bluuebunny/crossref_metadata_2025 huggingface dataset:
The English Judges and European Community Law
Authors: Dagtoglou P. D.
Published: January 2009

The way in which English courts and tribunals construe and apply Community law is of manifold interest, not least to the outside observer. English judges reacted at first with misgiving. Even if they were prepared, as was Lord Denning in Bulmer v. Bollinger, to concede that Community law (unlike English law) is expressed “in sentences of moderate length and commendable style,” they hastened to add that Community law, and Continental law behind it (unlike English law), “lacks precision,” lacks interpretation clauses and is full of gaps and lacunae.
Partnership Law and its Impact on “Domestic Companies”
Authors: Rider Barry A. K.
Published: January 2009

Whatever may be the correct analysis of a company director's status, it is generally accepted that his duties, whether fiduciary or common law, are owed to the company. The reasons why this is considered appropriate, and indeed commercially desirable, are manifold. From the conceptual point of view probably the most important is to do with the doctrine of corporate personality. Directors, as directors, owe their duties to their corporate principal and no one else. Of course logically the fact that one owes a duty to another does not prevent that duty being owed to a third party. The simple rule, that directors as directors owe their duties to the company, is reflected in a number of other rules, such as the so called rule in Foss v. Harbottle. In recent years the courts have been prepared to lift the corporate veil and disregard the fictional independent entity where justice so requires.
The Law Merchant and the Common Law Before 1700
Authors: Baker J. H.
Published: January 2009

In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.
Practice and Validity
Authors: Simmonds N. E.
Published: January 2009

The word “practice” does not occur frequently in the pages of H. L. A. Hart's book The Concept of Law. Yet the notion of a practice is, if not the key to the science of jurisprudence, at least the key to the central foundations of Hart's theory. The validity of a law, according to Hart, can be established by reference to certain social (or official) practices: in this way questions of legal validity are separated from questions of moral justification. The theory can profitably be read as a study of the connection between the characteristic forms of legal discourse and the existence of social practices.

It is surprising that the already voluminous literature on the Hart v. Dworkin dispute has neglected the issues I intend to raise. One of Dworkin's arguments attacks Hart's claim that the existence of a rule is, in some cases, the existence of a social practice. The argument, if successful, would refute everything Hart has to say about the rule of recognition. Can Hart's theory meet this criticism? I shall sketch the hint of a shadow of an analysis of practices which offers Hart an escape, but an escape which has its price. By adopting something resembling my analysis, Hart can preserve major elements of his theory. I will attempt to isolate those features which are valuable and which can be salvaged. The price that Hart must pay, however, is the abandonment of his extreme positivism. If my suggestions about practices are correct, then the ultimate questions concerning legal validity are moral or political questions.
Pecuniary Compensation for Failure to Complete a Contract for the Sale of Land
Authors: Oakley A. J.
Published: January 2009

In recent years, the availability of pecuniary compensation for failure to complete a contract for the sale of land has provoked considerable discussion, both in the courts and elsewhere. Where such a failure has occurred, a number of possible claims are open to the other party. His most obvious source of pecuniary compensation is undoubtedly an action for damages for breach of contract. Alternatively, he may seek to obtain damages in lieu of a decree for specific performance. Further, he may be able, in appropriate circumstances, to seek damages for misrepresentation either under the law of tort or under the provisions of the Misrepresentation Act 1967. Finally, if he is the purchaser, he may be able to base a claim for pecuniary compensation on the fact that the vendor is a constructive trustee of the subject matter of the contract pending completion. The interrelation of these different remedies (which have often been held to give very different measures of recovery) both with one another and with the remedies of specific performance and rescission has given rise to a number of difficulties, several of which had to be considered by the House of Lords in the recent case of Johnson v. Agnew. The purpose of this paper is to compare and contrast these different remedies in the light of the recent authorities.
Rounding up the Usual Suspects
Authors: Mathews A.S.
Published: January 2009

There is a memorable line at the end of the film classic, Casablanca. It is spoken by the Prefect of Police, Captain Renaud, to his men just after Rick (Humphrey Bogart) has shot Colonel Strasser. He says: “Colonel Strasser has been shot. Round up the usual suspects.” That rule or principle of action—of rounding up the usual suspects—writ large, captures the essence of the South African security system. The system may fairly be described as an elaborate mechanism designed to empower the security authorities to round up, or otherwise dispose of or deal with, suspects of their choice. The technique of empowerment is the conferment of statutory discretion upon some official or body to limit, suspend or terminate the basic liberties of any citizen or group of citizens. This discretion is usually couched in subjective terms.
Retrospectivity Reconsidered
Authors: Koopmans T.
Published: January 2009

