LANDMARK CASES IN

Edited by Nigel Gravells lAN[ IN LA

Editt'd bj Contents Landmatl in the La Preface v on leadlr Notes on Contributors ix having CI Equiry at 1 Keppell v Bailey (1834); Hill v Tupper (1863) 1 volume! The Numerus Clausus and the Common Law interestn Ben McFarlane decided 2 Todrick v Western National Omnibus Co Ltd (1934) 33 the selec The Interpretation of lawyers. Peter Butt a reappl 3 Re Ellenborough Park (1955) 65 perspect A Mere Recreation and Amusement or theor Elizabeth Cooke neolecn perceivt 4 Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd; explore Old & Campbell Ltd v Liverpool Victoria Friendly law of I Society (1979) 81 the con Stitching Together Modern Estoppel of certa Martin Dixon of [he { 5 Federated Homes Ltd v Mill Lodge Ltd (1979) 99 in own Annexation and Intention collect! Nigel P Gravells acaden 6 Williams and Glyn's Bank Ltd v Boland (1980) 125 The Development of a System of Title by Registration Roger Smith 7 Midland Bank Trust Co Ltd v Green (1980) 155 Maintaining the Integrity of Registration Systems Mark P Thompson 8 Street v Mountford (1985); AG Securities v Vaughan; Antoniades v Villiers (1988) 181 Tenancies and Licences: Halting the Revolution Stuart Bridge 9 City of London Building Society v Flegg (1987) 205 Homes as Wealth Nicholas Hopkins LANI viii Contents IN LA 10 Stack v Dowden (200-); Jones [' Kernott (2011) 229 Edited b~ Finding a Home for 'Family ' Andrew Hayu-ard Notes on Contributors 11 A-1anchesterCit}' Council t' Pinnock (2010) 253 Landman Shifting Ideas of Ownership of Land in the La Susan Bright Stuart Bridge is one of Her Majesty's Circuit Judges. He lectured in prop- on leadir erty law at the University of Cambridge Law Faculty from 1990 until 2012 having c Index 275 and served as a Law Commissioner for England and Wales from. 2001 until Equiry 31 2008 with particular responsibility for property, trusts and family law. volume. He is a Life Fellow of Queens' College, Cambridge, and a Bencher of the interestit Middle Temple. He is one of the editors of Megarry & Wade, The Law of decided Real Property (8th edn, 2012) and a member of the Editorial Board of The the selec Conveyancer and Property Lawyer. lawyers. Susan Bright is Professor of Land Law and McGregor Fellow at New a reappr College, Oxford. She has a particular research interest in how the law perspect relates to the way in which homes are owned, occupied and used, and in the or theot legal protections available when owners seek repossession of homes. She is neqlecte the author of Landlord and Tenant Law in Context (2007). perceive Peter Butt is Emeritus Professor of Law at the University of Sydney. He is explore the author of Land Law (6th edn, 2010) and of The Standard Contract for la..."of I Sale of Land in New South Wales (two editions). He has also written books the con on the rule against perpetuities, on native title, a student casebook on real of certa property, and a co-authored loose-leaf service ou the Torrens system. He of the t: writes the monthly 'Property and Conveyancing' column in the Australian in own Law Journal. He has also written a book on legal drafting (Modern Legal colleen Drafting) and edited a book on the same subject (Piesse's Elements of acadelT Drafting). He is a co-editor of The Australian Legal Dictionary and The Concise Australian LegaL Dictionary. Elizabeth Cooke is Professor of Law at the University of Reading and she is currently serving as a Law Commissioner for England and Wales with responsibility for family law and projects. Her research inter- ests include land law, land registration and family property. She is the author of Land Law (2nd edn, 2012), The New Law of Land Registration (2002) and The Modern Law of Estoppel (2000). She edited the first four volumes of Modern Studies in Property Law (2001,2003,2005,2007); and she is the Consultant Editor of the new 'Real Property' voLumein Halsbury's Laws and a member of the Editorial Board of The Conveyancer and Prope-rty Lawyer. Martin Dixon is Reader in the Law of ReaJ Property and Fellow of Queens' College, Cambridge and Visiting Professor of Law at City University, London. He is the author of Modern Land Law (8th edn, 2012) and one of the editors of Megarry & Wade, The Law of Real Property (8th edn, 2012). He is the General Editor of The Conveyancer and Property Lawyer.

