bluuebunny/crossref_metadata_2025 huggingface dataset:
Some Reflections on Law and Lawyers
Authors: Radcliffe Lord
Published: January 2009

This will be a random paper. I would rather give it a title at the end, when I have finished, than at the beginning, before I have started: but if christening must precede development, I will call it ‘Some Reflections on Law and Lawyers’. Though it is well to remember how formidable an essay was in the past concealed under the disarming title of Reflections. In truth, the law seduces men of learning by the variety of its attractions and the specialisation which it encourages may prove, I think, a source of its undoing. We are all experts today; and experts, like kings, may rave, for all that the blows fall thick and fast upon the Achaeans.
The Concept of Law
Authors: King B. E.
Published: January 2009

Twenty years ago Mr. Cairns set himself the task of looking at law from three points of view, that of the social sciences, that of logic and the empirical sciences, and that of philosophy.Law and the Social Scienceswas published in 1935, theTheory of Legal Sciencein 1941. The volume under review completes the trilogy. The object of all these volumes is the same—‘To construct the foundation of a theory of law which is the necessary antecedeat of a possible jurisprudence’. All those who have come under the spell of Mr. Cairns' stimulating thought will look forward with the greatest interest to the application and expansion of his conclusions which is now promised us in a projected final work,The Elements of Legal Theory.
The Jewish Arcae
Authors: Scott K.
Published: January 2009

In September, 1194, Richard I, having returned from a disastrous captivity, sent itinerant justices around the country to reclaim and reorganise royal rights. According to Roger of Hoveden, they were instructed to put into writing all lands, housestae Mariae Ecclesia and William de Chemilli, such contracts should be made. The charter embodying the contract was to be made in the form of a chyrograph, of which one part was to be kept should remain in the area [area = chest = huche]. The area was to be secured by three locks: the Christians were to have one key, the Jews a second and the two Williams a third, and they should each of them seal the lock the key of which they heldt by the Jew, sealed with the seal of him to whom the money was lent, rents and possessions of the Jews. They should also provide six or seven places in which the Jews should make all their contracts, and appoint two law-worthy Christians, two law-worthy Jews and two law-worthy writers before whom, together with William de Sanc: the other par. The clerks of the two Williams should keep a roll of the transcripts of all charters: they were exhorted to keep the roll up to date, in return for which they were to receive one penny for evor. Five or more of the appointed oery charter made, twopence going between the writers, the total payment of three-pence being levied equally from the debtor and creditfficials were required to be present at each transaction, and the three groups, the Christians, the Jews and the keepers of the rolls were each to maintain a roll embodying payments made to the Jews.
A Local Act for Social Insurance in the Eighteenth Century
Authors: Keith-Lucas B.
Published: January 2009

It may be that historians of the future will regard the present age as distinguished above all things by the system of social security introduced by the series of statutes which included the National Health Service Act, 1946, the National Insurance Act, 1948, and the National Assistance Act, 1948.
Transfer of Choses in Possession between Members of a Common Household
Authors: Thornely J. W. A.
Published: January 2009

The case of Hislop v. Hislop is a reminder of the special difficulties that may beset a person who attempts to transfer some chose in possession to another person resident in the same household. These difficulties occur where the chattel or collection of chattels in question, which due to size or quantity are not readily susceptible of actual manual delivery, have been used and enjoyed by both grantor and grantee together before the transfer of title and will continue so to be used thereafter. To a bystander the chattels appear to remain in the same situation after as before the transaction, yet ownership or possession or both may have passed with important consequences.
The Humber Ferryman and the Action on the Case
Authors: Kiralfy Albert
Published: January 2009

In my recent book on the Action on the Case (1951) I advanced the view that the famous Humber Ferryman Case was in the true line of descent of the action on the case. I dealt with it mainly, however, in connection with carriers' liability and a few further remarks may be necessary, in order to explain how far, if at all, my views differ from those put forward in the textbooks. The report in the Book of Assizes may be found translated in Professor Plucknett's treatise and in Mr. Fifoot's book but, as it is brief, it may be worth while beginning with Professor Plucknett's translation, viz.:

“J. de B. complained by bill that G. de F. on a certain day and year at B on Humber undertook to carry his mare, [taken] in his boat, across the water of Humber safe and sound; whereas the said G. overloaded his boat with other horses, by reason of which overloading the mare perished, to his tort and damage.
Livre Jubilaire du Conseil D'Etat
Authors: Hamson C. J.
Published: January 2009

This imposing quarto volume is offered to the public as a permanent memorial of the 150th anniversary of the Conseil d'Etat. It is a remarkable book, not unworthy of the very remarkable institution which it seeks to portray.

