bluuebunny/crossref_metadata_2025 huggingface dataset:
Internal Cross-Border Policing within the United Kingdom: the High Road or the Low Road to Effective Co-operation
Authors: Walker Clive
Published: January 2009

ONE of the less vaunted aspects of the Criminal Justice and Public Order Act 1994 is Part X, entitled “Cross-Border Enforcement”. On closer scrutiny, one quickly discovers that the borders in question are those internal to the distinct legal jurisdictions of the United Kingdom—in other words, the territories of England and Wales, Northern Ireland and Scotland. As for “enforcement”, it is apparently the enforcement of the law via police powers and not the enforcement of court judgments which is the concern. As with other, more notorious parts of the Act, three main questions need to be answered in order to reach an understanding of these provisions: what prompted Part X to be passed; how does it seek to attain its objectives; and does it seek to attain its objectives in ways which are effective and appropriate?
Gifts in Frankalmoign, Warranty of Land, and Feudal Society
Authors: Postles David
Published: January 2009

In recent discussion, gifts to the religious have been perceived as exercising a formative influence in the forging of some norms and customs of feudal tenure during the twelfth century. On the one hand, it has been suggested that gifts to the church assisted the clarification in the mind of lay feudal society of the concept of heritability—that is, the future enjoyment of inheritance—since donors could not alienate in perpetuity that which was not already heritable. This suggestion is extremely important in view of the different perceptions of political and legal historians concerning the development of heritability of tenures and tenant right during the twelfth century, which are seen variously to have existed as social or legal norms from varying times and from different causes. A related argument runs that, whilst the warranty clause in charters (but not warranty per se) was initially conceived within the framework of the personal relationship between lord and man, its more widespread diffusion in charters was stimulated largely through the auspices of these religious beneficiaries of gifts in frankalmoign. The introduction of warranty into charters at the instance of religious beneficiaries is thus related to their concern to secure their own perpetual rights in the land at a time of a nascent realisation of hereditary tenant right, and the religious were thus foremost in the insertion of warranty clauses in charters which they, as beneficiaries, wrote or influenced, to secure their own unbridled tenure in perpetuity.
The Origins of Justinian's Institutes 3.23.5
Authors: Evans-Jones Robin
Published: January 2009

I Shall make some brief preliminary observations on Justinian's Institutes 3.23.5, then look at the history of sales of loca religiosa and the liber homo in classical and earlier Roman law, and then I shall return to the text cited. My purpose is to show how the examination of the origins of the text from Justinian's Institutes provides us with an insight into the development of classical and earlier law, how on this occasion the compilers interpreted their instructions to compile the Corpus Iuris Civilis and thereby also perhaps how the compilers viewed the past.
Redefining the Meaning of Life: The Early Release of Life Prisoners
Authors: Palmer Stephanie
Published: January 2009

Although those sentenced to life imprisonment have no right to release, a life sentence rarely involves imprisonment for the remainder of a convicted offender's natural life. Life prisoners may hope for early release on the so-called “life-licence”, whereby they remain liable to be recalled to prison for the rest of their lives.
Rationality and the Rule of Law in Offences Against the Person
Authors: Gardner John
Published: January 2009

The Offences Against the Person Act 1861 is much disparaged by today's criminal lawyers. Its provisions have been described as “impenetrable” by the Court of Appeal. The House of Lords could not conceal its dissatisfaction with what is called “the irrational result of this piecemeal legislation”. Andrew Ashworth has written of the “antiquated and illogical structure” of an Act which the Law Commission regards as “unsatisfactory in very many respects”. Most recently Brooke J., launching the latest version of the Commission's reform package, lambasted the operation of the 1861 Act as “a disgrace”, and claimed that this hostile view is shared in every corner of the criminal justice system.
New Rights for Old?
Authors: Halpin Andrew
Published: January 2009

The objective of this article is very limited, but if realised, I believe it has far-reaching implications. I want to examine the narrow topic of Unger's approach to rights. In exploring this objective I shall not be concerned with considering Unger's general approach to law, or with other aspects of his legal theory. Nor shall I question the assumptions that Unger may be making about the human condition or the nature of the world in which we live. Ignoring these wider concerns, my objective is to demonstrate that the new rights of Unger's deviationist doctrine in fact embody the old rights of legal formalism that their author has purported to abandon. The implications are twofold. First, for Unger's general enterprise: if it turns out that there is nothing new in his radical showpiece of rights, then some aspersions must be cast on the claims of novelty and radical efficacy made for “the program of empowered democracy” in which this showpiece is set.
Lifting the Corporate Veil: A Reassessment of the Fraud Exception
Authors: Payne Jennifer
Published: January 2009

