¹ Previous treatments include the classic English and American discussions by Wade, E. C. S. (Restrictions on User (1928) 44 L.Q.R. 51)Google Scholar and Chafee, Z. (Equitable Servitudes on Chattels (1928) 41 Harv.L.R. 945)Google Scholar respectively; see too McCormack, (1952) 3 Sydney L.R. 295.Google Scholar There is brief but perceptive coverage en passant in Vaines, Personal Property, 5th ed., Chap. 8 and Palmer, N. E., Bailment, pp. 972et seq.Google Scholar

² (1858) 4 DeG. & J. 276.

³ (1848) 2 Ph. 774.

⁴ Ibid., at p. 777.

⁵ Which give the charterer the right to have his goods carried in the vessel but not possession of it. See (1858) 4 De G. & J. at p. 295; Scrulton on Charterparlies, 18th ed., p. 45.Google Scholar

⁶ (1858) 4 De G. & J. 276, 282.

⁷ See per Knight Bruce L.J. (1858) 4 De G. & J. 276, 283; per Lord Chelmsford L.C. ibid., at p. 287.

⁸ Ibid., at p. 299, following Lumley v. Wagner (1852) 1 De G.M. & G. 604.Google Scholar

⁹ See (1858) 4 De G. & J. 276, 299–300, per Lord, Chelmsford L.C.Cf. per Knight, Bruce L.J. at pp. 282–283.Google Scholar

¹⁰ An argument admittedly sub silentio in De Mattos, but later emphasised by Shaw, Lord in Lord Strathcona SS. Co. v. Dominion Coal Co. [1926] A.C. 108, 119Google Scholar; on this case see below, p. 71.

¹¹ Including, where appropriate, a mortgagee.

¹² On notice, see below, pp. 79–80.

¹³ On the other hand, Scots law accepts that a purchaser of personal property may be treated as though he were a party to contracts concerning that property. See M'Cosh v. Crowe (1903) 5 F. 670Google Scholar; Wm. Morton & Co. v. Muir, 1907 S.C. 1211Google Scholar (the latter accepted as good law in D. M. Walker, Contracts and Related Obligations in Scotland, s. 29.57). cfThough, Melrose v. Aitken Motors, 1918, 1 S.L.T. 109.Google Scholar

¹⁴ Discounting, for the sake of argument, the plaintiff's inability to carry out his side of the bargain. The extra effectiveness of injunctive remedies will always be increased where, as in De Mailos's case, the obligor is insolvent (though why, or whether, specific remedies should always prevail over insolvency is by no means obvious).

¹⁵ Or, for that matter, specifically enforceable rights. The parallel is explored below, pp. 63–64.

¹⁶ Cf. Bridge, J. 's reasoning in Esso Petroleum Co. Ltd. v. Kingswood Motors (Addlestone) Ltd. [1974] Q.B. 142, 156. A transferred land to B in breach of covenant with C: on the ground that otherwise equitable remedies would be ineffective C obtained an injunction ordering a reconveyance of the land to A.Google Scholar

¹⁷ See Hotroyd v. Marshall (1861) 10 H.L.C. 191Google Scholar; Joseph v Lyons (1884) 15 Q.B.D. 280.Google Scholar

¹⁸ This at least seems to be clear from Oughtred v. I.R.C. [1960] A.C. 206.Google Scholar

¹⁹ See Waters, D., The Constructive Trust, Chap. 2.Google Scholar

²⁰ Such as, e.g., the availability of insurance monies and other statutory payments to the purchaser—see Rayner v. Preston (1881) 18 Ch.D. 1Google Scholar, and Re Hamilton-Snowball's Conveyance [1959] Ch. 308.Google Scholar