Contents

Preface Lord Oliver vii Table of Statutes xiii Table of Cases xix

Introduction Joshua Getzler

Chapter 1 Trusts: The Inessentials Tony Honore 7

Chapter 2 Usucapio and the Law of Trusts Jeffrey Hackney 21

Chapter 3 Formality and Informality in Property and Contract John Cartwright 36

Chapter 4

The Motive, Not the Deed Lionel Smith 53

Chapter 5

Restitution Through the Looking Glass: Restitution Within Equity and Equity Within Restitution Graham Virgo 82

Chapter 6 Professional Liability in the Will-Making Process Sir Christopher Slade III

Chapter 7

Form and Substance Lord Templeman 130 x COIlfCll1S Chapter 8 Contributors Tackling Avoidance Ben McFarlane and Edwin Simpson 135

Chapter 9

Registered: Land - A Law Unto Itsclf? Charles HarpU01 187

Chapter 10

The Rhetoric of Realty John Cartwright, Student in Law, Christ Church, Oxford Kevin Gray and Susan Francis Gray 204 Joshua Getzler, Fellow and Tutor in Law, St Hugh's College, Oxford Chapter 11 Kevin Gray, Professor of Law and Fellow of Trinity College, Cambridge Susan Gray, Solicitor, formerly Assistant Land Registrar, HM Land Registry, and Roman and English Prescription (or Incorporeal Property Senior Lecturer in Law, University of Greenwich Joshua Getzler 281 Jeffrey Hackney, Fellow and Tutor in Law, Wadham College, Oxford Chapter 12 Charles Harpum, Barrister, Falcon Chambers, London, formerly Law Reading Roman Law with Edward Born Commissioner for England and Wales and Fellow of Downing College, Cambridge Ann Smart 324 Tony Honore, Emeritus Professor of Law and Fellow of All Souls College, Oxford Ben McFarlane, Student in Law, Christ Church, Oxford Index 329 Edwin Simpson, Student in Law, Christ Church, Oxford Sir Christopher Slade, formerly a Lord Justice of Appeal Ann Smart, formerly Fellow and Tutor in Law, St Hugh's College, Oxford Lionel Smith, Professor of Law and William Dawson Scholar in Law, Faculty of Law and Institute of Comparative Law, McGill University, Canada, formerly Fellow and Tutor in Law, St Hugh's College, Oxford Lord Templeman, formerly a Lord of Appeal in Ordinary Graham Virgo, Reader in Law and Fellow of Downing College, Cambridge

Table of Contents

Preface v

1. A System of Land Law for the 21st Century

1. Responding LO Fraud in Tide Registration Systems: A Comparative Study 3 Matthew Harding and Michael Bryan 2. The Versatility of State Indemnity Provisions 35 Simon Cooper 3. Easements and Servitudes Created by Implied Grant, Implied Reservation or Prescription and Title-by-Registration Systems 61 Fiona R Bums 4. Feudal Law: The Case for Reform 99 Judith Bray

n. Trusts and Equitable Remedies 5. Restrictions on Dispositions of Charity Property-Protection or Undue Burden? 125 Jea-n Warburton 6. 'You Just Gotta Keep the Customer Satisfied': Where Stands the Beneficiary's Right to Information? 145 Gerwyn Ll H Griffiths 7. Draftsmen and Suspicious Wills 159 Roger Kerridge 8. Territorial Extremism in Awards of Specific Performance 183 Peter Sparkes

Ill. Family Homes 9. Constructive Trusts and Constructing Intention 203 Nick Piska 10. Bankrupt Husbands and the Application of the Doctrine of Exoneration in Australian Law: Moving into the 21st Century 235 Justice Berna Collier x Table of Contents

11. The Elderly, Their Homes and the Unconscionable Bargain Doctrine 265 Lorna Fox O'M,1iJ011), and James Devenney I IV. Different Conceptions of Property 12. Selling the Land: Should it Stop? A Case Study A System of Land Law from the South Pacific 289 Sue Farran for the 21st Century 13. Ownership, Possession. Title and Transfer: Human Remains in Museum Collections 313 Charlotte Woodhead 14. Protection of Cultural Property in Time of Armed Conflict: UK Ratification of the Hague Convention 1954 337 Sarah Williams and Jamie Glister 15. The Extension of Land Registration Principles to New Property Rights in Environmental Goods 363 Pamela O'Connor

V. The Nature of Property Rights 16. The Role of Expectation in the Determination of Proprietary Estoppel Remedies 389 John Mee 17. : Property, Contract or More? .419 Jill Morgan

