bluuebunny/crossref_metadata_2025 huggingface dataset:
A Coda to Coase
Authors: Kramer Matthew H.
Published: January 2009

As anyone even noddingly familiar with law-and-economics can attest, the name of Ronald Coase has become associated with the vision of a world that is free of transaction costs. Such an association derives largely from Coase's classic article, “The Problem of Social Cost”. However, as should be recognised by anyone who peruses that article, its author's chief concern lies in taking account sustainedly of the presence and implications of transaction costs.
Has the Common Law a Future?
Authors: Beatson Jack
Published: January 2009

I must begin with a few words about my predecessor in the Rouse Ball chair, Sir David Williams. David Williams has had a career of outstanding service to legal studies, to universities, in particular Cambridge, and to the wider public. After completing his studies, he became one of the formidable group at the University of Nottingham's Law Faculty. He went on to Oxford—he has told me that he went there as a missionary—and during his time there produced his pathbreaking books on official secrets and public order, Not in the Public Interest and Keeping the Peace. He was, it must be said, not the only Cambridge public lawyer-missionary in Oxford. Sir William Wade was also there. By 1967 it appears that two missionaries were no longer required, and David Williams returned to Cambridge. In 1982 he succeeded Wade—by now also back in Cambridge—as Rouse Ball Professor. He has been an important presence in the world of administrative law and his contribution to environmental issues has been enormous. We are delighted that now he has laid down the burdens of office as Vice-Chancellor he has returned to the Faculty— albeit to a different chair.
A Failure of Justice and Defect of Police
Authors: Bradley A. W.
Published: January 2009

On March 7, 1958, the Brighton watch committee decided to dismiss their chief constable; on March 14, 1963, the House of Lords ruled that this decision was ineffective. Among the conclusions of the majority of the House was that natural justice required a hearing to have been given to the chief constable before his dismissal and that in the absence of a hearing the dismissal was invalid. In attempting an assessment of Ridge v. Baldwin, which concerns what has since been called “a doctrine of the highest constitutional value,” it seems necessary (a) to examine the dispute against its administrative background, in particular the intertwining pattern of statute and ministerial regulation governing police dismissal; (b) to consider in detail a number of difficult points of principle raised by the arguments on natural justice; and (c) to set the decision within the broad context of the development of administrative law. It will be suggested that although the House of Lords may have restored to favour a once classic principle of interpretation, this in itself helps but little in the search for a fruitful relationship between the courts and the administration. The interpretation of statutory powers may well be important in particular situations, but the judge's ability to do justice in this way necessarily depends on the words of the statute he is interpreting and thus may stand or fall on the vagaries of legislative history. Had Mr. Ridge been the chief constable of a county force and not of a county borough force, although he could still have invoked the Police Regulations, the rules of natural justice would almost certainly have helped him but little—simply because the County Police Act, 1839, is phrased differently from the Municipal Corporations Act, 1882.
Thirteenth-Century Conveyancing from the Charter Rolls
Authors: Bailey S. J.
Published: January 2009

The Charter Rolls of the thirteenth century are not solely concerned with Royal grants. They contain a large number of conveyances made by the King's subjects. These conveyances, or charters, owe their preservation here, as a rule, to the fact that they were submitted to the King for his inspection and confirmation. Many of them are quite complicated examples of conveyancing, replete with descriptions of the land concerned, of the estate granted, and of the services or consideration reserved by the grantor. But perhaps their most striking feature is the list of witnesses with which each charter concludes.
Will English Romalpa Clauses become Registrable Securities?
Authors: Cowan Sharon , Clark Alistair , Goldberg Gordon
Published: January 2009

A Romalpa clause provides that, even after delivery, the seller retains title to goods agreed to be sold, until payment of the price of those goods or, in many cases, until payment of all sums due to the seller from the buyer. Its object is that, should payment not eventuate, the goods, though in the buyer's possession, are still the seller's property and available for resale by him. In the Scottish appeal of Armour v. Thyssen Edelstahlwerke A. G.1 the House of Lords encountered this example of a Romalpa clause:
The Contemporary Use of Legislative History in the United Kingdom
Authors: Bates T.J.N.
Published: January 2009

The use of legislative history by the courts as an aid to the construction and interpretation of statutory provisions has an extensive common law history. This has encompassed significant variation in judicial approach, perhaps reflecting changing constitutional relationships. Where principles have emerged they have been somewhat inconsistently applied, no doubt because courts have a residual competence to regulate their own procedure which is only loosely regulated by superior courts.
Instrumental Protection, Human Right or Functional Necessity? Reassessing the Privilege Against Self-Incrimination
Authors: Dennis Ian
Published: January 2009

THE privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins,1and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty.2This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights.
The Countess Gundred's Lands
Authors: Bailey S. J.
Published: January 2009

