Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
1 Corsi di Laurea Magistrali in
Relazioni Internazionali e
Scienze dell’Amministrazione
a.a. 2014-2015
Legal English
Dispensa per il lettorato di
Matthew Ridger
1 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
2 MODULE 1- INTRODUCTION TO LEGAL ENGLISH ………………………..3
MODULE 2 - THE TERMINOLOGY AND LINGUISTIC PECULIARITIES OF
LEGAL ENGLISH …………………………………………………………………9
MODULE 3 – KODAK, A CASE STUDY IN ENGLISH CONTRACT LAW –
INVITATION TO TREAT ……………………………………...........................19
MODULE 4 – LORD DENNING - CASES AND LANGUAGE ………………25
MODULE 5 – TWO EXAMPLES OF ENGLISH CASE LAW ………………35
2 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
3 MODULE 1- INTRODUCTION TO
LEGAL ENGLISH
THE DEVELOPMENT OF MODERN ENGLISH
The English language contains elements from many different European
languages and has also borrowed words from a wide variety of other
languages. It is impossible to grasp how these influences affect the
language without understanding a little about the history of the British
Isles.
Prior to the Roman invasion in 55 BC, the inhabitants of Britain spoke a
Celtic dialect. Latin made little impression until St. Augustine arrived in AD
597 to spread Christianity. Latin words are regularly used in English,
particularly in professional language. In the legal profession, Latin phrases
like inter alia (among others) and per se (in itself) remain in current use.
Subsequently, the Angles, Saxons and Jutes invaded the British Isles from
mainland northern Europe. The language they brought with them forms the
basis of what is known as Old English. This gives us the 100 most
commonly used words in the English language (words like God, man,
woman, child, love, live, go, at, to).
The Vikings began to raid the northeast of England from Scandinavia from
the eighth century onwards. At a later date, a significant number of Vikings
settled in this area, bringing with them their own linguistic contribution
(which can be seen for example in the numerous place names in the
northeast of England (and Scotland) ending in -by or -thorpe, -wick, -ham
and in words such as egg, husband, law, take, knife).
In 1066 the Normans invaded from northern France and conquered
England. Words such as court, parliament, justice, sovereign and marriage
come from this period.
3 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
4 Later, the English helped themselves initially to further words from French,
such as chauffeur, bourgeois, elite. As the British Empire expanded,
further opportunities to borrow words arose – words such as taboo and
pukka came into the English language from that period.
The result of this multiplicity of linguistic influences is a rich and diverse
language with a complex grammar and many synonyms. For example, a
coming together of two or more people could be a meeting or gathering
(Old English), assignation or encounter (Old French), a rendezvous, rally or
reunion (French), a caucus (Algonquin), pow-wow (Narragansett) or a tryst
(Old French).
SOURCES OF LEGAL ENGLISH
Legal English reflects the mixture of languages that has produced the
English language generally. However, modern legal English owes a
particular debt to French and Latin. Following the Norman invasion of
England in 1066, French became the official language of England, although
most ordinary people still spoke English. For a period of nearly 300 years,
French was the language of legal proceedings, with the result that many
words in current legal use have their roots in this period. These include
property, estate, chattel, lease, executor and tenant.
During this period, Latin remained the language of formal records and
statutes. However, since only the learned were fluent in Latin, it never
became the language of legal pleading or debate.
Therefore, for several centuries following the Norman invasion, three
languages were used in England. English remained the spoken language
of the majority of the population, but almost all writing was done in French
or Latin. English was not used in legal matters.
In 1356, the Statute of Pleading was enacted (in French). It stated that all
legal proceedings should be in English, but recorded in Latin. Nonetheless,
the use of French in legal pleadings continued into the seventeenth
century in some areas of the law. In this later period, new branches of – in
4 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
5 particular – commercial law began to develop entirely in English and
remain relatively free of French-based terminology.
As the printed word became more commonplace, some writers made a
deliberate effort to adopt words derived from Latin, with the aim of making
their text appear more sophisticated. Some legal words taken from Latin in
this way are adjacent, frustrate, inferior, legal, quiet and subscribe. Some
writers also started to use a Latin word order. This led to an ornate style,
deliberately used to impress rather than inform. Even today, Latin
grammar is responsible for some of the ornateness and unusual word
order of legal documents. It also lies behind the frequent use of shall
constructions in legal documents.
English was adopted for different kinds of legal documents at different
times. Wills began to be written in English in about 1400. Statutes were
written in Latin until about 1300, in French until 1485, in English and
French for a few years, and in English alone from 1489.
WHAT MAKES ENGLISH DIFFICULT?
It is said of chess that the game takes a day to learn, and a lifetime to
master. In similar vein, English is reputed to be an easy beginner’s
language in which it is nevertheless very hard to achieve native-level
fluency. Why is this?
There are probably four main factors that make English difficult to master.
These are:
1 Lack of clear rules of grammar.
We have seen how English is a product of various different linguistic
traditions. One of the results of this is a comparative lack of consistent
grammatical rules. Prepositions are a clear example of this.
2 Extensive vocabulary. There are many different ways of saying the same
thing in English. This is again due to the fact that English draws upon
different linguistic traditions. For example, if you wanted to say that
something was legally permissible, you could use the Old Norse
5 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
6 (Scandinavian) -derived word, lawful. Alternatively, you could use the
Latin-derived word, legitimate. Or, if you wanted a more emotive word, you
could use the Old English word, right. To take another example, when
talking about employment do you say calling, career, profession,
employment, job, work, occupation or vocation?
3 The use of phrasal verbs in English (and legal English).
For example, you put down a deposit, and you enter into a contract. These
combinations must be learned individually because they involve using a
verb with a preposition or adverb or both; and, as noted above,
prepositions do not follow clear grammatical rules.
4 The use of idioms.
Idioms are groups of words whose combined meaning is different from the
meanings of the individual words. For example, the expression over the
moon means ‘happy’. Idioms are frequent in ordinary English – they are a
distinctive element of the way native English speakers use the language.
They are found less often in legal English, but exist in some legal jargon.
For example, the expression on all fours is used to refer to the facts of a
case that correspond exactly to the facts of a previous case.
WHAT MAKES LEGAL LANGUAGE DIFFICULT?
One of the main reasons why legal language is sometimes difficult to
understand is that it is often very different from ordinary English. This
comprises two issues:
1 The writing conventions are different: sentences often have apparently
peculiar structures, punctuation is used insufficiently, foreign phrases are
sometimes used instead of English phrases (e. g. inter alia instead of
among others), unusual pronouns are employed (the same, the aforesaid,
etc), and unusual set phrases are to be found (null and void, all and
sundry).
6 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
7 2 A large number of difficult words and phrases are used. These fall into
three categories, brief details of which are given below.
a) Legal terms of art
Legal terms of art are technical words and phrases that have precise and
fixed legal meanings and which cannot usually be replaced by other
words. Some of these will be familiar to the layperson (e. g. patent, share,
royalty). Others are generally only known to lawyers (e. g. bailment,
abatement).
b) Legal jargon
Terms of art should be differentiated from legal jargon. Legal jargon
comprises words used by lawyers, which are difficult for non-lawyers to
understand. Jargon words range from near-slang to almost technically
precise words. Well-known examples of jargon include boilerplate clause
and corporate veil.
Jargon includes a number of archaic words no longer used in ordinary
English. These include annul (to declare that something, such as a
contract or marriage is no longer legally valid) and bequest (to hand down
as an inheritance property other than land).
It also includes certain obscure words which have highly specialised
meanings and are therefore not often encountered except in legal
documents. Examples include emoluments (a person’s earnings, including
salaries, fees, wages, profits and benefits in kind) and provenance (the
origin or early history of something). Jargon words should be replaced by
plain language equivalents wherever possible.
c) Legal meaning may differ from the general meaning
There is also a small group of words that have one meaning as a legal term
of art and another meaning in ordinary English. One example is the word
7 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
8 distress, which as a legal term of art refers to the seizure of goods as
security for the performance of an obligation. In ordinary English it means
anxiety, pain or exhaustion. Here are some further examples.
Consideration in legal English means an act, forbearance, or promise by
one party to a contract that constitutes the price for which the promise of
the other party is bought. Consideration is essential to the validity of any
contract other than one made by deed.