18. The Property Rigbts of Tribes 433 Dr PC McHugh

Index 473

vi Preface

interested in the indefeasibility problem discussed under land registration will recognise the pertinence of this topic to issues in land registration. Heather Conway's chapter takes a comparative look at equitable accounting, a subject often neglected in the study of the law on the family home. Charlotte Smith Contents gives a very welcome historical perspective on the origins of the law on undue influence. Sarah Nield's chapter considers issues surrounding the use of prop- erty as security, particularly from a human rights point of view; and Paul Eden's Preface v chapter takes a fresh look at Re Goldcorp Exchange Ltd and possibilities of a Notes on Contributors ix proprietary remedy for investors in an insolvent company. Table of Cases xi Traditionally the conference has included a session on the law of landlord T able of Legislation xxv and tenant, and has included some work on the emerging law of commonhold; these interests are represented by an appraisal of commonhold by Peter Smith I Keynote Address and Cornie van der Merwe, and by Martin Davey's chapter on the regulation of 1. Prescriptive Acquisition of Easements: Abolition or Reform? long residential leases. Stuart Bridge 3 The reader's attention is then diverted to the much wider scene; one of the great pleasures of the conference ac Reading is the number of international o Land Registration speakers we have been able to welcome, and the chapters given on overseas and intemational topics. Section four of this volume contains two chapters on 2. Forgery and Alteration of the Register under the Land aspects of property law in Europe; first, a doctrinal examination of different Registration Act 2002 25 European legal regimes for property law, by Stanislawa Kalus and Magdalena David Fox Habdas, wrinenfrom the perspective of possible European integration, and sec- 3. Registration of Invalid Dispositions: Who Gets the Property? 45 ond Sarah Williams' fascinating examination of the legal difficulties posed by Pamela O'Connor the situation in Kosovo. 4. Toward an Ecologically Sustainable Property Concept 65 The final section is entitled "Property Worldwide". Patrick McAuslan's chap- Murray Raff ter looks at the reform and development of land law in a number of developing markers, and at the interaction between traditional and market-driven legal OI Law and Equity ideas. A similar problem is faced in South Africa, and Hanri Mosten and 91 Juanita Pienaar have provided a discussion of the continuing and complex 5. Personal Liability for Receipt of Trust Property: Allocating the Risks development of land law in south Africa under the new constitution. Bruce Gary Watt Ziff's chapter looks at the relationship between private property and state pow- 6. Co-Owners and Equitable Accounting: A Comparative ers, and the protection for private property given by Canadian law. Finally, Commonwealth Analysis 111 Andre van der Walt looks at the very nature of property and the notion of a Heather Conway ~a~sfo~tive property theory. He focuses on the idea that whole property 7. Allcard v Skinner Revisited: Historical Perspectives on Undue ~nstl~t1ons or proper:r ia,:" systems could be transformed as a result of changes Influence 131 III ~al an~ economic policy; the relevance of this to much of the content of this book IS obvIOUS. Charlotte Smith Charges, Possession and Human Rights: A Reappraisal ofS 87(1) I~is hoped that those who attended the conference at Reading in 2004 felt that 8. of the Law of Property Act 1925 155 ~et.r understanding of property law was deepened and broadened by the expe- nence, and that somerhing of th II f d rf . Sarah Nield ha L__ '" e navour 0 a won e ully enjoyable two days s lJCCII communicated III this volume. 9. Re Goldcorp Exchange Ltd Revisited 177 Paul Eden viii Contents