Although the Conseil, as the Conseil du Roi, goes back a very long way in French history, it suffered an interruption at the French Revolution. The interruption proved indeed to be a minor one, lasting nine years only. Nevertheless, the Conseil was in some sense reformed by Napoleon under the Constitution du 22 Frimaire; and as the Conseil d'Etat it met for the first time on Christmas Day 1799 (a day then disguised as 4 Nivose An VIII) under conditions of no small informality. It is its first meeting under Napoleon which has been selected as the new terminus a quo of an institution in reality a great deal older.

The book consists of some 50 articles (of very unequal length, one of them being an extensive monograph) and is divided into two parts. The second, shorter, part (though of over 200 pages) consists of contributions by persons who are not French and is concerned mainly with the influence of the Conseil d'Etat outside France, though it also includes articles on administrative questions in the United Kingdom (by Prof. W. A. Robson) in the United States, and in Canada (by the Chief Justice of Canada). It is proposed in this review wholly to neglect this part, however great its interest, principally because the English reader will find greater profit in the account given of the functioning in France of the authentic, the French, Conseil d'Etat: which may fairly be called the creator of the only system of administrative law properly meriting that title.
Land Charge Registration Reviewed
Authors: Wade H. W. R.
Published: January 2009

It is not often that an expert committee, asked to report on a technical problem, have to admit defeat. But the Lord Chancellor's Committee on Land Charges, in their recent Report, confess that to rectify the 1925 machinery of registration, now that it is more than thirty years old, is a task beyond the wit of man. When so eminent a committee as that which sat under Mr. Justice Roxburgh reach such a conclusion, one may be sure that the law has thrown up an exceptionally tough conundrum. And it is of general interest that such things can happen. If the inventions of one generation of legislators fail to justify themselves, the next generation should be able to amend them, at any rate where the difficulties are purely technical and there are no questions of policy. But Lord Birkenhead and Sir Benjamin Cherry appear to have succeeded in creating the conveyancing equivalent of a Franckenstein's monster, which with the passing years would become not only more dangerous but also more difficult to kill.

The Report nevertheless contains plenty of valuable suggestions. In the first thirty years of the new system of registration many defects have come to light, and the Committee have attacked a number of familiar conveyancing problems. Of outstanding interest are their conclusions that registration of restrictive covenants should be discontinued, that the so-called rule in Re Forsey and Hollebone's Contract should be abolished, and (more tentatively) that the reversal of the rule in Patman v. Harland by section 44 (5) of the Law of Property Act, 1925, was a mistake.
Damages and Income Tax
Authors: Jolowicz J. A.
Published: January 2009

Although the whole of a man's rights and interests, which include his rights in his own personal safety, may not be readily divisible between his income and his capital assets, it is axiomatic that all those rights and interests are either subject to tax or not. It follows, therefore, that in an action for damages a claim may be made not only for loss of or damage to some non-taxable interest, but also, and perhaps exclusively, for a reduction in the plaintiff's taxable income caused by the wrongful act of the defendant. In such cases the plaintiff's liability to tax may become a relevant consideration, either as between himself and the Commissioners of Inland Revenue or as between himself and the defendant. It is the purpose of this article to consider some aspects of the inter-relationship of damages and tax, with particular reference to the decision of the House of Lords in British Transport Commission v. Gourley and the subsequent Report of the Law Reform Committee.
English Feudalism and Estates in Land
Authors: Thorne S. E.
Published: January 2009

It is fitting for a lecturer to pay his tribute to the man under whose auspices, so to speak, he lectures. That sometimes is a difficult matter, requiring the closing of an eye to many things, but in this case I am happily absolved from any such necessity, for there can be no doubt that Maitland was a man of genius. I hardly need say this in Cambridge, or in any other place where scholars come together, for his reputation has been long and securely established. It is now more than half a century since his death, and longer since his books were written, yet they are today more widely read than ever. The intensive researches of the last fifty years have made only the smallest alterations in the conclusions they reached. He himself was perhaps not quite as sure of them as we are. The most honest of men, he was always careful to reveal his doubts, and it is to a subject on which he had many doubts that I address myself today. I shall talk about the ownership and heritability of land in the twelfth century, in other words, about the emergence of the fee simple as an estate in land. I shall begin by setting before you Maitland's own account.
The Ratcliffe Murders
Authors: Radzinowicz L.
Published: January 2009

On Saturday, December 7, 1811, shortly before midnight, Mr. Marr, a respectable linen draper, closed his shop at 29, Ratcliffe Highway, in Wapping, East London, and with his young assistant began to replace on the shelves the goods which had been displayed for sale during the day. The household consisted of Mr. Marr, his wife and child, the shop-boy and a maidservant. At about twelve o'clock he sent the maid to a nearby shop to buy oysters for supper. She left the door open but on returning she found it closed and rang the bell. She rang again, but there was no reply. Joined by a watchman an hour later, they both rang and knocked until a neighbour, noticing that the yard door was open, leapt over the fence and entered the house. There he saw a terrible scene. Marr and his assistant lay in the shop, dead, with fractured skulls; Mrs. Marr's body was in the passage, also battered about the head, and the child had been murdered in its cradle. The ripping chisel of a ship's carpenter and a maul were found lying near Marr; bloodstains reddened them and spattered the window. No property had been stolen: indeed about one hundred and sixty pounds in cash and notes were found in the house.
Trade Unions and Their Members
Authors: Thomas T. C.
Published: January 2009

