Showing papers in "Cambridge Law Journal in 1991"
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TL;DR: Proudhon got it all wrong. Property is not theft, it is fraud, and it is a mere illusion as mentioned in this paper. But the ultimate fact about property is that it does not really exist: it is mere illusion.
Abstract: Proudhon got it all wrong. Property is not theft—it is fraud. Few other legal notions operate such gross or systematic deception. Before long I will have sold you a piece of thin air and you will have called it property. But the ultimate fact about property is that it does not really exist: it is mere illusion. It is a vacant concept—oddly enough rather like thin air.
188 citations
TL;DR: In this article, the authors consider the person of the man, where there is no commonwealth; or, in a commonwealth, from the person that representeth it; or from an arbitrator or judge, whom men disagreeing shall by consent set up, and make his sentence the rule thereof.
Abstract: [W]hatsoever is the object of any man's appetite or desire, that is it which he for his part calleth good: and the object of his hate and aversion, evil; and of his contempt, vile and inconsiderable. For these words of good, evil, and contemptible, are ever used with relation to the person that useth them: there being nothing simply and absolutely so; nor any common rule of good and evil, to be taken from the nature of the objects themselves; but from the person of the man, where there is no commonwealth; or, in a commonwealth, from the person that representeth it; or from an arbitrator or judge, whom men disagreeing shall by consent set up, and make his sentence the rule thereof.
21 citations
19 citations
TL;DR: The case that seemed to many to be the most important statement of the law of negligence in England since Donoghue v. Stevenson has been finally done to death by a specially augmented House of Lords in Murphy v. Brentwood District Council as discussed by the authors.
Abstract: After a decade of adventure, Anns v. Merton Borough Council has been killed off. The case that seemed to many to be the most important statement of the law of negligence in England since Donoghue v. Stevenson has been finally done to death by a specially augmented House of Lords in Murphy v. Brentwood District Council?For the House of Lords openly to overrule one of its own previous decisions is itself an event rare enough to deserve comment. But when the Law Lords, by 7–0, declare unsound a case that has been cited in 189 English cases in only 13 years (and until recently mostly with approval), we know that something extraordinary has happened.
11 citations
TL;DR: In this article, the constitutional jurisprudence of the federal republic of germany is a good habit; it will not make it as disturbing activities or as boring activity.
Abstract: Will reading habit influence your life? Many say yes. Reading the constitutional jurisprudence of the federal republic of germany is a good habit; you can develop this habit to be such interesting way. Yeah, reading habit will not only make you have any favourite activity. It will be one of guidance of your life. When reading has become a habit, you will not make it as disturbing activities or as boring activity. You can gain many benefits and importances of reading.
9 citations
9 citations
TL;DR: In this article, 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.
Abstract: 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.
7 citations
6 citations
TL;DR: In this paper, the authors defend the notion that the mens rea of a criminal attempt should consist in intention as to the central or consequential aspects of the actus reus of the complete offence, even when such intention is not required for that complete offence.
Abstract: This paper defends a version of the doctrine that the mens rea of a criminal attempt should consist in intention as to the central or consequential aspects of the actus reus of the complete offence, even when such intention is not required for that complete offence, but need only involve recklessness as to the circumstantial aspects of the complete offence if such recklessness suffices for the complete offence. Attempted rape should require an intention to have sexual intercourse, but only recklessness as to the fact that the woman does not consent. Attempted criminal damage should require an intention to destroy or damage (though the complete offence requires no such intention), but only recklessness as to the fact that what is destroyed or damaged is“property belonging to another”.
5 citations
TL;DR: In this paper, a man attempts to commit the act of sex with a woman, aware that she may not consent, and is indifferent about it, but the problem is to square this with the statutory rule that rape requires intention.
Abstract: 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.
TL;DR: In what circumstances, and under what conditions, should a journalist be obliged by law to divulge the identity of the source of information contained in a published article, when anonymity may have been promised the source, or receipt of information in the future may be thought to depend on the preservation of anonymity now? Section 10 of the Contempt of Court Act 1981 provides a framework for determining an answer to that controversial question.