Consideration in ordinary English means; (1) careful thought, (2) a fact
taken into account when making a decision, (3) thoughtfulness towards
others.
Construction in legal English means interpretation. ‘To construe’ is the
infinitive verb form of the term.
Construction in ordinary English means: (1) the action of constructing [e. g.
a building]; (2) a building or other structure; (3) the industry of erecting
buildings.
Redemption in legal English means the return or repossession of property
offered as security on payment of a mortgage debt or charge.
Redemption in ordinary English usually means Christian salvation.
Tender in legal English means an offer to supply goods or services.
Normally a tender must be accepted to create a contract.
Tender in ordinary English means: (1) gentle and kind; (2) (of food) easy to
cut or chew; (3) (of a part of the body) painful to the touch; (4) young and
vulnerable; (5) easily damaged.
8 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
9 MODULE 2 - THE TERMINOLOGY
AND LINGUISTIC PECULIARITIES
OF LEGAL ENGLISH
Terms of art
Legal English, in common with many other professional languages,
employs a great deal of terminology that has a technical meaning and is
not generally familiar to the layperson. These are sometimes referred to by
lawyers as ‘terms of art’.
Examples include waiver, restraint of trade, restrictive covenant and
promissory estoppel.
Foreign terminology
In addition, a number of Latin and French words and phrases (such as
inter alia, mutatis mutandis, ad hoc and force majeure) are in regular use in
legal English. While these should not be overused, a number of them are
regarded as indispensable by lawyers because they express a legal idea
much more succintly than could be achieved in English. For example, the
phrase inter alia is sometimes rendered in English as ‘including but not
limited to’.
Doublets and triplets
There is a curious historical tendency in legal English to string together
two or three words to convey what is usually a single legal concept.
9 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
10 Examples of this include null and void, fit and proper, perform and
discharge, dispute, controversy or claim, and promise, agree and
covenant. These are often called ‘doublets’ or ‘triplets’.
These should be treated with caution, since sometimes the words used
mean, for practical purposes, exactly the same thing (null and void) ; and
sometimes they do not quite do so (dispute, controversy or claim). Modern
practice is to avoid such constructions where possible and use single
word equivalents instead. For example, the phrase give, devise and
bequeath could be replaced by the single word give without serious loss
of meaning.
However, the pace of change in legal usage is slow, and as a result it is
still quite common to see certain typical doublets and triplets in certain
legal documents. Some of the most common of these are listed below
(with suggested equivalents in brackets).
Doublets
Able and willing (=able)
Agree and covenant (=agree)
All and sundry (=all)
Authorise and direct (=authorise OR direct)
Cancelled and set aside (=cancelled)
Custom and usage (=custom)
Deem and consider (=deem)
Do and perform (=perform)
Due and owing (=owing)
Fit and proper (=fit)
Full and complete (=complete)
Goods and chattels (=goods)
Keep and maintain (=maintain)
Known and described as (=known as)
Legal and valid (=valid)
Null and void (=void)
10 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
11 Object and purpose (=object OR purpose)
Order and direct (=order)
Over and above (=exceeding)
Part and parcel (=part)
Perform and discharge (=perform OR discharge)
Repair and make good (=repair)
Sole and exclusive (=sole OR exclusive)
Terms and conditions (=terms)
Touch and concern (=concern)
Uphold and support (=uphold)
Triplets
Cancel, annul, and set aside (=cancel)
Communicate, indicate or suggest (=communicate)
Dispute, controversy or claim (=dispute)
Give, devise and bequeath (=give)
Hold, possess, and enjoy (=hold)
Pay, satisfy, and discharge (=pay)
Possession, custody, and control (=possession OR custody OR control)
Promise, agree, and covenant (=promise OR agree)
Repair, uphold and maintain (=repair OR uphold OR maintain)
Way, shape or form (=way)
Here-, there- and where- words
Words like hereof, thereof, and whereof (and further derivatives ending in at, -in, -after, -before, -with, -by, -above, -on, -upon, etc.) are not often
used in ordinary English. They are still sometimes used in legal English,
primarily as a way of avoiding the repetition of names of things in the
document – very often, the document itself.
11 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
12 For example: the parties hereto instead of: the parties to this contract or
the provisions contained hereinafter instead of: the provisions contained
to later on in this contract
However, in most cases the use of such words is strictly unnecessary or
can be rendered unnecessary by the use of definitions. For example, if
there is likely to be doubt about the matter, the parties can be defined, in a
definitions section, as ‘the parties to this contract’. In most cases,
however, the meaning of words and phrases can be gathered from the
context in which they are placed. Here-, thereand where- words persist in
modern legal usage largely as a consequence of legal tradition rather than
usefulness.
Here is a list of some of these words and the way in which they are used. It
should be noted that the list is not exhaustive.
Hereafter means ‘from now on or at some time in the future’. For example,
‘the contract is effective hereafter’.
Hereat means (1) ‘at this place or point’ or (2) ‘on account of or after this’.
For example, ‘hereat the stream divided’.
Hereby means ‘by this means; as a result of this’. For example, ‘the parties
hereby declare’.
Herefrom means ‘from this place or point’. For example, ‘the goods shall
be collected herefrom’.
Herein means ‘in this document or matter’. For example, ‘the terms
referred to herein’.
Hereinabove means ‘previously in this document or matter’. For example,
‘the products hereinabove described’.
Hereinafter means ‘later referred to in this matter or document’. For
example, ‘hereinafter referred to as the Company’).
Hereinbefore means ‘previously in this document or matter’. For example,
‘the products hereinbefore described’.
12 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
13 Hereof means ‘of this matter or document’. For example, ‘the parties
hereof’. Hereto means ‘to this place or to this matter or document’. For
example, ‘the parties hereto’. Heretofore means ‘before now’. For
example, ‘the parties have had no business dealings heretofore’.
Hereunder means ‘later referred to in this matter or document’. For
example, ‘the exemptions referred to hereunder’.
Herewith means ‘with this letter or document’. For example, ‘I enclose
herewith the plan’.
Thereof means ‘of the thing just mentioned’. For example, ‘The contract
was signed on 1 May 1999. The parties thereof . .. ’
Thereafter means ‘after that time’. For example, ‘The products shall be
transported to The Grange. Thereafter, they shall be stored in a
warehouse. ’
Thereat means (1) at that place or (2) on account of or after that. For
example, ‘thereat, payments shall cease’.
Thereby means ‘by that means; as a result of that’. For example, ’the
parties thereby agree’.
Therein means ‘in that place, document or respect’. For example, ‘The
parties shall refer to the contract dated 1 May 1999. It is agreed therein
that . .. ’
Thereinafter means ‘later referred to in that matter or document’. For
example, ‘thereinafter, it is agreed that . .. ’
Thereof means ‘of the thing just mentioned’. For example, ‘Reference is
made in paragraph 5 to the contract dated 1 May 1999. The parties thereof
agreed that . .. ’
Thereon means ‘on or following from the thing just mentioned’. For
example, ‘The machine rests on a wooden block. There is placed thereon
a metal bracket . .. ’
Thereto means ‘to that place or to that matter or document’. For example,
‘the parties thereto’.
13 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
14 Therefor means ‘for that’. For example, ‘the equipment shall be delivered
on 13 September 2003. The Company agrees to pay therefor the sum of
$150,000’.
Therefor should not be confused with ‘therefore’ which means ‘for that
reason’.
Thereupon means ‘immediately or shortly after that’. For example,
‘delivery shall take place on 13 September 2003. Thereupon the equipment
shall be stored in the Company’s warehouse’.
Whereabouts means ‘the place where someone or something is’. For
example, ‘the Company shall be kept informed as to the whereabouts of
the products’.
Whereat means ‘at which’. For example, ‘The seller attempted to charge
extra interest on late payment, whereat the buyer objected’.
Whereby means ‘by which’. For example, ‘the contract dated 1 May 1999,
whereby the Company agreed to purchase the products’.
Wherefore means ‘as a result of which’. For example, ‘the buyer breached
the contract, wherefore the seller suffered damage’.
Wherein means (1) in which, or (2) in which place or respect. For example,
‘the contract dated 1 May 1999, wherein it is stated that . .. ’
Whereof means ‘of what or of which’. For example, ‘the Company one of
the directors whereof is a foreign national’.
