scholarly journals THE DOCTRINE OF BENEFIT AND BURDEN: REFORMING THE LAW OF COVENANTS AND THE NUMERUS CLAUSUS “PROBLEM”

2018 ◽  
Vol 77 (1) ◽  
pp. 72-96
Author(s):  
Chris Bevan
Keyword(s):  
Indirect Method ◽  
Theoretical Issue ◽  
Recent Reform ◽  
Numerus Clausus ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Reform Debate

AbstractThe doctrine of benefit and burden – an indirect method for enforcing the burden of positive freehold covenants – developed as an exception the strict Austerberry rule that the burden of positive covenants cannot bind successors directly at law. Three recent Court of Appeal cases (Davies v Jones; Wilkinson v Kerdene and Elwood v Goodman) confirm the continued existence and application of the doctrine but also reveal its deficiencies and limitations. This article explores the contemporary application of the doctrine, identifies its theoretical, historical and elemental frailty and, drawing on recent reform proposals of the Law Commission, highlights the case for reform. In so doing, this article argues that a vital theoretical issue has been overlooked in the reform debate: the numerus clausus principle.

scholarly journals Culpability, Kingston and the Law Commission

2010 ◽  
Vol 74 (5) ◽  
pp. 434-471 ◽  
Author(s):  
Cath Crosby
Keyword(s):  
Justice System ◽  
Criminal Liability ◽  
Character Theory ◽  
Criminal Offence ◽  
Pragmatic Approach ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission ◽  
Do So

This article considers the basis upon which a person should be held to be criminally liable, and to do so, it is necessary to examine the leading theories of character and choice that underpin the State holding a person to be culpable of a criminal offence, i.e. the link between culpability and fault. The case of R v Kingston1 is used to examine the application of these leading theories and it is observed that choice theorists would not excuse such a defendant from criminal liability even though his capacity to make a choice to refrain from law breaking was made extremely difficult by external factors beyond his control. Only character theory could possibly offer exculpation in such circumstances on the basis that the defendant acted ‘out of character’ and his deed did not deserve the full censure and punishment of the criminal law. The Court of Appeal in R v Kingston would have been prepared to excuse, but the House of Lords, and most recently the Law Commission have adopted a pragmatic approach to the involuntarily intoxicated offender. This case serves as a reminder that while justice is the aim of the criminal justice system, it is not an absolute standard.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

Land Law

2020 ◽  
Author(s):  
Elizabeth Cooke
Keyword(s):  
Land Law ◽  
Unique Role ◽  
The Supreme Court ◽  
Static Security ◽  
The Law ◽  
The Many ◽  
Ownership Of Land ◽  
Court Of Appeal ◽  
Law Commission

This book is an account of the land law of England and Wales written in the Clarendon style: as a letter to a friend, with a minimum of footnotes and statutory material. It explains the origins of land law in the feudal system, its transformation by the legislation of 1925, and the modern regime in which registration is the key to the validity and enforceability of interests in land. The unique role of the trust in English law is explored, and the many complications that can arise where ownership of land is shared (whether concurrently or consecutively). Themes of the book include the management of complexity in land law, and the tension between dynamic and static security. The law of mortgages, leases, easements, and covenants is explained. Recent decisions of the Court of Appeal and the Supreme Court are discussed, as are reform proposals by the Law Commission.

Rationality and the Rule of Law in Offences Against the Person

1994 ◽  
Vol 53 (3) ◽  
pp. 502-523 ◽  
Author(s):  
John Gardner
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Rule Of Law ◽  
Justice System ◽  
The Rule Of Law ◽  
House Of Lords ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission

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.

scholarly journals Confessions and the Criminal Justice Act 2003

2013 ◽  
Vol 77 (3) ◽  
pp. 231-254
Author(s):  
Michael Stockdale ◽  
Joanne Clough
Keyword(s):  
Criminal Justice ◽  
Third Parties ◽  
Criminal Proceedings ◽  
England And Wales ◽  
The Law ◽  
Hearsay Evidence ◽  
Court Of Appeal ◽  
Law Commission

The admissibility of hearsay evidence in criminal proceedings in England and Wales is now governed by provisions of the Criminal Justice Act 2003, a result of Law Commission reform proposals. The Law Commission's Report left several issues concerning the admissibility of confessions in the context of its proposed hearsay regime unclear, some of which have not yet been clarified by the post-2003 Act jurisprudence. In particular, whilst the authorities have established that confessions made by third parties may be admissible in exceptional circumstances, the courts have not yet engaged with s. 128(2) of the 2003 Act which limits the extent to which confessions made by defendants may be admissible under the 2003 Act's provisions. Moreover, whilst the Court of Appeal has recognised both that certain confessions may exist outside the 2003 Act's statutory framework and that the admissibility of such a confession for the prosecution when made by a defendant is governed by s. 76 of the Police and Criminal Evidence Act 1984, other issues concerning the admissibility of such confessions have not yet been resolved.

