Showing papers in "Cambridge Law Journal in 1984"

Formalities for Trusts of Land, and the Doctrine in Rochefoucauld v. Boustead

Abstract: In 1677 the Statute of Frauds1 introduced2 formalities for the creation of trusts of land. Section 7 required that,… all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing signed by the party who is by law entitled to declare such trust, or by his last will in writing, or else they shall be utterly void and of none effect.This requirement (or something like it) has been adopted in most common law jurisdictions and remains applicable today in England in the form of section 53(1) of the Law of Property Act 1925. Despite the provision's apparently comprehensive and drastic effect, judicial decisions have reduced its impact. Of most importance is the doctrine which I shall name after the case, Rochefoucauld v. Boustead, in which it was authoritatively described by Lindley L.J. He said this:

The Test of Dishonesty in R. v. Ghosh

Abstract: The nature of the test of dishonesty in offences under the Theft Acts 1968 and 1978 and in conspiracy to defraud has long been a matter of dispute. There have been several conflicting decisions of the Court of Appeal and of the Divisional Court. In essence, two lines of authority had emerged. Both agreed, following Feely, that, on trial on indictment, the question of dishonesty was one for the jury, and both agreed that the test was, at least in part, one of moral judgement. One line, however, said that the moral judgement was that of the accused himself, the other that it was the moral judgement of the reasonable and honest man (or some variant of this.)

Some Problems about Precedent

Abstract: Before this article went to press, I was fortunate enough to receive a set of comments from Jim Evans These comments are contained in his “The Status of Rules of Precedent: A Brief Reply” which is printed in this volume, and I have adopted the editor's suggestion of incorporating a response to Evans in my text Remarks provoked by Evans's note occur at the end of Section II and the end of Section III

Status: Problems of Definition and Use

Abstract: Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies. For example R. H. Graveson, in the course of a general examination of the place of status in the common law, paid particular attention to Maine's thesis1 and Max Gluckman relied upon it in his investigations of Lozi law and society.2 There has, however, been considerable controversy over both the legal-historical and the anthropological use of Maine's dictum. Some writers have accepted that the common law has progressed from status to contract; others have rejected this or held it to be true only in the most limited sense. Equally there has been acceptance and denial of the view that the modern law is disclosing a reversion from contract to status. Further there is no consensus on the extent to

Aspects of the Wage-Work Bargain

Abstract: Some apparently elementary questions relating to the content of the contract of employment continue to pose problems for practitioners and academics alike, as recent developments show. These developments focus attention on the employee's right to payment of wages, and how and to what extent this right may be qualified or defeated by two fairly common features of industrial life: temporary absence of the employee from work, and defective performance by the employee of the obligations arising under his contract of employment.

A Case for Recognising Economic Loss in Defective Building Cases

Abstract: The history of a typically defective building may be traced as follows. The building is badly constructed, often because the foundations are too shallow to support it. Soon after this the building is purchased and it may later be sold to a second purchaser. The inadequate foundations gradually shift and cracks appear in the structure and the owner discovers the state of the building. He sues the builder for negligently constructing the building and the local authority for negligently failing to require the builder to conform to the Building Regulations, which require adequate foundations be laid to support the load of the building.

Relief against Forfeiture and the Purchaser of Land

Abstract: A Purchaser of land who fails to complete his contract for some reason stands to lose his equitable estate in the land and may also forfeit any deposit or other prepayments that have been made. The purpose of this article is to investigate the circumstances in which such a purchaser may obtain equitable relief against forfeiture, and to argue that the jurisdiction to give relief is broader than has been thought in recent years. The matter has been the subject of two recent decisions of such importance that an appraisal of the law seems apposite. To define the field of inquiry, it is helpful to consider two preliminary matters

Options: as Safe as Houses?

Abstract: Options over land have formed part of the law of real property for a long time. Their oldest uses are probably in the context of wills, allowing stated persons to purchase part of the testators” property, and in the law of landlord and tenant, giving the tenant the right to call for a renewal of the term or in some cases to purchase the freehold. Options are still used for both of these purposes, although statutory developments in the law of landlord and tenant have rendered the option to renew of less significance than was once the case. In addition, other uses have been found for options by landowners and conveyancers.