Whereupon means ‘immediately after which’. For example, ‘The sum of
$15,000 shall be paid by the buyer to the seller on 13 September 2003,
whereupon the buyer’s liability to the seller shall be discharged’.
Whatsoever, wheresoever and howsoever
In addition to the words listed above, you may also encounter the words
whatsoever, wheresoever and howsoever. These have extremely limited
practical meaning and exist as a result of legal tradition only. Whatsoever
means ‘whatever’, i.e. ‘no matter what’ in contractual contexts.
14 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
15 Wheresoever means ‘wherever’, i.e. ‘in or to whatever place’ in contractual
contexts.
Howsoever means ‘however’, i.e. ‘in whatever way or to whatever extent’.
These words are occasionally used together; for example, in the following
sentence: This limitation shall apply in any situation whatsoever,
wheresoever and howsoever arising.
The word whosoever may also be encountered. This simply means
‘whoever’.
Hence, whence and thence
The words hence, whence and thence, and the derivatives henceforth and
thenceforth are all archaic forms in ordinary English, which are however
still occasionally seen in legal English. Their meanings are briefly outlined
below.
Hence means (1) for this reason; and (2) from now on.
Henceforth means from this or that time on.
Whence means (1) from what place or source; (2) from which or from
where; (3) to the place from which; or (4) as a consequence of which.
Thence means (1) from a place or source previously mentioned; (2) as a
consequence.
Thenceforth means from that time, place or point onwards.
-er, -or and -ee names
Legal English contains a large number of names and titles, such as
employer and employee in which the reciprocal and opposite nature of the
relationship is indicated by the use of -er/-or and -ee endings. These
endings derive from Latin. In the example given here, the employer is the
one who employs the employee. Hence, the employee is employed by the
employer.
Here are some further examples that you may have encountered:
15 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
16 Assignor is a party who assigns (transfers) something to another party.
Assignee is the party to whom something is assigned.
Donor is a party who donates something to another party.
Donee is the party to whom something is donated.
Interviewer is a person who is interviewing someone.
Interviewee is a person who is being interviewed by the interviewer.
Lessor is a party who grants a lease over a property. He or she is therefore
the landlord.
Lessee is the party to whom a lease over a property is granted. He or she
is therefore the tenant.
Mortgagor is a lender who lends money to a property owner (the
mortgagee) in return for the grant by the mortgagee of a mortgage over the
property as security for the loan.
Mortgagee is the property owner to whom money is loaned by the
mortgagor in return for the grant of a mortgage over the property.
Offeror is a party who makes a contractual offer to another party.
Offeree is the party to whom a contractual offer is made.
Payer is a party who makes a payment to another party.
Payee is the party to whom payment is made.
Promisor is a party who makes a promise to another party.
Promisee is the party to whom a promise is made.
Representor is a party who makes a contractual representation to another
party.
Representee is the party to whom a contractual representation is made.
Transferor is a party who transfers something to another party.
Transferee is the party to whom something is transferred.
Note that these words are not always used in the way the examples given
above might lead one to expect. For example, a guarantor is someone who
provides a guarantee. However, the person to whom a guarantee is given
is known technically as the principal debtor, not the guarantee. The
16 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
17 guarantee is the document by which the secondary agreement that
constitutes the guarantee is made.
Unfamiliar pronouns
Unfamiliar pronouns represent an archaic usage in legal English, and
include such formulations as the same, the said, the aforementioned, etc.
The use of such pronouns in legal texts is interesting since very frequently
they do not replace the noun – which is the whole purpose of pronouns –
but are used to supplement them. For example, the said John Smith.
Ordinary words in unusual contexts
Apparently ordinary words are sometimes found in unusual contexts in
legal English and have different meanings in those contexts. For example,
the familiar term consideration refers, in legal English, to contracts, and
means ‘an act, forbearance or promise by one party to a contract that
constitutes the price for which the promise of the other party is bought’
(Oxford Dictionary of Law). Other words found in unusual contexts in legal
English include:
construction (interpretation) ;
redemption (used in relation to the repayment of debts secured on
property) ;
furnish (to provide e. g. documents) ;
hold (the application of a legal principle in court proceedings, by a judge) ;
and
find
Deeming
The word deem is frequently used in legal English. In its legal sense it
means to treat a thing as being something that it is not, or as possessing
17 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
18 certain characteristics that it does not in fact possess. This meaning is
employed in contracts and in legislation to create the idea that something
mentioned in the contract is deemed (treated) to be something else.
Consequently, although it would seem absurd to a layperson, from the
point of view of common law drafting practices it would be perfectly
acceptable to write in a contract: In this agreement dogs shall be deemed
to be cats.
More typically, one might find deemed being used in this sort of clause:
Notice shall be deemed served 72 hours after having been posted.
The purpose of such a clause is to indicate that for the purposes of the
contract the parties agree to regard a notice as having been served once
72 hours has passed after the notice was posted.
In ordinary language, deem is simply an old-fashioned term meaning to
consider in a specified way. It is a synonym for think or judge.
18 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
19 MODULE 3 – KODAK, A CASE
STUDY IN ENGLISH CONTRACT
LAW – INVITATION TO TREAT
The case brought against Kodak which had mistakenly underpriced a
digital camera package highlights the importance of having effective
online contracting procedures.
In December 2001 Kodak's Web site offered a digital camera package for
£100. It was advertised as a "special deal" and within days thousands of
customers placed orders online and provided their credit card details for
payment. They received an automated online confirmation that urged them
to keep the message both as proof of purchase and for claiming under
warranty.
Then Kodak discovered that the price of £100 was an error - the price
should have been £329.
Kodak initially claimed that the orders for cameras had not been accepted
so no contract was formed. It said the confirmatory e-mail was only sent to
follow industry practice and was not an acceptance of an offer.
A contract is formed where there is an offer, an acceptance, consideration
and an intention to create legal relations. An offer is distinguished from an
"invitation to treat" because the latter lacks that intention to be legally
bound.
Although Kodak's Web site did not make it clear, the relevant pages were
probably an invitation to treat. By filling out the order form and giving
19 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
20 credit card information, the customer responded by making an offer to buy
the package.
The difficulty for Kodak, however, was that the automated response
suggested that the orders had been accepted. It not only acknowledged
the order but also talked about "this contract". Although the response was
no doubt designed to enhance the user experience, it gave customers the
impression that their orders had been accepted.
So to avoid difficulties it is essential to ensure that your Web site is
structured to reflect the way you want to do business. If Kodak wants to
be certain that an automated e-mail in response to an order does not
amount to acceptance of the order, this should be made clear so that the
customer is in no doubt about the position. The Web site should also
specify when acceptance does occur. This will be necessary in any case
to comply with the latest EU laws on e-commerce.
Kodak argued that the customers must have realised the £100 price tag
was a mistake. The courts have long accepted that a contract is
unenforceable where the offer does not express the true intention of the
seller, if the purchaser must have realised that a mistake has occurred.
The Internet, however, is seen as a medium for great bargains so online
customers might have difficulty distinguishing between a price error and a
promotion. A product advertised online as a "special deal" during postChristmas sales had obviously been taken seriously enough by Kodak's
customers.
An e-tailer looking to protect itself should set up systems to ensure that
mistakes are picked up before product details and prices are loaded on to
a live Web site.
Kodak may also have been accused of committing the offence of giving a
misleading price indication. To defend this allegation Kodak would have
had to show that it acted diligently and took all reasonable steps to avoid
misleading the consumer.
In the event Kodak agreed to honour the orders, whether as a public
relations consideration or after a reassessment of the legal position is not
20 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
21 clear. However, it undoubtedly has proved an expensive experience for the
company.
How to get Web contracts right:
•
Ensure that Web sites are set up as invitations to treat, not as offers
•
State clearly in your terms and conditions when acceptance occurs
•
Clarify any conditions which affect the basis of accepting the order
•
Have reliable systems in place to stop errors happening or at least
identify them before it is too late
*******
Case Law
Below are the most relevant principles and leading cases regarding Offers
vs other steps in the negotiation process:
1. Storer v Manchester City Council: An offer is an expression of a
willingness to contract on certain terms upon acceptance.
2. Gibson v Manchester City Council: Negotiations to enter into a
contract are invitations to treat but not offers
3. Carlill v Carbolic Smoke Ball Co: Advertisements for unilateral
contracts can amount to offers even when addressed to the general
public if the advertisement objectively person making the
advertisement intends to be bound by it.
