• Lord Bridge says that Kerr LJ (in the Court of Appeal) in finding for the seller had in fact misinterpreted what Lord Fraser had said about The Canada Steamship v R [1952] 1 All ER 303 in the Ailsa Craig case! This is an excellent paragraph for demonstrating the way in which judges argue about other cases, following, distinguishing, overruling or stating the precedent or a case erroneously. • Lord Bridge decides the common law point in favour of the sellers in agreement with Lord Denning in the Court of Appeal. • Lord Bridge turns to discuss the ‘statutory’ issue. We now begin to understand the reference to ‘the Act’ in issue (2) as set out by Lord Bridge at Appendix 1, p 310, para 2. • The modified s 55 of the Sale of Goods Act 1979 is set out. • The Sale of Goods Act 1979 was a statute that was pure consolidation. (This means that it merely collected together the existing law and put it in one place.) • Modified s 55 preserves the law between 18 May 1973 (the date that the Supply of Goods (Implied Terms) Act came into force) and 1 February 1977 (the date that the Unfair Contract Terms Act 1977 came into force). • Section 55, sub-ss (1), (4), (5) and (9) are set out. Students need to study s 55 carefully to ensure that they understand what it is providing for and that they can follow the discussion of it by Lord Bridge. So, let us stop here for a moment… for a statutory diversion.

2012 ◽  
pp. 105-105
Keyword(s):  
Common Law ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
The Way

Discretion and Security: Excluding Evidence under Section 78(1) of the Police and Criminal Evidence Act 1984

1990 ◽  
Vol 49 (1) ◽  
pp. 80-90 ◽  
Author(s):  
C.J.W. Allen
Keyword(s):  
Common Law ◽  
The Other ◽  
Rule Of Thumb ◽  
The Common ◽  
Political Compromise ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal ◽  
The Way

Among rules of law Karl Llewellyn noted at one extreme the “rule-of-thumb, in which the flat result is articulated, leaving behind and unexpressed all indication of its reason”. At the other extreme was “the way of principle, in which the reason is clearly and effectively articulated, and that articulation is made part of the very rule”. The vice of principle, he observed, “can be a vaporish vagueness, and the techniques of its effective formulation are not easy to isolate for communication and use”. Partly for this reason, partly perhaps because of its origin in a last-minute political compromise, section 78(1) of the Police and Criminal Evidence Act 1984 at first confounded attempts to predict the manner of its application. One commentary suggested that it was “of no practical use”; there were dicta in the Court of Appeal to the effect that it did “no more than to re-state the power which judges had at common law before the Act of 1984 was passed”. A leading work on the law of evidence expressed the view that the sub-section was “cast in terms of such vagueness and generality as to furnish little guidance to the court”. There has been some development since those early days. It now seems clear that the Police and Criminal Evidence Act 1984 is to be regarded as a codifying Act which has to be looked at on its own wording. Section 78(1), therefore, does not merely re-state the position at common law. It is also clear that in its operation it overlaps section 76 and, through section 82(3), some of the common law. Section 78(1) may be applied in a variety of situations, with or without the presence of some element of impropriety in the way in which the evidence was obtained. Basic questions about its operation nevertheless remain.

Defaming the Dead

2017 ◽  
Author(s):  
Don Herzog
Keyword(s):  
Common Law ◽  
Tort Law ◽  
Dead Person ◽  
The Common ◽  
The Dead ◽  
The Law ◽  
The Way

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.

The Right to Indemnity between Master and Servant

1956 ◽  
Vol 14 (1) ◽  
pp. 101-111 ◽  
Author(s):  
J. A. Jolowicz
Keyword(s):  
Cold Storage ◽  
Common Law ◽  
Married Women ◽  
Law Reform ◽  
Recent Case ◽  
Legal Principle ◽  
The Common ◽  
The Law ◽  
The Right ◽  
Court Of Appeal

The proposition that a master, who has become liable for an injury caused by a servant acting in the course of his employment, can recover an indemnity from the servant is one which has been stated on a number of occasions, but until the recent case of Romford Ice & Cold Storage Co. v. Lister no clear authority could be cited in support. It is true that the master's rights against his servant have been canvassed in at least three modern cases, but in all of them the common law position has been obscured by the application of the Law Reform (Married Women and Tortfeasors) Act, 1935. In Romford Ice & Cold Storage Co. v. Lister, however, by what those interested in legal principle can only regard as a happy chance, it was necessary for the Court of Appeal to deal with the matter independently of the Act.

