bluuebunny/crossref_metadata_2025 huggingface dataset:
Ossa Upon Pelion? Severance and the Insolvency Legislation
Authors: Tee Louise
Published: January 2009

It has long been established that the (involuntary) alienation which occurs when a bankrupt's estate vests in his trustee severs any beneficial joint tenancy, with the effect that the trustee holds the co-owned property as a beneficial tenant in common.1 The timing of such severance is of vital interest to unsecured creditors and the other coowners alike. If a beneficial joint tenant dies before severance is deemed
to have taken place, his unsecured creditors are unable to claim against any share of the property, for it is an essential characteristic of joint tenancy that each joint tenant is entitled to the whole interest or estate, but only for his lifetime: upon the death of a joint tenant, his potential “share” accrues to those remaining in accordance with the right of survivorship. If, however, a co-owner dies after his interest has been severed, his share of the property is available for distribution among his creditors. Where a jointly-owned home is the debtor's only substantial asset, the distinction is crucial.
Unjust Enrichment Claims: A Comparative Overview
Authors: Dickson Brice
Published: January 2009

This article examines a variety of legal systems with a view to assessing the role currently played within each of them by the principle of unjust enrichment. By focusing on the characteristic features of unjust enrichment claims it seeks to demonstrate that, although there are significant differences between the ways in which different countries handle such claims, there is also much that those systems have in common. While under the common law the principle of unjust enrichment has endured a long struggle for recognition, in civil law systems it has been acknowledged for centuries. This may be because in civil law countries the principle has been expected to play only a residual, and therefore non-threatening, role in the law of obligations while in common law countries it has been called upon, if at all, to serve as the basis for the whole of the law of restitution. We should not assume, however, that all common law systems share one set of characteristics while all civil law systems share another. In some respects there is more in common between systems drawn from each category than there is between systems drawn from the same category. Mixed legal systems, as one might expect, tend to display characteristics drawn from both.
The Law Commission and Judicial Review: Principle Versus Progmatism
Authors: Hare Ivan
Published: January 2009

IT IS now 18 years since the Law Commission Report which led to the introduction of the reformed R.S.C., Order 53,1the procedure which still governs all applications for judicial review in England and Wales. The Law Commission has now returned to the field with its 1994 Report entitled Administrative Law: Judicial Review and Statutory Appeals.2During the interval between the two reports, judicial review has undergone enormous change in terms of both thequantity of claims brought3and the substantive and adjectival developments in the jurisprudence. Moreover, important additions to the reform agenda have been made from a variety of sources.4The Law Commission's latest contribution could thus hardly be better timed.
O'Brien and its Legacy: Principle, Equity and Certainly?
Authors: Lawson Anna
Published: January 2009

Barclays Bank p.l.c. v, O'Brien1CIBC Mortgages p.l.c.v. Pitt2presented the House of Lords with an opportunity to consider when a creditor should be prevented from eforcing a transaction against a person who entered int it as a result of the undue influence or misreprentation of another. Lord Browne-Wilkinson's declared objective was to restate the law on this point “in a form which is principled, reflects the current requirements of society and provides as much certainty as possible”.3 Whether he achieved these three aims is a question on which commentators disagree. According to one, his Lordship proved himself “a master of the judicial art”4 by achieving all three.5 Another has argued that his judgments “may give rise to as much confusion as this difficult area has already witnessed”6 and that, in his efforts to attain the second of his goals, he overlooked the first and the third.
Tracing into the Payment of a Debt
Authors: Smith Lionel D.
Published: January 2009

A plaintiff who is deprived of a thing might seek out that very thing in order to assert his rights. The victim of a car thief tries to find the car. This is a natural response to such a misfortune, although it is not necessarily a fruitful one. Alternatively, the plaintiff might find that the original thing has been used to acquire some new asset: for example, the thief has swapped the car for a motorcycle. In that case, especially if for some reason the plaintiff will be unlikely or unable to establish a claim in relation to the car, the plaintiff might choose to assert a claim in relation to the motorcycle.
The Analytical Foundations of Justice
Authors: Simmonds N. E.
Published: January 2009

HILLEL STEINER'S bookAn Essay on Rights1proposes and develops an intriguing suggestion: that we should approach the discussion of justice at “the elementary particle level”. “The elementary particles of justice” Steiner tells us “arerights”:

Rights are the items which are created and parcelled out by justice principles. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same sense as architectural precepts must be informed by the properties of the construction materials they orchestrate.2
Personal Actions in the High Court of Battle Abbey 1450–1602
Authors: Baker J.H.
Published: January 2009