If students of company law know just one case, that case will be Salomon v. A. Salomon & Co. Ltd. which firmly established the English law principle that a company is a legal person entirely separate and distinct from the members ofthat company. It is trite law that a rather hefty veil is drawn between these two that can be lifted only in a limited number of circumstances that seem to fluctuate according to current judicial thinking. However, it “is well established that the courts will not allow the corporate form to be used for the purposes of fraud or as a device to evade a contractual or other legal obligation”, a principle which is referred to hereafter as the “fraud exception” to the Salomon principle.
Contracting under Pressure: A Theory of Duress
Authors: Smith Stephen A.
Published: January 2009

In certain circumstances the fact that an agreement is made under pressure is sufficient reason to invalidate what would otherwise be a good contract. The rules providing for invalidation in such cases are found in the textbooks under the headings of duress and, to a less extent, undue influence and unconscionability. That the existence of pressure sometimes is and should be sufficient to invalidate a contract is not controversial. Few would argue that a contract entered at gunpoint ought to be enforced and the law is clear that such agreements are not enforceable. What is less clear are the principle(s) that underlie such decisions and the proper scope or reach of those principles. These questions are important for both the theory and practice of contract law. Theoretically, because any adequate account of contract law—a doctrine that in the orthodox understanding holds out the ideal of freedom as a core value—must explain that part of the lawin which individual freedom is most directly at issue. Practically, because the recognition in English courts over the last twenty-five years that the defence of duress may be invoked in situations other than threats to a person or even threats to a person's goods (in short, the acceptance of “economic duress”), together with the recent near-elimination of the rule that a promise to perform an existing duty is not good consideration, has meant that courts are regularly required to consider how far the scope of duress should extend.
Shareholders' Rights and the Rule in Foss v. Harbottle
Authors: Wedderburn K. W.
Published: January 2009

If an irregularity has been committed in the course of a company's affairs, or some wrong has been done to the company, can the individual shareholder bring a complaint before the court? The Rule in Foss v. Harbottle purports to give a negative answer to this question, subject to certain “exceptions.” The answer need occasion no surprise when it is remembered that the judges have for long been reluctant to interfere in the internal affairs of companies and similar associations; they have usually abdicated their jurisdiction in favour of the obvious alternative authority—the majority of the members. “It is not the business of the court to manage the affairs of the company. That is for the shareholders and the directors.” Whether this approach is a wholly adequate basis for judicial policy in the area of modern company law is open to doubt; the “majority” in the modern public company is usually under the effective control of a small body of managers. But the approach of the courts remains the same; the interests of the majority are theoretically paramount in the last resort. The rights of the minority must, in consequence, be restricted; and, in particular, the minority cannot complain of wrong done to the corporation as a whole or of internal improprietiess. In such terms of deceptive simplicity is the Rule in Foss v. Harbottle often presented; but the Rule is notorious among students of company law for the difficulties which lie underneath this simple surface. In order to investigate those difficulties, it is necessary, first, to examine the two different parts of the Rule and their point of contact; secondly, to mention twe preliminary matters concerning directors which must be kept in mind in the course of the discussion; and thirdly, to set out, and examine under four headings, the principles which are commonly said to constitute the “exceptions” to the Rule.
The Usual Authority of an Agent
Authors: Hornby J. A.
Published: January 2009

1. The concept of an agent's “usual” authority is important in ascertaining the extent of the agent's actual and apparent authority.

2. The contention that in English law a principal can be liable in contract for the acts of an agent exceeding the latter's actual and apparent authority as agent depends on a statement of principle by Wills J. in Watteau v. Fenwick. This statement is supported neither by the previous cases nor by Wills J.'s reasoning.

3. Edmunds v. Bushell & Jones, Watteau v. Fenwick and Kinahan & Co. Ltd. v. Parry are all cases in which the agent was held out by the principal as having the authority of a principal and owner of a business; as these cases rest on apparent ownership the principal should be merely precluded from denying that the agent is owner of the assets of the business, and these cases cannot be justified in so far as they impose a more extensive personal liability on the true principal and owner.

4. Although a particular managing director of a company may have a “usual” authority, he does not have a “usual” authority which is common to all other managing directors of all other companies.
Austin on Sanctions
Authors: Tapper Colin
Published: January 2009

Austin has been sniped at for so long that there is now more hole than target. Many would say that this has happened because he is such an obvious target. His conclusions have been widely condemned, his clarity and precision commended, though less fervently. Some have accepted his concepts, but felt them to be inadequate for his task; others have felt the concepts themselves to be inappropriate. Professor Hart succinctly expresses a new orthodoxy in claiming, “Austin … was sometimes clearly wrong; but … when this was so he was always wrong clearly.” This is surprising as Hart is elsewhere one of the most perceptive and diligent searchers for ambiguities and inconsistencies in Austin's work. It is contended that the conventional view of Austin as a careful and painstaking manipulator of hard concepts is quite unjustified. This is not so much to suggest that Austin was wrong as that he was muddled, inconsistent and ambiguous. It is to suggest that time spent shooting at Austin is invariably successful, and invariably unrewarding. An attack upon one version of a doctrine can usually be evaded by reference to another. If Austin is often wrong, he is also often right, and frequently on the same point but in a different place. For those committed to a general attitude towards Austin this may be merely aggravating; for the uncommitted it can be vastly stimulating.
Two Maxims of Equity
Authors: Gardner Simon
Published: January 2009

