In the Court of Appeal recently, Nourse L.J. declared Credit Lyonnais Bank Nederland NV v. Burch to be “as clear a case for the setting aside of a transaction against a mortgagee as it was possible to think of”. Curiously, however, relief on the basis of Barclays Bank pic v. O'Brien was given although: (i) the relationship between the surety and principal debtor, of employee and employer, clearly falls outside that of an “emotional or sexual nature” (and no such relationship existed in fact) particularised in O'Brien as one factor giving rise to a lender's constructive notice of the transaction's potential invalidity and; (ii) the Bank twice wrote to the proposed surety advising of the unlimited nature of the charge and of the desirability of obtaining independent legal advice; moreover, (iii) there is surprising dicta suggesting that the nature and extent of the manifest disadvantage in the transaction to the surety may be so severe that, to be enforceable, the lender must not only urge independent advice, it must insist upon it, and must reasonably believe that the advice was obtained, was competent and even, that it was followed.

The story is told of F.E. Smith, the future Lord Birkenhead L.C., that he and a friend were once walking along a narrow residential street when they came upon a couple of men arguing with each other from the upper floors of houses on opposite sides of the street. “They will never agree”, Smith is supposed to have said, “they're arguing from different premises!”

The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.

If a plaintiff makes a payment to a defendant under the coercion of a third party, it has been said that the plaintiff's action in restitution to recover the payment from the defendant is dependent upon whether the defendant had notice of the third party's coercion. That is an error, to which the analysis here is intended as a corrective. The true view is that the plaintiff's action in restitution is dependent only upon the fact of the coercion vitiating his consent; notice is relevant only to separate the question whether the defendant can rely on the defence of bona fide purchase for value without notice.

A Person convicted of a crime suffers punishment—a fine, a community sentence, or perhaps a custodial term. In addition to that sanction, however, conviction of the crime may trigger a variety of disqualifications. The offender may be barred from holding public office, or from serving on a jury. He may be precluded from certain types of employment, or be prevented from driving a vehicle. These consequences may considerably restrict the person's prospects for earning a living or his mobility. Yet the visibility of these measures is low: provisions authorising various disqualifications are scattered throughout the statute books, and are not easy to find. While there is now a considerable body of jurisprudence on sentencing, the principles which should inform the proper use of disqualifications have received little serious attention.

Just as all the best titles have already been used, so have all the best opening lines. To begin, I can do no better than quote the opening words of the inaugural lecture given by my predecessor, Peter Stein, when he took up the Chair of Jurisprudence in the University of Aberdeen. I have changed the names. “When a pupil is appointed to succeed his master in any office it is natural that his feeling of honour should be tempered by humility. But when the master is a scholar of the calibre of Peter Stein, the pupil must exert himself to prevent his humility from degenerating into despair.”

In the phrase “moral responsibility”, the term “moral” can register two different ideas. On the one hand, it may introduce a particular field of application and a corresponding class of consequences, which are informal and social rather than formal and supported by force. Used in this way, “moral responsibility” is distinguished from legal responsibility. A quite different use of the term is involved when “moral” is introduced to imply a certain basis of assessment, one that places particular emphasis on the voluntary. In this sense, moral responsibility can be proposed as a basis of assessment even when what is in question is legal responsibility, for instance in relation to the criminal law.

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g., deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.

ONE of the less vaunted aspects of the Criminal Justice and Public Order Act 1994 is Part X, entitled “Cross-Border Enforcement”. On closer scrutiny, one quickly discovers that the borders in question are those internal to the distinct legal jurisdictions of the United Kingdom—in other words, the territories of England and Wales, Northern Ireland and Scotland. As for “enforcement”, it is apparently the enforcement of the law via police powers and not the enforcement of court judgments which is the concern. As with other, more notorious parts of the Act, three main questions need to be answered in order to reach an understanding of these provisions: what prompted Part X to be passed; how does it seek to attain its objectives; and does it seek to attain its objectives in ways which are effective and appropriate?