4. Partridge v Crittenden: Advertisements in printed publications of
goods at certain price are normally considered invitations to treat
and are not offers.
5. Fisher v Bell: Price-marked goods on display on the shelves or on
windows or shops are normally considered invitations to treat and
are not offers.
6. Pharmaceutical Society of GB v Boots Cash Chemists: Goods sold
on self-service basis are invitations to treat, the customer makes the
offer to buy at the cash register.
7. Walford v Miles: Agreements to negotiate are invitations to treat and
do not amount to a binding contract, instead they are regarded as
pre-contractual negotiations.
21 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
22 8. Harvela Investments Ltd v Royal Trust Co of Canada Ltd: Generally
tenders are invitations to treat unless explicit language to accept
the offer is stated (e.g., Harvela).
9. Blackpool Fylde Areo Club v Blackpool Borough Council: Invitations
to tender include an implicit offer to consider all tenders correctly
submitted but not necessarily to accept one.
10. Tiverton Estates Ltd v Wearwell Ltd: The statement “subject to
contract” creates a strong presumption against there being a
contract at the particular stage of contractual negotiations.
*******
Case Number 3 - Carlill v Carbolic Smoke Ball Co
Facts:
The Carbolic Smoke Ball Company made a product called the "smoke
ball" which claimed to be a cure for influenza and a number of other
diseases. The Company published advertisements claiming that it would
pay £100 to anyone who got sick with influenza after using its product
according to the instructions set out in the advertisement.
"£100 reward will be paid by the Carbolic Smoke Ball Company to any
person who contracts the increasing epidemic influenza colds, or any
disease caused by taking cold, after having used the ball three times daily
for two weeks, according to the printed directions supplied with each ball.
£1,000 is deposited with the Alliance Bank, Regent Street, showing our
sincerity in the matter".
Mrs. Carlill saw the advertisement, bought one of the balls and used it
three times daily for nearly two months until she contracted the flu on 17
January 1892. She claimed £100 from the Carbolic Smoke Ball Company.
They ignored two letters from her husband, a solicitor. On a third request
for her reward, they replied with an anonymous letter that if it is used
properly the company had complete confidence in the smoke ball's
efficacy, but "to protect themselves against all fraudulent claims" they
would need her to come to their office to use the ball each day and be
checked by the secretary. Carlill brought a claim to court. The barristers
22 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
23 representing her argued that the advertisement and her reliance on it was
a contract between her and the company, and so they ought to pay. The
company argued it was not a serious contract.
Issue:
•
Can one make a contract with the whole world?
•
How does one interpret vague terms?
•
Was the ad a "mere puff"?
•
Does performance of the conditions advertised in the paper
constitute acceptance of an offer?
•
Was there consideration?
Decision:
•
Appeal not dismissed.
Reason:
Bowen, writing for the majority, held that the contract was not with the
whole world, but rather with those who fulfill the stipulated conditions. He
held that the terms were not vague if read in their plain meaning; entitled
to reward (that is, a contract is formed) if one used the ball for two weeks,
three times a day and got the flu. However if one used the ball before the
ad and got the flu there would be no contract created due to no reliance
interest. As for mere puffery, the language of the ad indicating that they
had £1,000 in the bank directly contradicts that claim. Performance of the
condition of the ad was sufficient acceptance and it was not necessary
that Carbolic Smoke Ball Co. be notified of the intention to be bound. He
further ruled that the inconvenience of Carlill was sufficient consideration.
Lindley wrote that notification of acceptance need not precede
performance, in this case acceptance was contemporaneous with
performance. Further, the offeror showed by their words and the nature of
transaction that he did not require notice of acceptance to be bound.
Ratio:
•
An advertisement can constitute a unilateral contract, which can be
accepted by fulfilling the conditions of the contract; no formal
acceptance required.
23 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
•
24 The determination of a serious offer will be determined from the
words and actions.
•
The terms of the contract (if vague) will be interpreted purposively
from the contract.
•
The offeror can determine how acceptance of offer will be made.
24 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
25 MODULE 4 – LORD DENNING CASES AND LANGUAGE
Lord Denning (1899-1999) was a man of monumental influence over the
devlopment of English law, both in its substance and style. Born in the
19th-century, commonly nominated as the most influential judge of the
20th-century, Lord Denning had a substantial impact across many areas of
law. Once described as "Ambassador-at-Large for the common law”, he
delivered more than 2,000 reported judgments and delivered more lectures
and talks than any other judge ever has, nationally and internationally.
Lord Denning, known to his friends as Tom, was a mathematical scholar at
Oxford and maths teacher at Winchester before he embarked on a
distinguished career as a barrister. During his 38 years in high judicial
office - he retired at 83 - he reformed areas of law such as law of contract,
unmarried partners and judicial review. By the end of his career,
experienced barristers were appearing before him who hadn't been born
when he became a judge.
Lord Denning famously often took the side of the socially weaker party
against the stronger. He backed deserted wives, wounded soldiers
battling the Govrnment over pensions, customers arguing against banks.
His strongly argued dissents in the Court of Appeal - where his judgment
was outweighed by the opinions of the two other judges with whom he
was sitting - were the stuff of legend. In several cases his dissenting
opinion even won out, leading to the law being changed in line with his
view. This happened in the case of the law of negligence applied to words,
under which people can be made liable for their negligent misstatements.
25 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
26 One commonly held assessment of Lord Denning’s jurisprudence is that
he was more concerned to "do justice according to the parties in a case"
than slavishly to follow precedent. His tendency to make new legal
principles, or to apply old ones in novel ways, caused consternation
among conservtive judges. In a family law case from 1953, he said:
What is the argument on the other side? Only this, that no case has been
found in which it has been done before. That argument does not appeal to
me in the least. If we never do anything which has not been done before,
we shall never get anywhere. The law will stand still while the rest of the
world goes on, and that will be bad for both.
For many lawyers and law students, one of the most memorable things
about Lord Denning is his words. His style of writing was his own. He
communicated effectively. In short sentences. Sometimes two words.
Sometimes only one. His presentation was unvarnished. He did not waste
words. His writings are refreshing. They are not merely stuffed with ‘legal
details’. They speak of his love for literature. Shakespeare seems to be
part of his daily vocabulary. His judgments themselvs are pieces of
literature. His writings make the law accessible to lay people. In his
autobiography, the Family Story, Denning described his approach to
judgment writing as follows:
I start my judgment with a prologue - as the chorus does in one of
Shakespeare’s plays - to introduce the story... I draw the characters as
they truly are - using their real names... I avoid long sentences like the
plague, because they lead to obscurity. It is no good if the [reader] cannot
follow them... I refer sometimes to prevous authorities - I have to do so because I know that people are prone not to accept my views unless they
have support in the books. But never at much length. Only a sentence or
two. I avoid all reference to pleadings and orders - They are mere lawyer’s
stuff. They are unintelligible to everyone else. I finish with a conclusion - an
26 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
27 epilogue - again as the chorus does in Shakespeare. In it I gather the
threads together and give the result.
Many of his judgments began in a colourful way:
"It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs.
Hinz had been married some 10 years, and they had four children, all aged
nine and under. The youngest was one. Mrs. Hinz was a remarkable
woman. In addition to her own four, she was foster-mother to four other
children. To add to it, she was two months pregnant with her fifth child.”
Or
"Broadchalke is one of the most pleasing villages in England. Old Bundy,
the defendant, was a farmer there. It was his only asset. His family has
been there for generations. But he did a very foolish thing. He mortgaged
it to the bank.”
Due to his unique storytelling style, the reader immediately understands
the setting for the lawsuit. And we can safely predict that the "remarkable
woman” and the "old farmer” are going to win.
Perhaps his most famous case was Miller v Jackson, or as it is far better
known, "the Cricket Case”, Denning started his story like this:
"In summertime vllage cricket is the delight of evryone. Nearly every village
has its own cricket field where the young men play and the old men watch.