In its judgment of 8 April 1976, Defrenne v. Sabena, the Court of Justice of the European Communities gave an interpretation to the provisions of Article 119 of the E.E.C. Treaty, on equal pay of male and female workers, which caused some stir. The Court held that the equal pay rule had direct effect, in the sense that any female worker could appeal to it in proceedings against her employer before courts or tribunals of any of the Member States. This ruling embodied a novel interpretation of Article 119: not only because the Court itself had not yet applied its doctrine of direct effect to this article, but also because most of the authors on the subject had come to a different conclusion. The Court seems to have been aware of the practical problems which might result from such a situation; it added some considerations on what it called the “temporal effect” of its judgment. Its decision “might,” it said, result in the introduction of claims by female workers dating back to the time when the direct effect of Article 119 came about (1963 for the “old” Member States!); therefore, it developed a certain number of reasons for deciding that “important considerations of legal certainty affecting all the interests involved” made it impossible to reopen the question as regards the past. Only workers who had already brought legal proceedings at the date of the judgment could benefit from the direct effect.
Specific Performance with Compensation as a Purchaser's Remedy—A Study in Contract and Equity
Authors: Harpum Charles
Published: January 2009

The circumstances in which a party to a contract for the sale of land may recover damages have been the subject of considerable judicial and academic discussion recently. That discussion has focused on those situations in which the contract has been terminated for breach. The purpose of the present article is to consider the position where the purchaser either wishes or is obliged to keep the contract on foot notwithstanding the breach by the vendor. There are at least three possible situations:

(1) Where the vendor misdescribes the property in the particulars of sale. That misdescription may take one of two forms. The vendor may either misdescribe the extent of the land (for example, he agrees to sell twenty acres when he has only fifteen) or the state of his title (for example, he contracts to sell as freeholder when the property is in fact leasehold). A purchaser may terminate the contract if the misdescription is substantial even if there is a conditien of sale which states that the contract will not be vitiated by reason of, or that compensation will be payable in the event of any misdescription.
The Future of the Unfair Contract Terms Act 1977
Authors: Palmer Norman , Yates David
Published: January 2009

A significant and relatively recent academic contribution to the problem of exclusion clauses has been to highlight the relevance of contractual terms to the constructional problems that arise in interpreting individual exclusion clauses. The conventional view, that an exemption clause operates as a shield to a claim for damages or repudiation, has been criticised as a failure to recognise this as simply one device available to the draftsman to enable him to delimit the extent of the obligations undertaken by the agreement: a negative statement of positive obligation. The most persistent advocate of the exclusion clause as a method of modifying primary contractual duties is Professor Coote. Judicial response has, until recently, been disappointing, although there has been more enthusiasm in Australia.
The Fetus and the “Right to life”
Authors: Williams Glanville
Published: January 2009

The philosophical answer to Milton's problem is, like so many philosophical answers, a counter-question. What do you mean by human life? This could involve further probing of a kind that a pre-Darwinian like John Milton would fail to comprehend. Does he include Neanderthal man, for example, in “human life”, or does he want to start with Homo sapiens?

A resurrected Milton might protest that in writing Paradise Lost he was not concerned with problems of evolution (of which he had not previously heard). His question suggests that he was thinking of the “life” of a particular “human being”; but he knew so little of what we now call biology that he would probably have been as nonplussed by the biological answer to his problem as one given in terms of prehistory.
Floating Charges—An Alternative Theory
Authors: Worthington Sarah
Published: January 2009

Floating charges have been an integral part of company financing for over 100 years, and yet their most fundamental characteristic remains the subject of debate: what interest does the floating chargee have prior to crystallisation? The answer to this question is not academic: disputes between the chargee and interested third parties depend for their resolution on the view taken. Moreover, it is becoming increasingly difficult to rely upon precedent or statutory provisions for simple rules to resolve these disputes: the complexity of modern commercial transactions and the ingenuity of advisers now give rise to rights which cannot always be equated with more traditional security devices and which may not need to be registered. This makes resort to fundamental principles necessary, and the elucidation of those principles crucial.
Substantive Legitimate Expectations in Domestic and Community Law
Authors: Craig P.P.
Published: January 2009

The role played by the concept of legitimate expectations within administrative law has been the subject of much comment in recent years. The object of the present article is not to provide a general overview of the topic. My own views on this matter have been set out on an earlier occasion. The aim of this article is to focus more closely upon the extent to which legitimate expectations can have a substantive as well as a procedural dimension.
The Revenue Giveth—The Revenue Taketh Away
Authors: Sandler Daniel
Published: January 2009

Tax legislation is probably the lengthiest and most complex legislation enacted in the United Kingdom. But the sheer volume of the legislation has not brought certainty of meaning or predictability of application. The legislation is seriously wanting in clarity and simplicity. The Commissioners of Inland Revenue are responsible for the “collection and management of the inland revenue”, and “have all necessary powers for carrying into execution every Act of Parliament relating to inland revenue”.
Bona Fide Purchase and the Currency of Money
Authors: Fox David
Published: January 2009

If a thief steals money from you is it still yours? What if the thief passes it to a friend as a gift? Does it make any difference if the thief spends the money in a shop?