IV Leaseholds and Commonholds 10. The Regulation of Long Residential Leases 203 Martin Davey Notes on Contributors 11. Commonhold-A Critical Appraisal 225 Cornie oan der MerU'e and Peter Smith Stuart Bridge is a Law Commissioner for England and Wales. V Property in Europe Heather Conway is a Lecturer in the School of Law at the Queen's University, Belfast. 12. The Notion of Real Estate and Rights Pertaining to it in Selected Martin Davey is a Senior Lecturer in the School of Law at the University of Legal Systems 251 Stanislaioa Kalus and Magdalena H abdas Manchester. Paul Eden is a Lecturer in International Commercial Law at the University of 13. Reaching a Balance: Addressing Property Issues in Post-Conflict Sussex. Societies 271 Sarah Williams David Fox is a Fellow of St John's College, Cambridge. Magdalena Habdas is a Lecturer at the University of Silesia. VI Property Worldwide Stanislawa Kalus is a Professor of Law at the University of Silesia. 14. Tensions of Modernity: Law in Developing Land Markets 295 Patrick McAuslan is a Professor of Law at Birkbeck College, London. Patrick McAuslan Cornie van der Merwe is a Professor of Law at the University of Aberdeen. 15. Formalisation of South African Communal Land Title and its Hanri Mostert is a Professor of Law at the University of SteUenbosch. Impact on Development 317 Hanri Mostert and juanita Pienaar Sarah Nield is a Senior Lecturer in the School of Law at the University of Southampton. 16. "Taking" Liberties: Protections for Private Property in Canada 341 Bruce Zi{f Pamela O'Connor is a Senior Lecturer and Associate Dean in the School of Law, Monash University. 17. Property Theory and the Transformation of Property Law 361 Andre lJander Walt Juanita Pienaar is a Professor of Law at the University of Stellenbosch. Murray Raff is a Senior Lecturer and Head of the School of Law at Victoria Index University, Australia and Associate of the Institute for and 381 Innovation at Victoria University. Charlotte Smith is a Lecturer in the School of Law at the University of Reading. Peter Smith is a Reader in Property Law at the University of Reading. Andre van der Walt is a Professor of Law at the University of SteUenbosch. Gary Watt is a Senior Lecturer at the School of Law at the University of Warwick. Sarah Williams is a Lecturer in the Faculty of Law at the University of Durham. Bruce Ziff is a Professor of Law at the University of Alberta. viii New perspectives on property law. obligations and restitution Contents

David Lametti is an Associate Professor of law, McGill University and Director of the Preface v Instirute of Comparative law, where he teaches and writes in the areas of civil and common law property, intellectual property and legal theory. A book entitled Ethical Aspects of the Theory Ust of contributors vii and Proctke of Private Property is forthcoming. He was a clerk to Justice Peter Cory of the Supreme Court of Canada in 1989-90. Introduction xi

Gerard McMeel is Professor of Law at the University of Bristol, where he teaches contract THE NATURE OF THE LAW OF PROPERTY AND ITS RELATIONSHIP and commercia] law. He practises as a barrister at Guildhall Chambers, Bristol and from 4 WITH THE LAW OF OBLIGATIONS Essex Court, London. He has published two books on restitution: The Modem Law of Restitution and Casebook on RestiMion. His most recent book is Financial Advice and Finandal Products - Law The unbearable lightness of property and Liability. Alastair Hudson

2 The (virtue) ethics of private property: a framework and implications 39 David Pearce is Lecturer in Law at the University of Leeds. His research interests are in the David Lametti theory of property and obligations in law.

3 The relationship between property law and tort law 69 Sol Picciotto is Professor of law at . He has been a Visiting Professor at Paula Giliker Nagoya University, Japan. and a Jean Monnet Fellow at the European University Institute, Florence, as well as being Joint Editor of the International journal of the Sociology of law and 4 Property and contract where are we? 87 founding Joint Editor of Social and Legal Studies. His publications include International Business David Pearce Taxation ~d editing CO,?"rote Control and Accountabiftty; International Regulatory Competition and CooroinatJon and Regulating International Business - Beyond Liberofization. 5 The Land Registration Act 2002 and the nature of ownership 117 Elizabeth Cooke Craig Rotherham is Reader in Law at the University of Nottingham. He is the author: amongst other things, of Proprietary Rights in Context. • 6 The reform of property law and the Land Registration Act 2002: a risk assessment 129 I~ ~nai~ is the Nelsons Fellow in Law at the University of leicester and a consultant Mortin Dixon soitoliOr WIth C~bbe:ct.s Solicitors. Manchester. He has been actively involved in writing. teaching and consulllancy In the field of co-operatives and rnutuals for more than 20 years. FOUNDATIONAL QUESTIONS IN THE DOCTRINE OF RESTITUTION OF UNJUST ENRICHMENT Anbldire"!' T.ettenborn is Bracton Professor of law at the University of Exeter. His pu canons Include The low of Restituti . c- I d 7 The taxonomic approach to restitution 151 on Tn LlIg,an and Ireland and numerous journal articles. Steve Hedley Graham Ytrgo is Reader in English Law th Fa Fellow and ~--' To D' at e colty of law. University of Cambridge and 8 The theory of unjust enrichment 165 ..... ~1Or urtor at owning College H ches l of restit\Jtion d H' '. . e resear es In the fields of criminal law. the law Peter Jaffey Mou...lrl- nd::; . tru sts, IS publlcattons include The Prindples of the Law of Restitution and ...... , a ms rustsTi andTrustees:Coses and Materials. 9 Property and unjust enrichment: a misunderstood relationship 187 Craig Rotherham Usa Whitehouse is Senior Lecturer in Law at th U· . and publications are in the areas f e ruverstty of Hull. Her research interests o corporate responsibility and the law of mortgages. 10 Vindicating vindication: Foskett v McKeawn reviewed 203 Graham Virgo