Proposals for Reforming the Law of Self-Defence

2008 ◽  
Vol 72 (5) ◽  
pp. 409-440 ◽  
Author(s):  
Amir Pichhadze
Keyword(s):  
Reasonable Person ◽  
Objective Standard ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
Significant Attention ◽  
Law Commission ◽  
Self Defence

The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.

Her Majesty's Attorney General - v - Akhter & Ors.

2021 ◽  
Vol 2 (1) ◽  
Author(s):  
Thomas Francis
Keyword(s):  
Attorney General ◽  
Spousal Support ◽  
Public Consultation ◽  
Civil Marriage ◽  
The Status ◽  
The Law ◽  
Court Of Appeal ◽  
Ancillary Relief ◽  
Law Commission

This brief considers the February 2020 judgment of the Court of Appeal of England & Wales in Akhter - v - Khan, an appeal brought by the Attorney General against the decision at first-instance to grant the petitioner wife, Akhter, a decree nisi, or provisional decree of divorce. The decision of the Court of Appeal was against the backdrop of the Law Commission holding a public consultation into the status at law of certain 'religious-only' marriages (including Islamic weddings) and whether, absent a contemporaneous or succeeding civil marriage, they are to be regarded as void (entitling petitioners to ancillary relief, such as spousal support) or 'non-marriages'.

scholarly journals A Personal Perspective on Legislation: Northern Milk Revisited – Soured or Still Fresh?

2016 ◽  
Vol 47 (4) ◽  
pp. 699
Author(s):  
Douglas White
Keyword(s):  
Common Sense ◽  
Practical Approach ◽  
Personal Perspective ◽  
Statutory Interpretation ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission

The thesis of this article is that the overarching objective of statutory interpretation is to "make the Act work" as the Court of Appeal held in Northern Milk. This requires a common sense and practical approach. The article demonstrates the thesis by reference to subsequent Court of Appeal decisions and the complementary legislation establishing the Law Commission and the Parliamentary Counsel Office. The issues raised by the Law Commission’s recently reactivated reference on the law of contempt of court are considered by way of example. The conclusion is that the Northern Milk approach remains apposite.

scholarly journals Reflections on the Woodhouse Legacy for the 21st Century

2020 ◽  
Vol 51 (2) ◽  
pp. 295
Author(s):  
Susan St John
Keyword(s):  
21St Century ◽  
Law And Society ◽  
Royal Commission ◽  
Compensation Scheme ◽  
Social Conscience ◽  
Accident Compensation ◽  
The Law ◽  
Court Of Appeal ◽  
Law Commission

This lecture commemorates the life of one of our most distinguished judges and citizens, Sir Owen Woodhouse. His compassion, generosity of spirit and social conscience were reflected in his work as President of the Court of Appeal, President of the Law Commission and Chairman of the Royal Commission on Compensation for Injury that recommended a no-fault accident compensation scheme and laid the foundations for the Accident Compensation Corporation (ACC) scheme. He made an immense contribution to New Zealand's law and society.

Peranan KPPU Bagi Pemangku Kepentingan Dalam Menegakkan Undang-Undang Larangan Praktik Monopoli Di Indonesia

Liquidity ◽  
2018 ◽  
Vol 3 (2) ◽  
pp. 190-200
Author(s):  
Muchtar Riva’i ◽  
Darwin Erhandy
Keyword(s):  
Stakeholder Participation ◽  
The People ◽  
The Law ◽  
The Government ◽  
Law Commission

The establishment of the KPPU is to control the implementation of the Act. No. 5/1999 on Concerning the Ban on Monopolistic Practices and Unfair Business Competition in Indonesia. Various duties and authority of the KPPU contained in Article 35 and Article 36 of the Act. But in reality, KPPU does not have executorial rights so that the various decisions of the commission often could not be implemented. Therefore internally strengthening of institutional existence by way of amending the Law Commission is very appropriate to be used by the government and parliament agenda. Externally, stakeholder participation is something very urgent and that the KPPU’s strategic optimally capable of performing their duties according to its motto: “Healthy competition Welfare of the people”.

Sign in / Sign up

Export Citation Format

Share Document