The relationship between the jurisdictions of local courts and central courts in late-medieval and early-modern England remains largely unexplored. It is nevertheless important to an understanding of the development of the common law, because of the prevailing notion that the great increase in litigation in the royal courts in the early Tudor period was connected with a decline in the use made of local courts. A massive transfer of business to the centralised royal courts might have affected the common law in ways other than the purely numerical, in that it could have brought a reception of legal ideas and remedies already well known out in the country. On that footing, the appearance of new kinds of action in the central courts at this period may represent transfers of jurisdiction rather than changes in legal thinking.
Legislating the Transcendental: Von Hirsch's Proportionality
Authors: Walker Nigel
Published: January 2009

In 1897 the Indiana House of Representatives was persuaded by a mathematician (of sorts) to entertain a bill “introducing a new mathematical truth”. The new truth was a method, or more precisely methods, for computing the value of π. Since π is a transcendental number the methods could at best have achieved an approximation. In fact they yielded several inaccurate values, one as wild as 4. The legislators were doubtful enough to refer the bill to a committee (the Committee on Canals) and, when this reported favourably, to the Committee on Temperance. Eventually they had the sense to defer itsine die.
Trespass, Case and The Rule in Williams v. Holland
Authors: Prichard M. J.
Published: January 2009

It is only fitting that the issue of the Cambridge Law Journal that marks the eightieth birthday of its former Treasurer should contain an article on legal history, and the recent case of Letang v. Cooper provides an occasion for returning to the forms of action on which Professor Hollond lectured to generations of Cambridge undergraduates. It is not, however, the purpose of this article to consider Letang v. Cooper itself, but to attempt to trace the evolution of the rule in Williams v. Holland (1833) and thereby to answer the question why plaintiffs in running-down actions preferred to sue in case rather than trespass. Winfield and Goodhart asked themselves this question, but their answer was directed primarily to the period after 1833, by which time the rule had contributed very substantially to the “handsome balance in favour of an action for negligence as against one for trespass.”
Affinities and Antinomies in Jurisprudence
Authors: Stone Roy
Published: January 2009

Within the nice, sharp and narrow quillets of the law in Temple Hall where the lawyers' argument had been loud and long over a pedigree question between Somerset and Plantagenet, as within academic bowers, within the broad and rigorous questions of philosophy and jurisprudence, there is opportunity for the application and operation of “Ramsey's Maxim”. This maxim claims that where there is a prolonged and persistent dispute between two persons, it is often the case that the disputants, while they are at odds about the conclusions and arguments derived from or urged in support of premises, are really in agreement about an assumption, hypothesis, premise, fundamental to their argument, which is false. They share a common but false premise.
The Freedom of Trade and Commerce in the Indian Constitution: The Atiabari Case and after
Authors: Seervai H. M.
Published: January 2009

Now that the Supreme Court of India has reconsidered its earlier judgment in Atiabari Tea Co., Ltd. v. The State of Assam in Automobile Transport (Rajasthan), Ltd. v. State of Rajasthan it would not be inappropriate to attempt a brief critical and analytical account of the two judgments and of the problem of the freedom of trade, commerce and intercourse within the territory of India with which they deal. As will presently appear the task is not easy, first, because the drafting of the articles in Part XIII of the Constitution leaves much to be desired and, secondly, because the wide diversity of judicial opinion disclosed in the Atiabari and the Rajasthan cases does not make the task of the commentator any easier.
Protected Interests in The Law of Torts
Authors: Lipstein K.
Published: January 2009

Introduction: TheProblems

(1) Whichever is taken as the point of departure, a general principle of liability for injurious acts done intentionally or negligently, or a catalogue of individual protected interests, and whatever the wish to establish criteria of general liability, a comparison between some of the leading systems of the law of the Western World—both civil and common law—shows that it is impossible to get away from the individual situation, irrespective of the force of an existing, or the desire for the creation of, a general principle.
Injunctions and the “Right to Demonstrate”
Authors: Wallington Peter
Published: January 2009

Injunctions against pickets and demonstrators are not common. There appear to be no reported cases in England between 1899 (when Llandudno Urban District Council tried to stop a clergyman from preaching on the beach) and the disputes in the London Docks in 1972. In Hubbard v. Pitt, the use of injunctions again came to the fore, when a firm of estate agents obtained interlocutory injunctions restraining members of a tenants' campaign from picketing their premises as a political protest.
The Law of Agency and Section 9(2) of the European Communities Act 1972
Authors: Markesinis B. S.
Published: January 2009