²¹ See, e.g., Day v. Brownrigg (1878) 10 Ch.D. 294, 305Google Scholar, per James, and Thesiger, L.JJ.; White v. Mellin [1895] A.C. 154, 167Google Scholar, per Lord Watson. Cf. the even more drastic restriction of injunctions to protecting property rights in Att.-Gen. v. Sheffield Gas Consumers Co. (1853) 3 De G.M. & G. 304, 320Google Scholar and Emperor of Austria v. Day (1861) 3 De G.F. & J. 217, 253Google Scholar: on which cf. the pertinent comments of the U.S. Supreme Court in Int. News Service v. Associated Press, 348 U.S. 234, 236 (1917).Google Scholar

²² For example, the obligation to respect confidential information: see Saltman Engineering v. Campbell (1948) 65 R.P.C. 203, finally establishing that such an obligation would exist independently of contract.Google Scholar

²³ Emperor of Austria v. Day (1861) 3 De G.F. & J. 217 (foreign sovereign can restrain forgery of his banknotes).Google Scholar

²⁴ Under tho Dramatic and Musical Performers' Protection Act 1958; Ex p. Island Records [1978] Ch. 122Google Scholar (performers can restrain “bootlegging”). Although certain suggestions in Ex parte Island Records were discountenanced by Diplock, Lord in Lonrho Ltd. v. Shell Petroleum Ltd. [1981] 2 All E.R. 456, 462–463, his Lordship was there only concerned with actions for damages at common law, not injunctive relief, and it is submitted the point in the text still stands.Google Scholar

²⁵ Turner L.J. in Emperor of Austria v. Day, n. 23 above, apparently accepted that forgery was not a tort. (Contra, Lord Campbell L.C. ibid., at p. 240; but his cited authority, Bank of England v. Anderson (1837) 2 Keen 328Google Scholar, is not in point.) The Performers' Protection Acts clearly found no action in tort—Musical Performers' Protection Assn. v. British International Pictures Ltd. (1930) 46 T.L.R. 485.Google Scholar

²⁶ Buckley v. Tutty (1971) 125 CX.R. 353, 380.Google Scholar According to Cooke v. The Football Association, The Times, 24 March 1972, practices in restraint of trade do not give rise to liability in damages.Google Scholar

²⁷ See Routh v. Webster (1847) 10 Beav. 561Google Scholar (defendant restrained from falsely stating that plaintiff associated with company floated by him). Cf. Walker v. Ashton [1902] 2 Ch. 282, though this case may merely be an embryonic instance of the tort of passing off.Google Scholar

²⁸ See the spectacular decision of the Court of Appeal in Nagle v. Feilden [1966] 2 Q.B. 633, restraining the Jockey Club, a private but monopolistic licensing body, from discriminating against an applicant for a trainer's licence on grounds of sex, even in the absence of any possible liability at common law. The judgment of Lord Denning M.R. is specially instructive, and largely formed the basis of the decision in Buckley v. Tutty, n. 26 above.Google Scholar

²⁹ [1926] A.C. 108, on which see below, p. 71.

³⁰ [1958] 2 Q.B. 146.

³¹ l.e., as not in restraint of trade. See Elliman v. Carrington [1901] 2 Ch. 275.Google Scholar

³² [1904] 1 Ch. 354.

³³ Ibid., at 358. De Mattos's case was not even cited in the judgment.

³⁴ [1904] 2 Ch. 306.

³⁵ As argued, for instance by Scrutton, L. J. in Barker v. Stichney [1919] 1 K.B. 121.Google Scholar

³⁶ Elliman v. Carringtpn, n. 31 above.