I I Restitution of property you do not own anyway 223 Andrew Tettenborn

12 The policy against accumulation and three party cases: Roxborough v Rothmans of Pall Mall Australia 233 Simone Degeling New perspectives on property law, obligations and restitution x ----- PROPERTY AND OBLIGATIONS IN COMMERCIAL TRANSACTIONS Introduction

13 On the redundancy of the concept of bailment 247 Alastair Hudson Gerard McMeei THEAIM OFTHIS COLLECTION 14 Whose molecule is it anyway? Private and social perspectives on 279 intellectuat property The aim of the workshops on which this collection is based was to take stock of the many Sol and DQvid CAmpbell Pic:ciotto ways in which the notions of property and of obligations are deployed in legal theory. Our principal interest was the way in which different areas of the law have developed contrasting 305 15 Simplifying copyright law understandings not only of what constitutes property but also of the manner in which Jonathan Griffiths property law and the law of obligations could be deployed in other, contextual legal fields. The structure of the symposium, and consequently of this collection and its sibling, I was 319 16 Property rights, international trade and human rights derived from that insight. In consequence the three-day symposium began with a day which janet Dine focused on the relationship between property and obligations in relation to the trust and to tort, and also on the insurgent doctrine of restitution of unjust enrichment to the extent 17 The company; property, power and responsibility 331 that it presents a new understanding of the nature of property law and of the law of Usa Whitehouse obligations. The second day took the concerns of the first day into more specific contexts, particularly land law, family law and the home. the nature of a share as property in company 18 MutuaJs and co-operatives: property, obligations, business and law, commercial law and intellectual property law. In each of these contexts the core notion dedicated assets 34S of property and of the obligation was conceived of differently. This particular collection Ian Snaith focuses primarily on the line between property law, the law of obligations and the principle of restitution of unjust enrichment. The third day was divided more broadly still between 19 Rapporteur's overview: between morality and fonnaJism in property welfare law. human rights law, planning and housing law, and comparative legal questions: obligations and restitution ' 359 these contributions are collected in the sister publication.2 Akmair Hudson

Index 373 THE BOUNDARIES BETWEEN PROPERTY,OBLIGATIONS AND UNJUST ENRICHMENT Questioning the nature of property in law

To begin at the beginning, it is important to know what is meant by property. For the most part the essays in this collection carry out important analyses of the distinction between proprietary and personal rights without needing to consider the anterior questions as to how we justify the existence of rights in property. David Lametti3 reaches back into those philosophical systems which informed Locke and others to identify property law as containing not only rights - as typically understood in the modern practice of property law - but also obligations. Property is identified as being necessarily social and therefore as raising moral questions as well as technical ones as to the composition of our typical 'bundles of rights' theories of property"

Hudson (ed), New Perspeaives on Property Law, Human Rights and the Home. Cavendish Publishing, 2003. 2 Ibid. 3 Lamettl, this collection, 39. 4 The moral content of property ownership is considered in Hudson, 'Indivldualisation, equity and social justice' in the sister publication to this book, Hudson (ed), New Perspectives on Property Low, Human Rights and the Home, Cavendish Publishing, 2003, I. viii New perspectives on property law, human rights and the home Contents

Alastair Hudson is Reader in Equity and Law at Queen Mary, . He has written widely on property law as broadly-defined, on the law of finance and on legal theory. His books include Equity & Trusts (2003, London: Cavendish Publishing), The law on Financial List of contributors vii Derivatives (1998, London: Sweet & MaxwelJ). Towards a just Society (1999, Continuum International Publishing), The law on Homelessness (1997, London: Sweet & Maxwell), The law Introduction xi on Investment Entities (2000, London: Sweet & Maxwell), Swaps, Restitution and Trusts (1999, London: Sweet & Maxwell), Understanding Equity & Trusts (200 I, London: Cavendish Publishing), and contributions to Polmer's Company Law (Sweet & Maxwell). PROPERTY AND OBLIGATIONS IN RELATION TOTHE FAMILY HOME

