Showing papers in "Cambridge Law Journal in 1978"
TL;DR: In this paper, the authors point out 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.
Abstract: 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.
125 citations
84 citations
TL;DR: In an imperfect world, imperfect men have never lived in harmony; the consequences have been inevitable, regrettable and, often, productive of legal history as discussed by the authors. Even the neatest householder, the most peaceable citizen, is sometimes a bad neighbour.
Abstract: In an imperfect world, imperfect men have never lived in harmony; the consequences have been inevitable, regrettable and, often, productive of legal history. Even the neatest householder, the most peaceable citizen, is sometimes a bad neighbour. He chooses to fiddle when I choose to nap; he permits his dog to howl at midnight; he kindles his back-yard fire where its smoke will choke my back-yard guests. More serious, and more relevant in terms of legal consequences, he manufactures strange and noxious odours which he allows to escape from his premises or he throws waste material into the stream which wanders across his property on its way to my own land. Disregard for the convenience, well-being and property rights of others is not unique to the twentieth century; the under-lying problem of the bad neighbour was well enough known to the twelfth. Then, and long thereafter, one man's mill needed more water to grind efficiently and so he diverted the millstream with only passing regret, if that, for what the diversion might mean to his neighbour's mill downstream. His sheep escaped from pasture and so he raised a hedge across an entry, thereby forcing his neighbour's flock to find a new and less convenient path.Response could always be immediate and forceful; self-help has the virtues of speed, simplicity and cheapness. But unless the creator of the offending mill or hedge was willing to accept his neighbour's response, what was originally an attempt at unilateral solution of a problem could well escalate into a quarrel culminating in violence out of proportion to the issue.
16 citations
TL;DR: The problem of reconstructing the development of liability for animals in Roman law is attended by major difficulties for the historian as mentioned in this paper, and the problems of reconstruction of the legal development of animal liability are considerable.
Abstract: The problems of reconstructing the development of liability for animals in Roman law are considerable. Each of the remedies is attended by major difficulties for the historian. We have the following:(1) A Twelve Tables remedy for pauperies—an archaic term, the meaning of which is obscure;(2) A Twelve Tables remedy for depasturation, of which there is no surviving quotation, but only a small number of allusions;(3) An edictum on dogs and certain wild animals, undated and surviving in two versions with hardly any juristic interpretation;(4) A “lex Pesolania” concerning dogs, the very existence of which has been questioned;(5) The classical actio de pauperie, the basis, extent, and remedy for which have all been assailed by the interpolationists;(6) The classical actio de pastu, evidently superseded by Justinian's day and thus leaving but few traces.The Common Lawyer, to whom these remedies may reasonably evoke the types of damage represented by scienter and cattle-trespass and the special rules for dogs and ferae, will not be surprised to find, in addition, the application of general culpa principles by the extension of the actio legis Aquiliae.I. The Decemviral RemediesSome strands of ancient tradition maintain that the Decemvirs adopted an eclectic method, incorporating within the Twelve Tables both ancestral custom and foreign law.
13 citations
TL;DR: 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 as mentioned in this paper.
Abstract: 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.
12 citations
TL;DR: In this article, the authors apply to any contract only to the extent that the contract relates to the transfer of the ownership or possession of goods from one person to another (with or without work having been done on them), constitutes a contract of service or apprenticeship; and relates to services of whatever kind, including (without prejudice to the foregoing generality) carriage, deposit and pledge, care and custody, mandate, agency, loan and services relating to the use of land.
Abstract: (2) Subject to subsection (3) below, sections 16 [and 17] of this Act apply to any contract only to the extent that the contract— (a) relates to the transfer of the ownership or possession of goods from one person to another (with or without work having been done on them); (b) constitutes a contract of service or apprenticeship; (c) relates to services of whatever kind, including (without prejudice to the foregoing generality) carriage, deposit and pledge, care and custody, mandate, agency, loan and services relating to the use of land; (d) relates to the liability of an occupier of land to persons entering upon or using that land; (e) relates to a grant of any right or permission to enter upon or use land not amounting to an estate or interest in the land.
