Floating charges have been an integral part of company financing for over 100 years, and yet their most fundamental characteristic remains the subject of debate: what interest does the floating chargee have prior to crystallisation? The answer to this question is not academic: disputes between the chargee and interested third parties depend for their resolution on the view taken. Moreover, it is becoming increasingly difficult to rely upon precedent or statutory provisions for simple rules to resolve these disputes: the complexity of modern commercial transactions and the ingenuity of advisers now give rise to rights which cannot always be equated with more traditional security devices and which may not need to be registered. This makes resort to fundamental principles necessary, and the elucidation of those principles crucial.

The principle of frustration of contracts, so succinctly stated by Lord Radcliffe in Davis Contractors Ltd. v. Fareham U.D.C., is now well settled and accepted in both Britain and Australia. Its difficulty lies mainly in its application to particular facts, for opinions may sensibly differ as to whether a given contract is frustrated. Of course it can be conceded that some aspects of the doctrine still raise interesting matters of principle, such as the idea that frustration must not be self-induced. But overall the doctrine itself engenders a certain feeling of contentment.

One of the more intriguing mysteries raised by the action of assump sit in the sixteenth century is that of the Indebitatus count. We know that the most common form of declaration in assumpsit by the middle of the sixteenth century took this form: whereas the defendant had bought a cow from the plaintiff, the defendant promised to pay to the plaintiff £10. The sequence of tenses, from the pluperfect to the perfect, sometimes reinforced by perantea or postea indicates that the promise which constituted the cause of action had been made subsequently to the creation of the initial liability. In effect the cause of action was a promise to perform an existing duty. The same result could be achieved by using the strict Indebitatus count: the defendant, being indebted to the plaintiff in £10, promised to pay £10. The purpose of the present paper is to examine why this form of count developed, and how it was justified in terms of the newly-formulated ideas of consideration.

Of the two most often-quoted definitions of the royal prerogative, Dicey's definition as “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown,” has often received the express or implied approval of the courts. Thus, besides the weight of the authority of its great author, the above definition also enjoys the privilege of official and almost universal recognition and acceptance. It was therefore with great diffidence that the present writer decided to “re-visit the prerogative” and examine it critically. Yet, he has done so in the belief that the passage of time is bound to have had some effect on a definition which is nearly ninety years old and which, when first published, naturally reflected the nineteenth-century theory on this subject.

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

Censure, blame and harms are central concepts in sentencing that have evolved over the years to take into account social context and experiential knowledge. Flexibility, however, remains limited as the current analysis in sentencing focuses on the offender while failing to engage with the state's contribution in creating wrongs and harms. This risks giving rise to defective practices of responsibility since the state can also contribute to their production. The following article presents a complementary and additional framework within sentencing to account for state censure, blame and harms. The framework is rooted in communicative theories of punishment that integrate a responsive understanding of censure and a relational account of responsibility.

The rule against bias has undergone a number of modifications during the last ten years. In particular, two elements of the test for apparent bias have been widely debated, namely the degree of bias and the perspective from which bias should be viewed. The cases before 1992 on each element of the test were difficult to reconcile, but in R. v. Gough, Lord Goff held that the test required a “real danger” of bias when viewed from the perspective of the court. However, attempts were made to amend the test after forceful criticism by the High Court of Australia, and the related observation of Sir Thomas Bingham M.R. that Gough abolished the principle that “justice must not only be done, but must also manifestly be seen to be done”.

This article examines the implications of the E.C.J.'s decisions in Überseering and Inspire Art against the background of the principal competing theories relating to lex societatis. It considers the tension between freedom of establishment (EC Treaty, arts 43 and 48) and the protective objectives of national corporate law regimes aimed at defeating the so-called Delaware effect. It goes on to argue that significant issues remain unresolved. More particularly, it questions whether creditor protection mechanisms contained in national insolvency laws will, in future, be viewed as obstacles to freedom of establishment.