It is a commonplace that statements of legal doctrine sound both more determinate and more authoritative than they necessarily are. And this must be especially true of the maxims of equity,1 which possess a peculiarly Delphic quality, wrapped as they are in metaphor, grandly unqualified, and acknowledging no authority but transcendent wisdom. Therein may have lain their particular usefulness to the law.2 But therein too lies a worry. For it follows that reasoning based on a maxim especially facilitates the introduction of unarticulated valuejudgments; and indeed that such reasoning carries an unusually high risk of actual error, as the judges themselves miss their way.
Canadian Perspectives on Chattel Security Law Reform in the United Kingdom
Authors: Ziegel Jacob S.
Published: January 2009

BRITISH commercial law scholars, of whom Prof. Roy Goode and Prof. Aubrey Diamond are two conspicuous examples, have long been attracted to the possibility of using Article 9 of the American Uniform Commercial Code as a basis for modernising and restructuring the English law of chattel security. As readers of Part V of the Crowther Report1 will know, this was the road to reform which the Crowther Committee recommended to the British government as long ago as 1971. In the course of his eighth Crowther Memorial Lecture, given at Queen Mary College in 1983,2 Prof. Goode expressed the hope that before the end of the decade England and Wales would enact the recommendations in the Crowther Report. We know now that he was too sanguine but our hopes were revived when Prof. Diamond submitted his lucid, and in the view of this writer and many others, highly persuasive recommendations to the Department of Trade and Industry in 1989.3
The Law of Taxation in a European Environment
Authors: Tiley John
Published: January 2009

Lacking both the history and the inspiration of predecessors I shall begin, as Professor Stein did, with the conversation between Goethe and Eckermann in which Goethe is said to have likened the Roman civil law to a duck; “sometimes it is visible swimming prominently on the surface of the water; at other times it is hidden diving among the depths; but always it is there”.
Some Problems about Fundamental Terms
Authors: Montrose J. L.
Published: January 2009

Is fitness for purpose a fundamental term in hire-purchase contracts?

The need for clarification of concepts and propositions in the area of the position of exemption clauses has already been demonstrated by the discussion of the difference between “fundamental terms” and “fundamental breach”. In the Charterhouse case we have seen one variety of judicial approach arising from this difference. But there is a further conflict of judicial opinion in the case which calls for further clarification of doctrine. The three members of the Court of Appeal agree that apart from the limited provision of the Hire-Purchase Acts there is to be implied in all hire-purchase agreements a fitness for purpose term. But while Ormerod L.J. describes such a term as fundamental, Upjohn L.J. denies that it possesses this character. Donovan L.J. is probably in accord with the view of Upjohn L.J. though he makes no explicit statement. Upjohn L.J. envisages hire-purchase agreements as containing a fundamental “correspondence with description” term in addition to a non-fundamental “fitness for purpose” term. These judicial opinions are derived from the precedents. These are few in number and can be examined separately. This examination, it is submitted, will show that much of the conflict is terminological and that the subject is in need of further theoretical analysis.
Matrimonial Cruelty and Mens Rea
Authors: Hall J. C.
Published: January 2009

“It seems to me…... that, as with a criminal offence, so in the case of cruelty there must be an element of mens rea.” Thus spoke Willmer L.J. in the recent case of Williams v. Williams, raising thereby a fundamental problem in the law of matrimonial cruelty, and providing incidentally an invitation to attempt an investigation of this difficult (and unsavoury) subject. It is proposed there-fore (I) to inquire in general what intention, if any, is needed in order to be cruel to one's spouse; (II) to ask in particular what is the relevance of mental disorder or illness suffered by an allegedly cruel spouse; and (III) to explore some lines along which this branch of the law might advantageously be reformed.
Some Principles of Fiduciary Obligation
Authors: Sealy L. S.
Published: January 2009

In an earlier article it was suggested that fiduciary relationships could be classified under four heads, in accordance with the different principles which govern each class. It would, of course, be pedantic to insist that these rules, necessarily among the most flexible in equity, should be regarded as rigidly codified and invariably applied strictly and to the letter; but for some purposes it is important to keep the differences between the categories clearly in mind. This is particularly the case with the classes which were referred to in the previous article as categories I and II: in the first group the beneficiary has the advantage of all the proprietary equitable remedies against a trustee, and the fiduciary has comparable duties, while in the second, the beneficiary's remedies (apart from the remission of contracts) are based on equitable obligation only. We shall now examine in more detail the principles governing fiduciaries in these two categories.
Damages in Equity—A Study of Lord Cairns' Act
Authors: Jolowicz J. A.
Published: January 2009