In commenting on a decision of the House of Lords, given some fifty years ago, concerning the law relating to unincorporated associations as it affected the Free Church of Scotland, Maitland was provoked to say, “I cannot think that it was a brilliant day in our legal annals when the affairs of the Free Church of Scotland were brought before the House of Lords and the dead hand fell with a resounding slap upon the living body.” It was with a much revitalised hand, however, that the same tribunal, in Bonsor v. Musicians' Union, disturbed the slumbers of that self-same branch of our law, but this time in its application to trade unions. On this occasion, the slap has been described as a blow struck for freedom, and though the ultimate decision is in itself of the first importance, it is perhaps in a consideration of the diverse means employed in reaching that result that the student will find the greatest interest.
The Incidence of General Pecuniary Legacies
Authors: Ryder E. C.
Published: January 2009

Before the coming into force of the 1925 legislation it was possible to state with reasonable certainty the rules for determining which of the assets comprised in a testator's estate could be used for paying general pecuniary legacies and in what order such assets ought to be applied for that purpose. The pecuniary legatee was, in the absence of any indication in the will of a contrary intention, entitled to have his legacy satisfied out of one portion only of the testator's assets, his general personal estate, that is to say, his personalty not specifically bequeathed. It was immaterial whether such personalty was the subject of an effective residuary gift, or was not effectively disposed of by the will: and if the testator had given his residuary personalty in shares and the gift of any share failed, by reason of lapse or otherwise, so that there was an intestacy as to that share, the legacies were still payable out of the whole of the residuary personalty before division, so that the share which was not effectively disposed of bore the burden pari passu with the other share or shares, the gift of which did not fail.
Mr. Justice Browne's Judgment in the Anisminic Case
Authors: Wade H. W. R.
Published: January 2009

ALL those—and they will be many—concerned with the case of Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862 (C.A.), [1969] 2 W.L.R. 163 (H.L.) will have noticed the references made in the Court of Appeal and in the House of Lords to the judgment delivered by Browne J. at first instance. This judgment is of particular interest and importance, not only because it was upheld by the House of Lords after being reversed by the Court of Appeal, but also because it made an extensive review and analysis of the authorities, which the higher courts to some extent adopted and incorporated by reference. Unfortunately this valuable judgment has not been reported, presumably because it ran to some 40,000 words in length.
Escaping Borstal Boys and the Immunity of Office
Authors: Hamson C. J.
Published: January 2009

Should the Home Office be liable for damage done by Borstal boys “escaping” from an “open” Borstal? On the other side of the Channel the liability of the state in the case of the near-equivalent “institution publique d'éducation surveillée” has been settled in two exceptionally interesting judgments of the Conseil d'Etat, Thouzellier, 3 February 1956, Rec. 49, and Trouillet, 9 March 1966, Rec. 201, the grounds of which repay study. In England a county court judge had held in 1951 that there was liability (Greenwell v. Prison Commissioners, 101 L.J. 486): the judgment was widely noticed and not appealed against. Now, eighteen years later, in Dorset Yacht Co. Ltd. v. Home Office [1969] 2 W.L.R. 1008 the Home Office, that compulsive defender of prerogative and atavistic privilege, seek to establish as a matter of law that they cannot be liable, however gross the dereliction of duty by the Borstal officers.
New Departures in Maintaining Public Order in the Face of Chartist Disturbances
Authors: Radzinowicz Leon
Published: January 2009

Avoidance of emergency legislation

“The people had a right to free discussion. It was free discussion which elicited truth. They had a right to meet.” In these words at a civic reception in Liverpool on October 3, 1838, Lord John Russell proclaimed his belief in one of the basic freedoms of democracy, at the very time that Chartists were mobilising their forces and spreading their doctrine at meetings held throughout the country. This was an untimely declaration which drew upon him the deserved reproof of Sir Robert Peel; it unfortunately seems to have been put later to some rather unscrupulous use by the Chartists, an example of which went to furnish Sir James Graham with offensive material for his attack on the Government during the debate of January 29, 1840, on a motion of no confidence. None the less, even when the Chartist gatherings had attained an advanced stage of organisation, Russell with undaunted singleness of purpose affirmed the Government's resolve not to ask Parliament for additional powers or extraordinary measures, but to rely on the existing laws: “It would be very inadvisable to make any sudden change in the laws of the country and to introduce laws, the same as in some foreign countries, of exception for certain parties; because those laws have two bad effects—the one is that they excite the sympathy of a number of persons who otherwise would have no feeling in common with ill disposed and designing persons; and in the next place, because the people of the country in general, and even those who appear to be the worst disposed, do feel that there is a power and supremacy in the law, to which they are ready to yield obedience; and if a new law were introduced merely for the suppression of those societies, they would not feel that they were treated with the same justice with which they would have been treated if the ordinary laws of the country had been resorted to for their suppression and punishment.”
The Enforcement of Morals
Authors: Rostow Eugene V.
Published: January 2009