… They hav played these last 70 years. They tend it well. The wicket area is
well rolled and mown. … Now after these 70 years a judge of the High
Court has ordered that they must not play there any more. …”
27 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
28 Denning was able to see matters from a realistic, common-sense
perspective, often that of the man-on-the-street, which gave his opinions a
"real-world" application. For instance, in Thornton v Shoe Lane Parking,
the plaintiff drove a car park and was given a ticket by an automatic
machine, which stated that it was issued subject to conditions displayed
inside the car park. The conditions inside the car park were in small print,
and one of them excluded liability for damages to vehicles or injury to
customers. The plaintiff was injured due partly to the defendant's
negligence. The plaintiff was not held to be bound by the notice displayed
inside the premises, as its existence was not made aware to the defendant
prior to paying. Lord Denning wrote:
"The customer pays his money and gets a ticket [from a machine]. He
cannot refuse it. He cannot get his money back. He may protest to it, even
swear at it; but it will remain unmoved."
He also stated that this particular clause was so wide and destructive of
rights that
"In order to give sufficient notice, it would need to be printed in red ink
with a red hand pointing to it - or something equally startling."
The world renowned High Trees case: Central London Property Trust Ltd v
High Trees House Ltd was a milestone in English contract law and made
Denning's name early on in his career as an innovator in legal reasoning.
The case is said to have revived the doctrine of equitable estoppel or
'promissory estoppel'. However, Denning's doctrine has been criticised by
some legal academics, who argue that he paid little regard to the existing
law and that the doctrine is the result of his attempt to find a resolution
that equated to his personal notion of "justice." Other legal academics and
jurists have defended 'High Trees' as being founded on conventional
equitable principles drawn from 19th Century cases. The doctrine
28 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
29 rediscovered by Lord Denning has been applied throughout the common
law world.
Lord Denning was a decidedly controversial figure. He sometimes argued
in favour of hanging and said that no parent would entrust their child to the
care of a female teacher who had slept with her boyfriend; and thought
homosexuality should be punished, lamenting that "Hell fire and
damnation held no terrors nowadays”. On another occasion he said that if
the Birmingham Six had been hanged "we shouldn’t have had all these
campaigns to get them released”.
Although he did much good work for African and Asian legal education, he
made comments about black people in 1982 that were clearly racist. He
said that "black, coloured and brown" people did not have the same
standards of conduct as whites. It was that incident, and its condemnation
in a leading article in The Times, that triggered his resignation. He retired
at the age of 83 saying: "I want to go while I’m still at my peak.”
As a passenger in his neighbour's car one day, Lord Denning was
admonished for not wearing a safety belt. "Lord Denning, you know it's the
law," his driver advised. With a characteristic chuckle Lord Denning
replied: "I am the law". The doctrine of precedent means that, in effect, he
still is the law in a great many ways.
Indeed, it was his personal value system which defined his entire life and
accounts for his greatness in the areas already mentioned. Denning was a
serious and committed Christian believer. He served as president from
1950-1987 and until his death as patron of the Lawyers’ Christian
Fellowship in the United Kingdom. In his 1953 book, The Changing Law,
under the title "The Influence of Religion”, he wrote: "If religion perishes in
the land, truth and justice will also. We have already strayed too far from
29 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
30 the path of our fathers. Let us return to it, for it is the only thing that can
sav us."
Denning died a few months after his 100th birthday, the celebrations for
which he was too frail to attend. At the event, Law Society President
Michael Matthews said: "He was a towering figure in the law who made an
enormous contribution to the law of this century, probably the major
contribution."
Eulogising Denning's death, Lord Hailsham said that Denning would go
down in history as "one of the great and controversial judges of the 20th
century". The obituary of Denning as printed in "The Guardian" Newspaper
started with the following sentence: "The death of Lord Denning marks the
passing of one - perhaps the last - of a sparse succession of major judicial
figures who have succeeded in shaping areas of the law into conformity
with a strongly-held world view.”
The Command of Language - Lord Denning in the Discipline of Law
1. The tools of trade
To succeed in the profession of the law, you must seek to cultivate
command of language. Words are the lawyer's tools of trade. When you
are called upon to address a judge, it is your words which count most. It is
by them that you will hope to persuade the judge of the rightness of your
cause. When you have to interpret a section in a Statute or a paragraph in
a Regulation, you have to study the very words. You have to discover the
meaning by analysing the very words - one by one - to the very last
syllable. When you have to draw up a will or a contract, you have to
choose your words well. You have to look into the future - envisage all the
contingencies that may come to pass - and then use words to provide for
them. On the words you use, your client's future may depend.
30 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
31 The reason why words are so important is because words are the vehicle
of thought. When you are working out a problem on your own - at your
desk or walking home - you think in words, not in symbols or numbers.
When you are advising your client - in writing or by word of mouth - you
must use words. There is no other means available. To do it convincingly,
do it simply and clearly. If others find it difficult to understand you, it will
often be because you have not cleared your own mind upon it. Obscurity
in though inexorably leads to obscurity in language.
Sometimes you may fail - without your fault - to make yourself clear. It may
be because of the infirmity of the words themselves. They may be
inadequate to express the meaning which you wish to convey. They may
lack the necessary precision. 'Day' and 'Night' are clear enough at most
times. But when does day begin and night end? Some may say at sunrise.
Others would say at dawn. Then when does 'dawn' begin? No one can tell
exactly. Or a word may mean one thing to one person and another thing to
another. Take 'punctual payment' or 'prompt payment'. To one it may
mean immediate payment. To another it may permit of a little latitude and
it may suffice if payment is made within a day or two. The difference
between the two will remain unless it is settled by the House of Lords. Yet
again a word may one thing in one context and another thing in another
context. Thus 'money' may be limited to the money in your purse and cash
at bank or it may include money owing to you for dividends or rents. Yet
again a word may mean one thing in one situation and another in another.
Take Centre Court at Wimbledon may be 'insulting behaviour'; but blowing
it at the Cup Final at Wembley would not. It depends on the meaning
which you yourself choose to give to 'insulting'. The difference is not to be
settled by authority, but by individual choice. Constantly you will find
ordinary people giving different meanings to the same word. This gives full
scope to the lawyer.
2. Acquiring skill
31 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
32 How then can you acquire this command of language to much to be
desired? Forgive me here if give of my own experience. When I was young,
I did not think much in words. At Oxford I studied Mathematics. No need
for words there. The tools I used then were numbers, letters and symbols.
They were lifeless things without meaning or sound - the necessary tools
of the scientist but not of the lawyer. But when I was called to the Bar, I
had to become proficient with words. I did it by drawing on my reserves of
English literature. There I had acquired at the Elizabethan Grammar School
to which I went daily. I had read much of Shakespeare and many of our
poets and novelists whilst still at school. All my prizes from the age of 11
were for English. I have them still, bound in handsome leather, with the
school crest and the date AD 1569. The titles in succession are the Great
Authors, Macaulay, Carlyle and Milton. Reading these and others provided
the essentials: a wide vocabulary of words, and an understanding of the
meaning attached to them by the masters of the language. Come to think
of it, that is how the makers of the great Oxford Dictionary set about their
task to discover meanings. They compiled it from over five million
quotations derived from English works of literature and records of all
kinds'. Then glance at the Dictionary itself to see the result. It shows that
the meaning of a word may change from decade to decade, from place to
place, even from one person to another. It may depend on the subjectmatter under discussion or the context in which it is used. So you have a
challenging task ahead if you are to acquire command of language: and to
say what meaning any particular word has in any particular case.
Next, I had to practise continually. As a pianist practises the piano, so the
lawyer should practise the use of words, both in writing and by word of
mouth. Again, forgive a personal reminiscence. In chambers, if asked to
advise, I took infinite pains in the writing of an opinion. I crossed out
sentence after sentence. I wrote them again and again. Seek to make your
opinions clear at all costs. Make them positive and definite. Not neutral or
32 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
33 vacillating. My pupil master told me early on of the client's complaint: 'I
want your opinion and not your doubts', and of Sir George Jessel's
characteristic saying: 'I may be wrong and sometimes am, but I am never
in doubt.'