Equity, individualisation and social justice: towards a new law of the home Anna Lawson is a Lecturer at the Department of Law, University of Leeds. She is also a Alostair Hudson research consultant for the Disability Rights Commission. Her research interests include property law and also disability and the law. 2 Family law and property law: competing spheres in the regulation of the family home 37 Gavin Phillipson is a Lecturer in Law at the University of Durham and a member of its Rebecca Probert Human Rights Centre. He has published widely in the field of privacy/confidentiality and the Human Rights Act. 3 Rights in the family home - time for a conceptual revolution 53 Anne Barlow Rebecca Probert is a Lecturer at the University of Warwick. Her main research interests are family law, property law and legal history. She has published a number of articles on 4 Rethinking Rosset from a human rights perspective 79 cohabitation, the history of divorce. marriage formalities, and the family home, and is currently Simone Wong working on a history of the legal treatment of cohabitation. 5 A leonine partnership: marriage, undue influence and the family home 99 Hi/ary Hiram and jane Mair Geoffrey Samuel is Professor of Law at Kent Law School and at the University of Nancy, having held posts at a number of European universities. His research interests include the law of obligations (English, Roman and French), legal remedies, comparative law, legal theory and COMMUNITIES, HUMAN RIGHTS AND THE BUILT ENVIRONMENT legal epistemology.

6 Land law and the creation of disability 117 Chantal Stebbings is Professor of Law and Legal History at the University of Exeter. She Anna Lawson co.rrendy holds a British Academy Research Readership, working on the evolution of statutory tnbun~ls. Her most recent publication is The Private Trustee in Victorian England (2002, 7 The valuation of co-owners' interests in capital and means-tested benefits: Cambridge: CUP). Her particular interest is 19th century taxation law. half the value or the value of halfl 131 Nick Wike/ey Nick Wikeley holds the John Wilson Chair in Law at the University of Southampton. His ~ks indu_de Child Supf>ort in Aaion (1998, with Davis and Young, Oxford: Hart) and The Law of 8 Locating group homes and the planning law process 159 ~ ~Iity (2002~. He C~its the lc:ur:rol of Social Serurity Law (2002, London: Butterworths), Rod Edmunds Deputy Social Secunty Commissioner and part-time appeal tribunal chairman. 9 Housing an individual: property problems with the mentally vulnerable 183 Simone Wong is a lecturer' law th U· . Nicola Glover-Thomas and Warren Barr . . m at e mYerslty of Kent. She primarily researches in the area of equity focu" . Jar 'Pr..-_. t:>.~. Sing till partlcu on me family home. Simone's recent publications indude ...... ~1"16,.....for Cohabitees in the UK:Th P tial r:u . 10 Human rights and obligations of confidentiality in the private sphere: Reform' (200 I fo .,. e ~n 1:1I&t of Human Rights on Legislative Independen l) r )00'."01 of SodalWeJfore and family Law and 'Revisiting Barclays Bank v O'Brien: A v B pic in the Court of Appeal 20S t egal AdVice for Vulnerable Sureties' (2002) for Journal of Business Law. Govin Phil/ipson

HISTORICAL AND CONTEXTUAL PERSPECTIVES ON PRIVATE PROPERTY RIGHTS

I I State intervention and private property rights in Victorian England 217 Chantal Stebbings x New perspectives on property law,human rights and the home

12 Missedor misguided? Formality, land contracts and the Statute of Frauds 239 Introduction Gerwyn UH Griffiths Alastair Hudson 13 Looking at covenants positively,for a change 253 Dione Chappelle THE AIM OF THIS COLLECTION

14 How poor law lights were lost but Victorian values survived: a reconsideration The central focus of this collection of essays is the home. This neglected area of our social of some of the hidden values of weJ:fareprovision 211 life is little considered in the round by lawyers. By 'in the round' I mean that there is a torfe Charlesworth shortage of concentration on the broad range of legal fields which deal with the home as the central locus of enquiry rather than as a subset of more general rules. 15 Property and obligations: continental and comparative perspectives 295 The resolution of disputes relating to any home may be carried on under the Geoffrey Samuel monikers of land law,trusts law,social security law,public sector housing law,planning law, divorce law, child law or human rights law. In this collection, the contributors cover all of 16 Rapporteur's overview: differentiation in property law 3 19 those various fields between them when considering questions relating to the home or to AlastaIr Hudson broadly similar individual rights. That is done equally three-dimensionally by expounding Index 329 on traditional case law and statute, legal theory, and history.