The Countess Gundred was an occasional litigant in the Curia Regis Rolls of Richard I and John. She was evidently an important person. Other women are described in the rolls as the wife or widow or daughter of someone: she is simply ‘Comitissa Gundreda’ (ComitisGund) without more. She was probably the daughter of Roger, Earl of Warwick, and was perhaps a great granddaughter of William the Conqueror. Her first husband was Hugh Bigod, first Earl of Norfolk; her second was Roger de Glanvill, brother of the Justiciar.
Self-Defence and the Right to Life
Authors: Ashworth A. J.
Published: January 2009

It is almost a matter of definition that law restricts the freedom of each individual to satisfy his wants and desires in any manner he wishes. The restrictive elements in law may be regarded as justifiable because and in so far as they are necessary to ensure the maximum freedom for each and every individual. Freedom from interference can only be preserved by restricting everyone's freedom to exercise power over others. Perhaps the most fundamental and universal restriction is that placed on the use of force by one individual against another. Widely as social and legal systems may vary in the extent to which they allow some forms of power (e.g., economic power, industrial power, the powers of persuasion) to be exercised, they unite in prohibiting the exercise of physical power by one citizen against another. Many natural inequalities may be allowed to run free, but all legal systems attempt to “equalise” human beings to the extent of preventing resort to force by those who are minded and able to use this method of satisfying their desires. A prohibition on the use of force may thus be regarded as one of the minimum conditions of social life. This, in turn, is bound up with recognition of the right to life and physical security as the most basic claim of every human being. The idea of physical security as one of the “natural rights” of mankind has a long history, and Blackstone followed this traditions when he held that the right to life and limb is an “absolute right” which “every man is entitled to enjoy whether out of society or in it.”
Murder—Drunkenness—Insane and Non-Insane Automatism
Authors: Williams Glanville
Published: January 2009

It may be thought that the most important aspect of the decision of the House of Lords in Bratty v. Att.-Gen. for Northern Ireland [1961] 3 W.L.R. 965 is the opportunity it gives for qualifying some of the dicta in Director of Public Prosecutions v. Smith [1961] A.C. 290. Lord Morris of Borth-y-Gest (with whom Lords Tucker and Hodson expressed concurrence) referred to the “golden” rule in Woolmington, and said:

“In a charge of murder, malice may by implication be proved where death occurs as the result of a voluntary act of the accused which is (i) intentional and (ii) unprovoked. When evidence of death and malice has been given an accused person may, however, either by adducing evidence or by examining the circumstances adduced by the Crown, show that his actions were either unintentional or provoked. In such a situation the continuing and constant obligation of the prosecution to satisfy the jury beyond any reasonable doubt is in no way abated.”
Merger—Statutory Modification of the Common Law
Authors: Turpin C. C.
Published: January 2009

In R. v. Males [1961] 3 W.L.R. 1297, the Court of Criminal Appeal was concerned with the effect of section 12 of the Criminal Procedure Act, 1851, upon the common law doctrine of merger in its application to the misdemeanour of attempt. This doctrine of the common law is to the effect that if the acts of an accused person constitute both a lesser crime and a greater, the lesser crime (at all events if a misdemeanour) merges in the greater (at all events if a felony), and is extinguished by it. In consequence, if the accused was charged only with the lesser crime, he was at common law entitled to an acquittal. Thus, in the old case of Harmwood (1787) 1 East P.C. 411, the accused, who had been indicted for an assault with intent to rape, had to be acquitted when it was found that rape had actually been accomplished.

Although revered by counsel in a case in 1851 as “ancient well established doctrine,” the principle of merger has had a fitful and at times precarious life. Its justification has never been clearly formulated, nor its province determined. Its application is in some respects arbitrary. It applies to the misdemeanour of attempt, which is held to merge in the completed crime, but not to the misdemeanour of conspiracy. It remains uncertain whether one misdemeanour may merge in another, although merger in this case was doubted in R. v. Males.

The doctrine of merger is supported by the sound reason “that no man is to be harassed by frequent prosecutions for the same offence,” as counsel expressed it in R. v. Button (1848) 11 Q.B. 929, but has in the past earned some disrepute for the opportunities of escape offered to accused persons who, having committed both misdemeanour and felony, succeeded in evading conviction of either.
Misrepresentation and the Act of 1967
Authors: Fairest P. B.
Published: January 2009