3 Addressing the Court
Apart from writing, there is addressing the Court. Speaking needs even
more practice: and even more experience. I was no good at first. I was too
shy; also too nervous. Others are different. Many friends of mine - who
have since become eminent - started as President of the Union at Oxford
or Cambridge. At Oxford I joined the Union but never spoke there. I only
learnt by actual experience - by addressing a jury, for whom you must
make things simply and clear - like a dock brief at Quarter Sessions at
Winchester with only half-an-hour before the case comes on - or a twoguinea brief in the Marylebone County Court before a very testy judge. He
could be very rude if you made the slightest mistake. Remember also that,
whatever the tribunal, you must give a good impression. Your appearance
means a lot. Dress neatly, not slovenly. Be well-groomed. Your voice must
be pleasing, not harsh or discordant. Pitch it so that all can hear without
strain. Pronounce your consonants. Do not slur your words. Speak not too
fast nor yet too slow. All these things are commonplace but they so often
forgotten that I warn you against the mistakes I see made daily. No hands
in pockets. It shows slovenliness. No fidgetting with pencil or with gown. It
shows nervousness. No whispering with neighbours. It shows lack of
respect. No 'ers' or 'ums'. It shows that you are slow-thinking, not knowing
what to say next. Avoid mannerisms like the plague. It distracts attention.
Don't be dull. Don't repeat yourself too often. Don;t be long-winded. All
these lose you your hearers: and once you have lost them, you are done
for. You can never get them back - not so as to get them to listen
attentively.
33 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
34 One thing you will not be able to avoid - the nervousness before the case
starts. Every advocate knows it. In a way, it helps, so long as it is not too
much. That is where I used sometimes to fail. My clerk - as a good clerk
should - told me of it. I was anxious to win - and so tense - that my voice
became too high-pitched. I never quite got over it, even as a King's
Counsel. No longer now that I am a judge. The tension is gone. The anxiety
- to do right- remains.
34 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
35 MODULE 5 – TWO EXAMPLES OF
ENGLISH CASE LAW
CASE 1
Hinz v Berry
[1970] 2 QB 40
Court of Appeal
Lord Denning M.R., Lord Pearson and Sir Gordon Willmer
Headnote
In April, 1964, the plaintiff drove out for the day with her husband, their
four children and four foster-children in a Dormobile van. On their way
back they stopped in a lay-by to have a picnic tea. The plaintiff crossed
the road with one child to pick bluebells. A car, driven by the defendant,
which was out of control, came along and crashed into the van where the
husband was making tea. Hearing the crash, the plaintiff turned round and
saw the disaster. Her husband was lying by the van so seriously injured
that he died a few hours later. Most of the children suffered injuries.
Prior to the accident the plaintiff had been happy and robust; a remarkable
woman of great courage and ability who was extremely fond of children.
The shock of witnessing the tragedy caused her to suffer prolonged
morbid depression.
On the plaintiff's claim on behalf of herself and her children under the Fatal
Accidents Acts and for the personal injuries which she had sustained,
35 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
36 O'Connor J. awarded the plaintiff £15,107 under the Fatal Accidents Acts
and £ 4,000 damages in respect of her personal claim for damages for
nervous shock.
On appeal by the defendant on the ground that the sum of £4,000 was too
high. Held, dismissing the appeal, that the plaintiff was entitled to recover
damages for the recognisable psychiatric illness caused by the shock of
witnessing the accident resulting from the defendant's breach of duty. In
the exceptional circumstances the judge's award could not be said to be
wholly erroneous. Decision of O'Connor J. affirmed.
The Judgment
LORD DENNING M.R.
It happened on April 19, 1964. It was bluebell time in Kent. Mr. and Mrs.
Hinz had been married some 10 years, and they had four children, all aged
nine and under. The youngest was one. Mrs. Hinz was a remarkable
woman. In addition to her own four, she was foster-mother to four other
children. To add to it, she was two months pregnant with her fifth child.
On this day they drove out in a Bedford Dormobile van from Tonbridge to
Canvey Island. They took all eight children with them. As they were coming
back they turned into a lay-by at Thurnham to have a picnic tea. The
husband, Mr. Hinz, was at the back of the Dormobile making the tea. Mrs.
Hinz had taken Stephanie, her third child, aged three, across the road to
pick bluebells on the opposite side. There came along a Jaguar car driven
by Mr. Berry, out of control. A tyre had burst. The Jaguar rushed into this
lay-by and crashed into Mr. Hinz and the children. Mr. Hinz was frightfully
injured and died a little later. Nearly all the children were hurt. Blood was
streaming from their heads. Mrs. Hinz, hearing the crash, turned round and
36 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
37 saw this disaster. She ran across the road and did all she could. Her
husband was beyond recall. But the children recovered.
An action has been brought on her behalf and on behalf of the children for
damages against Mr. Berry, the defendant. The injuries to the children
have been settled by various sums being paid. The pecuniary loss to Mrs.
Hinz by reason of the loss of her husband has been found by the judge to
be some £ 15,000; but there remains the question of the damages payable
to her for her nervous shock - the shock which she suffered by seeing her
husband lying in the road dying, and the children strewn about.
The law at one time said that there could not be damages for nervous
shock: but for these last 25 years, it has been settled that damages can be
given for nervous shock caused by the sight of an accident, at any rate to
a close relative. Very few of these cases have come before the courts to
assess the amount of damages. O'Connor J. fixed the damages at the sum
of £4,000 for nervous shock. The defendant appeals, saying that the sum
is too high.
I would like to pay at once a tribute to the insurance company for the
considerate and fair way in which they have dealt with the case. In English
law no damages are awarded for grief or sorrow caused by a person's
death. No damages are to be given for the worry about the children, or for
the financial strain or stress, or the difficulties of adjusting to a new life.
Damages are, however, recoverable for nervous shock, or, to put it in
medical terms, for any recognisable psychiatric illness caused by the
breach of duty by the defendant.
There are only two cases in which the quantum of damages for nervous
shock has been considered. One is Schneider v. Eisovitch [1960] 2 Q.B.
430. The other, Tregoning v. Hill, The Times, March 2, 1965. But they do
not help us here. Somehow or other the court has to draw a line between
37 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
38 sorrow and grief for which damages are not recoverable, and nervous
shock and psychiatric illness for which damages are recoverable. The way
to do this is to estimate how much Mrs. Hinz would have suffered if, for
instance, her husband had been killed in an accident when she was 50
miles away: and compare it with what she is now, having suffered all the
shock due to being present at the accident. The evidence shows that she
suffered much more by being present.
I will consider first the grief and sorrow if she had not been present at the
accident. The consultant psychiatrist from the hospital in Maidstone said:
"It is common knowledge that there is a 'mourning period' for all of us, and
that normally time dispels this. In the average person it might be a year,
but in a predisposed person it can be greatly prolonged. ..." Mrs. Hinz was
not predisposed at all. She was a woman of great capacity, level-headed,
hard working, happily married. She would have got over the loss of her
husband in, say, a year.
Consider next her condition, as it is, due to being present at the accident.
Two years after the accident, the consultant psychiatrist said: "There is no
medical doubt at all that she is suffering from a morbid depression; she is
now officially ill." He went on to give some of the symptoms. She said to
him: "It does not seem worth going on. I feel I cannot cope at all. I get so
dreadfully irritable with the children too. It is wrong but I feel like killing
him," that is, the posthumous child. The consultant went on: "She feels
exhausted, has frequent suicidal ruminations and at the same time is
covered with guilt at being like this." The posthumous baby "now saddens
her even more because it cries 'Dad, Dad,'" and one of the elder children
persists in saying "You have not got a Dad"; and then the other fatherless
children join in the chorus." The consultant concluded: "In other
circumstances I would probably have brought her into hospital, at least for
a rest, but possibly for electrical treatment and it may come to that yet."
38 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
39 At the trial, five years after the accident, she frequently broke down when
giving her evidence. She brought the children to court. They were very well
turned out. The judge summed up the matter in this way: "I am satisfied
that she was of so robust a character that she would have stood up to that
situation, that she would have been hurt, sorrowful, in mourning, Yes; but
in a state of morbid depression, No."
He awarded her £4,000 on this head. There is no suggestion that he
misdirected himself. We can only interfere if it is a wholly erroneous
estimate. I do not think it is erroneous. I would dismiss the appeal.
CASE 2
Miller v Jackson
[1977] Q.B. 966 (C.A.)
LORD DENNING, M.R.
In summertime village cricket is the delight of everyone. Nearly every
village has its own cricket field where the young men play and the old men
watch. In the village of Lintz in County Durham they have their own
ground, where they have played these last 70 years. They tend it well. The
wicket area is well rolled and mown. The outfield is kept short. It has a
good club house for the players and seats for the onlookers. The village
team play there on Saturdays and Sundays. They belong to a league,
competing with the neighbouring villages. On other evenings after work
they practise while the light lasts.