The answer to these questions depends on the “currency” of money, a legal attribute not shared by other kinds of property. A person's title to property is generally derived from the previous owner. When the property is transferred, the title that once vested in him simply passes to the recipient with the result that the recipient cannot acquire a better title than the person from whom he got the property.' To take an example, when a thief steals a car he has bare possession of it and the victim remains the owner. A person buying the car from the thief can only get possession of it. This general rule governing the transfer of title to property is summed up in the maxim nemo dat quod non habet.
Replacing Private Property: The Case for Stewardship
Authors: Lucy William N. R. , Mitchell Catherine
Published: January 2009

The notion of private property is endemically problematic and controversial. Although the notion has many defenders its critics have all the best lines: we know, of course, that the institution of private property was denounced as theft and attacked as the product of exploitation and class antagonism. More recently, the notion has been regarded as nothing more than a myth and, in a slight variation on Proudhon's refrain, dismissed as a form of fraud. As if this were not bad enough, it appears that even the thinkers of classical antiquity had severe reservations about the notion although, unusually, their worries were expressed without recourse to pithy rhetoric. Does the notion of private property have any conceptual or normative advantages? Ought we to abandon it altogether? In this essay we offer a negative answer to the first and an affirmative answer to the second question.
The Evolution of the Law of Blasphemy
Authors: Kenny Courtney
Published: January 2009

Prosecutions for the crime of blasphemy are rare. But one which took place recently in London has elicited from the Home Secretary an utterance which is of interest and of importance.
The Dominions and their Mother Country
Authors: Kenny Courtney
Published: January 2009

When Blackstone, a hundred and sixty years ago, made the first modern summary of the laws of England, the constitutional relations of Great Britain to the rest of the Empire were perfectly clear and perfectly simple. The King in Parliament was supreme. “Ireland”, Blackstone writes, “is a dependent subordinate Kingdom” (I. 98); “Our American plantations are dependent dominions; they are subject to the control of the Parliament (though like Ireland … they are not bound by any Acts of Parliament unless particularly mentioned)”. In thus writing, Blackstone correctly expressed not only the legal doctrine as accepted in forensic theory by all jurists, but also the constitutional doctrine, as accepted in working practice by all statesmen.
Torts by Corporations in Ultra Vires Undertakings
Authors: Warren Edward H.
Published: January 2009

Thirty men decide to engage in the business of manufacturing and selling bicycles. They procure the formation, under the Companies (Consolidation) Act, 1908, of the X Bicycle Company, Limited. In the memorandum of association the objects of the company are stated to be: “The manufacture and sale of bicycles.” The associates supply that legal unit with funds through payment of subscriptions to its stock, and the company proceeds to manufacture and sell bicycles. But the company loses money, and, on the recommendation of the directors and with the approval of all the shareholders, the manufacture, of bicycles is stopped, and the funds of the company are employed in maintaining a motor omnibus service between two towns. The driver of one of these omnibuses, while acting within the scope of his employment as prescribed by the directors of the company, by his negligence runs into A, who was at the time in the exercise of due care, and breaks A's leg. The driver is financially irresponsible. A sues the X Bicycle Company, Limited, and that company defends on the ground that maintaining the omnibus service was ultra vires. Should this defence be successful?
Appeal in English Law
Authors: Atkin Lord Justice
Published: January 2009

I Propose to begin with a word or two about the growth of Appeals and then to say something about the present appellate jurisdictions in this country. I suppose, speaking generally, the man who has a decision given against him has a disposition to be discontented with it, and tries to get another decision if he is satisfied that he is in the right. But I should imagine also that in early days the private litigant had a very small say in the matter whether he should, or should not, have the right of appeal. Before the Judiciary and the Executive were distinguishable, when the act of deciding disputes was an act of government, ordinarily performed by the Chieftain or Ruler though perhaps sometimes delegated to a subordinate, in those days, of course, the judge, being also ruler, there were no appeals, and one can only hope that decisions were satisfactory to everyone concerned. Whether the same persons made good rulers and good judges in the days of the Hebrew Judges I do not know; but I do know that I should be very sorry indeed if the two functions, which are of entirely different kinds, were united nowadays. As soon as a ruler began to delegate his function to a subordinate there can be no question that he would from time to time desire to revise the decisions that were arrived at, partly from self-interest, and partly, one may assume, from a sense of justice, knowing that, or thinking that, the decision was wrong and that he could give a better one. And in that kind of way there would gradually emerge a more or less settled system by which decisions would become the subject of review.
The Right of Angary
Authors: Jennings W. I.
Published: January 2009