The law concerning misrepresentations inducing contracts has been the subject of criticism for some years, and in 1959, the then Lord Chancellor, Viscount Kilmuir, referred the matter to the Law Reform Committee. Their Report, published in 1962, had a mixed reception. A learned commentator, writing in this journal, gave it a rather chilly welcome, on the ground that it went too far; on the other hand, Mr. Diamond, writing in the pages ofLaw Reform Now, complained that the Report did not go far enough, and suggested that the subtle distinction between a mere representation and a term of the contract should be abolished. In 1967 the Misrepresentation Act was passed, to give effect, with certain modifications, to such of the recommendations of the Law Reform Committee as had not yet been implemented.
Act of State as a Defence Against a British Subject
Authors: Collier J. G.
Published: January 2009

The law surrounding the doctrine of act of state is perhaps one of the most confusing parts of constitutional law, for both its meaning and application are susceptible of several different interpretations. In particular the rule that act of state can be no defence against an action by a British subject, or, to put it more precisely, that there can be no act of state between the Crown and a British subject is one whose limits are not entirely clear. The recent case of Naim Nissan v. Attorney-General has brought the matter to the fore in what is thought to be a novel situation, wherein the question arose whether act of state can be a defence to an action by a British subject if the act has been executed by the Crown outside the Crown's dominions. The case gave rise to a difference of opinion between the judge at first instance and the Court of Appeal, and now that leave to appeal has been granted to the House of Lords, there arises an opportunity to examine act of state in several of its aspects.

In this discussion it will be argued that the law as it appears now to stand is not necessarily a correct interpretation of the precedents, and that if it is, occasion now presents itself for a fresh formulation of the rules upon a more logical and up-to-date basis.

It is first proposed to explain what is meant by the term “act of state” in this context, to try to establish its relationship with the prerogative, and to examine two aspects of it, that is (i) where a claimant is attempting to use an act of state as the foundation of his action, and (ii) where the Crown is attempting to defeat an action by an individual by the plea of act of state.
The More-Than-Handy Husband
Authors: Tiley John
Published: January 2009

In 1958 there were three houses for sale in Coronation Mews. The first was bought by Mr. and Mrs. A, each providing one-half of the purchase money but the house being conveyed into the name of Mrs. A. The house cost £5,000.
The Shiloh Yarn Tangle
Authors: Fairest P. B.
Published: January 2009

To most lawyers, Shiloh has hitherto signified, according to taste, either sn Old Testament shrine or a battle in the American Civil War, or both. In view of the general Lancastrian sympathy for the Confederate cause in the 1860S, it is presumed that the plaintiff's mill in Shiloh Spinners Ltd. V. Harding, which has given the name a new and daunting association, was named after the second of the two locations. The case, for which leave has been given for an appeal to the house of lords, involved a further consideration of that embattled statute, the Land Charges Act 1925, and of several other points of fundamental importance to land lawyers. This article is mainly concerned with the points concerning the interpretation of the Land Charges Act, which, it will be suggested, contain some unnecessary and alarming novelties. Before considering the complex facts of Shiloh itself, however, a few general observations on the land charge system are needed.
Signature, Consent, and the Rule inL'Estrangev.Graucob
Authors: Spencer J. R.
Published: January 2009

Itseems to be generally accepted that a person who signs a contractual document may not dispute his agreement to any of the terms which it contains, unless he can establish one of three defences: (a) fraud, (b) misrepresentation, or (c)non est factum.
The Newe Littleton
Authors: Baker J. H.
Published: January 2009

No account of the history of English legal literature can omit the name of Littleton. Sir Thomas Littleton's treatise on tenures made the family name almost synonymous with the common law itself. But it is not generally known that another member of that illustrious family left unfinished a work which, had it been completed and published, would have earned him a position of importance in the history, not only of English, but of universal jurisprudence. In so far as the will ought to be taken for the deed, perhaps some measure of recognition may justifiably be afforded to his work even after three centuries of oblivion. The author was Edward Littleton (1589–1645), Baron Littleton of Munslow, a direct descendant of Sir Thomas. Educated at Christ Church College, Oxford, he entered the Inner Temple in 1608; and there, like his near-contemporary John Selden (1584–1654), he developed a taste for comparative jurisprudence, legal history, and the study of records. His reputation for learning brought him in 1640 to the seat of Chief Justice of the Common Pleas, and within a year he was made Lord Keeper. The transition to high office was a personal disaster, since Littleton's nature did not suit him for a position of political delicacy, and his brief tenure of the Seal was scarcely less miserable than that of his predecessor Finch—who had fled to Holland in 1640. Among Littleton's first tasks was to preside over the preliminaries to the proposed impeachments of Finch and the ship-money judges, and the lengthy preparations for the trial of Strafford. Within months he became ill, and from February until August 1641 he absented himself from the House of Lords. The following year, either from fear or high-mindedness, he quit London, following the King to York and thence to Oxford. In his hurried flight he apparently left behind some of his goods and papers in the “Black Lodgings” in the Inner Temple. His health continued to deteriorate, and he died (aged 56) on 27 August 1645.
The Consumer Credit Act 1974
Authors: Goode R. M.
Published: January 2009