In recent years two views have developed as to the efficacy of prohibitions on the assignment of contractual rights. One view, “the property view”, dictates that such prohibitions characterise contractual rights as choses in action and robs them of their transferable nature. Another view, “the contract view”, dictates that such prohibitions operate only at the level of contract and cannot prevent the equitable assignment of the benefit of a contract. Both views have judicial and academic support. The view that is ultimately adopted will have important implications for contract drafting and the law of assignment. This paper explains both views and puts forward an argument for adopting the property view.

The cause célèbre of King v. William Joyce, subsequently reported as Joyce v. Director of Public Prosecutions, was concerned to a large extent with matters of interest for international law, and it is mainly from this point of view that it is proposed to discuss it in the present article. Obviously the case is also of considerable importance both for criminal law, in so far as it is concerned with the crime of treason, and for constitutional law inasmuch as it bears directly on the question of the nature and the obligations of allegiance. However, it is probable that the case books which will claim it most insistently will be those of international law. For the decision in Rex v. Joyce is not only an authority on certain aspects of allegiance owed by aliens and of the right of a State to assume jurisdiction over acts committed by aliens abroad. It sheds light on such questions as the nature of diplomatic protection of citizens, the right of a State to protect diplomatically persons who are not its citizens, the obligation of allegiance of so-called protected persons, and some others. Not all these questions were judicially answered, but they loomed large in argument and imparted to the proceedings the complexion of a case concerned predominantly with international law. In view of this it may be pertinent to preface this article by drawing attention to a point which appears to be a mere matter of terminology but which, it is believed, raises an issue of wider significance.

The author considers the potential of the Human Rights Act to influence the future of labour law. First, the development of common law can be based on fundamental human rights principles. Statutory interpretation of employment legislation can also be grounded on this potentially more principled approach. Second, the new legislation may hasten the development of a common law of privacy and provide greater protection for expression of political and religious views in the employment context. Third, it changes the criteria against which the propriety of restrictions in the employment relationship should be judged. It is likely that in judicial review cases the more rigorous proportionality standard rather than the Wednesbury unreasonableness test will be used. Finally, the effective application of human rights in the private sphere is likely since the Convention case-law, the debates in Parliament and the Act itself strongly suggest that the Convention rights will have an indirect effect. The domestic courts must take the opportunity to develop their own human rights standards.

It is only fitting that the issue of the Cambridge Law Journal that marks the eightieth birthday of its former Treasurer should contain an article on legal history, and the recent case of Letang v. Cooper provides an occasion for returning to the forms of action on which Professor Hollond lectured to generations of Cambridge undergraduates. It is not, however, the purpose of this article to consider Letang v. Cooper itself, but to attempt to trace the evolution of the rule in Williams v. Holland (1833) and thereby to answer the question why plaintiffs in running-down actions preferred to sue in case rather than trespass. Winfield and Goodhart asked themselves this question, but their answer was directed primarily to the period after 1833, by which time the rule had contributed very substantially to the “handsome balance in favour of an action for negligence as against one for trespass.”

The history of lunacy administration can be traced back with reasonable certainty to 1339, the assumed date of the Statute de Prerogativa Regis, which limited the King's jurisdiction (already existing) over the estates of idiots or natural fools, whose profits he was to take, but for whom he was to find necessaries. For anyone ‘that beforetime hath had his wit and memory’ and should ‘happen to fail of his wit’ or, as would now be said, became a lunatic or of unsound mind, the King was to keep his estate safe and maintain him and his household competently out of the profits, but the King was to take nothing for his own use. By the Statute 32 Hen. VIII, c. 46 (1540), which established the Court of the King's Wards, the residue on the lunatic's death was to be paid over to his Executors or Administrators.

It is perfectly settled by a multitude of decisions, that, notwithstanding an assignment of his lease, the lessee continues liable on the personal privity of contract, to the payment of rent and the performance of the covenants, during the whole term; although the lessor concur in the assignment, or, by acceptance of rent, or otherwise, recognise the assignee as his tenant; and although the breach be committed after the assignment; and although a tender be made by the assignee for the very rent for which the lessee is sued; for if a plea of assignment and tender could be supported, a lessor might be compelled to accept an assignee contrary to his inclination. Indeed, by no act of his own can the tenant absolve himself from the charge.