The circumstances in which a party to a contract for the sale of land may recover damages have been the subject of considerable judicial and academic discussion recently. That discussion has focused on those situations in which the contract has been terminated for breach. The purpose of the present article is to consider the position where the purchaser either wishes or is obliged to keep the contract on foot notwithstanding the breach by the vendor. There are at least three possible situations:

(1) Where the vendor misdescribes the property in the particulars of sale. That misdescription may take one of two forms. The vendor may either misdescribe the extent of the land (for example, he agrees to sell twenty acres when he has only fifteen) or the state of his title (for example, he contracts to sell as freeholder when the property is in fact leasehold). A purchaser may terminate the contract if the misdescription is substantial even if there is a conditien of sale which states that the contract will not be vitiated by reason of, or that compensation will be payable in the event of any misdescription.

Law students soon learn that the law of anticipatory breach of contract is difficult. Foaled from dubious antecedents, it has been the subject of continuous academic criticism. The main theoretical objections to the doctrine are well known. How is one to explain how a promise can be broken before the time for its performance has arrived? And why should the question whether a repudiation amounts to a breach turn on the conduct or assent of the innocent party?

A significant and relatively recent academic contribution to the problem of exclusion clauses has been to highlight the relevance of contractual terms to the constructional problems that arise in interpreting individual exclusion clauses. The conventional view, that an exemption clause operates as a shield to a claim for damages or repudiation, has been criticised as a failure to recognise this as simply one device available to the draftsman to enable him to delimit the extent of the obligations undertaken by the agreement: a negative statement of positive obligation. The most persistent advocate of the exclusion clause as a method of modifying primary contractual duties is Professor Coote. Judicial response has, until recently, been disappointing, although there has been more enthusiasm in Australia.

It is now eight years since J. C. Hall and J. Eekelaar called for a “reformation” and “clarification” of parental rights. Both of them established, in rather different ways, the difficulty in analysing parental rights as rights rather than as duties or powers or freedoms, the ascendancy in any case of the welfare of the child in almost every example where a parental right came into conflict with the welfare principle, and finally the difficulty of describing the fragmentation of parental rights when these are split up between different people or bodies.

The decisions of the House of Lords in Caldwell and Stephen Lawrence can be read in widely differing ways. Taken at their face they are a slap-happy repudiation of the concept of recklessness that has been carefully developed in the last few years, going back to the notion that recklessness includes inadvertent negligence and working a profoundly regrettable change in the criminal law. If, on the other hand, each decision is interpreted in the light of its facts, with a sentence from one of the less conspicuous parts of Caldwell transferred to one that is thrust more prominently upon our attention, and if, as the result of this, the expressed ratio decidendi in each case is materially rewritten, they can be seen as imposing acceptable restrictions upon the requirement of a mental element in crime.