There may be a point in reviewing the controversy occasioned by Lord Justice Devlin's Maccabaean lecture from an American point of vantage. For the Justice's brilliant and original paper has been heatedly attacked as “illiberal.” In the popular sport of classifying all positions on all subjects as either Liberal or Conservative— and the sport is quite as popular in the United States as it is in other countries—there is an intriguing difference between the rules of the game as it is conventionally played on the opposite sides of the Atlantic. In Great Britain, the suggestion that law has a moral content seems to raise theocratic ghosts in many quarters, perhaps in most; and clearly, theocracy is “Conservative.” In the United States, however, it is just the other way around. Every American schoolboy—or at least every American law student—considers Austinian Positivism, and the strict separation of law and morals, to be certain hallmarks of a position labelled “Conservative,” “Rigidly Technical,” “Reactionary,” or worse. And the view of law as an instrument for carrying out the moral purposes of its own tradition, and those of the society it rules, is a familiar touchstone of orthodox “Liberalism.”
The Effect of Anticipatory Repudiation: Principle and Policy
Authors: Nienaber P. M.
Published: January 2009

I

The facts of the recent House of Lords decision, White and Carter (Councils), Ltd. v. McGregor, were so simple and have been canvassed so thoroughly as to be now practically a matter of common knowledge. The appellants' business consisted in the placing of advertisements, for a fee, on litter bins which were then distributed to various local authorities. They agreed to run the respondents' advertisement for a period of three years. The respondents repudiated on the ground that their sales manager who had concluded the contract had no authority to do so. The appellants refused to accept the repudiation and duly displayed the advertisements for the entire period, bringing at the proper time a suit for the full amount owing under the contract. The pertinent question was: were the appellants entitled to dismiss the repudiation and give effect to the contract on their side in order to secure performance on the other side; or rather were they obliged to adopt the repudiation as the end of the contract and the beginning of a suit for damages subject to mitigation? The latter view prevailed in all but the House of Lords where a majority of three to two preferred the former.

In coming to this conclusion the House of Lords in effect overruled an earlier decision, viz., Langford and Co., Ltd. v. Dutch, the facts of which were virtually on all fours with those of the present case. In Langford's case the appellant was unsuccessful in recovering the contract price for exhibiting an advertisement film which he persisted in showing despite the respondent's repudiation of the contract.
The Director As Trustee
Authors: Sealy L. S.
Published: January 2009

Over two centuries ago, in the first reported case of its kind, Lord Hardwicke held the “committee-men” or directors of the Charitable Corporation guilty of “breaches of trust,” for which they had to account to the corporation. The concept of the director as a trustee persists through the cases and the textbooks to this day, but its origin is ill-explained and its modern relevance imperfectly understood. Why is the director called a trustee? Is it because he once was a trustee in the full technical sense? In what respects does the position of a director resemble, and in what respects does it differ from that of a trustee? How far has the law acknowledged these differences? Is the law, in so far as it is based on trust principles, adequate to ensure the proper discharge by directors of their responsibilities?
Tied Garages and the Public Interest
Authors: Turpin C. C.
Published: January 2009

When petrol rationing ended in 1950, the Anglo-American Oil Co. Ltd. (the predecessor of Esso Petroleum Co. Ltd.) introduced into Britain the “solus” or “tied garage” system of petrol supply, and by the end of 1951 all the principal suppliers of petrol had adopted this system. The solus agreement between supplier and retailer which is the foundation of the system differs in detail from one supplier to another, and some of the terms of an agreement may be negotiated between supplier and individual retailer, but essentially the agreement is couched in a standard contract of which the principal features are similar throughout the trade. In terms of this contract the retailer undertakes to sell the supplying company's brands of motor fuel exclusively for a fixed period, in consideration of a special rebate off the wholesale price of the motor fuels purchased. The retailer is required, in the event of sale or transfer of his business, to secure the acquirer's acceptance of the obligations under the solus contract (this is called the “continuity clause”), and the supplier sometimes reserves a right of pre-emption in the event of intended sale of the business. At the same time as a solus agreement is concluded there is commonly an advance of money by the supplier to the retailer which may be an advance of the solus rebate or a capital loan. The loan agreement may be made as a separate contract, or the loan and supply arrangements may be incorporated in a single document.
The Impact of Constitutions on Labour Law
Authors: Khan-Freund Otto
Published: January 2009

I propose to present to you some reflections on the impact which constitutions have had on the law governing the relations between management and labour. In many parts of the world that impact has been very considerable, and continues to be so.