HUMAN RIGHTS LAW: GENERATING CHANGE IN FUNDAMENTAL CONCEPTS OF PROPERTY

This collection deals at one level with questions of private sector property rights. Simone Wong I considers the changes which the Human Rights Act 1998 may have on the trusts law concepts underpinning rights in the home. In particular, the right to a family life, it is suggested, might prompt a different approach to eligibility for rights in the home which is not based exclusively on the solid tug of money2 identified with common intention constructive trusts,3 but rather on broader questions as to the needs of the entire family. This change in emphasis may itself lead to a repositioning of the case law conceptualisation of this problem as derived from cases like Uoyds Bank v Rosset.4 Gavin Phillipson5 considers human rights law in relation to confidentiality. In particular, his concern is to observe the manner in which human rights norms have come to inform this area of private law by means of a close analysis of the recent case of A v 8.6 This case related to the publication by a tabloid newspaper of a salacious story concerning the sexual life of a professional footballer: in particular, it raised the conflicting notions of respect for a person's private life with freedom of expression. Gavin demonstrates how human rights law can cause fundamental changes to the concepts of substantive private law.Anna Lawson's chapter? is particularly important in this sense. Her contribution demonstrates that the acceptance of ,disability' rights8 will require land law

I Wong, this collection, 79. 2 Ibid. 3 Uoyds Bank v Rosset [1991] I AC 107. 4 Ibid. 5 Phillipson,this collection. 205. 6 [2002] 3 WLR 542. 7 Lawson. this collection. I 17. 8 Apologies for the uncomfortable shorthand: the search for appropriate language in this context being a debate which Anna Lawson addresses, below. I 17.

Contents

List o/Contributors XUI Table ofClISes xv Tnble of Legislation XXIII

I. LEGAL THEORY 1. J.W Harris's Kelsen 3 Stanley L. Paulson 2. Interpreting Normaiiviry 22 Julie Dickson 3. Reductionism and Explanation in Legal Theory 43 Brian Bix 4. Scepticism and Scandinavian Legal Realisrs 52 [es Bjarup 5. Judges' Use of Moral Arguments in Interpreting Statutes 69 Jeremy Harder

II. PROPERTY 6. Weak and Strong Conceptions of Pro percy: An Essay in Memory of Jim Harris 97 Richard A. Epstein 7. Property and Ownership: Marginal Comments 129 Tony Honore 8. The Morality of James Harris's Theory of Pro percy 138 David Lametti 9. Ownership, Co-Ownership. and the Justification of Property Rights 166 James Penner 10. Plants, Torts, and Intellectual Property 189 Stephen R. Munzer 1I. The Legacy of Penn v Lord Baltimore 218 Edwin Peel 12. Property. Personality, and Violence 246 Joshua Getzler XII Contents III. PRECEDENT 13. Towards Principles of Overruling in a Civil Law Supreme Court 277 Isllb~1b Rorive List of Contributors 14. The Rarionali ty ofT cadition 297 Lione! Smith Brian Bix is Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota. jes Bjarup is Professor ofjurisprudence in the juridiska Insrirurionen, University of Stockholm. IV. HUMAN RIGHTS The Honourable Justice Edwin Cameron is a judgc of Appeal in the Supreme Court of 15. Judging Righes ina Democraric South Africa 317 Appeal ofSouth Africa. Hugh Corder Hugh Corder is Professor of Public Law and Dean of the Faculty of Law in the University 16. InvokingHuman Rights 332 of Cape Town. John &kelaar Julie Dickson is a Fellow and Tutor in Law, Somerville College, Oxford. 17. The Infant in the Snow 348 John Eekelaar is a Fellow of Pembroke College. Oxford. and a Reader in Law in the Timothy Endicott University of Oxford. J 8. Marter Matters 367 Bernard Rwldm Timothy Endicott is a Fellow and Tutor in Law. Balliol College, Oxford. Richard A. Epstein is the James Parker Hall Distinguished Professor of Law in the University Jam~s w.Harris 1940-2004 381 of Chicago, and Peter and Kirsten Bedford Senior Fellow in [he Hoover Institution. Bibliography ofth~ works of James W.Harris 385 Joshua Gettler is a Fellow and Tutor in Law, St. Hugh's College, Oxford. Index of Names 387 Tony Honore is the Regius Professor of Civil Law. Emeritus, ar All Souls College, Oxford. Jeremy Horder is a Fellow of Worcester College. Oxford, and a Reader in Criminal Law in the University of Oxford, and has been a Law Commissioner since January, 2005.

