Licence or lease?

As formerly a party, who might now find a remedy as a licensee, was left without a remedy because the only resource then known to his counsel was to force the admission of his right into the category of easements, so now, in the light of our present knowledge, a person may, as in Errington v. Errington, achieve in the character of licensee an object which eluded him as long as he took steps in the wrong direction by asserting an abortive title as lessee. The question, whether an interest is a licence or a lease, is most important, and without some examination of the older cases the modern cases cannot be understood. The oldest case appears to be Hall v. Seabright. X sued Y for trespass to his house; Y pleaded that X gave him a licence to occupy until midsummer if he so wished. But the court seems to have been of opinion that the defendant must have had a lease or nothing, and there is no such thing as a lease whose existence depends on the will of one party. Professor Hargreaves cites this case as authority for the familiar proposition, recited at the beginning of this article, that “parties cannot by their mere intention vary the legal consequences of their own acts.” The moral would seem to be that even an abortive lease cannot be interpreted as a licence. He maintains that it was not until Errington v. Errington that a person admittedly in exclusive possession of land was denied a legal or equitable title to the land itself, and relegated to the position of licensee, which was elevated for his protection to give him advantages as good as those he would have enjoyed had such a title been attributed to him.

That eminent Law Lord, Lord Asquith, now, alas, no longer with us, was somewhat apologetic in comparing legal doctrines of Causation with those as he saw them of science and philosophy. I venture to question if there is any occasion for apology. The different sciences have developed in their own many ways in their efforts to satisfy the needs of human thought which have called them into life; this is particularly true of their treatment of what is called the relation of cause and effect. Lord Asquith truly said that “ the philosophic doctrine of causation and the juridical doctrine of responsibility for the consequences of a negligent act diverge.” They are dealing with different problems and the solutions must differ. Certainly the solutions or explanations propounded by philosophers, scientists and lawyers are different from what is after all a relative and empirical problem. Law in particular has no reason to blush for the results of its age-long efforts.

The great South African case of Harris v. Minister of the Interior will have turned the thoughts of many lawyers to the subject of legal sovereignty. Under English law the principle of the sovereignty of Parliament, “ the dominant characteristic of our political institutions,” is supposed to be something very simple and clear—and so indeed it appears in its classic exposition in the pages of Dicey. But the classic exposition is now widely controverted; an example may be taken from the recent remark of the Lord President of the Court of Session

A Wife petitioned for divorce on the ground of cruelty. The husband denied that he had been guilty of cruelty; and in his answer alleged that the petitioner had been guilty of adultery. The husband was a regular soldier of non-commissioned rank; and an issue in the case related to the circumstances in which the wife was received by the husband on her arrival at his station at Hongkong. There had been at Hongkong a representative of the Soldiers, Sailors and Air Force Families Association (SSAFA), a Mrs. Allsop. Differences had arisen between the husband and wife, and her good offices were invoked. She had made written reports of the case to her head office.

Before the hearing of the suit the solicitors for the wife had caused to be issued two subpoenas. The first was a subpoena ad testificandum directed to Mrs. Allsop. The second was a subpoena duces tecum addressed to the Secretary of State for War, relating to letters, copies of letters, memoranda and records made by SSAFA concerning the petitioner and respondent. The reason for the second subpoena being directed to the Secretary of State for War was that, for some reason which was left obscure, all the relevant SSAFA documents had come into the possession of the War Office. Counsel was instructed for the Crown, and he produced a certificate by the Secretary of State for War. This stated that, having read the correspondence and notes covered by the subpoena duces tecum addressed to him, he was of opinion that it was not in the public interest that the documents should be produced.

The success of any system of law depends, in the last resort, on the personnel who administer it. However perfect the procedure of a system may be in theory, it will not work well in practice if the officials who operate it are inefficient or lack proper powers: whereas, with efficient personnel having adequate powers, imperfections of procedure may be of little consequence. The fundamental principles of criminal procedure are the same in England and the United States; yet in the one country there is satisfaction, amounting, perhaps, to complacency, with the operation of the criminal law; while in the other there is almost universal dissatisfaction. This dissatisfaction has provoked a great deal of detailed research in America into the deficiencies of criminal justice, by both public commissions and private individuals, and, consequently, the publication of much frank and vigorous criticism. An examination of this criticism shows that, in the opinion of the American commentators, the factor of personnel is at the root of a great many of their troubles.

It is indeed the submission of this article that the important differences in the actual administration of the criminal law in England and America arise, in large measure, from the difference in status and character of the personnel who administer the law; and, in particular, from the differences in the distribution of powers among them. A comparison of some aspects of the powers, prestige, character and abilities of the judges, juries and counsel who, between them, are responsible for dispensing criminal justice in the higher courts in the two countries, will, it is believed, reveal that this is so.

Textbooks on tort begin with the trite proposition that the commission of a tort requires a duty, breach of that duty and, generally, damage. In the tort of negligence, we are told, the duty is a duty of care. The usual way in which this is formulated is that if you can foresee that your conduct is likely to affect a given person, there arises the duty to take care that your conduct does not injure him. The idea seems to be taking root in Roman-Dutch law as well, which is remarkable in view of its Civil law origin. A good deal of controversy has arisen as to whether the notion of the duty of care is necessary or not. It is here suggested that the differences of opinion are reconcilable, but in order to do that we must examine the place which the duty of care occupies in negligence, both in English law and in Roman-Dutch law, since much comment on English law has been forthcoming from the latter quarter and comparison will be instructive. The basis of the proposed reconciliation is that the duty of care is a hybrid notion, combining a question of law and of fact, a dichotomy which is apparent in the language of judges and writers. Those who seek to defend its utility seem mindful of the element of law in it, while those who attack it are thinking of the element of fact. In order to elucidate these elements it is necessary to analyse the tort of negligence. This article will be confined to the examination of the legal element. It will be helpful to begin by appreciating what is meant by the “tort of negligence.”

Although the rules of international law relating to the acquisition of title to territory have long been substantially clearer than most rules of international law, this clarity has to some extent been obscured by the efforts of writers to make them clearer still. The clarity of the rules is due to the circumstance that this branch of international law—unlike some branches—is one on which international tribunals have frequently been called upon to pronounce. It has, in fact, been elucidated to an unusual degree by a relatively small number of recent and authoritative judgments. The obscurity arises from the fact that the terms and classifications traditionally employed by the writers have not to any great extent been followed by the courts in modern times. No comprehensive attempt to overhaul the traditional doctrine on the subject in the light of the recent decisions seems so far to have been made.

From the standpoint of jurisprudence of any court should be perfected immediately after the judge has pronounced his decision. Unfortunately this ideal is not easily attainable in practice, and least of all in a court of equity. In the Chancery Division of the High Court the elaborate procedure built up by the old Court of Chancery for perfecting orders still remains virtually unchanged; and so far as the reported cases go the court had never been required until the recent case of Re Harrison,1 to decide at what moment in time its decision becomes irrevocable. put very shortly the point at issue in this case was whether a judge of the Chancery Division has power of his own motion to alter or reverse (before the judgment has been entered) an oral and decisive judgment given in open court.

Measures, such as weights, were used in the Roman law of sale for two purposes, (a) to determine the amount of the price of a given lot, and (b) to separate the object of sale from a larger bulk. Weights which are heavier than they should be always operate in favour of the buyer, while weights which are too light always benefit the seller. But it is here suggested that this fact has tended to blur the distinction between the two cases which ought to be considered separately, and that consequently there has been some confusion in the interpretation of certain texts, dealing with the effect of false measures.