The law of agency has been affected indirectly by the European Communities Act 1972. This is largely due to section 9 of the Act which has undermined important principles of English company law. Since many of the propositions of the law of agency depend upon, or are supported by, company law cases it follows that the law of agency has, itself, been affected by the changes in company law. The real question, therefore, is not whether changes have occurred; but to what extent they have occurred. Unfortunately, the infelicitous wording of the Act, already criticised by academics, makes the answer to the above question that much more difficult. Assistance in elucidating the point, however, may be forthcoming from elsewhere. Section 9 of the Act purports to give effect in the United Kingdom to the provisions of the First Directive of the Council of the European Economic Communities on Harmonisation of Company Law and one is, therefore, entitled to seek clarification of the section's verbal ambiguities in the provisions of the said First Directive.
Maitland to Acton
Authors: Yale D. E. C.
Published: January 2009

These nine letters written by Maitland to Acton over the years 1896–98 are part of a large number of letters received by Acton from potential contributors to the Cambridge Modern History which Acton was planning and to which Maitland eventually contributed a chapter on “The Anglican Settlement and the Scottish Reformation.” When in 1895 Acton had been appointed Regius Professor of Modern History, Maitland had had his doubts. “Glad as I am that he should come here, I fancy that Oxford was the place for him,” he wrote privately to Lane Poole at Oxford, and he continued to have his doubts as to Acton's talents as an academic politician. As a background to the first letter Maitland had remarked to H. A. L. Fisher in a letter earlier that year: “That History Board still consumes endless time and after all I do not think that I can sign their proposals. At present Acton=0. I wish he would bless or curse or do something.” But for Acton the historian Maitland's regard was unqualified. When Acton died, the loss to Cambridge, Maitland wrote to Leslie Stephen, was “irreparable,” and writing to Lane Poole in 1902 he spoke more fully: “For myself I learnt to admire A. enormously—and on his merits, for I was not by any means prejudiced in his favour.”
The Basic Concept of Professor Hart's Jurisprudence
Authors: King B. E.
Published: January 2009

Thereare but a few days—of who shall say what importance—between the Julian and Gregorian calendars, considered as schemes for the interpretation of recurrent movements in our solar system. And yet, from the point of view of each, the other seems somewhat out in respect of the characterisation of nearly every year, month, week and individual day. The gap between the legal theories of John Austin and Professor Hart—between their models of the legal universe—is somewhat more than this. Its demonstration provides the foundation for Professor Hart's new book. But there may here be some analogy to what divides the concept of law, as elucidated by Professor Hart in terms of rules, from the concept of law as a system of action constructed by the writer in earlier numbers of thisJournal. If Professor Hart now reveals himself as conceptual pragmatist as well as linguistic philosopher the writer's gratitude to Professor Hart in the latter capacity is only tinged with regret that he does not display greater boldness in the former.
New Light on Slade's Case
Authors: Baker J. H.
Published: January 2009

Slade's Case is of such significance in the history of the common law that it has, quite properly, been the subject of more scrutiny and discussion in recent years than any other case of the same age. The foundation of all this discussion has been Coke's report, which is the only full report in print. The accuracy and completeness of Coke's version have hardly been challenged, and the discussions have assumed that it contains almost all there is to know about the case. This assumption must be discarded if we are to understand the contemporary significance of the case.
Some Structural Properties of Legal Decisions
Authors: Coval S. C. , Smith J. C.
Published: January 2009

It has been obvious to nearly everyone who has attempted an analysis of the judicial process that one cannot produce an adequate explanation of how legal decisions are taken by an examination only of the statutes and decided cases themselves. The richness of output cannot be explained with such poverty of input. This feature of richness in the process of legal decision can be explained by the addition to the above of judicial discretion. (We are not here referring to situations in which the law invests a judge with a particular discretion, e.g., to decide which of two parents should have custody of a child.) This gives an “adequate” explanation of the actual output, but at great other costs. In effect, such a hypothesis leaves us with an impenetrable black box mechanism as the key to the process of legal decision.
Licences and Constructive Trusts— “The Law is What it Ought to be”
Authors: Smith R. J.
Published: January 2009

In 1968, the Tredegar Estate made an agreement with Mrs. Evans, aged 76, whereby Mrs. Evans was allowed to live in a cottage rent and rates free for life, the agreement calling her interest a tenancy at will. Mrs. Evans's husband had worked for the Tredegar Estate all his life and Mr. and Mrs. Evans had always occupied the cottage rent and rates free. In 1965, Mr. Evans had died and the object of the agreement clearly was to provide a home for the remaining years of Mrs. Evans's life. Some two years later, the Tredegar Estate conveyed the cottage, in fee simple, to Mr. and Mrs. Binions, the conveyance being expressly subject to the 1968 agreement in Mrs. Evans's favour. Indeed, Mr. and Mrs. Binions paid a lower price for the cottage because of the agreement. In 1971, Mr. and Mrs. Binions gave notice to quit to Mrs. Evans, then aged 79, and subsequently issued a plaint for possession in the Newport (Mon.) County Court. Not surprisingly, the action for possession failed in both the county court and the Court of Appeal.
Acceleration and Contingent Remainders
Authors: Prichard A. M.
Published: January 2009