Figure 4.14: the two issues as set out by Lord Bridge—issue 2 As can be seen, a number of matters needing to be clarified arise from the mere identification of two issues. Note that Bridge gives the two issues a short-hand label: (1) the common law issue; and (2) the statutory issue. However, students often read and re-read without appreciating how to move from lack of understanding towards understanding. They do not notice how words can be clarified by an appreciation of the intertextual links and which words or phrases could be clarified by recourse to textbooks in the area. Again the two issues are found in a paragraph of Lord Bridge’s judgment. Reading carefully paragraphs in the immediate vicinity can assist in understanding. The responsibility of the reader is to read with understanding, therefore stopping to clarify points along the way. It is useful here to ensure that the procedural history of this case is understood. This will enable the student to obtain an appreciation of the differences in opinion by the various judges who have considered the case before its arrival in the House of Lords. Lord Bridge discusses the procedural history and it is set out in the headnote. The case was won by the plaintiffs (the buyers) in the trial court (the High Court) and the defendants (the sellers) appealed to the Court of Appeal, where

2012 ◽  
pp. 99-99
Keyword(s):  
Common Law ◽  
Trial Court ◽  
High Court ◽  
House Of Lords ◽  
History Of ◽  
The Common ◽  
Short Hand ◽  
Court Of Appeal ◽  
The Way

scholarly journals Ignorance of the Law as a Defence to Rape: The Destruction of a Maxim

2012 ◽  
Vol 76 (4) ◽  
pp. 336-347
Author(s):  
Kenneth J. Arenson
Keyword(s):  
Common Law ◽  
Mens Rea ◽  
Sexual Offences ◽  
The Poor ◽  
House Of Lords ◽  
Long Line ◽  
The Common ◽  
The Law ◽  
Sexual Offences Act 2003 ◽  
Court Of Appeal

In DPP v Morgan, the House of Lords correctly concluded that an accused who entertained a genuine belief that a woman was consenting to carnal knowledge of her person could not be convicted of the common law crime of rape as such a belief and the requisite mens rea to convict were mutually exclusive of one another. Though England and Wales have resiled from this position by virtue of the Sexual Offences Act 2003, s. 1(b), which allows for conviction upon proof that the accused did not reasonably believe that the complainant was consenting, the Morgan principle has retained its vitality at common law as well as under the various statutory crimes of rape that exist throughout Australia, most notably the provisions of s. 38 of the Crimes Act 1958 (Vic). Despite a long line of Victorian Court of Appeal decisions which have reaffirmed the Morgan principle, the court has construed s. 37AA(b)(ii) of the Act as leaving open the possibility of an acquittal despite the fact that the accused acted with an awareness that one or more factors that are statutorily deemed as negating consent under s. 36(a)–(g) of the Act were operating at the time of his or her sexual penetration; specifically, the court held that the foregoing factors do not necessarily preclude a jury from finding that the accused acted in the genuine belief that the complainant was consenting. This article endeavours to explain how the accused could be aware of such circumstances at the time of penetration, yet still entertain such a belief. The article ultimately concludes that such an anomaly can only be explained through a combination of the poor drafting of s. 37AA(b)(ii) and the court's apparent refusal to follow the longstanding precept that ignorance of the law is never a defence to a crime, ostensibly prompted by its adherence to the cardinal precept that legislation is not to be construed as superfluous.

scholarly journals EXTRA-CURIAL STATEMENTS BY A NON- TESTIFYING CO-ACCUSED, THE CANADIAN SUPREME COURT AND CHANGE IN SOUTH AFRICA

Obiter ◽  
2018 ◽  
Vol 39 (3) ◽  
Author(s):  
BC Naudé
Keyword(s):  
Criminal Justice ◽  
Supreme Court ◽  
Common Law ◽  
Constitutional Court ◽  
The United Kingdom ◽  
The Supreme Court ◽  
The Common ◽  
The Law ◽  
Law Of Evidence ◽  
Court Of Appeal

In S v Ndhlovu (2002 (2) SACR 325 (SCA)), the court opened the door to the admissibility of extra-curial statements made by a non-testifying accused against a co-accused as hearsay in terms of section 3 of the Law of Evidence Amendment Act (45 of 1988), if the interests of justice so require. However, first the Supreme Court of Appeal and later the Constitutional Court rejected such an approach.It is beyond the scope of this comment to repeat the arguments in favour of a discretionary approach for such statements, but it is submitted that there is scope for disagreement with the findings of both courts.Whitear points out that the provisions dealing with the admissibility of hearsay in the Law of Evidence Amendment Act (45 of 1988) were not declared unconstitutional by any court. The Supreme Court of Appeal found that section 3 of the Law of Evidence Amendment Act (45 of 1988) could not be used to admit the extra-curial statement of an accused against his co- accused because the interests of justice would never allow this. The Constitutional Court found that section 3 did not override the common-law rule prohibiting the admission of extra-curial statements against a co- accused since this would amount to unfair discrimination against an accused implicated by such admissions or confessions. Significantly, because it is stated in section 3 of the Law of Evidence Amendment Act (45 of 1988) that section 3 is subject to the “provisions of any other law”, the court decided that the common-law prohibition should prevail.Previously, however, the Supreme Court of Appeal has held that the “other laws” referred to in the Law of Evidence Amendment Act (45 of 1988) are alternative ways for admitting hearsay, and do not preclude the admissibility of hearsay in terms of section 3, even where there is another law that prohibits it. The court also referred with approval to S v Ndhlovu (supra) where it was explained that the very purpose of section 3 of the Law of Evidence Amendment Act (45 of 1988) was to “supersede the excessive rigidity and inflexibility – and occasional absurdity – of the common law position” by allowing for the admission of hearsay when the interests of justice so require. The admissibility of out-of-court statements by an accused against a co- accused is also dealt with differently in the United Kingdom (our relevant common law) today. Section 114(1)(d) of the Criminal Justice Act of 2003 makes it possible to admit the out-of-court statement of an accused against a co-accused as hearsay. However, the court in R v Y (supra par 57−62) did mention that this does not mean such statements should routinely be admitted without a consideration of the relevant factors mentioned in the Criminal Justice Act of 2003 and that, in the majority of cases, it will not be in the interests of justice to admit such statements, especially those made during police interviews.Even though, under South African law, it is not currently possible to present evidence of an extra-curial statement made by an accused that also implicates a co-accused, the recent judgment by the Canadian Supreme Court in R v Bradshaw (2017 SCC 35) provides insight into how this could possibly happen in future. It is thus useful to consider the Supreme Court’s decision.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

