In the course of their stately opinion in the case of The Wagon Mound the Judicial Committee of the Privy Council declared that “their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.” The best excuse for the present addition to the controversial literature that is accumulating round this case is that, the courts having yet to pronounce on remoteness in cases of strict liability, there seems to be still some room for speculation, especially with reference to policy. It is therefore hoped that the fall, as it were, of yet another leaf in the forest will at least do no harm.

There is nothing indigenous about the Indian Contract Act of 1872 (hereinafter referred to as “the Act”), which is a comprehensive though not necessarily exhaustive code of the subject. According to the eighteenth-century charters, which established courts of justice for the three Presidency towns of Calcutta, Madras and Bombay, the law there applicable was the English common and statute law then in force, so far as it was appropriate to Indian circumstances. Elsewhere it was the practice to have recourse to justice, equity and good conscience. Appeal to these three precepts was also to be made in the Presidency towns themselves in case no specific rule existed. This was the state of the law of contract in 1866, as briefly described by the Indian Law Commissioners in their report. This commission, which prepared the first draft of the Act, had been appointed in England in 1864, with Lord Romilly M.R. as chairman. The other members were W. M. James q.c., the Chancery leader shortly to become James L.J., Sir Edward Ryan, formerly Chief Justice of Bengal, who at this time often sat as a member of the Judicial Committee of the Privy Council in Indian appeals, Robert Lowe, as Lord Sherbrooke then was, a politician, later Chancellor of the Exchequer and Home Secretary, J. M. Macleod, a member of the Indian Civil Service, and John Henderson, barrister. The commission sat in London, and produced a draft report in 1866. This had still not become law by 1870, largely because of the opposition of Sir Henry Maine, then Law Member of the Governor-General's Council, to the proposals as to specific performance.

Of all legal disciplines, constitutional law is the most affected by the European Communities and their law. It is true that the law of competition and restrictive trade practices (to take an example) has, to an important extent, been altered and is currently regulated by Community law. However, the new elements in the European law of restrictive practices are only indirectly related to the nature or structure of the Community and its law as such. They could (with the exception of the new possibilities of judicial review through the European Court of Justice) just as well have come from a traditional international treaty as from international law. For, when we think of the law of restrictive practices we mainly think of what the rules say and much less of how they are enacted—in other words the content of rules and much less their legal nature.

To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.

This article will tell some elementary stories about the history of contract and tort. Its purpose is primarily pedagogic: although the stories are largely old, they are not very clearly explained in the books, and in particular they are done something less than justice in the standard work, Mr. Fifoot's invaluable History and Sources of the Common Law. Since the present aim is to explain what the stories are, rather than to prove that they are true, their telling will be as little encumbered as possible with old cases and their technicalities. A secondary purpose is to set the stories together, and show how far they turn out to be the same story. It is doubtful whether even Ames, who first stated the most important of them, fully realised how far the point was the same in each; and since in one guise or another it is the point of much legal history it deserves more emphasis than it has had. Finally, since Professor Plucknett freed us from the sterile delusion that case was somehow “like” trespass, there has grown up a new background of ideas in which the old stories must be set afresh.

Two competing conceptions of contractual obligation dominate modern contract theory. “Neo-classical” scholars characterise contracts primarily as self-imposed, promissory obligations, while “progressive” scholars contend that contracts are primarily state-imposed obligations that have more in common with restitution and tort. Most theorists, located somewhere between these poles, divide the contractual domain into zones of self- and state-imposed obligations but disagree about where to draw the border. This essay considers one of the difficult border areas, the law of impossibility, frustration and mistake, which it will refer to collectively as “excuse”.

I have been invited to talk to you tonight about the Court of Appeal in England, its jurisdiction, procedure and practice, and the first point I would make is that, as was recently emphasised by Mr. Justice Romer, there is no such thing as an inherent right of appeal to the Court of Appeal. That court is a creation of statute and its jurisdiction is limited to that conferred on it by statute. As we now know it, it has power ‘to give any judgment and make any order which ought to have been made and to make such further or other order as the nature of the case may require’. One hundred years ago there was no court which had such wide jurisdiction. Indeed, there was, strictly speaking, no Court of Appeal at all.