The doctrine of acceleration may be described as a rule of construction whereby words introducing an interest in remainder into a limitation of property are liberally interpreted so as to enable that interest to take effect immediately after a premature determination of the prior interest. The doctrine is most frequently encountered in the context of wills. This is partly, no doubt, because wills are often less strictly worded than instruments executed inter vivos; and partly, especially in a modern context, because tax considerations have Jessened the incidence of use of the normal prior estate involved, the life interest, in settlements inter vivos more than in wills. Even so, one of the more significant cases where acceleration has recently been found to apply, Re Dawson's Settlement, concerned a settlement inter vivos.
Non-Natural Use of Land
Authors: Williams David W.
Published: January 2009

The purpose of this paper is to re-examine the meaning of “non-natural use” of land as a criterion in determining liability under the rule in Rylands v. Fletcher, in the light of modern developments, particularly in the field of public law.
A New Look at Provisional Validity
Authors: Dashwood Alan
Published: January 2009

The EEC rules concerning restrictive business combinations are sanctioned not only by the imposition of substantial penalties in the event of intentional or negligent infringement but also by depriving offending agreements of their validity in civil law. Thus Article 85 (2) of the Treaty provides in uncompromising terms: “Any agreements or decisions prohibited pursuant to this Article shall be automatically void.” This is a directly effective provision which has become part of the law of the member states and must be applied as such by their courts. It must be stressed that the nullifying force of the Article operates automatically, rendering agreements void without the need for a decision by the Commission or by a court. This contrasts with the position under United Kingdom legislation where agreements within Part I of the Restrictive Trade Practices Act 1956 only become void following a decision of the Restrictive Practices Court that the provisions in question are contrary to the public interest.
Administrative Law: Judicial Review Reviewed
Authors: Diplock Lord
Published: January 2009

We are met here this evening in memory of Stanley de Smith to pay a tribute to his labours in the field of English public law. His name will always be associated with the constitutional law of the British Commonwealth in its decline and the administrative law of England in its renaissance. It was in connection with the first of these topics in the nineteen fifties that I first met him when he was a brilliant young law don at the London School of Economics and I was a fairly senior silk instructed on behalf of the Kabaka in the constitutional dispute about Buganda. The depth of knowledge on constitutional matters which he then displayed encouraged me to seek his help in the last constitutional case in which I was engaged before I went on to the High Court bench. It involved appearing before the Federal Court in Pakistan and, unless my memory plays me false, it was de Smith who drew my attention to opinions given by the Law Officers in the seventeenth century about the government of the Plantations, that supplied the basis for the argument that was ultimately accepted by that court.

The rapid constitutional changes which followed on the attainment of independence by former colonial territories have, perhaps, converted into legal history much of de Smith's work in this particular field of public law. So I propose to take as the subject of this memorial lecture that other field of public law which he was to make his own: administrative law and, in particular, judicial review of administrative action.
The Four Elements of Law
Authors: Schmidt Folke
Published: January 2009

Two years ago I was invited to join a conference of law students from the Nordic countries and to discuss with them the law of labour relations. There were many radical socialists among the members of the conference. One after another young angry men attacked the present state of law in the Nordic countries as the law of the ruling classes. The collective agreement was not, as I had been used to see it, a bargain between two independent parties but a means of oppression. Not seldom the officers of the national union were in collusion with management and the rest of the establishment. In the debate I answered that their views were too narrow because there were at least the following four elements of law: (1) the law of survival, (2) the law of toleration, (3) the laws of the ruling classes, and (4) laws based upon agreements. Their laws represented only one of these four elements. Today I am going to try to develop this general theme.
Bankers' Commercial Credits among the High Trees
Authors: Clarke Malcolm
Published: January 2009

It is not often that cases concerning bankers' commercial credits reach the Court of Appeal; such a case was W. J. Alan & Co. Ltd. v. El Nasr Export and Import Co. hereafter referred to as the El Nasr case. It would be regrettable that such a case should pass without comment, particularly as the decision also touched important principles of the general law of Contract. This paper will consider firstly the opening of a bankers' commercial credit in two respects: (i) it has recently been contended that whether the credit binds the issuing bank to the seller depends on whether the buyer's duty to procure the credit is a condition precedent to the contract of sale; it will be suggested that the buyer's duty is usually no more than an ordinary term of the contract. (ii) It has been argued that the procuring of a credit by the buyer discharges absolutely his duty to pay the seller under the contract of sale. It will be seen that the courts have now rejected this argument and for good reason. The second part of this paper considers the waiver of duties under the credit, leading to an appreciation of the doctrine sometimes called equitable or promissory estoppel. In particular it will be contended that (i) he who benefits from the waiver must suffer a detriment, although of a rather diluted kind; and (ii) that the waiver may not always be withdrawn, even after the giving of reasonable notice.
Pensions and the Restraint of Trade Doctrine
Authors: Rosenthal Abraham , Shand John
Published: January 2009

