A, the owner of a house in Rome, hears that, when carrying out some building work, C intends to interfere with one of the walls. A gives notice to C that he objects to the work (prohibet). Despite this, C goes ahead with it. Or else, being aware that A would object if he knew, C deliberately carries out the work while A is away at his seaside villa at Baiae. In the first situation C is regarded as doing the work by force (vi); in the second he does it clandestinely (clam). In either event, the praetor will grant A an interdict ordering C to put the wall back to its original state so that the parties’ rights may be determined and any appropriate security given: quod vi aut clam factum est … restituas.

The English Court of Appeal decided With v. O’Flanagan in 1936. The case concerns the interesting phenomenon of “supervening falsification” within the law of pre-contractual misrepresentation. Such a phenomenon occurs when a representation, though perfectly true when made, and unknown to representee throughout, has nevertheless become substantially false by the time it induces the representee to enter into the contract in question. The problem of supervening falsification potentially arises whenever there is an (appreciable) interval of time between the moment when a representation is made and the time when the party to whom it was made (reasonably) altered his position on the faith of it.

There is a lively debate among scholars in Europe about how, if at all, the private laws (tort, contract, property) of the European nation states should be harmonised. Views range from no harmonisation at all, soft law methods such as models contained in Principles, step by step case law developments, to a fully fledged binding European Civil Code. Another hotly debated issue is the disharmonisation (fragmentation) of domestic systems of private law as a result of current and ongoing EC level harmonisation. The prime consequence of this partial legislative intervention is an enhanced role for the judiciaries of those jurisdictions: they are inevitably entrusted with the fine-tuning of the interaction between domestic and EC private law. Alien concepts make their entry into a Member State’s Civil Code or common law doctrine that do not necessarily easily fit (one scholar has called these “legal irritants”). Most likely, for the foreseeable future, piecemeal harmonisation of specific, and more or less narrow, legal fields is the only show in town.

Constitutional conventions are to be found in political and legal systems of very different types. Not surprisingly, they exist in considerable abundance in those systems—the prime example is the United Kingdom—the affairs of which are ordered by an unwritten constitution. Familiar instances of constitutional conventions in British government include the following: that the Monarch is required to appoint as Prime Minister the person best placed to command a majority in the House of Commons; that governments are to resign when defeated on a vote of no confidence; that the judicial members of the House of Lords refrain from indulging in party political debate in the chamber; and that ministers are to resign from office after displaying an (admittedly indeterminate) degree of mismanagement of their departments. The preconditions of the existence of any particular constitutional convention are set out in a well-known passage by Sir Ivor Jennings.

Until recently, it was widely accepted that a recipient of company distributions such as dividends paid in breach of the requirements of the Companies Act 1985 (“the Act”) could only be made to repay such distributions if he knew of the illegality. Whether one looked to the Act (to wit, section 277) or beyond (to the “knowing receipt”-type liability encountered in Precision Dippings Ltd. v. Precision Dippings Marketing Ltd.), liability required knowledge. In Bairstow v. Queen’s Moat House plc, however, there appears to be the faintest of suggestions that this position may be open for re-examination. This is reinforced by Lord Nicholls’ recent speech in Criterion Properties Plc v. Stratford UK Properties LLC.

Clauses that provided fixed monetary penalties first appeared in English contracts and conveyances in the first decade of the thirteenth century. Rather quickly thereafter penalty clauses came to be used in a wide variety of contracts and conveyances. They were used in (1) agreements over tithes, (2) settlement of disputes, (3) arbitration agreements, (4) agreements to transfer or not to transfer land, (5) marriage property agreements, (6) warranties of title to land, (7) leases, (8) agreements to pay rents and annuities, loans, and in a variety of other transactions. The penalty clause was just another clause in the agreement. At about the middle of the thirteenth century other methods of inserting a penalty clause into an agreement began to be used. A penalty clause could be made part of a recognizance on the plea rolls, the Exchequer rolls, or the Chancery rolls. The recognizance itself could be a penalty to enforce a side agreement. A money bond could serve as a penalty rendered void if the terms of a separate, conditional acquittance were met. A bond or a statute merchant could be given to a third party under an agreement to give the bond or statute merchant to the promisee if the promisor failed to carry out his agreement. By 1348 the penal bond with conditional defeasance endorsed on the back of the bond had been invented.