In a recent article in the Cambridge Law Journal, Dr. D. M. Gordon, q.c., sets out systematically to demolish the theory of quasi-estoppel propounded by Denning J. in Central London Property Trust Ltd. v. High Trees House Ltd. In his closely reasoned argument he seeks to prove that no authority is to be found in case-law, either before or after 1947, to support any principle of this type, which he believes has been totally discredited by dicta in the later case of Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd. He further goes on to assert that the results of the implementation of such a principle would be arbitrary and undesirable in contrast with what he believes to be the clear rule of law laid down in the two nineteenth-century cases of Jorden v. Money and Foakes v. Beer. In short, it appears to be his view that a creditor who promises to forgo contractual rights without consideration and then subsequently retracts his promise and seeks to enforce his strict legal rights is both legally and ethically justified in doing so.

These are sweeping allegations which call for an answer. The object of this paper is to examine the validity of these arguments and to reassert that not only does authority exist to support a principle of quasi-estoppel of the type outlined by the writer on a previous occasion, but also to suggest that the implementation of this principle is most desirable if the rule of law is to be brought into line with commercial expectation and commercial practice.

The rule against perpetuities, it will be remembered, (a) fixed a permissible perpetuity period, namely, the duration of lives in being plus twenty-one years plus (where relevant) the period of gestation, and (b) prescribed that every contingent interest in property is void ab initio if there is any possibility that the contingency may occur after the perpetuity period has expired. A contingent gift or interest is one which depends upon the happening of some event which may never happen—e.g., a gift “to the first child of Elsie who shall swim the Channel.” In this example two contingencies are involved: (i) being born and (ii) swimming the Channel. But (i) is bound to happen, if at all, within Elsie's lifetime; and so (unlike (ii)) it cannot cause the gift to be void for perpetuity.

It would be natural to describe the Queen's procedure as the rejection of the basic individual right of fair trial; indeed had Alice lived in the present decade, one might with reason have drawn the matter to the attention of the International Commission of Jurists. And yet there is a respectable body of current opinion which makes demands which are not really very different in their essentials from those of the Queen, demands made by penal reformers for treatment first and no trial at all. Psychiatric care may now be substituted for execution in some cases, but this reflects only a difference of opinion on the relative efficacy of the two methods of treatment. And the Queen could at least claim for her proposal the absolute certainty of preventing further crimes by the same offender.

The point of making this comparison between the Queen and the reformers is to raise again the question of punishment and responsibility, to claim that the very notions of crime, trial and punishment are in themselves such an important factor in the treatment of antisocial behaviour that we cannot afford to let them wither away. Some social and penal reformers may be aghast at such a claim, fearing that any such wilful deviation from the prevailing trend would lead eventually to the reintroduction of a purely retributive system; and in their eyes retribution conjures up, somewhat irrationally, pictures of pointless, brutal and in human punishments. Such fears are unfounded. It is not the efficacy of the various particular types of punishment which is at issue, but the efficacy of the whole conceptual scheme which some reformers seek to abolish.

It is often said that the French system of judicial control of the Administration is one of the best existing today. The French have no difficulty in believing this, and although Common Law jurists have long been influenced by Dicey, who wrote at a time when Administrative Law was different from that which we know today, they, also, are becoming aware of the merits of the work of the French Conseil d'Etat: Professor Hamson is in no small way responsible for this change of attitude. Moreover, the adoption of the French Administrative Law techniques by the European Communities and their introduction, albeit hesitantly, into the Law of International Organisations have also contributed towards increasing its reputation. Yet, at the very moment when it seems to have become an excellent product for export, the merits and the efficacy of French Administrative Law are causing considerable doubts among the French themselves. It has become fashionable to criticise what was unreservedly praised, and one wonders if adulation will give way to systematic denigration. The answer, not surprisingly, is to be found between the two extremes. The French system comprises elements both of strength and of weakness. This lecture is an attempt to evaluate these elements.

The purpose of this article is to discuss problems of the origin and of the structure of bonae fidei iudicia (formulae), and to consider some of the attempts that have been made to resolve these problems. This will necessitate inquiry into the origins of the formulary system of procedure itself. In the early history of Roman civil procedure there is much that remains uncertain or obscure, and the inquirer must often be content with solutions which, on the evidence, are no more than probable. Yet research continues to map out the terrain, and the map is gradually acquiring more reliability as well as more detail.

Austin has been sniped at for so long that there is now more hole than target. Many would say that this has happened because he is such an obvious target. His conclusions have been widely condemned, his clarity and precision commended, though less fervently. Some have accepted his concepts, but felt them to be inadequate for his task; others have felt the concepts themselves to be inappropriate. Professor Hart succinctly expresses a new orthodoxy in claiming, “Austin … was sometimes clearly wrong; but … when this was so he was always wrong clearly.” This is surprising as Hart is elsewhere one of the most perceptive and diligent searchers for ambiguities and inconsistencies in Austin's work. It is contended that the conventional view of Austin as a careful and painstaking manipulator of hard concepts is quite unjustified. This is not so much to suggest that Austin was wrong as that he was muddled, inconsistent and ambiguous. It is to suggest that time spent shooting at Austin is invariably successful, and invariably unrewarding. An attack upon one version of a doctrine can usually be evaded by reference to another. If Austin is often wrong, he is also often right, and frequently on the same point but in a different place. For those committed to a general attitude towards Austin this may be merely aggravating; for the uncommitted it can be vastly stimulating.