TheConsumer Credit Act, which after many vicissitudes was passed on 31 July 1974, represents the product of nearly six years' concentrated labour. The genesis of the Act was the appointment in 1968 of the Crowther Committee on Consumer Credit, whose twovolume Report covering the entire field of consumer credit, and much else besides, was published in March 1971. The Committee devoted close attention to the state of the law governing credit transactions, and at an early stage in its deliberations concluded that consumer credit could not be considered in isolation from the general legal framework within which credit was provided, whether for business or for consumers. Among the seven major defects in credit law identified by the Committee, three were fundamental.
Economics and the Environment: A Study of Private Nuisance
Authors: Ogus A. I. , Richardson G. M.
Published: January 2009

TheEnglish lawyer has been notoriously unwilling to admit the relevance of social sciences to his discipline. In part, this may be attributed to his lack of formal training in economics or sociology. As regards the latter, there are some signs of the handicap being overcome: much current research effort is now being directed to the interpretation of law and the legal system as social phenomena. But the application of economic reasoning to legal instruments and institutions has been limited and tentative. Although it has long been recognised that a marriage of the two disciplines is necessary for the procreation of effective norms in areas where the law clearly governs economic activities, for example, the regulation of trade and income redistribution, so far, in this country at least, creative thinking about central legal institutions such as tort, contract, property and crime has remained relatively untouched by such a mode of analysis. Yet, as Americans have demonstrated, there is nothing inappropriate in such an exercise. At first sight the subject areas of economics and law will appear to diverge significantly: the former is “concerned with the manner in which a society produces, distributes and consumes wealth when it is constrained by scarcity, either of tangible resources or of intangible resources,” while the latter is often viewed as a system of norms governing the conduct of individuals and institutions. Yet such conduct will generally involve the transfer and acquisition of resources. With this congruence of interest, therefore, the opportunity exists to compare economic analysis with prevailing legal rules on particular issues to see whether the “right” solution is reached.
Liability for Animals in Roman Law: An Historical Sketch
Authors: Jackson Bernard S.
Published: January 2009

Theproblems of reconstructing the development of liability for animals in Roman law are considerable. Each of the remedies is attended by major difficulties for the historian. We have the following:

(1) A Twelve Tables remedy forpauperies—an archaic term, the meaning of which is obscure;

(2) A Twelve Tables remedy for depasturation, of which there is no surviving quotation, but only a small number of allusions;

(3) Anedictumon dogs and certain wild animals, undated and surviving in two versions with hardly any juristic interpretation;

(4) A “lex Pesolania” concerning dogs, the very existence of which has been questioned;

(5) The classicalactio de pauperie, the basis, extent, and remedy for which have all been assailed by the interpolationists;

(6) The classicalactio de pastu, evidently superseded by Justinian's day and thus leaving but few traces.

The Common Lawyer, to whom these remedies may reasonably evoke the types of damage represented byscienterand cattle-trespass and the special rules for dogs andferae, will not be surprised to find, in addition, the application of generalculpaprinciples by the extension of the actiolegis Aquiliae.

I. TheDecemviralRemedies

Some strands of ancient tradition maintain that the Decemvirs adopted an eclectic method, incorporating within the Twelve Tables both ancestral custom and foreign law.
The Courts and Parliament: Who Whom?
Authors: Allott Philip
Published: January 2009

All government is a conspiracy. Each governmental conspiracy has a constitution as its alibi. The constitution describes the way in which the political power of the society is concentrated and places the source of that concentration somewhere other than in the mere fact of power. Because of that dislocation, the constitution is the source not only of political power but also of political duty. The subjection of the organs of government to the constitution runs parallel to the subjection of the people governed to the constitutional power of the organs of government. The constitution justifies constitutional power and constitutional duty by making both of them derivatives from one and the same source.

The prior question of whence the constitution itself derives its authority is, for all everyday practical purposes, answered by the mere fact of the constitution. The constitution is self-proving in practice because it is used as the source of maxims affecting the behaviour of those who exercise physical force with actual impunity, or who control its exercise. To preach or to act against the constitution may or may not be permitted by the legal rules of the given society (themselves derived ultimately from the constitution), but it will in any event be ineffective whenever it comes into collision with power exercised, to the point of physical force, under authority derived from the constitution. A revolution occurs when the exercise of constitutional power, to the piont of physical force, ceases or is overridden by the exercise of unconstitutional power, if necessary by the application of greater physical force.
Pleading Involuntary Lack of Capacity
Authors: Horder Jeremy
Published: January 2009