It may be thought that an analysis of the role thus played by constitutions may perhaps be of absorbing interest to a comparative lawyer, but that it cannot have much practical significance in the United Kingdom. People who argue that way are obviously inclined to agree with De Tocqueville who, when asked what the British Constitution was, said that it did not exist. If the British Constitution does not exist, it may be argued, what is the good of giving in an English University an Inaugural Lecture about the role constitutions may play in the development of labour law?
Fourteenth-Century Promises
Authors: Arnold Morris S.
Published: January 2009

We are all familiar with the paradox that while medieval English society set great store in promises and their performance, the law of its central courts paid them little attention. The marital arrangement, which could be undone only rarely; the system we have learned to call feudalism, infidelity to which was sometimes called felony; the heavy emphasis in medieval literature on keeping faith: all these support the proposition that an important tenet of medieval morality was that promises ought to be kept. Yet the common law of promises was curiously retarded, thus creating what seems an odd gap between law and morality.
The Personnel of the Criminal Law in England and the United States
Authors: Smith J. C.
Published: January 2009

The success of any system of law depends, in the last resort, on the personnel who administer it. However perfect the procedure of a system may be in theory, it will not work well in practice if the officials who operate it are inefficient or lack proper powers: whereas, with efficient personnel having adequate powers, imperfections of procedure may be of little consequence. The fundamental principles of criminal procedure are the same in England and the United States; yet in the one country there is satisfaction, amounting, perhaps, to complacency, with the operation of the criminal law; while in the other there is almost universal dissatisfaction. This dissatisfaction has provoked a great deal of detailed research in America into the deficiencies of criminal justice, by both public commissions and private individuals, and, consequently, the publication of much frank and vigorous criticism. An examination of this criticism shows that, in the opinion of the American commentators, the factor of personnel is at the root of a great many of their troubles.

It is indeed the submission of this article that the important differences in the actual administration of the criminal law in England and America arise, in large measure, from the difference in status and character of the personnel who administer the law; and, in particular, from the differences in the distribution of powers among them. A comparison of some aspects of the powers, prestige, character and abilities of the judges, juries and counsel who, between them, are responsible for dispensing criminal justice in the higher courts in the two countries, will, it is believed, reveal that this is so.
The Perfecting of Orders in Chancery
Authors: Birks Michael
Published: January 2009

From the standpoint of jurisprudence of any court should be perfected immediately after the judge has pronounced his decision. Unfortunately this ideal is not easily attainable in practice, and least of all in a court of equity. In the Chancery Division of the High Court the elaborate procedure built up by the old Court of Chancery for perfecting orders still remains virtually unchanged; and so far as the reported cases go the court had never been required until the recent case of Re Harrison,1 to decide at what moment in time its decision becomes irrevocable. put very shortly the point at issue in this case was whether a judge of the Chancery Division has power of his own motion to alter or reverse (before the judgment has been entered) an oral and decisive judgment given in open court.
False Measures in the Roman Law of Sale
Authors: Stein Peter
Published: January 2009

Measures, such as weights, were used in the Roman law of sale for two purposes, (a) to determine the amount of the price of a given lot, and (b) to separate the object of sale from a larger bulk. Weights which are heavier than they should be always operate in favour of the buyer, while weights which are too light always benefit the seller. But it is here suggested that this fact has tended to blur the distinction between the two cases which ought to be considered separately, and that consequently there has been some confusion in the interpretation of certain texts, dealing with the effect of false measures.
Specialist Committees and University Education
Authors: Wilson Geoffrey
Published: January 2009

These two reports go well together. The first is a report from the House of Commons Committee on Procedure which advocates an extension of the existing activities of the Estimates Committee by the creation of a Select Committee to investigate and report on the way in which Government departments are carrying out their responsibilities, and the second an example of the kind of thing the Estimates Committee is at present doing within its existing terms of reference.
The Causal Theory of Law
Authors: Coval S. C. , Smith J. C.
Published: January 2009

I. Introduction

The Philosophy of the law has largely accepted that laws are rules although it still struggles with the completeness of that paradigm. Nevertheles there has been no clear analysis for the law of what a rule is and what it entails. This paper is an attempt to do that.
The Early History of Martial Law in England from the Fourteenth Century to the Petition of Right
Authors: Capua J. V.
Published: January 2009

The period from about 1300 to 1628 witnessed the beginnings of martial law, the establishment of custom governing the situations in which it might be invoked, then a break with that custom followed by a period of widened application, and finally, a reaction, once again restricting the Crown's use of martial law. Although extended, this period needs to be understood as a coherent whole, what might be termed, the first chapter in the history of martial law in England.
Tort Law and the Moral Law:Inaugural Lecture
Authors: Tunc André
Published: January 2009