Contract variation in the common law

2018 ◽  
Vol 47 (3) ◽  
pp. 196-207
Author(s):  
James C Fisher
Keyword(s):  
Common Law ◽  
Contract Law ◽  
The Common ◽  
Appeal Decision ◽  
English Law ◽  
The Law ◽  
The Uk ◽  
Business Exchange ◽  
Court Of Appeal

This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s ( obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.

• Discusses the finding of the trial judge that under the common law the ‘relevant condition’ could not be relied upon by the sellers. The reason being the seed delivered was ‘wholly different’. (As we have already noted issue 2 (see Figure 4.14, above), the statutory issue, need only be dealt with if issue 1 (see Figure 4.13, above) is decided in favour of the sellers.) • Discusses the finding of Denning LJ in the Court of Appeal. Denning LJ thought the common law issue should be decided in favour of the sellers. He said that the wording of the condition was sufficient to cover the situation. Kerr and Oliver LJJ decided the common law issue against the sellers. • Kerr LJ’s reasoning was that the condition would only cover them for defects in the ‘correct’ named seeds. Not for delivery of the wrong seeds. • Oliver LJ’s reasoning was that the condition did not cover the breach because it only happened through the negligence of the seller. • The Court of Appeal, however, was unanimous in deciding the statutory issue against the sellers. • Lord Bridge discusses the way that Denning LJ traced the history of the court’s approach to such conditions. The conditions being ones that limit’ or totally ‘exclude’ a contractual party’s liability for any damage caused. • Lord Bridge picks out two relevant cases (Photo Production Ltd v Securicor Transport Ltd [1980] 1 All ER 101 and Ailsa Craig Fishing Co Ltd v Malvern Fishing Co Ltd [1983] 1 All ER 101) and uses these to explore the common law issue. Note that the judge is beginning to deal with cases decided previously and commenting upon them in relation to whether he is bound by the doctrine of precedent.

2012 ◽  
pp. 103-103
Keyword(s):  
Common Law ◽  
Trial Judge ◽  
Relevant Condition ◽  
History Of ◽  
The Common ◽  
Court Of Appeal ◽  
Photo Production ◽  
The Way

DEFAMATION, THE JURY AND THE PURSUIT OF JUSTICE

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Richard Mullender
Keyword(s):  
Common Law ◽  
Criminal Trials ◽  
Constitutional Tribunal ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Court Of Appeal ◽  
The Ideal

In the law of defamation, the jury is “the constitutional tribunal” of fact (J.C.C. Gatley, Libel and Slander, 9th ed. (London 1998), pp. 889-890). The jury’s occupation of this position is usually traced back to Fox’s Libel Act 1792. While confined in terms to criminal trials, the 1792 Act is regarded as declaratory of the common law (see Sir Martin Nourse, “The English Law of Defamation-Is Trial by Jury Still the Best?”, in B.S. Markesinis (ed.), The Clifford Chance Lectures, vol. I, Bridging the Channel (Oxford 1996), ch. 4). One way in which to explain the jury’s role in defamation trials can be found in the ideal of institutional justice. This ideal specifies that institutions should, in order to be legitimate, adequately accommodate the views of those in the society where they operate (G. Cupit, Justice As Fittingness (Oxford 1996), ch. 5). There is, however, reason to regard defamation law’s commitment to institutional justice as qualified. Support for this view can be found in Grobbelaar v. News Group Newspapers Ltd. [2001] 2 All E.R. 437. In Grobbelaar, a unanimous Court of Appeal overturned a jury’s findings of fact on the ground that they were perverse and unreasonable. This decision appears ground-breaking since the Court was unable to point to domestic authorities in which the same step had been taken.

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