The possibility that defendants may plead that, through no fault of their own, they lacked the capacity for free agency at the time of the alleged offence, raises the most fundamental issues of principle in the criminal law. The recent decision in R. v. T gives fresh impetus to a full discussion of those issues. In the course of this article we will see that the law is ill-equipped to deal with the full variety of kinds of involuntary lack of capacity, as I shall call it, that ought wholly or partially to excuse. In this the law is hampered by the partial and ill-defined character of its understanding of how people identify harmful conduct for which they were (not) responsible, and by the related fact that it can deal with involuntary lack of capacity only through the blunt instrument of acquittal on the grounds of insane or non-insane automatism. Through enriching the theoretical underpinnings of the law's conception of the scope for pleas of involuntary lack of capacity, and giving the judiciary a more sophisticated armoury of remedies to deal with them, it is in fact possible to sift out the deserving from the undeserving amongst such pleas in accordance with workable principles.
Status to Contract—Refuted or Refined
Authors: Jamieson N. J.
Published: January 2009

If Hohfeld's analysis of fundamental legal conceptions is valid it promises to afford a very simple means of confirming or refuting Maine's thesis that social progress has hitherto been from status to contract. Anthropology may elucidate the issues of human development thereby put at stake. Legal theory may corroborate or contradict the outcome of testing Maine with Hohfeld. Beyond that, however, the process of verification depends neither on empirical data nor speculative thought. Instead of social science or legal philosophy, it is the outcome of abstract logic. On this account Maine's thesis that status has hitherto given way to contract among the progressive societies is at risk of being dismissed as a logical fallacy.
The Fragmentation of Parental Rights
Authors: Maidment Susan
Published: January 2009

It is now eight years since J. C. Hall and J. Eekelaar called for a “reformation” and “clarification” of parental rights. Both of them established, in rather different ways, the difficulty in analysing parental rights as rights rather than as duties or powers or freedoms, the ascendancy in any case of the welfare of the child in almost every example where a parental right came into conflict with the welfare principle, and finally the difficulty of describing the fragmentation of parental rights when these are split up between different people or bodies.
Nightmare and Noble Dream: The 1993 World Conference on Human Rights
Authors: Marks Susan
Published: January 2009

The World Conference on Human Rights, which took place in Vienna in June 1993, was convened by the United Nations with three principal aims. The Conference was to evaluate progress made in the field of human rights in the period since the adoption of the Universal Declaration of Human Rights in 1948; to consider the relationship between human rights and other priority concerns of the world community, such as development and democratisation; and to examine ways of strengthening the protection afforded human rights and improving the United Nations' human rights programme. An earlier UN conference on human rights had been held in Teheran in 1968 and the General Assembly decided that, 25 years later, reconsideration was appropriate. This decision, taken in 1989, seemed vindicated as events following the fall of the Berlin Wall opened up new opportunities, as well as new dangers.
Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review
Authors: Forsyth Christopher
Published: January 2009

The doctrine of ultra vires has been aptly described by Sir William Wade as “the central principle of administrative law” but in recent years it has been subjected to criticism. First the academics weighed in and, increasingly, eminent judges speaking or writing extra-judicially have described the doctrine as a “fairy tale” or a “fig leaf” and declared its redundancy and lack of utility.
Civil Disqualifications Attending Conviction: A Suggested Conceptual Framework
Authors: Hirsch Antrew Von , Wasik Martin
Published: January 2009

A Person convicted of a crime suffers punishment—a fine, a community sentence, or perhaps a custodial term. In addition to that sanction, however, conviction of the crime may trigger a variety of disqualifications. The offender may be barred from holding public office, or from serving on a jury. He may be precluded from certain types of employment, or be prevented from driving a vehicle. These consequences may considerably restrict the person's prospects for earning a living or his mobility. Yet the visibility of these measures is low: provisions authorising various disqualifications are scattered throughout the statute books, and are not easy to find. While there is now a considerable body of jurisprudence on sentencing, the principles which should inform the proper use of disqualifications have received little serious attention.
Equitable Liens in Commercial Transactions
Authors: Worthington Sarah
Published: January 2009

The law describing vendor's and purchaser's liens over personal property can only be described as baffling: there are cases to “prove” and “disprove” almost any proposition. This uncertainty is surprising. A contract of sale is one of the most basic forms of commercial activity, and an equitable lien would convert a vendor or purchaser into a secured creditor by operation of law. The advantages of such a position are self-evident, yet it remains unacceptably difficult to say when such advantages accrue. Fundamental equitable principles seem to support a simple analysis of vendor's and purchaser's liens which might eliminate some of the current uncertainties. This article describes that analysis. It concludes that one party to a sale contract has a lien over identified sale property whenever, and as soon as, all the contractual obligations assumed by that party have been carried out.
The Paradox of Cross-Examination to Credit—Simply Too Close for Comfort
Authors: Munday Roderick
Published: January 2009