The first thought of the person who has had the good fortune to be called to hold the Arthur Goodhart Chair of Legal Science is naturally to express his gratitude for the honour bestowed on him, by attempting to describe the contribution to contemporary law of the man under whose patronage he will speak.
Word Frequencies and the Study of Roman Law
Authors: Honoré A. M.
Published: January 2009

The object of this paper is to introduce a simple technique which is of value in the study of Roman law. This is the use of word counts and word frequencies. A scholar may wish to find out how often a given author uses a word or phrase or group of words or phrases either generally or in a particular work. He may wish to do this for groups of authors belonging to a historical period or to a certain school of jurists or to a geographical region. He may wish to do it in order to study the style or vocabulary of the jurist, to confirm impressions gained from reading the texts, or to acquire fresh insights. He may hope to test the authenticity of a given work; is it consistent with the corpus of known authentic writings by that supposed author? He may desire to find out which writers most closely resemble one another in point of style, word use and argumentation. He may wish to study the distribution of a word among classical authors and compilers in order to see to what extent it is likely to be interpolated by the latter and to what extent it is genuinely used by the classics.
Marital Reconciliation—Contexts and Meanings
Authors: Griew E. J.
Published: January 2009

The themes of the article

The Divorce Reform Act 1969 on its face gives to the promotion of reconciliation between married couples a prominence unprecedented in our legislation. It can be argued that section 3 of the Act (“Provisions designed to encourage reconciliation”) is merely a placatory gesture towards those troubled by too-easy divorce. The practical effect of the section is certainly limited. But it is of interest in a number of ways, theoretical and practical. More generally, changes in the fundamentals of divorce law justify a new approach to the purposes and practices of reconciliation. It may be worthwhile attempting to foster that approach even if section 3 can be criticised as an inadequate instrument for giving effect to it.
Some Points of Comparison between the Companies Act, 1948, and the French Law of Companies
Authors: Escarra Jean
Published: January 2009

The paper I am going to read is a study in comparative jurisprudence. I propose to examine some aspects of Company Law, and especially of the law relating to companies limited by shares. From the many differences existing between French and English Law on this matter, I have selected several points, in the setting up as well as in the management and administration of such companies, which seem typical to me. These are as follows:—

As regards the setting up of companies, I have thought it would be interesting to compare how French and English Law deal with:—

(A) The subscription of share capital;

(B) the prospectus or the other documents designed to serve the same purpose;

(C) the part played by the statutory meeting.

As regards the management and administration, I have chosen to examine:

(D) The powers of directors, and how they are restricted in England according to the doctrine of ultra vires, as compared with the French system of legal personality;

(E) the audit and inspection of companies.
Propositions about Law
Authors: King B. E.
Published: January 2009

Propositions about law result from thought about law, which is the business of jurisprudence. We shall be concerned with those propositions in which jurisprudence formulates its most general conclusions. Such propositions are expressed in statements or sentences of the general grammatical form ‘Law is “so and so”’, or more briefly, ‘Law is “X”’. By propositions about law we shall mean propositions, statements or sentences in this form. Similarity in form does not, however, necessarily imply similarity of logical function, any more than the use of the same word, ‘law’, is a guarantee that the same ‘thing’ or ‘entity’ is being referred to. Our propositions may in fact have etymological, defining, explanatory and/or emotive functions. To distinguish and to clarify these functions is the purpose of this article.
Frustrated Contracts and Statutory Adjustment: The Case for a Reappraisal
Authors: Stewart Andrew , Carter J. W.
Published: January 2009

The principle of frustration of contracts, so succinctly stated by Lord Radcliffe inDavis Contractors Ltd.v.Fareham U.D.C., is now well settled and accepted in both Britain and Australia. Its difficulty lies mainly in its application to particular facts, for opinions may sensibly differ as to whether a given contract is frustrated. Of course it can be conceded that some aspects of the doctrine still raise interesting matters of principle, such as the idea that frustration must not be self-induced. But overall the doctrine itself engenders a certain feeling of contentment.
Epstein's Theory of Strict Tort Liability
Authors: Simmonds N. E.
Published: January 2009

Alan Brudner recently observed that a significant tendency within contemporary legal scholarship has been “the movement toward comprehending private law in terms of non-legal ‘perspectives’ that reduce to surface rhetoric the discourse by which private law articulates and understands itself”. This is most obviously true of the economic analysis of law, and not simply in so far as it introduces a vocabulary that is unfamiliar to the lawyer. For the perspective which has informed the most influential currents within that movement is fundamentally aggregative in orientation, so that legal doctrines developed within a bilateral adjudicative framework, focusing on justice between two parties, are inevitably cast in a subordinate and instrumental role. Economic approaches seek to explain the law from a standpoint outside of the law's own framework, and to reveal a deep rationale for particular legal doctrines which would not be transparent to the lawyers and judges who developed those doctrines.
The Exhaustion of Alternative Remedies in Administrative Law
Authors: Lewis Clive
Published: January 2009