British Village Cricket Field on a Sunny Day
39 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
40 Yet now after these 70 years a judge of the High Court has ordered that
they must not play there any more. He has issued an injunction to stop
them. He has done it at the instance of a newcomer who is no lover of
cricket. This newcomer has built, or has had built for him, a house on the
edge of the cricket ground which four years ago was a field where cattle
grazed. The animals did not mind the cricket. But now this adjoining field
has been turned into a housing estate. The newcomer bought one of the
houses on the edge of the cricket ground. No doubt the open space was a
selling point. Now he complains that when a batsman hits a six the ball
has been known to land in his garden or on or near his house. His wife has
got so upset about it that they always go out at week-ends. They do not
go into the garden when cricket is being played. They say that this is
intolerable. So they asked the judge to stop the cricket being played.
And the judge, much against his will, has felt that he must order the cricket
to be stopped: with the consequence, I suppose, that the Lintz Cricket
Club will disappear. The cricket ground will be turned to some other use. I
expect for more houses or a factory. The young men will turn to other
things instead of cricket. The whole village will be much the poorer. And all
this because of a newcomer who has just bought a house there next to the
cricket ground.
I must say that I am surprised that the developers of the housing estate
were allowed to build the houses so close to the cricket ground. No doubt
they wanted to make the most of their site and put up as many houses as
they could for their own profit. The planning authorities ought not to have
allowed it. The houses ought to have been so sited as not to interfere with
the cricket. But the houses have been built and we have to reckon with the
consequences.
At the time when the houses were built it was obvious to the people of
Lintz that these new houses were built too close to the cricket ground. It
40 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
41 was a small ground, and there might be trouble when a batsman hit a ball
out of the ground. But there was no trouble in finding purchasers. Some of
them may have been cricket enthusiasts. But others, were not. In the first
three years - 1972, 1973, and 1974 - quite a number of balls came over or
under the boundary fence and went into the gardens of the houses: and
the cricketers went round to get them. Mrs. Miller [the second plaintiff]
was very annoyed about this. To use her own words: " ... when the ball
comes over, they [the cricketers] either ring or come round in twos and
threes and ask if they can have the ball back, and they never ask properly.
They just ask if they can have the ball back, and that's it... They have been
very rude, very arrogant and very ignorant, ... and very deceitful" and that
to get away from any problems they made a point of going out on
Wednesdays, Fridays and the week-ends.
Having read the evidence, I am sure that was a most unfair complaint to
make of the cricketers. They have done their very best to be polite. It must
be admitted, however, that on a few occasions before 1974 a tile was
broken or a window smashed. The householders made the most of this
and got their rates reduced. The cricket club then did everything possible
to see that no balls went over. In 1975, before the cricket season opened,
they put up a very high protective fence. The existing concrete fence was
only six feet high. They raised it to nearly 15 feet high by a galvanised
chain-link fence. It cost oe700. They could not raise it any higher because
of the wind. The cricket ground is 570 feet above sea level. During the
winter even this high fence was blown down on one occasion and had to
be repaired at a cost of oe400. Not only did the club put up this high
protective fence. They told the batsmen to try to drive the balls low for four
and not hit them up for six. This reduced the number of balls that got into
the gardens. So much so that the rating authority no longer allowed any
reduction in rates.
41 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
42 Despite these measures, a few balls did get over. The club made a tally of
all the sixes hit during the seasons of 1975 and 1976. In 1975 there were
2,221 overs, that is, 13,326 balls bowled. Of them there were 120 six hits
on all sides of the ground. Of these only six went over the high protective
fence and into this housing estate. In 1976 there were 2,616 overs, that is
15,696 balls. Of them there were 160 six hits. Of these only nine went over
the high protective fence and into this housing estate.
No one has been hurt at all by any of these balls, either before or after the
high fence was erected. There has, however, been some damage to
property, even since the high fence was erected. The cricket club have
offered to remedy all the damage and pay all expenses. They have offered
to supply and fit unbreakable glass in the windows, and shutters or
safeguards for them. They have offered to supply and fit a safety net over
the garden whenever cricket is being played. In short, they have done
everything possible short of stopping playing cricket on the ground at all.
But Mrs. Miller and her husband have remained unmoved. Every offer by
the club has been rejected. They demand the closing down of the cricket
club. Nothing else will satisfy them. They have obtained legal aid to sue
the cricket club. In support of the case, the plaintiffs rely on the dictum of
Lord Reid in Bolton v. Stone [1951] A.C. 850, 867: "If cricket cannot be
played on a ground without creating a substantial risk, then it should not
be played there at all." I would agree with that saying if the houses or road
was there first, and the cricket ground came there second. We would not
allow the garden of Lincoln's Inn to be turned into a cricket ground.
It would be too dangerous for windows and people. But I would not agree
with Lord Reid's dictum when the cricket ground has been there for 70
years and the houses are newly built at the very edge of it. I recognise that
the cricket club are under a duty to use all reasonable care consistently
with the playing of the game of cricket, but I do not think the cricket club
can be expected to give up the game of cricket altogether. After all they
42 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
43 have their rights in their cricket ground. They have spent money, labour
and love in the making of it: and they have the right to play upon it as they
have done for 70 years. Is this all to be rendered useless to them by the
thoughtless and selfish act of an estate developer in building right up to
the edge of it? Can the developer or a purchaser of the house say to the
cricket club: "Stop playing. Clear out." I do not think so. And I will give my
reasons.
The law in the 19th century
If we were to approach this case with the eyes of the judges of the 19th
century, they would, I believe, have seen it in this way: every time that a
batsman hit a ball over the fence so that it landed in the garden, he would
be guilty of a trespass. If he hit it so that it went under the fence and down
the bank, he would be guilty of a trespass. So would the committee of the
cricket club, because they would have impliedly authorised it. They
cheered the batsman on. If one or two of the players went round and
asked the householder if they could go into the garden to find it, the
householder could deny them access: "You are not to come in here," he
could say, "to get your ball. I am not going to get it for you. Nor will I let
you. It is going to stay there." If the cricketers said: "It's a new ball. It cost
us over 6 bucks," the householder could say: "That is your lookout. You
ought not to have put it there." Of course, if the householder picked up the
ball himself and gave it to his son to play with, he would be liable in
conversion. But otherwise he would not be liable at all. He could say: "An
Englishman's house is his castle. You are not coming in. Nor are you to hit
your cricket ball in here. If you go on doing it, I am going to get an
injunction to stop you. Once I prove the violation of a legal right, the Court
of Chancery will grant me an injunction to prevent the recurrence of that
violation" see Imperial Gas Light and Coke Co. v. Broadbent (1859) 7
H.L.Cas. 600. Even if there was any doubt about the plaintiff's right to sue
in trespass, he would have a claim in nuisance, once he proved that the
43 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
44 balls were repeatedly coming over or under the fence and making things
uncomfortable for him. To those claims, in the 19th century, either in
trespass or in nuisance, the committee of the cricket club would have no
answer. They could not claim an easement because there is no such
easement known to the law as a right to hit cricket balls into your
neighbour's land. It would be no good for them to say that the cricket
ground was there before the house was built. The householder could rely
on the case a hundred years ago of the physician who built his new
consulting-room next to the old established kitchen of his neighbour. The
physician was held entitled to stop the working of the kitchen on the
ground that the noise was a nuisance to him in his consulting room: see
Sturges v. Bridgman (1879) 11 Ch.D. 852.
The only way in which the cricket club could have succeeded in the 19th
century would have been by invoking the doctrine of "derogation from
grant." We were told that until recently the cricket ground and the
neighbouring fields were all owned by the National Coal Board. The coal
board let the cricket ground to the cricket club on a long lease for years
knowing that the very purpose of the lease was that the club should play
cricket on it for the term of the lease. So long as the National Coal Board
owned the neighbouring field, they could not complain of the occasional
ball being hit out of the ground on to the field: nor could they have got an
injunction to restrain the playing of cricket on the ground, seeing that they
had leased it to the club for that very purpose. The reason being simply
that it would be a derogation from the grant of the lease for them to do so.