The legal status of contracts tainted by the restraint of trade rules is by no means clear. It has been judicially stated that such contracts are “not ‘illegal’, in the sense that a contract to do a prohibited or immoral act is illegal, [and] not ‘unenforceable’, in the sense that a contract within the Statute of Frauds is unenforceable for want of writing. These covenants lie somewhere in between. They are invalid and unenforceable. The law does not punish them. It simply takes no notice of them. They are void, not illegal.” This article discusses the legal position if a claim is made for the recovery of money paid or securities delivered under such contracts, in the particular context of pension rights.
The Early Constitution of Gray's Inn
Authors: Simpson A. W. B.
Published: January 2009

Most writing on the early history of the Inns of Court reflects an assumption which was very clearly stated by Sir Frederick Pollock,

On the whole then the constitution of the Inns of Court was settled about the middle of the fourteenth century on the lines which in all cssentials are much the same at this day. The only considerable formal change was that two centuries later the original governing committee of the Bench gave way to a single principal officer, the Treasurer.
Lord Cairns' Act in the County Court: a Supplementary Note
Authors: Pettit P. H.
Published: January 2009

InRedland Bricks Ltd.v.MorrisLord Upjohn, in a speech with which all the other Law Lords agreed, asserted that the Court of Appeal had been wrong to consider the applicability of Lord Cairns' Act. Much of the judgments, he observed, had been taken up with a consideration of the principles laid down inShelferv.City of London Electric Lighting Co., a case concerned exclusively with the proper principles upon which in practice Lord Cairns' Act should be applied. Neither Lord Cairns' Act norShelfer'scase, he said in terms, had anything whatever to do with the principles of law appli-cable to the case then before the court. It is accordingly crystal clear that Lord Upjohn regarded Lord Cairns' Act as totally irrelevant: what is less clear is the reason for his opinion.
The Legal Implications of a Relationship Outside Marriage
Authors: Pearl David
Published: January 2009

It is still true to say that the English law encourages couples to marry rather than to live together without the sanction of the marriage ceremony. The parties to a stable relationship outside marriage, however, have recently been granted, both by judicial developments and statutory innovation, legal rights previously associated only with the status of marriage. In particular, reforming legislation has included the cohabiting, but unmarried, couple in certain significantly important improvements to the previously existing legal position of husband and wife. This article provides an overall review of recent developments. Questions relating to the status of children and the rights and duties of the parents, whether married or unmarried, are excluded. The legal position for the unmarried couple is, to a large extent, dictated by the prevailing policy that marriage should be encouraged. The opposing trends—both practical as well as changing moral norms—have not been sufficiently powerful for any substantial policy shift.
Remoteness of Damages and Judicial Discretion
Authors: Cooke Robin
Published: January 2009

The law about remoteness of damage in contract and tort is in a strangely unsettled state. Pursuing justice in individual cases, the courts have felt driven into vacillations on points of general principle which have not shown our system of case law at its best. Yet there is perhaps no field of common law in which there have been so many attempts by judges, and at a high level of authority, to formulate principles or rules in exact terms. A glance over ground mainly very familiar may not be wasted if it happens to contribute anything towards attaining a more stable perspective.
Charitable Giving in English and Roman Law
Authors: Rickett C. E. F.
Published: January 2009

Robert Feenstra has argued that, although the conception of the trust—so prominent in English law—is generally unknown in civilian legal systems, one of the major areas in which the trust is used in English law, the dedication of property for public or chari-table purposes, is amply covered in the civilian systems by the concept of the foundation. There are, he says, two foundation concepts, both of which have their origins in post-classical Roman law. As for classical Roman law, he concludes that “the classical Roman jurists did not pay much attention to these foundations,” and that any discussion in the important classical Digest texts is found within the confines of legacy and fideicommissum.

The First concept is that of the “real” or “proper” foundation. The “real” foundation is a legal person, and the main point is the existence of an aggregate of assests devoted to a paticular purpose and provided with an organisation of administrators to give effect to this purpose … The property which has been set aside belong neither to the administrators nor to the persons who benefit from the foundation: it belongs to the foundation itself, seen as an artificial, a juristic person.