The application for judicial review is the primary means of challenging the legality of action taken by public bodies. Judicial review is not, however, the only avenue by which an individual may challenge a particular decision. Statute may create an appellate machinery to hear appeals against decisions of public bodies. There is a wide variety in the pattern of such schemes. There may be an appeal from a decision to a tribunal or other body, with a further right of appeal on a point of law or by way of case stated to the High Court or the Court of Appeal. Such mechanisms exist in a number of fields, most importantly in the field of revenue law, enforcement notices in planning law, decisions of inferior courts such as magistrates& courts, and social security law. There may be an appeal from a decision to an administrative tribunal or inferior court but with no right of appeal to the High Court, as in certain immigration cases where decisions may be appealed to an adjudicator and from him to the Immigration Appeal Tribunal. There may be an appeal from decisions to an administrative body such as a Secretary of State either with provision for appeal to the courts, as with appeals against refusals of planning permission by local authorities, or without any further right of appeal, as in the case of appeals against disciplinary decisions of chief constables.
Damages in Conversion—the Exception or the Anomaly?
Authors: Tettenborn Andrew
Published: January 2009

Conversion a peculiartort,1 boasts an equally idiosyncratic measure of damages. Other torts—and this includes torts involving interference with property, such as trespass or negligence—are about compensation: at least in principle, the plaintiff recovers, and recovers only, his loss 2 and even this he only gets subject to the principles of mitigation of damage and (normally) contributory negligence. Conversion, by contrast, seems to break all these rules. The claimant generally recovers not his loss 3 but the worth of the thing converted, 4 losing in the process, by virtue of a rather clumsy balancing rule, any inter rest he may have had in it. 5 Contributory negligence is disregarded, even in the case of claims for special damage (indeed, this is confirmed by stature 6); there is no general requirement of mitigation of loss; and even the normal rules of causation are substantially modified, 7 in that—at least in some cases—there is apparently no requirement that the plaintiff show a causal connection between the defendant's act of conversion and any loss suffered by him.
The O'Brien Principle and Substantive Unfairness
Authors: Chen-Wishart Mindy
Published: January 2009

In the Court of Appeal recently, Nourse L.J. declared Credit Lyonnais Bank Nederland NV v. Burch to be “as clear a case for the setting aside of a transaction against a mortgagee as it was possible to think of”. Curiously, however, relief on the basis of Barclays Bank pic v. O'Brien was given although: (i) the relationship between the surety and principal debtor, of employee and employer, clearly falls outside that of an “emotional or sexual nature” (and no such relationship existed in fact) particularised in O'Brien as one factor giving rise to a lender's constructive notice of the transaction's potential invalidity and; (ii) the Bank twice wrote to the proposed surety advising of the unlimited nature of the charge and of the desirability of obtaining independent legal advice; moreover, (iii) there is surprising dicta suggesting that the nature and extent of the manifest disadvantage in the transaction to the surety may be so severe that, to be enforceable, the lender must not only urge independent advice, it must insist upon it, and must reasonably believe that the advice was obtained, was competent and even, that it was followed.
Restitution, Coercion by a Third Party, and the Proper Role of Notice
Authors: O'Dell Eoin
Published: January 2009

If a plaintiff makes a payment to a defendant under the coercion of a third party, it has been said that the plaintiff's action in restitution to recover the payment from the defendant is dependent upon whether the defendant had notice of the third party's coercion. That is an error, to which the analysis here is intended as a corrective. The true view is that the plaintiff's action in restitution is dependent only upon the fact of the coercion vitiating his consent; notice is relevant only to separate the question whether the defendant can rely on the defence of bona fide purchase for value without notice.
The Renewal of the Old
Authors: Johnston David
Published: January 2009

Just as all the best titles have already been used, so have all the best opening lines. To begin, I can do no better than quote the opening words of the inaugural lecture given by my predecessor, Peter Stein, when he took up the Chair of Jurisprudence in the University of Aberdeen. I have changed the names. “When a pupil is appointed to succeed his master in any office it is natural that his feeling of honour should be tempered by humility. But when the master is a scholar of the calibre of Peter Stein, the pupil must exert himself to prevent his humility from degenerating into despair.”
Moral Responsibility and Political Freedom
Authors: Williams Bernard
Published: January 2009

In the phrase “moral responsibility”, the term “moral” can register two different ideas. On the one hand, it may introduce a particular field of application and a corresponding class of consequences, which are informal and social rather than formal and supported by force. Used in this way, “moral responsibility” is distinguished from legal responsibility. A quite different use of the term is involved when “moral” is introduced to imply a certain basis of assessment, one that places particular emphasis on the voluntary. In this sense, moral responsibility can be proposed as a basis of assessment even when what is in question is legal responsibility, for instance in relation to the criminal law.
Uses, Trusts, and a Path to Privity
Authors: Jones N.G.
Published: January 2009