When, if ever, may a court award damages to a plaintiff whose case sounds only in equity, not in law? In Hooper v. Rogers an award of damages in respect of a nuisance which had not yet resulted in any relevant damage was upheld by the Court of Appeal. In Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. Brightman J. awarded substantial damages for breach of a restrictive covenant to the successors in title of the covenantee against the successors in title of the covenantor. In Wroth v. Tyler damages for the non-performance of a contract for the sale of a house were assessed by reference to the value of the house at the date of the hearing, not the date of breach. In none of these cases could the decisions have been justified on common law principles alone and all are in fact founded upon the Chancery Amendment Act 1858, commonly known as Lord Cairns' Act. Yet in Redland Bricks Ltd. v. Morris, while the Court of Appeal considered that an elaborate discussion of that Act was necessary and, indeed, differed in opinion as to the result of its application to the circumstances of the case, the House of Lords, through Lord Upjohn, dismissed the matter briefly and categorically with the observation that Lord Cairns' Act had nothing whatever to do with the principles of law applicable to the case. The time seems ripe for an examination of the meaning and present status of the Act.
Murder—Transferred Malice—Defences Not Expressly Pleaded
Authors: Gooderson R. N.
Published: January 2009

In R. v. Porritt [1961] 1 W.L.R. 1372; 45 Cr.App.R. 348 the accused had been convicted of the capital murder of his stepfather. His defence was that he fired the fatal shot in an attempt to protect the deceased from two members of a rival gang, the Copleys, one of whom was holding a knife at his throat. He further pleaded that he was repelling an armed invasion of his home by the Copleys.

The accused clearly had no desire whatever to harm his stepfather, who seems to have been an active member of the same gang as the accused. He was however prima facie guilty of murder should the prosecution establish his intent by shooting to cause death or grievous bodily harm to the Copleys, under the doctrine of transferred malice, whereby the accused is legally responsible for intended consequences even though they are visited upon an unintended victim: Hopwood (1913) 8 Cr.App.R. 143.

Defences are also transferred with the malice; Conner (1836) 7 C. & P. 438, and the prosecution conceded that the homicide was justifiable if done in the honest belief that it was necessary to preserve the life of his stepfather or to protect his home from invasion. The concession was in generous terms, as the authorities require not merely honest belief on the part of the accused, but reasonable grounds for this belief: Rose (1884) 15 Cox 540. The defence that the Copleys were seeking to dispossess the Porritts carried the matter little further, except that it has been held that there is no duty to retreat in such a case: Hussey (1924) 18 Cr.App.R. 160.
Hire-Purchase Hardships and Hopes
Authors: Thornely J. W. A.
Published: January 2009

Hire-purchase is no longer the preserve of the poor. Since the Second World War it has become respectable and has helped much to raise industrial production and the standard of living. The social importance of the law of hire-purchase has increased proportionately to the leap in the national hire-purchase and instalment debt from some £461,000,000 in 1955 to £950,000,000 in 1961. Public and judicial dissatisfaction with the law has become increasingly apparent. During and since 1961, the centenary of (probably) the first finance company in the world, a vintage crop of cases of major importance has illustrated some of the main defects of the present system and demonstrated the still unsatisfactory position of the hirer. Numerous recent articles in legal and other periodicals harshly criticise the law and urge reforms, some of which were proposed in two abortive Private Member's Bills. Mr. F. Montgomery's Hire-Purchase of Motor-Vehicles Bill failed to get beyond first reading in February 1961 and Mr. W. T. Williams’ Hire-Purchase Bill, designed to extend and supplement the Hire-Purchase Acts of 1938 and 1954, was talked out on second reading in December 1961, after the Parliamentary Secretary to the Board of Trade had recommended the House to await the report of the Molony Committee on Consumer Protection.
The Relevance of Muhammadan Law in the Twentieth Century
Authors: Fyzee A. A. A.
Published: January 2009

Lieutenant-General Sir John Bagot Glubb ends his work onThe Great Arab Conquestswith the following words:

“The relations between Christianity and Islam today justify a brief comment. As Muhammad himself declared, Judaism, Christianity and Islam are three related religions. If we consider them alone, their differences may appear profound, but when compared to Hinduism, Buddhism or Communist atheism, they appear by contrast closely connected with one another. Yet many people regard Christianity and Islam as the great rival religions. This illusion takes its origin, I believe, from political rather than religious causes.

“As our narrative has shown, the first Arab conquerors regarded Byzantium as their principal enemy. In the subsequent Arab conquests of North Africa and Spain, in the Crusades, in the invasion of the Balkans by the Turks, and in their long hostilities with Czarist Russia, nearly all Muslim wars have been directed against Christians. Conflicts between Hindus and Muslims in India have been on an altogether smaller scale and Muslims have scarcely ever been involved in hostilities against Jews except in the last forty years in Palestine.