There are strong indications, Feenstra suggests, of an historical beginning of this real foundation concept in later Roman law, both in the legal position of the Church after Constantine, where texts speak of property belonging to an ecclesia or a monasterium and in the existence of venerabiles domus, where the “houses” are identified as holding property.
Damages as a Remedy for Unlawful Administrative Action
Authors: McBride Jeremy
Published: January 2009

The increase in the powers of public authorities is rightly accompanied by a concern that they should be neither abused nor exceeded. One form of control lies in the judicial remedies, of which the least employed is damages. This is not surprising since, regardless of the loss sustained, the unlawfulness of an administrative act does not automatically confer any right to compensation. Where an administrative act is unlawful because it involves a tort such as negligence, nuisance or trespass, then it is well-established that the public authority responsible will be liable to pay damages to those whom it affects. It is, however, unlikely that one of those torts will be committed where the unlawfulness stems from a breach of the rules of natural justice or a failure to consider all the relevant factors. Nor will they necessarily be involved where an authority misuses or exceeds its powers; for example, by the wrongful refusal or cancellation of a licence. Nevertheless, the extent of governmental regulation means that loss for individuals and businesses is not inconceivable where these types of illegality take place. If there is no right to compensation in such cases, then success in obtaining certiorari or mandamus might well be regarded as a pyrrhic victory.
Section 25 (1) of the Sale of Goods Act 1893: The Reluctance to Create a Mercantile Agency
Authors: Rutherford L. A. , Todd I. A.
Published: January 2009

Section 25 (1) of the Sale of Goods Act 1893 provides:

Where a person having sold goods continues or is in possession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, pledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same.
Four Alleged Paradoxes in Legal Reasoning
Authors: Goldstein Laurence
Published: January 2009

There can be no doubt that the existence of paradoxes has stimulated vigorous and highly productive activity in philosophy and in logic. Take two famous examples: The Liar Paradox, which arises from a sentence such as

L This statement is false.

and the Russell Paradox which arises from the sentence

R The class of all classes which are not members of themselves

is a member of itself.

The first of these has been a source of anguish for over 2,000 years. The second has engaged the serious attention of logicians for over three quarters of a century. Investigation of paradoxes of this sort has spawned whole new fields of study, such as technical semantics and axiomatic set theory.

It has been claimed that legal reasoning is infected with paradoxes and that these paradoxes are similar in structure to those, like the two we have cited, which are of interest to the logician. If this claim were true one of two consequences would follow. Either the jurisprudent would face what would in all likelihood be a protracted struggle with these legal paradoxes resulting, perhaps, in significant additions to legal theory, or else, if these paradoxes were sufficiently similar to those of the logician, he might try to utilise the logician's results to solve his own legal puzzles.

The first alternative, though attractive to a theoretician, may appear rather dismal to those engaged in the business of law. Whereas reflection on the logical paradoxes can lead to only more refined abstractions—the philosopher's meat and drink—legal theory is rather intimately connected with practical affairs.
The Formal Character of Law
Authors: Summer Robert S.
Published: January 2009

I feel honoured to be your guest here, and am pleased to have this opportunity to lecture on my academic passion—“The Formal Character of Law”. Law has several fundamental characteristics. My main thesis is that formality is one of these. I define a “formal” feature of law as one that is in some way independent of the substantive content of the law. For example, the definitiveness of a legal rule is a formal feature of the rule's configuration, and is independent of the substantive content of the rule. Formal configuration is one thing, and substantive content another. But as we will see, there are different ways in which a formal feature may be independent of substantive content, and there are still other, related, senses of formal.
Metaphors and Anticipatory Breach of Contract
Authors: Dawson Francis
Published: January 2009

Law students soon learn that the law of anticipatory breach of contract is difficult. Foaled from dubious antecedents, it has been the subject of continuous academic criticism. The main theoretical objections to the doctrine are well known. How is one to explain how a promise can be broken before the time for its performance has arrived? And why should the question whether a repudiation amounts to a breach turn on the conduct or assent of the innocent party?
Basics to Basics—Reconstructing Manslaughter
Authors: Virgo Graham
Published: January 2009

Manslaughter continues to be difficult to define and apply, so much so that in two recent decisions the Court of Appeal demanded that the state of involuntary manslaughter be reviewed and reforms be suggested. The greatest conceptual difficulties concerning this offence relate to ascertaining what its ambit actually is and how wide it should be. For the most serious kinds of homicide the crucial distinction concerns where the boundary between murder and manslaughter should be drawn. After much confusion, murder now requires proof of an intention either to kill or to cause serious injury. Much more difficulty arises in identifying the boundary between manslaughter and mere accident. This raises complex issues as to the relationship between criminal and civil liability.
The Common Law of Edward Christian
Authors: Hoffeimer Michael H.
Published: January 2009