It was decided by the Court of Appeal (Bankes and Atkin I.JJ., Scrutton L.J. dissenting on another ground), in Commercial and Estates Co. of Egypt v. Board of Trade, that the Crown has by prerogative the right to requisition the goods of neutrals found in this country, on payment of compensation, where such seizure is necessary for the defence of the realm. This right corresponds to what is known in International Law as “ the right of angary.” It is proposed to examine in this paper the nature and extent of this prerogative right.
The Last Forty Years of the Irish Bar
Authors: Sullivan Serjeant A. M.
Published: January 2009

Forty years ago in my old country the legal world was in a state of transition. The old order was changing in a great number of ways. The Judicature Act had just got into swing and although four Courts still opened in the hall beside the Liffey they were soon to be fused into one. These were at that time the Court of Chancery, the Court of Queen's Bench, the Court of Exchequer, and the Court of Common Pleas, and the doors of these four opened on the Central Hall and their names stood over them. The Court of Chancery stood by itself, but it was thought in those days that you had your choice of three Common Law Courts in which to have your case tried. If you had some merit on your side but thought that the law was against you, you issued your writ in the Queen's Bench, which was presided over by Mickey Morris, as he was invariably called although he was a lord, because Mickey had a good deal of common sense, a great deal of humanity, but his ideas of jurisprudence were peculiarly his own. On the other hand, if you were strongly of opinion that however iniquitous your client was, he had the law on his side, you issued your writ in the Court of Exchequer, presided over by Christopher Palles, the greatest judge before whom I have ever appeared. Christopher Palles decided according to what he believed to be the law, and would pay no attention to any other consideration that might be advanced before him.
The Place of Private Nuisance in a Modern Law of Torts
Authors: Gearty Conor
Published: January 2009

It is forty years since Professor Newark wrote despairingly of nuisance that “the subject as commonly taught comprises a mass of material which proves so intractable to definition and analysis that it immediately betrays its mongrel origins.” The “truest dictum in the books” was that of Erle C.J., who had once said in answer to the question, what is a nuisance?, that it was “immersed in undefined uncertainty.” Little has changed since 1949. Public and private nuisance still face life together in the textbooks, the universities and the law reports, despite the convincing evidence all round, much of it gathered in Newark's article, that they have little in common except the accident of sharing the same name. Making hoax bomb calls, obstructing the highway and holding a badly organised pop festival are as vulnerable to a public nuisance action as are the more traditional occurrences of special damage from atmospheric, water and noise pollution. Private nuisance has, if anything, become even more confused and confusing. Its chapter lies neglected in the standard works, little changed over the years, its modest message overwhelmed by the excitements to be found elsewhere in tort. Any sense of direction which may have existed in the old days is long gone. The action now encompasses not only smelly oil depots, noisy speedboats and the like but also dangerous natural hazards on the land and the only slightly less natural “user of premises for prostitution and the perambulations of the prostitutes and their customers.” Sometimes negligence is essential to liability, sometimes it is quite irrelevant.
Interlocutory Injunctions Since Cyanamid
Authors: Gray Christine
Published: January 2009

The decision in American Cyanamid Co. v. Ethicon Ltd. was hailed. rather unenthusiastically, as a revolutionary development in the law governing interlocutory injunctions; it was seen as an abandonment of the earlier approach exemplified by, although not discussed in, Stratford and Sons Ltd. v. Lindley. There was some indignation at the apparent loss of a quick, relatively cheap means of settling cases by decision on an application for an interlocutory injunction, and considerable doubt as to the suitability of the principles set out by Lord Diplock in Cyanamid for use in all types of interlocutory action.
Professor Williams and Conditional Subjectivism
Authors: Duff R. A.
Published: January 2009

Professor Williams has done much to explicate and defend the subjectivist account of mens rea, which makes conscious risk-taking central to the idea of recklessness. It is thus not surprising that he should be critical of the rulings in Caldwell and Lawrence; nor would I quarrel with many of his objections to those decisions. My concern here is with his own views on the proper definition of “recklessness,” and on the proper use of that definition, in the criminal law: for his Textbook of Criminal Law suggests, and his discussions of Caldwell show, that he is willing to extend the concept of recklessness beyond the strict limits of subjectivism. Such an extension is indeed warranted: but I will argue that it can be explained and justified only by a more radical revision of subjectivism than he seems to allow (I ignore Lawrence and reckless driving here: Professor Williams is willing to accept an objectivist account of recklessness as gross negligence in the context of reckless driving, so long as it retains a suitably subjective meaning in other criminal contexts (R.R. 273–275)).
A Metric Measurement of the Chancellor's Foot
Authors: Burridge Susan J.
Published: January 2009