“This long-standing rivalry between Christians and Muslims has been due to political and geographical accident rather than to basic religious differences. Now that materialist atheism is challenging all spiritual values, the two religions might well make common cause against those who deny the existence of God altogether. There is, I believe, an immense field in which the two could co-operate.

“The Arabic-speaking world, after four centuries of obscurity, is once again playing its part in history.
Previous Consistent Statements
Authors: Gooderson R. N.
Published: January 2009

No expert long range forecast is needed to predict that in the near future a wind of change of a velocity and a turbulence hitherto unknown is going to sweep away many common law principles of the law of evidence regarded in the past as fundamental. In civil proceedings, the hurricane is upon us, with the thirteenth report of the Law Reform Committee, and the Civil Evidence Bill 1967, virtually providing for the abolition of the rule against first-hand hearsay and the rule against narrative, and substituting a wide discretion in the court. All the signs are that in a short time analogous reforms for criminal proceedings will be announced, and already previous statements have been rendered widely admissible by the Criminal Justice Act 1967. The object of this article is to look at the common law relating to the rule against narrative in criminal proceedings, as it is applied in England and in the United States, and to make a few comments on the procedure introduced by section 9 of the Criminal Justice Act 1967.

The rule against narrative is sometimes called the rule against self-corroboration. This is misleading, in that a witness can never corroborate himself where corroboration is required by any rule of law or practice. In the thirteenth report, the first description is said to be a misnomer, but a helpful summary of the rule is given: “what the witness himself said outside the witness-box is not evidence.” Wills describes the rule in this way: “… the witness may not repeat to the Court his own previous narratives or statements concerning the relevant facts made to other persons out of Court; when he is in the witness-box he must take his mind back, directly so to speak, to the facts he is called to prove, and must give to the Court his present recollection of those facts.”
Law and Philosophy: The Contribution of Mr. Roy Stone
Authors: Hadden T. B.
Published: January 2009

The recent trend towards the socialisation of legal studies has not unnaturally caused a good deal of confusion and disagreement on the role of jurisprudence. However, since the law is centred on dispute and argument, there can be little real objection to the extension of the process to the philosophy of law. Still it would be difficult to devise a less immediately appealing way of re-establishing and reviving the subject of jurisprudence than another dose of the schools, or another tendentious review of contemporary exponents. My excuses for doing just that are not even particularly novel—an appreciation of the importance of the pressures towards an empirical approach to law and legal studies, and the usual desire to get some of the more distracting flies safely corked back again into their bottles. However, the total failure of the recent Cambridge Committee on the Organisation of the Social Sciences to produce even the outline of an overall structure for the integrated study of the law as an important means of social control does at least provide a suitable opportunity for the re-examination of the role of jurisprudence.
Legal Politics: Norms behind theGrundnorm
Authors: Dias R. W. M.
Published: January 2009

A revolution in a country is complete in law as soon as its courts hold the new regime to be lawful. If such recognition is delayed, those in power may wax impatient but they know only too well the advantage which the seal of legality carries. In this way is the stage set for a game of manoeuvre between the courts and the rebels, as happened in Rhodesia.
Judicial Discretion to Exclude Prejudicial Evidence
Authors: Livesey Bernard
Published: January 2009

The concern of this article is twofold. In the first place it seeks to question the weight and value of the authority upon which the House of Lords in Selvey v. Director of Public Prosecutions purported to found the existence of a judicial discretion to exclude, in a criminal trial, evidence which is both relevant and admissible, on the ground that it is prejudicial to the accused. Secondly, it seeks to evaluate the contribution which such a discretion has made and is likely to make to the theory and practice of the law of evidence.
European Communities and Constitutional Law
Authors: Dagtoglou P. D.
Published: January 2009

Of all legal disciplines, constitutional law is the most affected by the European Communities and their law. It is true that the law of competition and restrictive trade practices (to take an example) has, to an important extent, been altered and is currently regulated by Community law. However, the new elements in the European law of restrictive practices are only indirectly related to the nature or structure of the Community and its law as such. They could (with the exception of the new possibilities of judicial review through the European Court of Justice) just as well have come from a traditional international treaty as from international law. For, when we think of the law of restrictive practices we mainly think of what the rules say and much less of how they are enacted—in other words the content of rules and much less their legal nature.
The Defective Premises Act 1972—Defective Law and Defective Law Reform
Authors: Spencer J. R.
Published: January 2009

