 10 p.m. could be adduced. Styles did not search the building before he set it on fire.
A Lawyer's ‘Alice’
Authors: Williams Glanville L.
Published: January 2009

The hall was full of little creatures of all sorts. There was a Mouse, a Duck, a Dodo, a Lory, an Eaglet, and a jet-black Rook wearing a clerical collar.

‘“I,” said the Rook,

“With my little book”’—

murmured Alice to herself.
The Restoration of Fruits by the Bona Fide Possessor
Authors: Daube David
Published: January 2009

The following remarks are intended to show that there exists no irreconcilable conflict between C. Just. 3.32.22 and C. Theod. 4.18.1. This is a strictly limited purpose, and the author does not propose to attempt any further conclusions as to the complicated history of the restoration of fruits in the rei vindicatio. It may be well to quote the two texts that form the subject of this article.