³⁷ A view for instance, expressed by Atiyah, P. S.; see his The Rise and Fall of Freedom of Contract, at p. 699.Google Scholar

³⁸ National Phonograph Co. v. Menck [1911] A.C. 336, 347 (P.C.).Google Scholar

³⁹ Indeed, American jurisprudence frequently did refuse to enforce price maintenance on restraint of trade grounds. See, e.g., Chafee, , Equitable Servitudes on Chattels (1928) 41 Harv.L.R. 945, 980Google Scholar; Park v. Hartman, 153 Fed. 24, 39 (1907)Google Scholar; Waring v. W.D.A.S. Broadcasting Systems Inc., 194 Atl. 631, 637 (1937) (Pennsylvania Sup.Ct.).Google Scholar

⁴⁰ The House of Lords' decision in Dunlop v. Selfridge [1915] A.C. 847Google Scholar also seems at first sight (as it did to Diplock J. in the Port Line case, below) to preclude the enforcement of resale price maintenance at common law under De Mattos v. Gibson. In fact it does not, since the House of Lords there only discussed whether a manufacturer could take advantage of a contract between wholesaler and retailer, and not whether the latter would be bound by a contract between manufacturer and wholesaler, as De Mattos v. Gibson would suggest. Similarly limited were the judgments of Phillimore, J. (1913) 29 T.L.R. 270Google Scholar at first instance, and the Court of Appeal (1914) 30 T.L.R. 250. Thus in jurisdictions where the ius quaesitum tertio is recognised, price maintenance covenants can often be enforced on that basis—see D. Ghirardelli v. Hunsicker, 164 Cal. 355, 128 P. 1041 (1912) (California)Google Scholar; Morton v. Muir, 1907 S.C. 1210 (Scotland).Google Scholar

⁴¹ Previously the Resale Prices Act 1964.

⁴² Thus reversing Elliman v. Carrington, n. 31 above.

⁴³ (1848) 2 Ph. 774.

⁴⁴ Compare De Mattos's case (1858) 4 De G. & J. 276, 282Google Scholar with Tulk v. Moxhay, n. 43 above, at p. 777.Google Scholar

⁴⁵ The land cases were Catt v. Tourle (1869) L.R. 4 Ch.App. 654, 657Google Scholar, and Luker v. Dennis (1877) 7 Ch.D. 227, 236Google Scholar (both holding a purchaser of a public house bound by a brewery tie; both later overruled). The ship cases were Messageries Impériales v. Baines (1863) 7 L.T. 763Google Scholar; Collins v. Lamport (1864) 11 L.T. 497Google Scholar; and Cory v. Stewart (1886) 2 T.L.R. 508.Google ScholarCf. The Celtic King [1894] P. 175.Google Scholar The principle does not appear to have been applied to any other form of personalty before 1920, when Peterson, J. in MacDonald v. Eyles [1921] 1 Ch. 631 applied it to a copyright.Google Scholar

⁴⁶ A doctrine fully developed in Manchester Ship Canal Co. v. Manchester Racecourse Co. [1901] 2 Ch. 37.Google Scholar See too the extended discussion in Pritchard v. Briggs [1980] 1 All E.R. 294.Google ScholarOliver, J. 's suggestion in Taylor v. Liverpool Victoria etc. (1979) [1981] 1 All E.R. 879n that some pure contractual interests might bind land is not in point since it turns entirely on the effects of an early statute.Google Scholar

⁴⁷ See L.C.C. v. Allen [1914] 3 K.B. 642, 655–656, per Buckley, L. J.Google Scholar

⁴⁸ [1914] 3 K.B. 642.

⁴⁹ [1916] 2 A.C. 54.

⁵⁰ Since the charterparty was not specifically enforceable.

⁵¹ Though not quite all. Restrictions on the transfer of shares in a private company may exist to protect the value of the major shareholdings. See, e.g. the facts of Greenhalgh v. Mallard [1943] 2 AH E.R. 234.Google Scholar

⁵² [1919] 1 K.B. 121 (more fully covered below, pp. 75–77).

⁵³ See Chafee, , Equitable Servitudes on Chattels (1928) 41 Harv.L.R. 945, 963–964Google Scholar, approved by the Californian court in Nadell v. Grasso, 346 P. 2d 505, 509–510 (1959).Google Scholar

⁵⁴ E.C.S. Wade (1928) 44 L.Q.R. 51, 62.