The Defective Premises Act 1972—which did not come into force until 1 January 1974—was intended to do three things: first, it was intended to create a new civil remedy against incompetent architects and jerry builders who design or build bad dwelling-houses; secondly, it was intended to abolish the anomalous immunity of vendors and lessors from negligence actions; and thirdly, it was intended to widen the liability of landlords for defects in the premises which they let. The Act is based on the draft Bill annexed to the Law Commission's fortieth report, “Civil Liability of Vendors and Lessors of Defective Premises”—although in the Act the Law Commission's proposals have been considerably watered down. During the passage of the Act through Parliament the Law Commission was congratulated on its “remarkable piece of work,” and comentators have since welcomed it, either without criticism or else with fulsome praise. So excited was everyone by the label “law reform” that no one seems to have pointed out a number of obvious defects in the Law Commission's original proposals, defects which were multiplied when those proposals were heavily watered down. The final measure is open to a number of criticisms. It is, with all due respect to the Law Commission and to the sponsors of the Bill, a measure which adopts excessively cumbrous means to achieve relatively modest ends; which is drafted in terms which are longwinded, ugly and obscure; and which ultimately changes little—a poor show in view of the complications it creates in the process.
The Completeness of Rules
Authors: Coval S. C. , Smith J. C.
Published: January 2009

J. M. Steiner has argued, in a fashion to be gone into in a moment, that inevitably “the judge retains a field of choice” in legal decision. This choice is substantive and not merely discretionary in some soft sense which would find discretion, like judgment, necessary to the application of any and all rules. The thesis is not the weak one that an official, say a sports referee, must judge—and be allowed the discretion to judge—whether an infraction has been committed before he can apply the relevant rule. It is the strong one that, sometimes at least, an official must himself supply additional premises, which are from “outside” the law, for his decision. These external premises are of the same level of substance and import as any statute or precedent might be.

His argument for this position is negative in form. He holds that since no ordered set of “principles” or goals can give guidance on cases “outside” their range, and since many such cases will systematically exist, the law in order to be decisive—a virtue of high worth—must allow the judge the power to complete the legal argument for such excluded cases. He will do so presumably by supplying the missing premise from his “field of choice” and ex hypothesi not from precedents or statutes. Let us suppose, along with Steiner, that the set of premises whose adequacy is in question is a set which contains the goals of the law. Steiner's position then is that any such set which exists within the law and is “closed” to addition by the judge will be systematically inadequate for some or many cases which can come before him for decision.
Cause and Consideration: A Study in Parallel
Authors: Markesinis B. S.
Published: January 2009

Students interested in the concepts of cause and consideration must, surely, have been struck by two things. The first is the extraordinary tenacity which has enabled these concepts to survive the attacks of eloquent critics who have doubted their utility. The second is their equally remarkable ability to accommodate the most divergent comparative theories. For the study of the two notions has led some to argue that they are, in reality, the same; others to insist that they are totally different; while yet another school of thought could be taken to doubt whether there is “any point in comparing cause and consideration, even to contrast the two.”

The study of the legal systems of many countries—notably of the systems of West Germany, and Switzerland—reveals that there can be built a theory of contract which ignores the concepts of cause (as the French understand it) or consideration (as the Common lawyers have come to apply it over the years).
Amiable Lunatics and The Rule in Foss v. Harbottle
Authors: Rider B. A. K.
Published: January 2009

It is a trite proposition that company directors normally owe their fiduciary duties and those relating to their standard of care, in their capacity as directors, to the company and to no one else. Thus a violation of any such duty may only be redressed by an action brought by the company itself. This is essentially the so-called “rule in Foss v. Harbottle.” However, to this notion has become attached the principle that “the courts will not interfere with the internal management of companies acting within their powers, and in fact do not have the jurisdiction to do so.” It has therefore become established that where the wrong which has been committed against the company may be excused by an ordinary resolution of the shareholders in general meeting the courts will not, save in exceptional circumstances, interfere.
Comparative Law and Legal Change
Authors: Watson Alan
Published: January 2009

Law, of course, exists in society and for society's needs. It is a man-made construct to facilitate social activities. Law is inconceivable without society. Societies vary greatly, and so do legal rules. A perennial question is “Do legal rules reflect a society's desires, needs and aspirations?” The answer which is ordinarily given or is just assumed is positive though minor qualifications are usually urged. And yet, the two most startling, and at the same time most obvious, characteristics of legal rules are the apparent ease with which they can be transplanted from one system or society to another, and their capacity for long life. With transmission or the passing of time modifications may well occur, but frequently the alterations in the rules have only limited significance.
Criminal Libel in Action—The Snuffing of Mr. Wicks
Authors: Spencer J. R.
Published: January 2009

In April 1976 Sir James Goldsmith launched a prosecution for defamatory libel againstPrivate Eye.This unusual legal event received wide publicity, and has already prompted various others to litigate libel in the criminal courts—among them Colin Jordan, and Roger Gleaves, the involuntary star of the television documentary “Johnny Go Home.” As a result of these prosecutions, lawyers have now woken up to the fact that any writing which would ground a civil action for libel is automatically a criminal libel as well. Thus anyone who has written anything defamatory of another is liable to be prosecuted on indictment, with the risk of up to two years' imprisonment and an unlimited fine.
The Application of the Consumer Credit Act 1974 to Consumer Hire Agreements
Authors: Palmer Norman , Yates David
Published: January 2009