Any defendant with a criminal record, who takes the witness-stand, must beware the snares of section 1(f) of the Criminal Evidence Act 1898. The shield this statute confers, once described by Viscount Sankey as “one of the most deeply rooted and jealously guarded principles of our criminal law”, which forbids the prosecution or any co-accused from questioning him on his previous convictions and general bad character, can be forfeited in three ways. An accused may variously adduce evidence of his good character, cast imputations on the character of the prosecutor or the witnesses for the Crown, or give evidence against a co-accused: in each of these circumstances, under sub-provisos (ii) and (iii) of section 1(f), cross-examination of the accused on his bad character then becomes permissible with the leave of the judge. Although there is a frail argument that such evidence may go to issue, the overwhelming preponderance of authority holds
The Colleges in the University of Cambridge
Authors: Glazebrook P. R.
Published: January 2009

Are the Cambridge colleges “constituent colleges” of the University? This seemingly esoteric question has recently become of some practical importance. University Commissioners, appointed Pursuant to section 202(1) of the Education Reform Act 1988, have the duty of modifying the Statues or other instruments of government, of many, but not all, university institutions, so as to ensure that, whatever may have been the position hitherto, each of them has, for all future appointments, the power to dismiss members of its “academic staff” on grounds of redundancy, or for “good cause” (as defined in section 203(2)). Whether a university institution is subject to having its Statutes thus modified in ways which it might not have chosen for itself, in order to facilitate the “restructuring” of its academic activities, and the removal of “dead wood,” turns on whether it is a “qualifying institution,” as defined in section 202(3):

(a) any university or other institution to which during the period of three years beginning 1 August 1987, grants in aid are or have been made by the Universities Funding Council, or by the Secretary of State acting on the advice of the University Grants Committee;

(b) any constituent college, school or hall or other institution of a university falling within paragraph (a) above.
Cargo Risks: “Dangerous” Goods
Authors: Rose F. D.
Published: January 2009

A shipper does not have unlimited freedom as to what he may have transported by sea. Restrictions on the goods which a charterer or cargo-owner may ship are imposed by the common law, the terms of the contract and statute. The statutory sources of control of what are normally referred to as dangerous goods may be divided into three categories: those under the Hague-Visby Rules (principally art. IV(6)); those under the Merchant Shipping Act 1995; and other legal sources. Provision is also made by the Hamburg Rules. Where a prohibition against the shipment of goods is not laid down by an express contractual obligation or specific rule of law, it is likely to be treated as depending on an implied term or collateral warranty.
The Early Constitution of the Inns of Court
Authors: Simpson A. W. B.
Published: January 2009

I propose in this article to examine two questions: the original system of government of the Inns of Court and the original relationship between call to the bar and the right of audience in the Royal Courts. Primarily I shall be concerned with the first question: I shall deal with the history of call to the bar only incidentally, and I do so because the two subjects are intimately connected with each other.
The New Rules of Pleading of the Hilary Term, 1834
Authors: Holdsworth W. S.
Published: January 2009

The old system of pleading has passed so completely into the limbo of things forgotten that the title of this paper is not intelligible without an explanation. I must, therefore, remind the reader that, in pursuance of the Second Report of the Common Law Procedure Commissioners, which was issued in 1830, the Judges made some new general rules as to pleading in the Hilary Term of 1834 which, on the whole, tended to aggravate the existing evils of the common law system of special pleading, by making special pleading compulsory where it had before been only optional. Something was done to alleviate these evils by the Common Law Procedure Acts of 1852, 1854, and 1860; but they were not wholly eliminated till the new system of procedure and pleading introduced by the Judicature Acts. The result was that right down to the Judicature Acts the system of pleading was the old system; and, subject to the modifications introduced by the Common Law Procedure Acts, the old system aggravated by the new pleading rules of the Hilary Term, 1834. Now it seems to me that there are certain developments in common law doctrine in the nineteenth century which may in part, at least, be traced to the indirect influence of these new pleading rules. But it is obvious that before I can even state my thesis I must explain some of the characteristics of the old system of special pleading, and the effect of these new pleading rules. I shall therefore divide this paper into these three parts, and deal firstly with certain characteristics of the old system of special pleading; secondly, with the new pleading rules of the Hilary Term, 1834; and thirdly, with the question of their effect on the development of the substantive law.
A Text-Book of Roman Law
Authors: de Zulueta F.
Published: January 2009

There have been, and are, good manuals of Roman law in plenty which might seem to render superfluous the publication of yet another. But, after all, they are foreign, sind what is more (ranitas canitatum!) however carefully later researches are digested in successive editions, there are changes of point of view which cannot be adopted in this fashion. What one may look for in a new manual is, besides a synthesis of recent work, the specification which that work lias undergone in the author's mind, also his general point of view and the special qualities which give his work individuality.
Contributory Negligence
Authors: Macintosh J. C.
Published: January 2009