In his ground-breaking book The Paths to Privity V.V. Palmer has identified the period between 1500 and 1680 as the “formative period”of the doctrine of privity of contract. Within that period there were, he suggests, “basically four individual paths to privity for the beneficiary”: the interest theory, the benefit theory, the agency cases, and the consideration theory. This article is concerned with the first of these theories, and in particular with the role played within that theory by the concepts of use and trust.
The Irish Peerage: A Modest Proposal
Authors: Turek Andrew
Published: January 2009

In a previous article, the present writer considered the process whereby ladies were admitted into the House of Lords and concluded that the draftsman of the Life Peerages Act 1958 had, intentionally or otherwise, made a hereditary peeress of every life peeress who has taken her seat. In that article a cursory mention was made of the Irish peers and their unsuccessful attempt to revive their representation in the House of Lords; but more careful consideration of their position has suggested that their exclusion may not be as final as some writers on the subject have hitherto assumed.
Statuta Sunt Stricte Interpretanda?Statutes and the Common Law: A Continental Prespective
Authors: Zimmermann Reinhard
Published: January 2009

“All statutes contrary to the common law … are to be interpreted strictly and have to be accepted in the most exact manner as they stand, and speak”. “Statutes which repeal the [common] law, have to be interpreted most strictly, and cannot be extended to cases which are not expressed in them.” “Statutes … generally consist more in ‘thus I want and thus I command’ than in a regulation according to reason”; “they fade like the moon's shadows, and like the moon they wax and wane at the legislators' whim”. It may be thought that these four sentences refer to the approach traditionally adopted in England to the interpretation of statutes. But they do not. They encapsulate the attitude adopted by the learned lawyers of the older ius commune, particularly in 13th and 14th century Italy, and in 16th century Germany. An English colleague has suggested that “civilian lawyers regard our case law with admiration and our statute book with despair”.
Ranulf De Glanvill and his Children
Authors: Bailey S. J.
Published: January 2009

§ 1. Introduction

In the Pipe Rolls for the financial year 1163–1164, Ranulf de Glanvill appears as sheriff of Yorkshire. This was an important office, not to be reached, one may suppose, without previous experience in the King's service, and he continued to hold it for many years. Presumably it was a lucrative office, for it necessarily implied duties far away from Suffolk, the county in which his closest associations lay. His father, Hervey de Glanvill, and his forebears since the conquest of England, had held lands in Suffolk; his own lands lay chiefly in that county; and it is said that he was born there, in the vill of Stratford, during the reign of Henry I.

Glanvill's first period as sheriff of Yorkshire lasted for six years. Then, after an interval of six years, he resumed that office in the year 1175 and retained it until King Richard's accession in 1189.
Jurisprudence and the Discussion of Ownership
Authors: Wilson G. P.
Published: January 2009

“The problem of ownership remains but it is not a legal problem; it is the concern of … any and every specialist who can contribute his grain to the common heap … The lawyer naturally has his contribution to make, but as the problem is not fundamentally a legal problem the final solution does not lie with him. He is concerned with ownership only so far as it produces consequences within the sphere of his own special technique.” This article is written to suggest that ownership as a topic of jurisprudence is best regarded not as an isolated concept but as a jurisprudential contribution to the wider problem of the use of things; and that it is an appropriate subject for general jurisprudence since it raises questions which are faced by all legal systems that preserve the notion of private property.
Perpetuities and the Act of 1964
Authors: Bailey S. J.
Published: January 2009

The rule against perpetuities, it will be remembered, (a) fixed a permissible perpetuity period, namely, the duration of lives in being plus twenty-one years plus (where relevant) the period of gestation, and (b) prescribed that every contingent interest in property is void ab initio if there is any possibility that the contingency may occur after the perpetuity period has expired. A contingent gift or interest is one which depends upon the happening of some event which may never happen—e.g., a gift “to the first child of Elsie who shall swim the Channel.” In this example two contingencies are involved: (i) being born and (ii) swimming the Channel. But (i) is bound to happen, if at all, within Elsie's lifetime; and so (unlike (ii)) it cannot cause the gift to be void for perpetuity.
Bonae Fidei Iudicia
Authors: Turpin C. C.
Published: January 2009

The purpose of this article is to discuss problems of the origin and of the structure of bonae fidei iudicia (formulae), and to consider some of the attempts that have been made to resolve these problems. This will necessitate inquiry into the origins of the formulary system of procedure itself. In the early history of Roman civil procedure there is much that remains uncertain or obscure, and the inquirer must often be content with solutions which, on the evidence, are no more than probable. Yet research continues to map out the terrain, and the map is gradually acquiring more reliability as well as more detail.