I. Introduction

The anomaly of including consumer hire agreements within the purview of the Consumer Credit Act 1974 is more apparent than real. Although contracts of hire do not generally involve the provision of credit, they frequently afford a method of long-term disposition akin to such deferred-purchasing devices as hire-purchase and conditional sale. Indeed, one of the decisions which featured most prominently in the Crowther Committee's discussion of this form of surrogate credit involved a hirer who had failed to realise that the contract under which he held the chattel (a caravan) was one which precluded any acquisition of title by him. The abuse to which this type of transaction was subject clearly justified an extension of the Act to certain forms of consumer hiring. This extension was consonant with the policy, advocated by Crowther, of regulating transactions according to their function rather than their form.
Two Statutory Strict Liabilities
Authors: Rogers W. V. H.
Published: January 2009

Where injury or damage is caused by a public authority in the exercise of its functions it would be broadly true to say that the tendency of the modern law is to equate the authority with a private person or trading company causing the same loss. Qualifications exist, of course, the most important being those relating to the Crown, to statutory authority for works which would otherwise be a nuisance and the principle that the courts should not interfere with intra vires “policy” decisions, but there are now comparatively few substantive or adjectival rules putting a public authority in a protected position. Indeed, there is now some demand that we should place public authorities in an inferior position by exposing them to a regime of strict liability for the risks they create in pursuit of a supposed benefit for us all. In view of this attitude it is perhaps not surprising that we tend to consider the public authority only as defendant, but a recent Court of Appeal decision reminds us that there are still instances of legislative solicitude for the authority as plaintiff. The background involves a long and still unsettled wrangle over statutory interpretation beginning with the famous case of River Wear Commissioners v. Adamson.
The International Court of Justice and the General Act Of 1928
Authors: Merrills J. G.
Published: January 2009

The 1928 General Act for the Pacific Settlement of International Disputes was the creation of the ninth session of the League of Nations. Containing important provisions on judicial settlement, as well as on conciliation and arbitration, the Act provided the Permanent Court of International Justice with an indisputable basis of jurisdiction. Whether the Act survived the demise of the League and is equally effective today is, however, a matter of some disagreement.
Material and Formal Authorisation in Kelsen's Pure Theory
Authors: Paulson Stanley L.
Published: January 2009

What sort of relation, according to the Pure Theory of Law, does a higher-order norm bear to a lower-order norm? Does the higher-order norm in effect subsume the lower-order norm? And if so, is subsumption sufficient for authorisation, such that subsumption of a norm under an appropriate higher-order norm authorises, say, a legal official's “choice” of that norm? This interpretation of authorisation in the Pure Theory of Law, fine as far as it goes, would be misleading if offered as a full statement. For Hans Kelsen in fact works with two types of authorisation, what I term material authorisation, wherein authorisation of a lower-order norm stems from the applicable higher-order norm, and formal authorisation, wherein authorisation of a lower-order norm flows from the power of the legal organ that creates, applies, or validates that norm.
The Unanimous Consent Rule in Company Law
Authors: Gratham Ross
Published: January 2009

In the history of the modern company the shareholder has held a privileged position, for although the company's separate identity is the fundamental tenet of company law the shareholder's place as proprietor has only recently been questioned. It is perhaps not surprising therefore that for nearly a century the unanimous assent of shareholders has held the status of an overriding authority, able to cure procedural defects, overcome statutory requirements and validate almost any act within the capacity of the company. In its most recent application in Brick and Pipe Industries Ltd. v. Occidental Life Nominees Pty. Ltd., where the consent of shareholders was held to bind the company to a guarantee, we have a striking example of the authority accorded to the wishes of shareholders.
Governmental Liability after Francovich
Authors: Caranta Roberto
Published: January 2009

Governmental liability used to be on the retreat, especially but not only in the field of negligence liability. InBourgoin S.A. v. Ministry of Agriculture, Fisheries and Foodthe majority of the Court of Appeal flatly stated that not every infringement of Community law was a tort. Moreover, in the recent decision inMurphy v. Brentwood District Councilthe House of Lords, departing fromAnns v. Merton London Borough Council, dramatically curtailed any hope—or fear, it depends on the point of view—of development of governmental liability in the field of economic loss.
Exclusion Clauses and Contracts for the Sale of Land
Authors: Harpum Charles
Published: January 2009