⁵⁵ Thus in overruling Catt v. Tourle (1869) L.R. 4 Ch.App. 654Google Scholar and Luker v. Dennis (1877) 7 Ch.D. 227, L.C.C. v. Allen denied that brewery ties could be enforced against a purchaser of land; yet such ties clearly were for the benefit of the brewers' business interests, not their land holdings.Google Scholar

⁵⁶ Cf. Re Waterson, Berlin & Snyder, 48 F. 2d 704, 708 (1931) (C.A. 2nd Circuit).Google Scholar

⁵⁷ Cf. Law of Property Act 1925, s. 4 (1), limiting the power to create new equitable interests in land.Google Scholar

⁵⁸ In, e.g., Swiss Bank Corpn. v. Lloyds Bank [1980] 2 All E.R. 419 (C.A.)Google Scholar and apparently in the unreported decision of Oliver J. in I.C.I, v. Sussman, 28 May 1976 (cited in Pritchard v. Briggs, above) holding a right of pre-emption in shares unenforceable against third parties.

⁵⁹ Evans v. Rival Granite Quarries [1910] 2 K.B. 979, 999, per Buckley, L. J.Google Scholar

⁶⁰ Wilson v. Kelland [1910] 2 Ch. 306.Google Scholar

⁶¹ Cheshire, , Modern Law of Real Property. 12th ed., p. 93.Google Scholar

⁶² On this aspect of L.C.C. v. Allen, cf. Jennings, , The Courts and Administrative Law (1936) 47 Harv.L.R. 426, 438.Google Scholar

⁶³ [1926] A.C. 108. Ironically in English proceedings arising out of the same facts Hill J. had, shortly before, suggested (obiter) that De Mattos was wrong: The Lord Strathcona [1925] P. 143.Google Scholar

⁶⁴ (1924) 57 N.S.R. 113.

⁶⁵ Except of course that the plaintiffs were not, as in De Mattos, unable to carry out their side of the bargain.

⁶⁶ [1926] A.C. 108, 119.

⁶⁷ Ibid., at p. 125.

⁶⁸ Ibid., at p. 121.

⁶⁹ A conclusion supported by Lord Shaw's discussion only a few lines previously of the implications of L.C.C. v. Allen.

⁷⁰ Clore v. Theatrical Properties [1936] 3 All E.R. 483, 490–471Google Scholar (but this case concerned land). See too Shell Oil v. Mcllwraith (1944) 45 S.R.(N.S.W.) 144, 150, per Jordan, C. J.Google Scholar

⁷¹ See Greenhalgh v. Mallard [1943] 2 All E.R. 234, 239.Google Scholar

⁷² See Sweeney v. Tristram [1936] S.R.Qd. 129. 134Google Scholar; Rutherford v. Poole [1953] V.L.R. 130, 141Google Scholar; Howie v. New South Wales Lawn Tennis Club (1955) 95 CX.R. 132, 156.Google Scholar

⁷³ [1958] 2 Q.B. 146.

⁷⁴ Compensation (Defence) Act 1939, s. 4 (3).

⁷⁵ The question of notice is dealt with below, pp. 79–80.

⁷⁶ See [1958] 2 Q.B. 146, 166 et seq. These were of course also grounds of Scrutton, L.J. 's criticism in Barker v. Stickney [1919] 1 K.B. 121, supra, p. 69, which Diplock J. followed.Google Scholar

⁷⁷ See n. 70 above.

