The applicability to administrative decision-making of Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (which requires that the determination of a person's “civil rights” should be by an “independent and impartial tribunal”) is somewhat vexed. First, it is often uncertain when an administrative decision determines “civil rights”. And, secondly, since non-compliance at first instance may be cured where the person aggrieved has access to a court of “full jurisdiction”, it is important but often uncertain to know what “full jurisdiction” is in the circumstances. The full tale is told in (2001) 60 C.L.J. 449 (Forsyth) and in Wade and Forsyth, Administrative Law, 8th edn. (2000) at pp. 441-444. Those unfamiliar with these technical issues should read a standard account before turning to Runa Begum v. Tower Hamlets London Borough Council (First Secretary of State Intervening) [2003] UKHL 5, [2003] 2 W.L.R. 388 (H.L.).

Freedom of establishment has been a promise not only to individuals, but also to companies, ever since the foundation of the EEC, and the relevant articles in the EEC Treaty have long been declared to have direct effect (Reyners v. Belgium [1974] E.C.R. 631). Yet until recently companies faced extra hurdles. A majority of the Member States applied the so-called “theory of the real seat” (for references see H. Xanthaki, “Centros: is this really the end for the theory of the siège réel?” (2001) 22 Company Lawyer 2). In essence, the theory is a rule of private international law that a company will be treated according to the law of its central place of management (the “real seat”), notwithstanding that it may have been incorporated in a different jurisdiction. In such a case, the company will not fulfil the formal requirements of registration in the jurisdiction of its real seat and will normally lack the quality of a legal person there. The aim of the theory is to preserve national company law as a policy instrument in areas such as corporate governance, by disallowing pseudo-foreign companies, i.e. companies set up to do business mainly or exclusively in one jurisdiction, but evading local regulation there by incorporating abroad. But the theory can strike beyond this goal, as the facts of Case C-208/00 Überseering BV v. Nordic Construction Company Baumanagement GmbH demonstrate.

The common law doctrines relating to mixtures and improvements of personal chattels give the impression, to most English lawyers, of being somewhat mysterious. Proprietary interests come and go like ships in the night, now mingled with rights to possession, now quite separate. But although cases involving proprietary claims are not common, the issue often arises as to A's personal rights against B, where B has without A's consent expended effort on A's property, and B's personal rights against A (if any) in respect of the improvement.

InRedland Bricks Ltd. v. Morris Lord Upjohn, in a speech with which all the other Law Lords agreed, asserted that the Court of Appeal had been wrong to consider the applicability of Lord Cairns' Act. Much of the judgments, he observed, had been taken up with a consideration of the principles laid down in Shelfer v. City of London Electric Lighting Co., a case concerned exclusively with the proper principles upon which in practice Lord Cairns' Act should be applied. Neither Lord Cairns' Act nor Shelfer's case, he said in terms, had anything whatever to do with the principles of law appli-cable to the case then before the court. It is accordingly crystal clear that Lord Upjohn regarded Lord Cairns' Act as totally irrelevant: what is less clear is the reason for his opinion.

Lacking both the history and the inspiration of predecessors I shall begin, as Professor Stein did, with the conversation between Goethe and Eckermann in which Goethe is said to have likened the Roman civil law to a duck; “sometimes it is visible swimming prominently on the surface of the water; at other times it is hidden diving among the depths; but always it is there”.

Hire-purchase is no longer the preserve of the poor. Since the Second World War it has become respectable and has helped much to raise industrial production and the standard of living. The social importance of the law of hire-purchase has increased proportionately to the leap in the national hire-purchase and instalment debt from some £461,000,000 in 1955 to £950,000,000 in 1961. Public and judicial dissatisfaction with the law has become increasingly apparent. During and since 1961, the centenary of (probably) the first finance company in the world, a vintage crop of cases of major importance has illustrated some of the main defects of the present system and demonstrated the still unsatisfactory position of the hirer. Numerous recent articles in legal and other periodicals harshly criticise the law and urge reforms, some of which were proposed in two abortive Private Member's Bills. Mr. F. Montgomery's Hire-Purchase of Motor-Vehicles Bill failed to get beyond first reading in February 1961 and Mr. W. T. Williams’ Hire-Purchase Bill, designed to extend and supplement the Hire-Purchase Acts of 1938 and 1954, was talked out on second reading in December 1961, after the Parliamentary Secretary to the Board of Trade had recommended the House to await the report of the Molony Committee on Consumer Protection.

I. ProblemsCreated byTheseCases

TheHigh Trees and Tool Metal cases have this in common: both deal with rights that a creditor is said to confer on his debtor by gratuitously agreeing to suspend periodic payments. Beyond that, they present differences more striking than their similarities.