A Wife petitioned for divorce on the ground of cruelty. The husband denied that he had been guilty of cruelty; and in his answer alleged that the petitioner had been guilty of adultery. The husband was a regular soldier of non-commissioned rank; and an issue in the case related to the circumstances in which the wife was received by the husband on her arrival at his station at Hongkong. There had been at Hongkong a representative of the Soldiers, Sailors and Air Force Families Association (SSAFA), a Mrs. Allsop. Differences had arisen between the husband and wife, and her good offices were invoked. She had made written reports of the case to her head office.

Before the hearing of the suit the solicitors for the wife had caused to be issued two subpoenas. The first was a subpoena ad testificandum directed to Mrs. Allsop. The second was a subpoena duces tecum addressed to the Secretary of State for War, relating to letters, copies of letters, memoranda and records made by SSAFA concerning the petitioner and respondent. The reason for the second subpoena being directed to the Secretary of State for War was that, for some reason which was left obscure, all the relevant SSAFA documents had come into the possession of the War Office. Counsel was instructed for the Crown, and he produced a certificate by the Secretary of State for War. This stated that, having read the correspondence and notes covered by the subpoena duces tecum addressed to him, he was of opinion that it was not in the public interest that the documents should be produced.

Explicit rights and freedoms such as those of thought, assembly, life, liberty and security of person occur in constitutional charters because they are activities and states which are necessary for any successful action. It is through the protection of its necessary conditions that freedom of action is itself protected. Moreover, without the inference that freedom of action is the basic value being protected we cannot justify the above rights and freedoms. If we accept this hypothesis about the justificatory structure of constitutions it provides us with a test of the completeness of the list of explicit rights and freedoms. We argue that no charter could justifiably include the usual explicit rights and freedoms and not include the right of the individual to property since the latter is no less a condition of free action than are the former.

In a series of modern cases, the English Courts have struggled with the problem of the undue influence or misrepresentation of third parties. Most of the cases have concerned women who have been persuaded or deceived into giving guarantees to financial institutions for the business debts of their sexual partners. In the recent case of Barclays Bank p.I.e. v. O'Brien, * the House of Lords made a fresh effort to tackle this difficult issue. Lord Browne-Wilkinson, with whom the other Lords agreed, attempted “to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.”1

In Redwood Master Fund Ltd. v. TD Bank Europe Ltd. [2002] EWHC 2703(Ch), [2002] All E.R. (D) 141 (Chancery Division, Rimer J.) the court upheld a clause in a syndicated bank credit agreement empowering a majority to bind a dissentient minority even though the minority were placed in a worse position than the majority.

The effect in summary of the case law on creditor voting clauses—mainly in the context of bond issues—when combined with the case law on shareholder voting, voting on corporate schemes of arrangement and the like, is that the clauses are valid provided that (1) the decision was clearly within the terms of the power, (2) the majority were in good faith, i.e. not motivated solely by malice or vindictiveness, (3) there were no secret advantages to some creditors to procure their votes, e.g. bribes, and (4) most difficult of all, there was no unjust oppression of the minority so as to constitute a fraud on the minority, e.g. by a discriminatory decision denying the minority an advantage granted to the majority.

The object which the makers of the Covenant of the League of Nations proposed to themselves was ‘to promote international co-operation and to achieve international peace and security.’ The first of the means by which this object was to be attained was, according to the preamble of the Covenant, ‘the acceptance of obligations not to resort to war’; the operative part of the Covenant, following the preamble, in several passages expressly binds the members of the league ‘not to resort (or ‘not to go’) to war.’

Professor Goode once observed that “Novation need not be left to ad hoc agreement; it is open to the parties to provide for it in advance and in particular to establish a contractual mechanism by which novation takes place automatically on the occurrence of a designated act or event”. This deceptively straightforward proposition is examined in the present article. It explores the legal footing for, and the risks in adopting a pristine version of, the proposition, and considers possible safeguards that may be incorporated within the process of scrutiny, if in any case there arises concern over the effectiveness of a novation that is undertaken pursuant to consent given in advance.

The object of this article is to consider, or to speculate about, the roles and purposes of the institution of civil litigation in the 21st Century.