One of the most litigated property law issues over the past decade has been the equitable jurisdiction to set aside a mortgage transaction procured by undue influence or some other vitiating conduct.

The most common scenario is where the complainant has executed a mortgage as co-mortgagor with the principal mortgagor or has otherwise postponed his or her interest in the mortgaged property in order to secure the debts of the principal mortgagor; and, by way of a defence to an action for possession by the mortgagee, the complainant seeks to have the transaction set aside on the ground that it was procured by vitiating conduct on the part of the principal mortgagor. Barclays Bank plc v. O'Brien [1994] A.C. 180 established the structure of the defence.

It is the purpose of this article to demonstrate that Lord Herschell's famous statement in Makin of the law relating to similar fact evidence was and is valueless, that it continues to exert a baneful influence both upon the cases and upon much of the academic commentary on them, and that it is overdue for commitment to the scrapheap. The essence of my argument is that English law does not, in truth, regard reasoning from disposition as illegitimate. Hence, there is no negative principle from which positive exceptions need to be carved out and no rational basis for applying different law according to whether or not the prosecution seeks to place reliance on the nature of the accused's disposition. An attempt will be made to explain why, even after Lords Wilberforce and Cross had, in identifying some or all of these truths in Boardman, made the crucial “intellectual breakthrough,” they have not been grasped by the rest of the judiciary.

All who belong to the small class of persons interested in medieval legal procedure will wish to express their thanks for, and admiration of, the latest contribution made to our knowledge of the subject by the distinguished literary partnership of Mr. H. G. Richardson and Dr. G. O. Sayles. It appears in Volume 60 of the Selden Society publications (dated 1941, but issued last year) entitled, ‘Select Cases of Procedure without Writ under Henry III.’ It is, we are told, an instalment prefatory to another volume which will carry the story beyond the year 1272.

Two years ago I was invited to join a conference of law students from the Nordic countries and to discuss with them the law of labour relations. There were many radical socialists among the members of the conference. One after another young angry men attacked the present state of law in the Nordic countries as the law of the ruling classes. The collective agreement was not, as I had been used to see it, a bargain between two independent parties but a means of oppression. Not seldom the officers of the national union were in collusion with management and the rest of the establishment. In the debate I answered that their views were too narrow because there were at least the following four elements of law: (1) the law of survival, (2) the law of toleration, (3) the laws of the ruling classes, and (4) laws based upon agreements. Their laws represented only one of these four elements. Today I am going to try to develop this general theme.

Propositions about law result from thought about law, which is the business of jurisprudence. We shall be concerned with those propositions in which jurisprudence formulates its most general conclusions. Such propositions are expressed in statements or sentences of the general grammatical form ‘Law is “so and so”’, or more briefly, ‘Law is “X”’. By propositions about law we shall mean propositions, statements or sentences in this form. Similarity in form does not, however, necessarily imply similarity of logical function, any more than the use of the same word, ‘law’, is a guarantee that the same ‘thing’ or ‘entity’ is being referred to. Our propositions may in fact have etymological, defining, explanatory and/or emotive functions. To distinguish and to clarify these functions is the purpose of this article.