9 citations
TL;DR: The distinction between the concepts of cause and consideration has been studied extensively in the legal literature as discussed by the authors. But their utility has been questioned by some who argue that they are, in reality, the same.
Abstract: 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).
7 citations
TL;DR: The law about the remoteness of damage in contract and tort is in a strangely unsettled state as discussed by the authors, and 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.
Abstract: 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.
5 citations
TL;DR: The way in which English courts and tribunals construe and apply Community law is of manifold interest, not least to the outside observer as mentioned in this paper, and it is worth noting that even if they were prepared, as was Lord Denning in Bulmer v. Bollinger, to concede that Community law (unlike English law) is expressed in sentences of moderate length and commendable style, they hastened to add that community law, and Continental law behind it, “lacks precision, lacks interpretation clauses and is full of gaps and lacunae.
Abstract: The way in which English courts and tribunals construe and apply Community law is of manifold interest, not least to the outside observer. English judges reacted at first with misgiving. Even if they were prepared, as was Lord Denning in Bulmer v. Bollinger, to concede that Community law (unlike English law) is expressed “in sentences of moderate length and commendable style,” they hastened to add that Community law, and Continental law behind it (unlike English law), “lacks precision,” lacks interpretation clauses and is full of gaps and lacunae.
3 citations
TL;DR: The legal position for the unmarried couple is, to a large extent, dictated by the prevailing policy that marriage should be encouraged as discussed by the authors, and the opposing trends, both practical as well as changing moral norms, have not been sufficiently powerful for any substantial policy shift.
Abstract: 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.
TL;DR: In this article, it has been shown that an equitable lease does not give rise to privity of estate, unless the necessity for a deed has been overlooked or if there is merely an agreement for a lease.
Abstract: It has long been established that covenants in legal leases are enforceable where there is privity of contract or privity of estate. Privity of contract exists where the litigants are the original parties to the lease and where the benefit of the covenant has been assigned. Privity of estate applies where the parties are in the relationship of landlord and tenant. Thus an assignee of the landlord's freehold reversion and an assignee (but not sub-lessee) of the lease are in privity of estate. The traditional view is that privity of estate requires a legal lease. This limits the running of covenants in equitable leases (there will be an equitable lease if the necessity for a deed has been overlooked or if there is merely an agreement for a lease). The principle that an equitable lease does not give rise to privity of estate has several important exceptions. Before these are considered, however, it is expedient to examine the general principle.In recent years the principle has come under attack. The source of the attack emanates from the celebrated dicta of Jessel M.R. in Walsh v. Lonsdale, describing the effect of the Judicature Act 1873:There are not two estate as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease.
TL;DR: Barwick C.J. and Windeyer J. agreed that if she had been a party the fact that it was her husband who had provided the consideration would not have been an impediment to her as discussed by the authors.
Abstract: It is one of the best-known axioms of the common law of contract that consideration must move from the promisee. Expanded, this means that no person can in contract enforce a promise for which he has not provided consideration. As a principle, it has on its side the highest authority and a reasonable degree of antiquity.Ten years ago, however, the High Court of Australia came up with a formula which, while purporting to respect the principle, would, if accepted, have the effect of reducing its impact in a potentially important group of cases. In Coulls v. Bagot's Executor and Trustee Co. Ltd. four of the five High Court judges expressed the view that a joint promisee, if she were party to a contract, could sue to enforce it notwithstanding that she had not herself furnished any part of the consideration. The case concerned a widow whose late husband had contracted to grant a licence to a quarrying company for the extraction of metal from a quarry which the husband owned. Under the contract royalties were to be paid to the husband and wife jointly while they both lived, and there after to the survivor of them. The wife's only part in the proceedings had been to append her signature to the contract document. Barwick C.J. and Windeyer J. (dissenting) held that the plaintiff was a party to the contract and, as a joint promisee, could enforce it notwith-standing that her husband alone had provided the consideration. McTiernan, Taylor and Owen JJ. agreed that if she had been a party the fact that it was her husband who had provided the consideration would not have been an impediment to her.