⁷⁸ [1921] 1 Ch. 631. See also Re Waterson, Berlin & Snyder, 48 F. 2d 704 (1931).Google Scholar

⁷⁹ Ontario Jockey Club v. McBride [1927] S.C.R. 84Google Scholar, upheld on other grounds by the Privy Council at [1927] A.C. 916. Cf. the remarkable British Columbia decision in Canadian Brotherhood etc. v. B.C.A. [1971] 1 W.W.R. 39 applying the principle by analogy to the goodwill of a business.Google Scholar

⁸⁰ Tri-Continental Finance Corpn. v. Tropical Marine Enterprises Inc., 265 F.2d. 619 (1959).Google Scholar

⁸¹ Murphy v. Christian Press, 56 N.Y.S. 597 (1897).Google Scholar

⁸² Waring v. W.D.A.S. Broadcasting Systems Inc., 194 Atl. 631 (1937) (Pa.Sup.Ct.).Google ScholarCf. Waring V. Dunlea, 26 F.Supp. 787 (1939).Google Scholar

⁸³ See Nadell v. Grasso, 141 Cal. 203, 346 P. 2d 505 (1959)Google Scholar; Clairol v. Cody's Inc. 353 Mass. 385, 231 N.E. 2d 912 (1967) (semble).Google Scholar

⁸⁴ But for a different reason. Restrictive covenants against land must be negative, it is suggested, because of the analogy of negative easements.

⁸⁵ l.e., the shareholder may be enjoined from abstaining as much as from voting inconsistently. See Puddephatt v. Leith [1916] 1 Ch. 200.Google Scholar

⁸⁶ And see now the Law of Property Act 1925, s. 79, presuming that restrictive covenants relating to land are intended to bind the land itself.

⁸⁷ [1943] 2 All E.R. 234.

⁸⁸ [1919] 1 K.B. 121.

⁸⁹ But cf. Re Waterson, Berlin & Snyder, 48 F. 2d 704 (1931), where an American court reached the opposite result.Google Scholar

⁹⁰ See per Scrutton, L. J. in Barker's case, n. 88 at pp. 133–134.Google Scholar

⁹¹ See Westhoughton V.D.C. v. Wigan Coal Co. [1919] 1 Ch. 159.Google Scholar

⁹² Nevertheless statute has attempted to save the author from the effects of his publisher's bankruptcy: see the Bankruptcy Act 1914, s. 60 (a singularly ineffectual reform, though, since most publishers are companies, and s. 60 does not apply in a winding-up: Re Health Promotion Ltd. [1932] 1 Ch. 65 and Barker's case itself).Google Scholar

⁹³ [1977] Ch. 106, 300.

⁹⁴ This was on the analogy of certain cases concerning covenants on land, notably Westhoughton U.D.C. v. Wigan Coal Co. [1919] 1 Ch. 159Google Scholar, Balsall v. Brizell [1957] Ch. 169Google Scholar and Radstock Co-operative Soc. v. Norton-Radstock U.D.C. [1967] Ch. 1094; [1968] Ch. 605. Whether such a broad analogy is sound is, with respect, open to question.Google Scholar

⁹⁵ Cf. too, though Jessel, M. R. 's judgment in Werderman v. S'té Générale d'Electricité (1881) 19 Ch.D. 246 which suggests, contrary to the text, that mere collateral covenants to pay money can be enforced under De Mattos v. Gibson. But the suggestion was obiter; Lush L.J. 's decision in the same case is on different, sounder, grounds.Google Scholar

⁹⁶ [1908] 2 Ch. 127

⁹⁷ Palmer, N. E., Bailment, p. 982, a most instructive treatment of the subject.Google Scholar

⁹⁸ Quaere if there was a busmen's strike and very few buses available for hire.

⁹⁹ E.g., sale of a ship on terms that it is never to be used to compete with the seller's shipping business. See Tri-Continental Finance Corpn. v. Tropical Marine Enterprises Inc., 265 F. 2d 619 (1959)Google Scholar where, however, the American court enforced the covenant against a sub-purchaser having (oddly) decided it was not in restraint of trade. Cf. too Clairol v. Cody's Inc., 353 Mass. 385; 231 N.E. 2d 912 (1967).Google Scholar

¹ Under, e.g., the. Restrictive Practices Act 1976, Resale Prices Act 1976, or art. 86 of the Treaty of Rome.