Edward Christian has been treated unfairly by history. As the first Downing Professor of the Laws of England and the first lecturer on common law in Cambridge, Christian suffered the chronological misfortune of launching his academic career in the wake of Blackstone's extraordinary achievement. Until recent years Blackstone's brilliance has obscured the intellectual originality and historical significance of all his successors.1 Moreover, Christian's misfortune in following Blackstone was aggravated by a lack of professional success at the Bar and by a seemingly abrasive personality that won him a number of eloquent enemies whose ridicule and comical anecdotes have long outlived their target.
Excising Estoppel by Representation as a Defence to Restitution
Authors: Key Paul
Published: January 2009

Both the existence of and theoretical justification for defences to an action in unjust enrichment have been the source of controversy since the action was first recognised inMoses v. Macferlam.* The House of Lords' recognition of a defence of change of position inLipkin Gorman v. Karpnale Ltd1goes some way towards meeting the criticisms levelled at the courts' general failure to develop and clarify the defences to restitution. The judgments of Lord Goff and Lord Templeman have properly been acclaimed for imposing some measure of order upon an important aspect of the law of restitution. However, problems remain. Lipkin Gorman does not provide an exhaustive analysis of either change of position or its inter-relationship with other defences.
Undue Influence, Misrepresentation And The Doctrine Of Notice
Authors: Mee John
Published: January 2009

In a series of modern cases, the English Courts have struggled with the problem of the undue influence or misrepresentation of third parties. Most of the cases have concerned women who have been persuaded or deceived into giving guarantees to financial institutions for the business debts of their sexual partners. In the recent case of Barclays Bank p.I.e. v. O'Brien, * the House of Lords made a fresh effort to tackle this difficult issue. Lord Browne-Wilkinson, with whom the other Lords agreed, attempted “to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.”1
“Unjust Enrichment”
Authors: Hedley Steve
Published: January 2009

Restitution has always been part of the common law. Yet in recent years a startling transformation has taken place: an active and determined group of scholars have collected together the hitherto scattered materials, insisting that this is the only way in which these materials can be understood; and have claimed that despite the apparent diversity they are all bound together by a single notion, that of “unjust enrichment”. A great deal of attention has been paid to elaborating this notion, and to defending particular conceptions of it.
Excess Alcohol, Incorrect Procedures and Inadmissible Evidence
Authors: Hirst Michael
Published: January 2009

There is something peculiar, perverse and extravagant about the behaviour of the courts when confronted with drink-driving offences under the Road Traffic Act 1988. Drivers who have manifestly committed such offences all too often escape conviction, or have their convictions overturned on appeal, as a result of trivial, bona fide and otherwise inconsequential procedural errors supposedly made by the police when obtaining specimens of breath or blood for analysis.* This is peculiar, in that trivial or inconsequential procedural errors in the gathering of evidence do not ordinarily lead to acquittals in criminal cases. It is perverse, in that it largely ignores a major redrafting of the drink-driving law, which was specifically intended to prevent such unmeritorious acquittals; and it is extravagant, in that it wastes court time and public money, whilst generating an excessive amount of highly technical case law. Worst of all, it leads to glaring and absurd failures of justice, which can only drag the law into disrepute.
In Defence of Foakes v. Beer
Authors: O'Sullivan Janet
Published: January 2009

This paper aims to defend what many academic commentators regard as indefensible—the rule in Foakes v. Beer.

For almost four hundred years (since Pinnel's Case) English law has been clear: the payment of, or promise to pay, a smaller sum than the amount due does not discharge the debt, since the debtor provides no considerationfor the creditor's promise to waive the balance—there is no “accord and satisfaction”. The House of Lords approved this rule, albeit reluctantly on the part of Lord Blackburn, in Foakes v. Beer.
Gently Reforming Land Registration: The Latest Law Commission Report and Draft Bill
Authors: Tee Louise
Published: January 2009

Land registration has long proved a source of concern to the Law Commission. Its Third Report in 1987 recommended significant changes to the substantive law; its Fourth Report subsequently incorporated these changes into a comprehensive draft Land Registration Bill which was intended to replace the Land Registration Act 1925 with a modern, simpler statute.
Five Forms of Uncertainty in European Community Law
Authors: Hartley Trevor C.
Published: January 2009

The purpose of this article is to consider uncertainty in European Community law. It will be argued that, for reasons inherent in the nature of the Community, EC legislation is generally less clear and more difficult to interpret than British legislation. Five reasons are put forward as to why this might be so. While always undesirable, uncertainty is perhaps to some extent tolerable where Community legislation gives rights to the individual against public authorities: an uncertain right may, after all, be better than no right at all. It is, however, intolerable where obligations are imposed on the individual. One situation in which this arises is where directives are adopted in the field of private law, a rapidly increasing area of Community legislation. These measures will form the main focus of this study, though our attention will not be confined to them. Before considering these matters, we must, however, set the stage by making some preliminary distinctions.
Former Tenants, Future Liabilities and the Privity of Contract Principle: The Landlord and Tenant (Covenants) Act 1995
Authors: Bridge Stuart
Published: January 2009