Abstract: In what circumstances, and under what conditions, should a journalist be obliged by law to divulge the identity of the source of information contained in a published article—when anonymity may have been promised the source, or receipt of information in the future may be thought to depend on the preservation of anonymity now? Section 10 of the Contempt of Court Act 1981 provides a framework for determining an answer to that controversial question, as it arises in particular cases before the courts:
TL;DR: Weig et al. as mentioned in this paper argued that the maintenance of capital doctrine does not come within the tenns of the new section 35 of the Companies Act 198S, and there is no indication that this section was intended to exclude the company's ability to return capital to shareholders.
Abstract: ions for personal use are not for the benefit of the company itseIf. This view accords with the fundamental principle of separate corporate personality and reflects sound policy considerations in that it prevents abuse of the corporate structure. D. Maintenance of Capital Doctrinel°5 Another doctrine can be relied upon to support the conclusion that the absolute controllers are unable to consent on behalf of the company to the abstraction; this is the maintenance of capital doctrine. This principle was developed in a number of late nineteenthcentury casesl06 and was well summarised by Brooking J. in Roffel:l07 "every transaction between a company and any of its members, by means of which any capital is repaid to him, is prohibited, unless the court has sanctioned the transaction". 1()8 There are dicta in a number of casesl09 suggesting that if the maintenance of capital doctrine is breached this will be ultra vires the company. Since the ultra vires principle has been effectively abolished, this raises the question as to whether the maintenance of capital doctrine is also affected. It is submitted that the latter doctrine is not concerned with lack of capacity; the company does have capacity to return capital to its shareholders but this is illegalll° and so invalid. The maintenance of capital doctrine does not come within the tenns of the new section 35 of the Companies Act 198S, and there is no indication that this section was intended to exclude the maintenance of capital doctrine. The doctrine is of particular application to abstractions from absolutely controlled companies. lt is clear that if the maintenance of capital doctrine is transgressed then the shareholders are unable to authorise or ratify a payment.'ll In Re Halt Carage (1964) Ltd.'32 '05 This is analysed very well by G. Williams in "Theft by Company Controllers-A New Zealand View" (1989) 38 I.C.L.Q. 913, 921-923. MacDougall w. Jersey Imperial Hotel Co. Lld. (1864) 2 H. and IU. 527; Re Exchange Bank Co. (1882) 21 Ch. D. Sl9; Guinness v. Land Corp. of lreiand (1882) 22 Ch.D. 349; Treor v. Whitworth (1887) 12 App. Cas. 409. It is possible to return capital to shareholders under the Companies Act 1985, but strict conditions must be complied with. Return of c3pital is now governed by ss. 135ff. (reduction of capital) and ss. lS9ff. (redemption or repurchase of shares) Companies Act 1985. l07 [19BSI V.R. 511, S25 " As with an ultra vires disposition, a disposition of company property in contravention of the maintenance of capital doctrine cannot be ratified, even by the unanimous decision of all shareholders: Re Exchange Banking Co. (1882) 21 Ch.D Sl9. '09 Re Exckange Banking Co. (1882) 21 Ch.D. 519; Ridge Securities Ltd. v. I.P¢.C. 11964] 1 All E.R. 275; Re Halr Garage (1964) Ltd. [1982] 3 A]l E.R. 1016; Aeling Barford v. Perto (1989) SB.C.C. 677,682. Horrwitz, "Company Law Reform and the Ultra Vires Doctrinc" (1946) 62 L.Q.R. 66, 7>74; Williams (1989) 38 I.C.L.Q. 913, 922: "The ultra vires doctrine pertains to the capacity of the company to undertake a particular act, and is not relevant to an act which is capable of performance, but is prohibilcd from being so performed." 111 Ridge Secarities Ltd. v. I.R.C. [1964] I W.L.R. 479; Re Etorsley atld WeigS7t {1982] Ch. 442. 454; Aveling Barford v. Perion (1989) 5 B.C.C. 677. 682. 112 [19821 3 All E.R. 1016, 1038. This content downloaded from 207.46.13.16 on Thu, 16 Jun 2016 06:18:04 UTC All use subject to http://about.jstor.org/terms The Cambridge Law Journal 11991] 486 Oliver J. stated that "a gratuitous payment out of the company's capital to a member qua member, is unlawful and cannot stand, even if authorised by all the shareholderss'. SQ long as it is capital that is being abstracted from the company the absolute controller is unable to authorise the abstraceion. There is some uncertainty as to the ambit of the doctrine but ie appears that it covers borrowed money;"3 this corresponds with the rationale of the doctrine, which is to protect the position of shareholders and creditors.