On 13 August 1981 the European Court of Human Rights decided, by a majority of eighteen to three, that the dismissal by British Rail of three of their employees, Messrs Young, James, and Webster, for their refusal to join a union was a violation of their rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms. Although a variety of different arguments concerning the compatibility of their dismissal with the Convention's provisions had been presented to the court, the eventual decision was based entirely on Article 11 which protects, inter alia, the “right to … freedom of association with others, including the right to form and to join trade unions.”

This article discusses an old but vexed question in the law of obligations: to what extent can a purchaser of personal property find himself bound to observe covenants relating to that property to which he was not party? Put shortly, how far can covenants bind personal property?

This question can, of course, arise in many guises. The issue may be whether a purchaser of shares in a private company is bound by a right of pre-emption in respect of those shares held by other shareholders in the same company; whether the seller of goods can impose restrictions on the price at which remote purchasers may resell those goods; whether the mortgagee of a ship can be prevented from using the vessel inconsistently with the rights of one who has booked space in her: issues whose sheer diversity makes it most difficult to achieve the aim in this article of developing general principles in this area of the law.

Professor Williams has done much to explicate and defend the subjectivist account of mens rea, which makes conscious risk-taking central to the idea of recklessness. It is thus not surprising that he should be critical of the rulings in Caldwell and Lawrence; nor would I quarrel with many of his objections to those decisions. My concern here is with his own views on the proper definition of “recklessness,” and on the proper use of that definition, in the criminal law: for his Textbook of Criminal Law suggests, and his discussions of Caldwell show, that he is willing to extend the concept of recklessness beyond the strict limits of subjectivism. Such an extension is indeed warranted: but I will argue that it can be explained and justified only by a more radical revision of subjectivism than he seems to allow (I ignore Lawrence and reckless driving here: Professor Williams is willing to accept an objectivist account of recklessness as gross negligence in the context of reckless driving, so long as it retains a suitably subjective meaning in other criminal contexts (R.R. 273–275)).

Nuisances come in many and varied forms: factories and playgrounds, boats and roots, bells and smells, to name but a few. By contrast, remedies for nuisance come in basically two forms; the injunction and damages. Despite this a person complaining of nuisance is far better off than a plaintiff in many other tort actions. This is because what is frequently complained of in nuisance actions is a continuing activity rather than a bygone act and therefore in addition to an award of damages there is the option of a remedy by way of an injunction forbidding continuance of the nuisance. In the past, judges have seized upon the injunction as the most effective way of protecting the plaintiff's property rights. However, in recent years there have been suggestions that the injunction may not always be the best remedy, when looked at from other than exclusively the plaintiff's perspective. Much of the criticism has come from American academics and has been founded largely upon economic analysis of the efficiency of the alternative remedies. There has been relatively little discussion of the problem by economists and lawyers in this country, with the notable exceptions of the excellent article by Ogus and Richardson, “Economics and the environment-a study of private nuisance ”

The contract of employment is still the basic structure in individual employment law. There is, however, much literature the argument of which is that the contract of employment is in many ways an unsuitable legal framework to govern individual workplace relations. In particular, the resolution of individual employment disputes would not, one might realistically imagine, be best achieved by the application of rigid contractual principles derived frequently from the resolution of commercial and other unrelated problems. In this vein it has been stated by Winn L.J. that:

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.

Care and concern for the elderly have long been regarded by social anthropologists as hallmarks of a civilised community. Unfortunately the care of the elderly frequently presents problems of both a social and legal nature. Some of the difficulties which confront legal practitioners arise from factual situations similar to the following: an aged, widowed father, whose health is deteriorating, asks his adult child to move into his house and look after him for the rest of his days. In return, the father promises orally to leave the house by will to the child or to the child and his or her spouse. The type of problem which can then occur is seen when it is found on the father's death either that he has died intestate, and the estate of which the house forms part has to be divided equally between the child and his or her brothers and sisters, or that he has forgotten to alter his last will. Consequently a will executed perhaps many years earlier provides that the house should be left to some other relative—or even to the legendary cats' home. The child, having assiduously cared for the elderly father, may wish to claim the house and may seek the practitioner's advice.

What forms of economic coercion should the law permit in the conflict between labour and capital? This is a fundamental question to ask in any developed economy. It is also hotly disputed, particularly in Britain where, in the last ten years especially, successive governments have attempted to redefine the legality of strike action to reflect their own views of what society should tolerate. As every student of labour law knows, the liberty to strike in Britain has been created by Parliament giving unions and workers a series of immunities from judge-made liabilities, and the scope of that liberty can be altered by expanding or restricting the immunities accordingly. This perhaps suggests a simple control mechanism for adjusting at will the boundary between lawful and unlawful industrial action. But the description is deceptively simple and any such conception is grossly misleading.

In a recent article in the Cambridge Law Journal, Laurence Goldstein argues that four problems of legal theory which are supposed to present elements of paradox are capable of a reasonably simple solution. I am interested here in only one of the problems discussed by Goldstein: that concerning the status of the rules of precedent. I agree with Goldstein that this problem has a reasonably simple solution: but I disagree with the solution he proposes. (Broadly this is that pronouncements on precedent do not establish rules of law.) I propose in this short article to offer what I believe to be a correct solution to this problem. The solution proposed is one which has already been suggested by A. W. B. Simpson in 1961 in “The Ratio Decidendi of a Case and the Doctrine of Binding Precedent” but there is, I believe, a defect in Simpson's formulation of the argument for it, which has impeded its general acceptance. In any event, as there is clearly still controversy about the issue, it seems worthwhile restating this solution with fresh arguments. I will first discuss the problem, then its proposed solution, then Simpson's discussion of the topic, and finally some further questions which are suggested by the proposed solution.