And if the National Coal Board sold the land to a purchaser (as they did),
the purchaser and subsequent successors in title also could not complain
of the occasional ball: nor could they have got an injunction: for the
obligation imported by the doctrine of "derogation from grant" runs with
the land just as do obligations which arise from a restrictive covenant: see
Browne v. Flower [1911] 1 Ch. 219, 226, by Parker J. "They bind not only
44 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
45 the grantor but also all who claim title through him ... It is in this that the
importance of the doctrine lies."
The law in the 20th century
The case here was not pleaded by either side in the formulae of the 19th
century. The plaintiffs did not allege trespass. The defendants did not raise
the doctrine of derogation from grant. The case was pleaded in negligence
or alternatively nuisance. That was, I think, quite right, having regard to the
decision of the House of Lords in Bolton v. Stone [1951] A.C. 850. Miss
Stone had just stepped out of her garden gate on to the pavement when
she was hit by a cricket ball. She did not sue in trespass to the person.
That would be quite out of date. As I said in Letang v. Cooper [1965] 1
Q.B.232, 239: "If [the defendant] does not inflict injury intentionally, but
only unintentionally, the plaintiff has no cause of action today in trespass.
His only cause of action is in negligence, and then only on proof of want of
reasonable care." Miss Stone did seek to put her case on the doctrine of
Rylands v. Fletcher (1868) L.R. 3 H.L. 330. She suggested that a cricket
ball was dangerous thing which the defendants had brought on to the
cricket ground and it had escaped. That suggestion was dismissed by the
House of Lords out of hand. Lord Reid said: ". . . there is no substance in
this argument": see [1951] A,C. 850, 867. She also suggested that the club
were liable in nuisance: but this was not pressed in the House of Lords,
because nuisance was not distinguishable from negligence. Lord Porter
remarked at p. 860 that "in the circumstances of this case nuisance cannot
be established unless negligence is proved."
In our present case, too, nuisance was pleaded as an alternative to
negligence. The tort of nuisance in many cases overlaps the tort of
negligence. But there is at any rate one important distinction between
them. It lies in the nature of the remedy sought. Is it damages? Or an
injunction? If the plaintiff seeks a remedy in damages for injury done to
45 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
46 him or his property, he can lay his claim either in negligence or nuisance.
But if he seeks an injunction to stop the playing of cricket altogether, I
think he must make his claim in nuisance. The books are full of cases
where an injunction has been granted to restrain the continuance of a
nuisance. But there is no case, so far as I know, where it has been granted
so as to stop a man being negligent. At any rate in a case of this kind
where an occupier of a house or land seeks to restrain his neighbour from
doing something on his own land, the only appropriate cause of action on
which to base the remedy of an injunction is nuisance.
It is the very essence of a private nuisance that it is the unreasonable use
by a man of his land to the detriment of his neighbour. He must have been
guilty of the fault, not necessarily of negligence, but of the unreasonable
use of the land: see The Wagon Mound (No. 2) [1967] 1 A.C. 617, 639, by
Lord Reid.
It has been often said in nuisance cases that the rule is sic utere tuo ut
alienum non laedas (Use what is yours so as not to harm what is others).
But that is a most misleading maxim. Lord Wright put it in its proper place
in Sedleigh-Denfleld v. O'Callaghan [1940] A.C. 880,903: "[It] is not only
lacking in definiteness but is also inaccurate. An occupier may make in
many ways a use of his land which causes damage to the neighbouring
landowners and yet be free from liability ... a useful test is perhaps what is
reasonable according to the ordinary usages of mankind living in society,
or more correctly in a particular society."
I would, therefore, adopt this test. Is the use by the cricket club of this
ground for playing cricket a reasonable use of it? To my mind it is a most
reasonable use. Just consider the circumstances. For over 70 years the
game of cricket has been played on this ground to the great benefit of the
community as a whole, and to the injury of none. No one could suggest
that it was a nuisance to the neighbouring owners simply because an
46 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
47 enthusiastic batsman occasionally hit a ball out of the ground for six to the
approval of the admiring onlookers.
Then I would ask: does it suddenly become a nuisance because one of the
neighbours chooses to build a house on the very edge of the ground - in
such a position that it may well be struck by the ball on the rare occasion
when there is a hit for six? To my mind the answer is plainly No. The
building of the house does not convert the playing of cricket into a
nuisance when it was not so before. If and in so far as any damage is
caused to the house or anyone in it, it is because of the position in which it
was built. Suppose that the house had not been built by a developer, but
by a private owner. He would be in much the same position as the farmer
who previously put his cows in the field. He could not complain if a
batsman hit a six out of the ground, and by a million to one chance it
struck a cow or even the farmer himself. He would be in no better position
than a spectator at Lord's or the Oval or at a motor rally. At any rate, even
if he could claim damages for the loss of the cow or the injury, he could
not get an injunction to stop the cricket. If the private owner could not get
an injunction, neither should a developer or a purchaser from him.
It was said, however, that the case of the physician's consulting room was
to the contrary: Sturges v. Bridgman, 11 Ch.D. 852. But that turned on the
old law about easements and prescriptions, and so forth. It was in the
days when rights of property were in the ascendant and not subject to any
limitations except those provided by the law of easements. But nowadays
it is a matter of balancing the conflicting interests of the two neighbours.
That was made clear by Lord Wright in Sedleigh-Denfield v. O'Callaghan
[1940] A.C. 880, 903, when he said: "A balance has to be maintained
between the right of the occupier to do what he likes with his own, and the
right of his neighbour not to be interfered with."
47 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
48 In this case it is our task to balance the right of the cricket club to continue
playing cricket on their cricket ground - as against the right of the
householder not to be interfered with. On taking the balance, I would give
priority to the right of the cricket club to continue playing cricket on the
ground, as they have done for the last 70 years. It takes precedence over
the right of the newcomer to sit in his garden undisturbed. After all, he
bought the house four years ago in mid-summer when the cricket season
was at its height. He might have guessed that there was a risk that a hit for
six might possibly land on his property. If he finds that he does not like it,
he ought, when cricket is played, to sit on the other side of the house or in
the front garden, or go out: or take advantage of the offers the club have
made to him of fitting unbreakable glass, and so forth. Or, if he does not
like that, he ought to sell his house and move elsewhere. I expect there are
many who would gladly buy it in order to be near the cricket field and open
space. At any rate he ought not to be allowed to stop cricket being played
on this ground.
This case is new. It should be approached on principles applicable to
modern conditions. There is a contest here between the interest of the
public at large; and the interest of a private individual. The public interest
lies in protecting the environment by preserving our playing fields in the
face of mounting development, and by enabling our youth to enjoy all the
benefits of outdoor games, such as cricket and football. The private
interest lies in securing the privacy of his home and garden without
intrusion or interference by anyone.
In deciding between these two conflicting interests, it must be
remembered that it is not a question of damages. If by a million to one
chance a cricket ball does go out of the ground and cause damage, the
cricket club will pay. There is no difficulty on that score. No, it is a question
of an injunction. And in our law you will find it repeatedly affirmed that an
injunction is a discretionary remedy. In a new situation like this, we have to
48 Dispensa per studenti RI e SA del lettorato di Matthew Ridger a.a. 2014/2015
49 think afresh as to how discretion should be exercised. On the one hand,
Mrs. Miller is a very sensitive lady who has worked herself up into such a
state that she exclaimed to the judge: "I just want to be allowed to live in
peace. . Have I got to wait until someone is killed before anything can be
done?" If she feels like that about it, it is quite plain that, for peace in the
future, one or other has to move. Either the cricket club has to move: but
goodness knows where. I do not suppose for a moment there is any field
in Lintz to which they could move. Or Mrs. Miller must move elsewhere.
As between their conflicting interests, I am of opinion that the public
interest should prevail over the private interest. The cricket club should not
be driven out. In my opinion the right exercise of discretion is to refuse an
injunction; and, of course, to refuse damages in lieu of an injunction.
Likewise as to the claim for past damages. The club were entitled to use
this ground for cricket in the accustomed way. It was not a nuisance, nor
was it negligent of them so to run it. Nor was the batsman negligent when
he hit the ball for six. All were doing simply what they were entitled to do.
So if the club had put it to the test, I would have dismissed the claim for
damages also. But as the club very fairly say that they are willing to pay for
any damage, I am content that there should be an award of $400 to cover
any past or future damage.
I would allow the appeal, accordingly.
49