Care and concern for the elderly have long been regarded by social anthropologists as hallmarks of a civilised community. Unfortunately the care of the elderly frequently presents problems of both a social and legal nature. Some of the difficulties which confront legal practitioners arise from factual situations similar to the following: an aged, widowed father, whose health is deteriorating, asks his adult child to move into his house and look after him for the rest of his days. In return, the father promises orally to leave the house by will to the child or to the child and his or her spouse. The type of problem which can then occur is seen when it is found on the father's death either that he has died intestate, and the estate of which the house forms part has to be divided equally between the child and his or her brothers and sisters, or that he has forgotten to alter his last will. Consequently a will executed perhaps many years earlier provides that the house should be left to some other relative—or even to the legendary cats' home. The child, having assiduously cared for the elderly father, may wish to claim the house and may seek the practitioner's advice.
The Role of the Judge in Enforcing Shareholder Rights
Authors: Baxter Colin
Published: January 2009

Recently, addicts of the Foss v. Harbottle rule have had plenty to think about. First there was the epic battle in Prudential Assurance Co. Ltd. v. Newman Industries Ltd. (No. 2), culminating in the mangling of Vinelott J.'s mammoth judgment by the Court of Appeal. While this was in train, there was Cane v. Jones and before it was fully reported there came the decision of Megarry V.-C. in Eastmanco (Kilner House) Ltd. v. G.L.C. One disappointing feature of this feast of litigation is that it should end with so many basic issues seemingly at large. According to Megarry V.-C, it “may be” that the test of whether an individual can sue about an intracorporate dispute “will come to be” whether an ordinary resolution of the shareholders can validly carry out or ratify the acts in question. It was clear, however, that the “justice” of the case was not a practical test of an individual's competence to sue, but merely a reason for creating exceptions to the basic rule.”
Limitation of Actions in Restitution
Authors: McLean H. M.
Published: January 2009

This article attempts to investigate an aspect of the English law on limitation of actions which has received little academic attention—its application to restitutionary claims. It will be suggested that, as the essence of a plaintiff's claim is the injustice of the defendant retaining a benefit gained at his expense, the running of time should be a defence to a restitutionary action where its passing has sufficiently eroded the injustice of that retention. In theory this should be a matter for decision purely on the facts of each case, but additionally the societal need to discourage stale litigation often requires an overall time bar based on the Limitation Act 1980. This perspective suggests a number of particular conclusions which are summarised at the end of the discussion.
The Status of Rules of Precedent: A Brief Reply
Authors: Evans Jim
Published: January 2009

I am grateful to Laurence Goldstein and the editor for allowing me this opportunity to make a brief reply to those parts of Goldstein's article which discuss my own earlier article.
Mandates
Authors: McNair Arnold D.
Published: January 2009

The method adopted at the end of the World War for dealing with the colonies and territories of Germany and Turkey which it was decided to detach from them is known as the mandate system, and is embodied in Article 22 of the Covenant of the League of Nations, which is an integral part of the treaties of peace with Germany, Austria, Bulgaria and Hungary. Under this system these detached territories are not in the owner-ship of any State, but are entrusted to certain States called ‘Mandatory States’ to administer on behalf of the League upon the conditions laid down in written agreements called mandates between the League and each mandatory. The system, which was proposed by General Smuts, is a novelty in International Law, and although the term ‘mandate’ suggests certain analogies in private law, it is doubtful whether much practical help in the understanding and application of the system can be derived from these sources.
Thoughts About the Common Law
Authors: O'Connor James
Published: January 2009

As a man gets on in life he is frequently led to wonder whether his early and immature conceptions have any counterpart in the minds of the wiser young generation of to-day. At this moment I am wondering if any of you have ever thought about the Common Law of England as I did when I first made its acquaintance a good many years ago.
Three Cases on Possession
Authors: Goodhart A. L.
Published: January 2009

In the recent case, Great Western Ry. Co. v. Owners of S.S. Mostyn, Viscount Dunedin said: ‘Now, when any tribunal is bound by the judgment of another Court, either superior or co-ordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear—as is the case in most instances—what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But if it is not clear, then I do not think it is part of the tribunal's duty to spell out with great difficulty a ratio decidendi in order to be bound by it.’ In other words, not only the judgment itself, but also the grounds on which the judgment was reached, are binding. This proposition must, of course, be understood to include the further rule that only those reasons are binding which were material to the decision of the point at issue. If they were material they constitute a precedent; if they were not material they are merely obiter dicta.
Parliament and the Dominions: A Retrospect
Authors: Schuyler R. L.
Published: January 2009