It is perfectly settled by a multitude of decisions, that, notwithstanding an assignment of his lease, the lessee continues liable on the personal privity of contract, to the payment of rent and the performance of the covenants, during the whole term; although the lessor concur in the assignment, or, by acceptance of rent, or otherwise, recognise the assignee as his tenant; and although the breach be committed after the assignment; and although a tender be made by the assignee for the very rent for which the lessee is sued; for if a plea of assignment and tender could be supported, a lessor might be compelled to accept an assignee contrary to his inclination. Indeed, by no act of his own can the tenant absolve himself from the charge.
Contract Damages, Ruxley, and the Performance Interest
Authors: Coote Brain
Published: January 2009

The story is told of F.E. Smith, the future Lord Birkenhead L.C., that he and a friend were once walking along a narrow residential street when they came upon a couple of men arguing with each other from the upper floors of houses on opposite sides of the street. “They will never agree”, Smith is supposed to have said, “they're arguing from different premises!”
Some Reflections on “Property” and “Title” in the Sale of Goods Act
Authors: Ho H.L.
Published: January 2009

The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.
Divorce and the Lord Chancellor: Looking to the Future or Getting Back to Basics?
Authors: Bainham Andrew
Published: January 2009

The Government is keen to get “back to basics” about divorce. The Green Paper which the Lord Chancellor presented to Parliament in December 1993 invites us all to reflect on family values and is intended to provoke a “thorough national consideration” of the whole basis for divorce. It follows proposals by the Law Commission but is less than a ringing endorsement of the Commission's scheme. The Law Commission has advocated a shift from the current “mixed” system (embracing fault and no-fault grounds) to an entirely no-fault basis for divorce. Under these proposals divorce would be regarded as a neutral “process over time” and would not entail judgments into the causes of marriage breakdown. While the Green Paper gives qualified support to this idea, the Government has yet to reach a concluded view.
The Decision of the House of Lords inRussell v. Northern Bank Development Corporation Limited
Authors: Ferran Eilis
Published: January 2009

This article seeks to consider whether it is, or should be, possible for companies to give covenants which amount to fetters on their statutory powers. The companies legislation confers many powers on companies but perhaps the most important are the powers to alter objects and articles by special resolution, and the power to alter share capital provided that there is authority to such effect in articles of association. The question whether it is possible to contract out of these statutory powers has received much recent attention because of the decision of the House of Lords inRussell v. Northern Bank Development Corporation Ltd.
Intents in the Alternative
Authors: Williams Glanville
Published: January 2009

The problem that Mr. Duff discusses in the preceding article is this. A man attempts to commit the act of sex with a woman, nolens volens. He is aware that she may not be consenting, and is indifferent about it. In fact she does not consent. Public policy and common sense strongly suggest that he should be convicted of attempted rape, but the problem is to square this with the statutory rule that rape requires intention.
Scepticism and the Law of Negligence
Authors: Steele Jenny
Published: January 2009

The law of negligence invites scepticism, and it has attracted it from many sources. A brief survey of the tort's problems will indicate how broad the reasons to be sceptical have become—and how unusually broad the sources of that scepticism are.
Confidence and Privacy: A Re-Examination
Authors: Fenwick Helen , Phillipson Gavin
Published: January 2009

The flexibility of the doctrine of confidence and its adaptability to illsorted and disparate situations has often attracted academic attention, but although it continues to develop, its ability to protect privacy has not perhaps been sufficiently emphasised in recent discussions of both privacy and confidence,despite the debate generated by the (recently abandoned) proposals for a new tort of invasion of privacy. The notion that developments in the doctrine of confidence could properly render it apt to protect privacy came under attack by Wilson in 1990 on the ground that legal obligations to maintain confidence of intolerably uncertain scope might arise as a result of the normal incidents of social life and friendship.
The Renewal of the Liberal Law Degree
Authors: Hepple Bob
Published: January 2009

I propose to examine the underlying philosophy of the recent First Report on Legal Education and Training by the Lord Chancellor's Advisory Committee on Legal Education and Conduct (ACLEC), and also some of the practical implications of the Report, particularly for university law schools.

It was a stimulating experience to be able to work on this Report which reflects the collective wisdom and experience of all seventeen members of ACLEC and draws on the views expressed by its consultation panels and the large number of respondents to its consultation papers. It is important to stress that the Committee's expertise is not simply that of the two law teachers on the Committee or the two barristers, two solicitors and two judges, but also that of the lay majority of the Committee whose experience is that of consumers of legal services, social researchers, educators and in other professions. In reflecting this breadth of experience, it is a Report unique in the annals of British legal education.