² See Ontario lockey Club v. McBride [1927] S.C.R. 84Google Scholar, affirmed on other grounds [1927] A.C. 916 (P.C.). Contra, I.C.I, v. SussmanGoogle Scholar (Oliver, J., unreported, 28 May 1976, cited in Pritchard v. Briggs [1980] Ch. 338). It is submitted that decision is wrong and should not be followed.Google Scholar

³ Cf. Greenhalgh v. Mallard [1943] 2 All E.R. 234, above, n. 87.Google Scholar

⁴ Thus the Massachusetts court in Clairol v. Cody's Inc. above, n. 99, only allowed distribution to the general public of bottles of hair dye marked “For Professional use only” on condition that suitable warnings for the home user were included.

⁵ For instance, dangerous chemicals, perhaps?

⁶ 141 Cal. 203, 346 P. 2d 505 (1959).

⁷ 194 Atl. 631 (1937). Cf. Jefferys V. Boosey (1854) 4 H.L.C. 815, 963, per Brougham, Lord.Google Scholar

⁸ Ibid., at p. 637.

⁹ See per Knight, Bruce L.J. in De Mattos's case itself; (1858) 4 De G. & J. 276, 282.Google Scholar

¹⁰ Quaere if the defendant is a volunteer without notice, actual or constructive? On the analogy of equitable proprietary interests, it is submitted that a De Maitps v. Gibson claim will lie against him. But any injunction should be conditional on the plaintiff reimbursing the defendant his innocent expenditure on the property itself, and possibly any other loss he suffers through having in good faith changed his position.

¹¹ Joseph v. Lyons (1884) 15 Q.B.D. 280Google Scholar; Maitland, , Equity, 2nd ed., ed. Brunyate, , p. 146.Google Scholar

¹² E.g., Manchester Trust v. Furness [1895] 2 Q.B. 539, 545Google Scholar, per Lindley, L. J., Greer v. Downs Supply Co. [1927] 2 K.B. 28, 35,Google Scholarper Scrutton, L.J., County Laboratories v. Mindel [1957] Ch. 295, 297Google Scholar, per Harman, J.Diplock, J. 's mistrust of De Mattos and Strathcona in Port Line v. Ben Line was partly due to fear of constructive notice intruding on commercial law; see [1958] 2 Q.B. 146, esp. p. 167.Google Scholar

¹³ [1979] Ch. 548, 575. This assertion however loses much of its force because Browne, Wilkinson J. in Swiss Bank wrongly identified the rule in De Mattos v. Gibson with the tort of inducing breach of contract, for which actual notice of the contract is indubitably necessary.Google Scholar

¹⁴ The Celtic King [1894] P. 175.Google ScholarCf. Wilkes v. Spponer [1911] 2 K.B. 473 for an analogous rule concerning equitable interests in land.Google Scholar

¹⁵ The trial judge apparently awarded damages against the defendant in the Strathcona case (see [1926] A.C. 108). It is submitted that this award, which was accepted without question or comment by the Privy Council, can only be justified on the basis of Lord Cairns' Act. Quaere incidentally whether damages should be available where, had the defendant's predecessor in title still been in possession of the property concerned, no injunction would have issued against him. In such cases the unjust enrichment of the defendant, which lies behind De Mattos v. Gibson, might be difficult to prove.

¹⁶ As observed with some trepidation by Coleridge, J. in his dissenting judgment in Lumley v. Gye (1853) 2 E. & B. 216, 246.Google Scholar

¹⁷ [1949] Ch. 556.

¹⁸ Even where the customer and not the defendant makes the first approach. The tort is really one of knowing participation in a breach of contract. See Salvadori's case [1949] Ch. at p. 563; Sefton v. Tophams Ltd. [1965] Ch. 1140, 1160, per Stamp, J. (reversed on other grounds [1967] 1 A.C. 50).Google Scholar

¹⁹ [1979] Ch. 548 (the case was reversed on the facts in the House of Lords at [1981] 2 W.L.R. 893).