This article is a study of judicial attitudes to exclusion clauses in contracts for the sale of land. It examines the various devices which the courts have developed in order to limit the effect of such clauses and suggests that one of these devices has emerged as paramount: the principle that a vendor may, in appropriate circumstances, be estopped from relying on a condition by reason of his knowledge or conduct. One form of this estoppel will be shown to be of particular importance. This is the “well-established rule of equity” that a vendor of land cannot rely on a condition of sale, framed in general terms, to cover a specific encumbrance or other defect in title of which the vendor knew or ought to have known, and which he failed to disclose to the purchaser prior to contracting. The culmination of the article is a study of the rationale and precise manner of operation of this rule-which for convenience will be called the “no-disclosure, no-reliance” rule.
Absence of Consideration in the Law of Bills and Notes
Authors: Geva Benjamin
Published: January 2009

By the latter part of the sixteenth century the theory of liability on bills of exchange had been adapted to common law theory of contract so as to lie in assumpsit. In 1787 it was fully settled by the House of Lords that all “contracts in writing … [which are] merely written and not specialties … are parol” and require consideration. Promissory notes and bills of exchange fell into this category. Indeed, “bills and notes were contracts and being such there was no persuasive reason why the basis of liability on a bill or note should be any different from that on any other written contract for payment of money.” While there is no provision in the Bills of Exchange Act (“the Act”) directly to the point, it is well established indeed that consideration of “value” is needed for the creation of an obligation under a negotiable instrument. According to Chalmers, “where B, by way of gift, makes a note in favour of C, C cannot recover from B.”
Forum Non Conveniensin Europe
Authors: Kennett Wendy
Published: January 2009

Various authors have drawn attention to the fact that a new European law of civil procedure is in the process of being created. The kernel of this new law is the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Further areas of law are in part harmonised by the 1965 Hague Service Convention and the 1970 Hague Evidence Convention. While a certain set of “core” European rules has been established, there remains a penumbra: an area within which it is unclear how far traditional national rules may retain a role.
The New Tort of Appropriation of Personality: Protecting Bob Marley's Face
Authors: Hylton Michael , Goldson Peter
Published: January 2009

As far back as 53 years ago, the adaptability of the common law to changing circumstances whereby new rights have been created by the courts, has been observed and accepted as a function of the judiciary. Scott L.J. in his dictum in Haseldine v. Daw stated: The common law has throughout its long history developed as an organic growth, at first slowly under hampering restrictions of legal forms of process, more quickly in Lord Mansfield's time, and in the last 100 years at an ever increasing rate of progress as new cases, arising under new conditions of society, of applied science and of public opinion, have presented themselves for solution.
Who Owns State Papers?
Authors: Brazier Rodney
Published: January 2009

The sale by the Churchill trustees of Sir Winston Churchill's pre-1945 personal papers to Churchill College, Cambridge early in 1995 caused much controversy. Over £12 million, generated by the National Lottery, was used by the National Heritage Memorial Fund to make the purchase, producing the jibe that the Trust's beneficiaries (notably the great man's grandson, Winston Churchill, MP) had won the Lottery without having to buy a ticket. This little drama brought into focus a number of constitutional questions about state papers.
The Licensee's Period of Grace: Bellotti Reconsidered
Authors: Kerbel Tamara
Published: January 2009

At present the law fails to provide an adequate balance between the interests of licensor and licensee when a licensor revokes a licence but gives an unreasonably short notice. The prevailing orthodoxy has followed the Court of Appeal decision in Minister of Health v. Bellotti. This article will argue that the consequences of this decision have proved disastrous for both licensors and licensees. In direct conflict with Bellotti is the Privy Council authority of Canadian Pacific Railway Company v. The King.
Sir John Melton's Case (1535): Cockermouth Castle and the Three Silver Luces
Authors: Baker J.H.
Published: January 2009

“FOR who shall interest us in contingent remainders,” wrote the young Mr. Maitland in 1879, “… while Chinese metaphysics remain unexplored.” It would indeed be a daunting challenge to kindle even a bare possibility of historical interest in the nooks and crannies of Fearne's elaborate learning. Yet so much progress has been made with Chinese metaphysics since 1879 that perhaps the time has come to riska brief excursion into the history of the contingent remainder. The occasion is a chance discovery in the Public Record Office which unlocks the strange story behind one of the first leading cases on the subject.
The Common Law, Reasons and Administrative Justice
Authors: Craig P.P.
Published: January 2009

The capacity of the common law to develop and evolve is well recognised within both private and public law. This is indeed one of its enduring qualities. The objective of the present article is not, however, to contribute to the jurisprudential debate concerning the nature of the adjudicative process at common law. My object is more modest. It is to consider and place in perspective some of the recent developments which have occurred at common law in relation to the duty of public authorities to provide reasons. It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision. It is equally well known that this proposition has been the target of regular attack by those who argue that such a general duty should exist. A reconsideration of both of these propositions is timely in the light of case law developments culminating in the House of Lords' judgment in R. v. Secretary of State for the Home Department, ex p. Doody.