In an article on “Contributory Negligence” in the January number of the Law Quarterly Review, the learned writer, Lord Justice O'Connor, draws attention to the state of confusion which a study of recent cases reveals as reigning with regard to this subject, and concludes by suggesting that the bare question should be put to the jury, “Whose fault was it?”. This article is not intended as a criticism of that thesis. But if the condition of principle is such that experience suggests its total abandonment, it is surely high time that Theory bestirred herself. The following observations constitute an attempt to apply the current formula to a particular class of cases—those namely which may be described as collision and running down cases—with the intention of showing that the formula does adequately cover the cases.
Reprisals as a Measure of Redress Short of War
Authors: Maccoby S.
Published: January 2009

‘Reprisals’ is a mediaeval term which is first met with in the thirteenth century. Lawyers, who wrote in Latin, knew it as repraesaliae or repressaliae an almost exact rendering of the French représailles and the Italian ripresaglie. They tried hard to identify the usages it represented with practices they knew in the civil law. Especially did they try to identify it with the Roman pigneratio. It was not till the early eighteenth century that the essential uniqueness of reprisals was categorically asserted by Bynkershoek in such forceful terms as “operam ludunt qui rem apud Romanos incognitam Latino vocabulo conantur exprimere.”
Common Law Marriage
Authors: Lucas Peter
Published: January 2009

The expression “common law marriage” has layers of paradox. It now denotes, as Mr. J. C. Hall pointed out in a recent article in this Journal, a relationship whose characteristic is precisely that it is extra-marital. Previously, for many centuries, the validity of such a marriage was a matter not for the common but the canon law and so, before the Reformation, for the canon law of Rome, the ius commune, Maitland's “wonderful system” administered by the courts Christian and directly applicable throughout western Christendom. The story of the common law marriage in England, Scotland and Ireland offers glimpses of great historical processes and-provides a wider context in which to consider the question raised by Mr Hall as to the survival, or revival, of the common law marriage in England.
Assumpsit and Debt in the Early Sixteenth Century: The Origins of the Indebitatus Count
Authors: Ibbetson David
Published: January 2009

One of the more intriguing mysteries raised by the action of assump sit in the sixteenth century is that of the Indebitatus count. We know that the most common form of declaration in assumpsit by the middle of the sixteenth century took this form: whereas the defendant had bought a cow from the plaintiff, the defendant promised to pay to the plaintiff £10. The sequence of tenses, from the pluperfect to the perfect, sometimes reinforced by perantea or postea indicates that the promise which constituted the cause of action had been made subsequently to the creation of the initial liability. In effect the cause of action was a promise to perform an existing duty. The same result could be achieved by using the strict Indebitatus count: the defendant, being indebted to the plaintiff in £10, promised to pay £10. The purpose of the present paper is to examine why this form of count developed, and how it was justified in terms of the newly-formulated ideas of consideration.
Finis for Novus Actus?
Authors: Williams Glanville
Published: January 2009

An extreme view of criminal responsibility might be that everyone is under a duty to act in such a way that others are not led to cause harm, so that in some circumstances he would be responsible for “causing” harm that is directly caused by others, even though it is caused without his authorisation, help or encouragement.
A Case for Recognising Economic Loss in Defective Building Cases
Authors: Grubb Andrew
Published: January 2009

The history of a typically defective building may be traced as follows. The building is badly constructed, often because the foundations are too shallow to support it. Soon after this the building is purchased and it may later be sold to a second purchaser. The inadequate foundations gradually shift and cracks appear in the structure and the owner discovers the state of the building. He sues the builder for negligently constructing the building and the local authority for negligently failing to require the builder to conform to the Building Regulations, which require adequate foundations be laid to support the load of the building.
Relief against Forfeiture and the Purchaser of Land
Authors: Harpum Charles
Published: January 2009

A Purchaser of land who fails to complete his contract for some reason stands to lose his equitable estate in the land and may also forfeit any deposit or other prepayments that have been made. The purpose of this article is to investigate the circumstances in which such a purchaser may obtain equitable relief against forfeiture, and to argue that the jurisdiction to give relief is broader than has been thought in recent years. The matter has been the subject of two recent decisions of such importance that an appraisal of the law seems apposite. To define the field of inquiry, it is helpful to consider two preliminary matters
Corporate Liability in Tort and the Doctrine of Ultra Vires
Authors: Goodhart A. L.
Published: January 2009