A few years ago a distinguished constitutional historian reopened what had once been a burning issue of political controversy, the question of the validity of the authority claimed and exercised by the British parliament over the American colonies. There had always been a difference of opinion respecting the oppressiveness of those acts of parliament against which Americans protested during the years preceding the Declaration of Independence, but with regard to their legality, as determined by precedent, there had come to be a virtual consensus of historical opinion, British and American alike, that parliament was right, and that those who denied its legal authority over the colonies were wrong. What may bo called the orthodox view was thus expressed by Osgood in 1907:

British lawyers and officials at home and those who represented the home government in the colonies held that, in law if not in fact, the authority of Great Britain within the dominions was complete. … They held that the colonists were in principle as completely subject to parliament … as were the local jurisdictions within England itself. In this they were technically correct and were quite in harmony with the principles of English law.
Choice of Law
Authors: Upjohn W. H.
Published: January 2009

The object of this paper is to present a brief outline of the rules of Law applicable to the solution of disputes which involve some foreign element. This body of rules is commonly called “Private International Law”; although this designation is a misnomer, as the rules in question are not concerned with disputes between States, but between individuals.
From Representation to Expectation: Estoppel as a Cause of Action
Authors: Thompson M. P.
Published: January 2009

In recent years, one of the most vibrant doctrines has been that of equitable estoppel. This doctrine is generally seen as having two main branches: the defensive doctrine of promissory estoppell and the older and more aggressive doctrine of proprietary estoppel, which can itself be used to obtain rights: to be the cause of action itself. The aim of this article is to analyse the central concepts of equitable estoppel in order to distinguish it from its common law counterpart, to consider its relationship to the law of contract and also to present the two main branches as being closely related concepts, based on common underlying themes.
The European Court as an International Tribunal
Authors: Plender Richard
Published: January 2009

To Speak of the European Court as an international tribunal is to expose oneself to the charge of heresy. No principle of Community law is more fundamental, none more frequently reiterated by the European Court, than that the Treaty establishing the European Economic Community “is more than an agreement which merely creates mutual obligations between the contracting States” but rather constitutes a new legal order capable of conferring rights and imposing obligations directly upon individuals. In the Court's words, “By contrast with ordinary international treaties, the E.E.C. Treaty has created its own legal system, which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States.” For this reason, Professor Lipstein has, with justification, said of Community law that it represents a “peculiar phenomenon … which does not fit into any regular pattern of international law.”Professor Hay has insisted upon describing it as “supranational law” and Professors Brown and Jacobs maintain that the function of the European Court, in interpreting and applying that law, is "constitutional" rather than international.
Immunity From Prosecution
Authors: Smith A. T. H.
Published: January 2009

When Sir Anthony Blunt's misdeeds were exposed to public gaze by revelations that he was the so-called fourth man in the notorious group who had spied for Russia, an important area of the criminal justice process was partially uncovered as a result. The Prime Minister confirmed in a House of Commons Written Answer that Mr. Blunt (as he later became) had been granted immunity from prosecution as long ago as 1964 by the Attorney-General, Sir John Hobson. No attempt was made to suggest that this was a routine occurrence, but in the ensuing debate, the Prime Minister asserted that “it is not unusual for the Attorney-General to be asked to authorise immunity from prosecution in return for co-operation in pursuit of inquiries. It happens from time to time in the course of criminal investigations.”
Restrictions on the Assignment of Contractual Rights
Authors: Allcock Bob
Published: January 2009

Over a hundred years have passed since the Judicature Acts rationalised the law relating to the assignment of choses in action and made it easier for an assignee to enforce his rights. Nowadays the assignability of contractual rights is important in both business and consumer affairs, since credit is commonly obtained on the security of insurance policies, hire-purchase contracts, and traders' and builders' book debts. Yet although the Judicature Acts facilitated these developments they did not deal with the possibility that a contract may expressly prohibit or restrict the assignment of rights arising under it. Many standard form contracts now incorporate a clause to this effect. Where an assignment is made in contravention of such a clause, does the transaction have no effect? If this is the case, non-assignment clauses would seem to pose a serious threat to current lending practices. The courts have had to consider this question in a number of cases and the result is a confusing array of Conflicting views.
Arnold Duncan McNair
Authors: Jennings R. Y.
Published: January 2009

It is a happy conjunction that makes it possible for this Journal to celebrate in successive numbers the eightieth birthdays of Harry Hollond and Arnold McNair.

