Students interested in the concepts of cause and consideration must, surely, have been struck by two things. The first is the extraordinary tenacity which has enabled these concepts to survive the attacks of eloquent critics who have doubted their utility. The second is their equally remarkable ability to accommodate the most divergent comparative theories. For the study of the two notions has led some to argue that they are, in reality, the same; others to insist that they are totally different; while yet another school of thought could be taken to doubt whether there is “any point in comparing cause and consideration, even to contrast the two.”

The study of the legal systems of many countries—notably of the systems of West Germany, and Switzerland—reveals that there can be built a theory of contract which ignores the concepts of cause (as the French understand it) or consideration (as the Common lawyers have come to apply it over the years).

The way in which English courts and tribunals construe and apply Community law is of manifold interest, not least to the outside observer. English judges reacted at first with misgiving. Even if they were prepared, as was Lord Denning in Bulmer v. Bollinger, to concede that Community law (unlike English law) is expressed “in sentences of moderate length and commendable style,” they hastened to add that Community law, and Continental law behind it (unlike English law), “lacks precision,” lacks interpretation clauses and is full of gaps and lacunae.

It has long been established that covenants in legal leases are enforceable where there is privity of contract or privity of estate. Privity of contract exists where the litigants are the original parties to the lease and where the benefit of the covenant has been assigned. Privity of estate applies where the parties are in the relationship of landlord and tenant. Thus an assignee of the landlord's freehold reversion and an assignee (but not sub-lessee) of the lease are in privity of estate. The traditional view is that privity of estate requires a legal lease. This limits the running of covenants in equitable leases (there will be an equitable lease if the necessity for a deed has been overlooked or if there is merely an agreement for a lease). The principle that an equitable lease does not give rise to privity of estate has several important exceptions. Before these are considered, however, it is expedient to examine the general principle.

In recent years the principle has come under attack. The source of the attack emanates from the celebrated dicta of Jessel M.R. in Walsh v. Lonsdale, describing the effect of the Judicature Act 1873:

There are not two estate as there were formerly, one estate at common law by reason of the payment of the rent from year to year, and an estate in equity under the agreement. There is only one Court, and the equity rules prevail in it. The tenant holds under an agreement for a lease.

The problems of reconstructing the development of liability for animals in Roman law are considerable. Each of the remedies is attended by major difficulties for the historian. We have the following:

(1) A Twelve Tables remedy for pauperies—an archaic term, the meaning of which is obscure;

(2) A Twelve Tables remedy for depasturation, of which there is no surviving quotation, but only a small number of allusions;

(3) An edictum on dogs and certain wild animals, undated and surviving in two versions with hardly any juristic interpretation;

(4) A “lex Pesolania” concerning dogs, the very existence of which has been questioned;

(5) The classical actio de pauperie, the basis, extent, and remedy for which have all been assailed by the interpolationists;

(6) The classical actio de pastu, evidently superseded by Justinian's day and thus leaving but few traces.

The Common Lawyer, to whom these remedies may reasonably evoke the types of damage represented by scienter and cattle-trespass and the special rules for dogs and ferae, will not be surprised to find, in addition, the application of general culpa principles by the extension of the actio legis Aquiliae.

I. The Decemviral Remedies

Some strands of ancient tradition maintain that the Decemvirs adopted an eclectic method, incorporating within the Twelve Tables both ancestral custom and foreign law.