These two reports go well together. The first is a report from the House of Commons Committee on Procedure which advocates an extension of the existing activities of the Estimates Committee by the creation of a Select Committee to investigate and report on the way in which Government departments are carrying out their responsibilities, and the second an example of the kind of thing the Estimates Committee is at present doing within its existing terms of reference.

I want to start from the basic position in which I was brought up (I expect you were all brought up in it too) that the terms of a contract consist of conditions and warranties, the distinction between them being that the condition is something that is essential to the contract, while the other terms that are collateral or ancillary are merely warranties. If a condition is broken the aggrieved party is discharged from his obligations and can rescind the contract. If it is a warranty that is broken, the breach sounds only in damages.

The Hongkong case—a new approach to breach

The traditional thinking on this point has recently been rather mystified by references to something which is called the fundamental term and which has not yet, so far as I know, been judicially defined. Then there have been some suggestions that what matters is not the fundamental term but the fundamental breach. And finally there is the very important judgment of Diplock L.J. in the Hongkong case in which he opens up new vistas, suggesting that the traditional classification of terms into conditions and warranties has been outmoded and ought to be scrapped in favour of a new approach altogether based on the event.

It must be accepted that whatever sort of approach is made to this topic, whether a new or a traditional one, there must be some way of defining the situation in which the aggrieved party is entitled to rescind. He cannot be allowed to do so for every breach of every term.

I

Gentlemen:

With some reluctance I have given way to a wish that I have heard and have consented to say a few words about the course of study for the Second Part of the Law Tripos. Some of the reasons for my reluctance will become apparent hereafter; one of my reasons for yielding I will state at once. Along with other members of the Special Board for Law I took part in preparing what we know as the New Regulations. And certainly it did not seem to me then that we were proposing an impossible scheme; nor do I now regard the scheme either as impossible or as bad, but still I will frankly admit that, had I some years ago seen as clearly as I do now the circumstances in which students will be placed when they have first issued from the First Part of the Tripos, I should have wished to make some changes in the programme. The programme set before you is undoubtedly a heavy one and I may say at once that I do not think that you will do very well in the examination next year unless you set to work at once, and use what remains of this present term and a considerable part of the Long Vacation.

In the first part of this article, published in April, the avowed intent was to demarcate and emphasise the difference between the two kindred but separate defences of claim of right and dispute of title. The subsequent publication of the eighth report of the Criminal Law Revision Committee on Theft has shown that the defence of claim of right is to be left untouched by the sweeping proposals contained in the report, and that consequently the subject of this article will not become a mere academic exercise, but will remain a matter of practical importance even if the recommendations are adopted.

The earlier part of this article was primarily devoted to an attempt to isolate the meaning of title, the type of dispute that will lead to the exclusion of the jurisdiction of justices. It was noted that this procedural defence of dispute of title springs from a rule of statutory interpretation that it is always open to the legislature to exclude or modify. Passing reference has already been made to two famous modifications of the defence, in statutes providing for summary trial of assault and battery and malicious damage respectively. These enactments will now be examined in detail. Their special relevance for the object of this article is that the two cases on assault and battery show in the first place that, leaving aside the difficult question whether dispute of title should be extended to disputes as to title to personalty, even within the acknowledged prohibited sphere of disputes as to title to real property, criminal courts can be singularly slow to appreciate that a title to real property of an incorporeal kind is at stake.

Those who have commented on the moribund state of consent as a defence in tort have no doubt been eating their words since the decision of the House of Lords in Imperial Chemical Industries Ltd. v. Shatwell; though what precisely that case has accomplished is not clear. By regulation 27 (4) of the Quarries (Explosives) Regulations, 1959, a duty was imposed directly on shot-firers (not on employers) to carry out tests only from behind shelter; and breach of it was an offence. Two shot-firers, George and James Shatwell, who knew of the regulation and of their employers’ unsparing efforts to secure compliance in the interests of safety, decided nevertheless to disobey the injunction simply because they could not be bothered to wait until a lead long enough to enable them to test from behind shelter was fetched. Both men were injured when a detonator exploded. George, who was the prime mover in this enterprise, then sued the employers as being vicariously liable for the breach of statutory duty by James.

The lower courts reluctantly upheld his claim and rejected the defence of consent on the established ground, derived from Baddeley v. Earl Granville and Wheeler v. New Merton Board Mills Ltd., that this is no answer to a breach of statutory duty. The House of Lords unanimously reversed the decision and held that consent was a defence in these circumstances. Baddeley and Wheeler were distinguished on the ground that there the statutory duties lay on the employers, whereas here the duty lay on the employees themselves.

The charge of conspiring to defraud is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be described as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is clearly useful in bringing to justice a significant number of persons involved in large-scale frauds who might otherwise escape prosecution. A thorough-going assessment of its place in the criminal law is nonetheless long overdue.

The common law recognises two defences to a criminal charge that an accused can plead, based upon a belief that the law permitted him to act as he did. First there is the well-known substantive defence of bona fide claim of right, which operates to negative mens rea, and thus absolves from criminal liability, and secondly the procedural defence, open to an accused summarily charged, that adjudication involves a decision as to his property or title and therefore the jurisdiction of the justices to determine in a summary manner is ousted. For the latter defence, the helpful phrase “dispute of title” has recently been coined. The basic problem is to distinguish this from the deceptively similar defence of claim of right. Writers are prone to dismiss the defence of dispute of title in rather cursory fashion before concentrating on claim of right, and to utter solemn warnings against confusing the two, but it is not unknown for a writer to disregard his own admonitions, and fall into the very pit he has observed yawning before his eyes. Judges, with one notable exception, have surmounted this original crevasse, but in matters of detail have shown that misunderstanding of the law is not confined to the accused. The object of this article is to reverse the usual practice, to dismiss the substantive defence of claim of right in a few lines, and thereafter to refer to it only so far as this is necessary to implement a detailed discussion of the procedural defence of dispute of title, either by way of comparison or as a means of showing the details of the procedural defence in sharper relief.

I

The title of this essay refers to the titles of three recent works by Professors of Jurisprudence. It is proposed to use these works to illustrate the problem of Jurisprudence in discovering its own appropriate concepts and making sense of its literature.

Jurisprudence, it may be assumed, is what Professors of Jurisprudence write. They write it presumably for the edification of students in the Faculties to which they are attached, to help them to see the coherence and the relevance of the more specialised studies in which they are engaged. These Faculties are Faculties of Law. But what is law? The diverse strange and even paradoxical ways in which this question has been answered by serious thinkers, says Professor Hart in his opening paragraph, constitute “a situation not paralleled in any other subject systematically studied as a separate academic discipline.” If we say, then, that Professors of Jurisprudence write about law, our statement may fail to convey any exact or agreed information. Even if it may correctly be assumed that Professors of Jurisprudence use the word ‘law’ to refer to their basic subject-matter, it cannot be assumed that the precise identity of this subject-matter is universally or even generally agreed. Consider some of the identifications of law quoted by Professor Hart—‘ What officials do about disputes is… the law itself’; ‘The prophecies of what the courts will do… are what I mean by the law’; Statutes are ‘sources of Law… not parts of the Law itself’; ‘Constitutional law is positive morality merely’; ‘One shall not steal; if somebody steals he shall be punished… If at all existent, the first norm is contained in the second norm which is the only genuine norm… Law is the primary norm which stipulates the sanction.’