Arnold Duncan McNair, c.b.e., q.c., f.b.a., ll.d., first Baron McNair of Gleniffer, was born on March 4, 1885. It is given to very few to attain to such high distinction in so many different spheres. As an academic, a jurist de grande classe, the author of many works in the first rank of legal literature, the occupant at one time of the Whewell chair in international law and later of the chair of comparative law, an honorary doctor of seven universities, an honorary member of the Institut de Droit International, his special place amongst international lawyers was marked in 1959 when he was presented with the Manley Hudson Gold Medal by the American Society of International Law; as an administrator, he was, during the difficult period of the war and its aftermath, the Vice-Chancellor of one of the great civic universities; as a member of the legal profession, he is a former Judge and President of the International Court of Justice at The Hague, President of the European Court of Human Rights, Member of the Permanent Court of Arbitration, and a Bencher of his Inn and sometime its Treasurer; as a man of affairs, he has served on numerous government inquiries and commissions, and is now regularly employing in the House of Lords those talents as a speaker that were already in evidence when he became President of the Cambridge Union in 1909.
English Law and the Renaissance
Authors: Baker J. H.
Published: January 2009

In his famous Rede lecture of 1901, Maitland posed the question why the medieval law of England survived the period when (as he said) old creeds were crumbling everywhere and Roman law was pushing German law out of Germany. Much controversy has reigned since Maitland's time not only about his conclusions and his evidence, but also about the precise gist of his question—since it is not wholly clear what assumptions he was making about the nature of the so-called “Reception” of Roman law in Europe or about the extent to which the medieval common law really did survive in England. It is not the purpose of this paper to provide yet another interpretation of Maitland, but rather to re-examine from a different viewpoint the subject which he opened.
Imperial Visions and Mundane Practices
Authors: Simmonds N. E.
Published: January 2009

In his first book, Taking Rights Seriously, Ronald Dworkin opposed the view that law is a body of publicly ascertainable rules identifiable by some basic master test or rule of recognition. In place of that account he offered a rival vision. Law was portrayed as inherently controversial in content. Discovering the law on this or that subject is not, Dworkin argued, simply a matter of looking up the established rules: it is a matter of constructing a justificatory theory beneath which the established legal rules can be subsumed. In his latest book, Law's Empire, that account of the nature of law has been backed up by an analogous account of the nature of legal theory. A sound theory of law, we are told, is not one that unearths semantic rules governing the use of the word ‘law’. Disputes between rival legal theories do not hinge on the discovery of such deep semantic criteria, any more than disputes about the content of the law in hard cases hinge on the correct application of a rule of recognition. Disputes of both kinds are interpretive disputes: they concern the proper interpretation of legal practices.
Floating Charges—The Nature of the Security
Authors: Ferran Eilís
Published: January 2009

Companies depend upon loan finance as one of their major sources of capital. However, banks and other financial institutions involved in the business of lending money to companies generally ensure that their exposure to the risk of non-repayment is minimised by taking security over the debtor company's property. One particularly important type of security which is available when money is lent to a company is the floating charge.
The Provenance and Protection of Legitimate Expectations
Authors: Forsyth C.F.
Published: January 2009

The concept of legitimate expectation first stepped onto the English law stage eighteen years ago in Schmidt v. Secretary of State for Home Affairs. There Lord Denning said obiter that an alien who had been given leave to enter the United Kingdom for a limited period had a “legitimate expectation of being allowed to stay for the permitted time” and, hence, if that permission was “revoked before the time limit expires, [the alien] ought to be given an opportunity of making representations [to the Home Secretary]”. Since then “legitimate expectation” has played an important part in numerous decisions in both the United Kingdom and the Commonwealth (particularly Australasia).
The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock
Authors: Trindade F. A.
Published: January 2009

Two “landmark” decisions on the recovery of damages for negligently caused nervous shock have now been delivered in two years by the highest courts in Britain and Australia—McLoughlin v. O'Brian by the House of Lords in 1983 and Jaensch v. Coffey by the High Court of Australia in 1984. Despite these decisions, it is difficult to say that the principles of law to be applied in such a case can be stated with absolute clarity and one tends rather to sympathise with the view of Comyn J. in Whitmore v. Euroways Express Coaches Ltd. that “no absolutely clear picture emerges and many of the judgments speak with different voices.” Nevertheless, certain principles in this area are clear and others are becoming clearer, and a statement of these principles now might be of assistance in allowing an absolutely clear picture to emerge.
Introduction to the Law of Torts
Authors: Wright Cecil A.
Published: January 2009