²⁰ Ibid., at pp. 571–572.

²¹ Ibid., Diplock, J. made the same mistake in the Port Line case: [1958] 2 Q.B. 146, 165.Google Scholar

²² (1853) 2 E. & B. 216.

²³ See B.M.T.A. v. Salvadori, n. 17, above.

²⁴ See D. C. Thomson Ltd. v. Deakin [1952] Ch. 646, 680Google Scholar, per Evershed, M.R. (cf. per Upjohn, J. at p. 663)Google Scholar; Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch. 106, 138, per Lord, Denning M.R.Google Scholar; Heydon, , Economic Torts, 2nd ed., p. 32.Google ScholarCf. Leitch v. Leydon, 1931 S.C.(H.L.) 1, 8, per Dunedin, Lord.Google Scholar

²⁵ Compare the rule that an equitable assignee of a chose in action, despite the rule in Dearie v. Hail, always takes subject to previous equitable assignments (which may include promises to assign) of which he has notice. See Spencer v. Clarke (1878) 9 Ch.D. 137.Google Scholar

²⁶ [1980] 3 W.L.R. 457.

²⁷ Ibid., at p. 470.

²⁸ This was quite apart from the question of notice, where the court agreed with Browne-Wilkinson J.

²⁹ [1981] 2 W.L.R. 893.

³⁰ See now the Patents Act 1977, s. 60 (1) (a). But sale of goods without overt restriction implies permission to use—e.g., Betti v. Willmott (1871) L.R. 6 Ch.App. 239 (esp. per Lord Hatherley at p. 245).Google Scholar

³¹ (1895) 12 R.P.C. 262.

³² See now the Patents Act 1977, s. 60 (1) (a).

³³ (stc) (1922) 39 R.P.C. 239.

³⁴ This is the effect of the Resale Prices Act 1976, ss. 9–10.

³⁵ Patents Act 1977, s. 44 (re-enacting the Patents Act 1949, s. 57).

³⁶ See, e.g.. Sterling Drug Co. v. C. H. Beck [1972] F.S.R. 529.Google Scholar

³⁷ American courts have reached the same result even in the absence of specific provision—Coca-Cola Bottling Co. v. Bennett, 238 F. 513 (1916).Google Scholar

³⁸ See Goode, R. M., Hire Purchase Law and Practice, 2nd ed. p. 35Google Scholar; Thornely, J. W. A. (1974) 13 J.S.P.T.L. 150, 151Google Scholar; Palmer, N. E., Bailment, p. 973.Google Scholar

³⁹ As lucidly argued in Goode, R. M., Hire Purchase Law and Practice, n. 38 above.Google Scholar

⁴⁰ Interestingly enough, cases in land law concerning whether licences are binding on third parties have normally involved licensees in possession: e.g., Erringlon v. Erringlon & Woods [1952] 1 K.B. 290Google Scholar; Binions v. Evans [1972] Ch. 359.Google Scholar Furthermore, the more notorious cases where such licensees have not prevailed over purchasers have often involved licensees without possession—see, e.g., Clore v. Theatrical Properties [1936] 3 All E.R. 483Google Scholar; King v. David Allen (Billposting) Ltd. [1916] 2 A.C. 54.Google Scholar

⁴¹ Cf. the rule in conversion, that a hire-purchaser who converts goods is liable to the owner only for the unpaid balance of the price; to the extent that he has paid, he had an interest in the goods. See Wickham Holdings v. Brooke House Motors [1967] 1 W.L.R. 295.Google Scholar

⁴² Compare the parallel question, raised in cases such as Britain & Overseas Trading (Bristles) Ltd. v. Brooks Wharf [1967] 2 Lloyd's Rep. 51Google Scholar, whether a purchaser of goods bailed to a third party is bound by any terms in the original contract limiting the bailee's liability. The present author has suggested that he is, on analogous reasoning to that in the text: see (1978) 29 N.I.L.Q. 40.