The question whether a statutory corporation should be held liable for torts committed in the course of an ultra vires undertaking is one of particular interest to the student of law for two reasons. First, the principle of ultra vires emphasises most clearly what Dr. C. T. Carr-calls “the incidents of corporateness.” “Perhaps, indeed,” as Mr. Brice has written, “the Law of Corporations may be considered for most practical purposes as in reality only the application and development of the doctrine of ultra vires.” Secondly, owing to the fact that there are only a limited number of cases dealing with this question, and that even these are but of doubtful authority, a writer is free to suggest his own solution. This lack of precedent does not, however, mean that the problem is devoid of practical importance, for, with the rapid increase in the number of business companies, it is probablethat the courts will have to deal with it in the near future. THE CAMBRIDGE LAW JOURNAL was, therefore, fortunate when it was able to publish Professor Edward H.Warren's article “Torts by Corporations in Ultra Vires Undertakings,” in the 1925 number. This article is of such interest that the writer of the present paper may be excused for discussing at considerable length some of the points raised by it. Professor Warren quotes Sir John Salmond, and, as the latter's view that a statutory corporation ought to be held liable for torts committed in the course of an ultra vires undertaking is familiar to most English students, it will be convenient to consider Salmond's position first.
Judicial Proceedings and Refusals to Disclose the Identity of Sources of Information
Authors: Cripps Yvonne
Published: January 2009

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Lord Scarman, speaking during the House of Lords report stage of the Contempt of Court Bill, stated that the relevant provision would “ameliorate the law relating to contempt of court so that the public right to be informed is not impeded or obstructed.” Similarly, Lord Morris, speaking in support of the same clause of the Bill, noted that it “creates a privilege in aid of truth, a privilege in aid of the public interest, a vital and essential privilege, particularly when one bears in mind the ever-encroaching power, whether direct or indirect, of the Executive over the well-being or otherwise of the taxpayer and voter.”
Aspects of the Wage-Work Bargain
Authors: Napier B. W.
Published: January 2009

Some apparently elementary questions relating to the content of the contract of employment continue to pose problems for practitioners and academics alike, as recent developments show. These developments focus attention on the employee's right to payment of wages, and how and to what extent this right may be qualified or defeated by two fairly common features of industrial life: temporary absence of the employee from work, and defective performance by the employee of the obligations arising under his contract of employment.
The Test of Dishonesty in R. v. Ghosh
Authors: Campbell Kenneth
Published: January 2009

The nature of the test of dishonesty in offences under the Theft Acts 1968 and 1978 and in conspiracy to defraud has long been a matter of dispute. There have been several conflicting decisions of the Court of Appeal and of the Divisional Court. In essence, two lines of authority had emerged. Both agreed, following Feely, that, on trial on indictment, the question of dishonesty was one for the jury, and both agreed that the test was, at least in part, one of moral judgement. One line, however, said that the moral judgement was that of the accused himself, the other that it was the moral judgement of the reasonable and honest man (or some variant of this.)
Hire-Purchase Reformed
Authors: Thornely J. W. A. , Ziegel J. S.
Published: January 2009

The many critics of the inadequate protection afforded to consumers by the Hire-Purchase Act, 1938, as amended by the Hire-Purchase Act, 1954, have much to be grateful for in the Hire-Purchase Act, 1964, which received the Royal Assent on July 16, 1964, and became operative on January 1, 1965. Those who were cast down by the rejection, in the Final Report of the (Molony) Committee on Consumer Protection, of suggestions for more fundamental reforms which would replace hire-purchase by something less conceptually misleading, such as the chattel mortgage, may still hope; for it is believed that the deeper study promised before the change of Government in October 1964 still continues.
A Plea for Punishment
Authors: Hadden T. B.
Published: January 2009

It would be natural to describe the Queen's procedure as the rejection of the basic individual right of fair trial; indeed had Alice lived in the present decade, one might with reason have drawn the matter to the attention of the International Commission of Jurists. And yet there is a respectable body of current opinion which makes demands which are not really very different in their essentials from those of the Queen, demands made by penal reformers for treatment first and no trial at all. Psychiatric care may now be substituted for execution in some cases, but this reflects only a difference of opinion on the relative efficacy of the two methods of treatment. And the Queen could at least claim for her proposal the absolute certainty of preventing further crimes by the same offender.

The point of making this comparison between the Queen and the reformers is to raise again the question of punishment and responsibility, to claim that the very notions of crime, trial and punishment are in themselves such an important factor in the treatment of antisocial behaviour that we cannot afford to let them wither away. Some social and penal reformers may be aghast at such a claim, fearing that any such wilful deviation from the prevailing trend would lead eventually to the reintroduction of a purely retributive system; and in their eyes retribution conjures up, somewhat irrationally, pictures of pointless, brutal and in human punishments. Such fears are unfounded. It is not the efficacy of the various particular types of punishment which is at issue, but the efficacy of the whole conceptual scheme which some reformers seek to abolish.