The recognition of ‘torts’ as a separate and distinct branch of th law is, as things legal go, extremely recent. The first English text-book on the subject (Addison) did not appear until 1860. Since that time, however, the subject of ‘Torts’ has probably received more attention from both legal writers and the Courts than any other subject in the law. This is understandable if one grasps the extremely wide scope of the field involved, and at the same time bears in mind the impact of modern science on the various activities in which men engage in present-day society.
The Law and Lawyers of Jorrocks
Authors: Gutteridge H. C.
Published: January 2009

Works of fiction are often valuable as records of contemporary life, and may also be of peculiar interest to lawyers. ‘It is always difficult,’ says Sir William Holdsworth, ‘for a legal historian to reconstruct the atmosphere of the period with which he is dealing.’ Statutes, law reports and legal text-books are insufficient for this purpose because—with certain notable exceptions such as the earlier Year Books and the De Laudibus of Fortescue—they do not tell us much about the manner in which legal business was carried on, nor do they throw much light on the characteristics of judges and practitioners. A wealth of material of this kind is, however, to be found in the writings of our English novelists though only a select few can be relied upon to present a reliable picture of the law as it was in their time. The lay writer who ventures into the domain of the law must necessarily do so at his peril. Trollope was fully alive to this danger when he made the suggestion that ‘writers of fiction should among them keep a barrister in order that they may be set right on such legal points as will arise in their little narratives and thus avoid that exposure of their own ignorance of the law which now, alas! they make.’
One Hundred Years of Lunacy Administration
Authors: Keely T. C. S.
Published: January 2009

The history of lunacy administration can be traced back with reasonable certainty to 1339, the assumed date of the Statute de Prerogativa Regis, which limited the King's jurisdiction (already existing) over the estates of idiots or natural fools, whose profits he was to take, but for whom he was to find necessaries. For anyone ‘that beforetime hath had his wit and memory’ and should ‘happen to fail of his wit’ or, as would now be said, became a lunatic or of unsound mind, the King was to keep his estate safe and maintain him and his household competently out of the profits, but the King was to take nothing for his own use. By the Statute 32 Hen. VIII, c. 46 (1540), which established the Court of the King's Wards, the residue on the lunatic's death was to be paid over to his Executors or Administrators.
Reflections on Professor Chafee's Freedom of Speech in America
Authors: Logan D. W.
Published: January 2009

Though Professor Chafee is best known in this country as an equity lawyer, he has won eminence in the United states as an upholder of civil liberties. His book on Freedom of Speech, which was published in 1920, vigorously denounced the use of war legislation to curb the expression of unpopular left-wing views, and he followed this up in 1928 with a collection of interesting essays called The Inquiring Mind. With two associates he prepared the famous Report on Lawlessness in Law Enforcement for the Wickersham Commission, and in 1932 the Mooney-Billings Report, which is recognized as an authoritative statement of the facts in that cause célèbre. Of the present work he says in the preface: ‘What I have done is to fuse in this book all my ideas past and present on freedom of speech.’
“Le Droit Subjectif” and English Law
Authors: Samuel Geoffrey
Published: January 2009

Some years ago Professor Lawson reminded a Continental audience that “[i]n the English language there can be no confusion between the two legal senses attaching to the German word ‘Recht’ which has made it necessary to coin the two technical terms ‘objektives’ and ‘subjektives Recht.’” For in the English language ”the former is ‘law’, the latter ‘a right.’” In fact, as Lawson went on to explain, the notion of a “subjective right” in the civilian systems is not quite the same as “right” in the English system, in that as far as English lawyers are concerned “the term ‘right’ has no metaphysical significance.” Yet Professor Lawson suggested at one point in his report that although in America one speaks of “interests” rather than rights, the two terms are synonymous; and the association of rights with interests has also led one Belgian theorist to conclude that the common law does recognise the concept of the le droit subjectify It is the purpose of this article to return to this topic of the subjective right and English law in order to suggest that the association of le droit subjectif with “protected interest” ought to be treated with caution.
The Judge Who Answered his Critics
Authors: Munday Roderick
Published: January 2009

According to traditional wisdom, although the public and academic writers are entitled to criticise the judges—and, in recent times, have not hesitated to do so most strenuously—judges do not reply publicly to their critics. To engage in open debate is unbecoming of the dignity of the English bench. However, every rule has its exception and on one notable occasion no lesser personage than the Lord Chief Justice, Sir Alexander Cockburn, incensed at criticism of one of his rulings, published a 24-page pamphlet replying to his censor, John Pitt Taylor. This unedifying episode illustrates how even the holder of highest office can make a spectacle of himself. If ever a judge again feels disposed to respond to public strictures, he might first do well to ponder the experience of Cockburn C.J.