David Lametti is an Associate Professor of Law in [he Faculty of Law and Institute of Comparative Law, McGill University Stephen R. Munzer is Professor of Law in the School of Law, University of California at Los Angeles. Stanley L. Paulson is the William Gardner Hammond Professor of Law, WashingtOn University in St. Louis. Edwin Peel is a Fellow and Tutor in Law. Keble College. Oxford. James Penner is Professor at the School of Law, King's College London. Isabelle Rorive is Professor in the Law Faculty and a Fellow in the Centre for Comparative Law and History of Law, University of Brussels (Universite Libre de Bruxelles), Bernard Rudden is rhe Professor of Comparative Law. Emerirus, in the University of Oxford. and a Fellow of Brasenose College. Lionel Smith is (he James McGill Professor of Law in [he Faculry of Law and lnsrirute of Comparative Law, McGill University. PHILOSOPHICAL FOUNDATIONS OF Property Law

EDITED BY James Penner & Henry E. Smith

It"': '11

OXFORD Properry }ias101 political and 011 dealing with pl'l OXFORD consensus th at VNIYBRSITY PRBSS but is a protean G~l Cluendon Street, Oxford, OXl (lDP. theories aimed l'nit orpnizo[!on. Enqlltne:s COIlcuning reproduction outside the scope of the Eric R. Claeys abo'"C should be sent to the Rlghts Depanmem, Oxford Univmlry P=. at the The papers in address abo,,, 3. Property and Necessity 47

filling this gal You must nol timIlare this work in 4JlV other form Dennis Klimchu]: private law.l} md you must impose this ssme condition nn any acqwrer 4. Private Property and Public Welfare 68 by revisiting t Crown ~-rlg)u m=riaI is r

HenryE.S 10. Defining Property Rights 219 Harvard Ur Simon Douglas and Ben Mcliarlane

11. On the Very Idea of Transmissible Rights 244 James Penner

12. Psychologies of Property (and Why Property is not a Hawk/Dove Game) 272 CarolM Rose Prol has loOj vi Contents rn1ici.:atand rnoi dealing with proj 13. Property and Disagreement 289 consensus that p St~lJm R. Munzer hut is a protean ( theories aimed a 14. Emergent Property 320 Table of Cases and efficiency. U HmryE Smith relative absence attention paid tc Rifmnces 339 Advanced Industrial Technology Corp. Lrd v Bond Street Jewellers Ltd (2006) EWCA the actual'Jawor Index Clv 923 207 357 Allen v Flood (1898) AC 1 226-7,230 property is to be Anchor Brewhouse Developments Ltd v Berkeley House (Docklands Developments) between broad c Ltd (1987) 38 BLR 82,284 EG 625 225 philosophy and Anderson v Gouldbe.rg 51 Minn 294, 53 NW 636 (1892) 217 hand and indivi- Anglian Water Services v Crawshaw Robbins & Co. Ltd (2001) BLR 173 ...... •...... 231 this broad space Armory v Delamirle (1722) 1 Stra 505; 93 ER 644 (KB) 206,213 might we jusrif) Armstrong v United Stares 364 US 40 (1960) ...... •...... 124 Ashburn Ansralt v Arnold (1989) Ch 1. 241 Asher v Whl.clock (1865) LR 1 QB J. 213 The papers in th Aston Cantlow and Wilmcoce with Blllesley Parochial Church Council v Wallbank (2004) filling this gap i 1 AC 546 298 private law. 'Ihis Attorney General of Hong Kong v Humphreys Estare (Queen's Gardens) Led (1987) by revisiting the AC 114 (PC) 143 such as Hume,l Ausrerberry v Oldham Corporation (1855) 29 Ch D 750 (CA} 197 Automobile Ins. Co. of Hartford, Coon. v Kirby 144 So 123 (Ala Cr App 1932) 207 revealing how p Bank of Credit and Commerce International (Overseas) Ltd v Akindele [2001] the way in whic Ch 437 (CA)' 241 equality and aui Bank of New Zealand v Greenwood (1984) 1 NZLR 525 232 by exploring th. Barbados Trust Co. Ltd v Bank of Zambia (2007) EWCA Civ 148 241 ownership, and Barker v Stickney (1919) 1 KB 121 241 the v"Cry founds Bartlett v Budd 2 F Cas 966 (D C Mass 1868) 37 Beale v Harvey (2003) EWCA Civ 1883 151 inproperty. Beverley's Case (1603) 4 Co Rep 123b, 76 ER 1118 (KB) 204 Birmingham Development Company Ltd v Tyler (2008) EWCA Civ 859 230-1 Bixler \' First National Bank of Oregon 619 P2d 895 (Or Cr App 1980) 137 BMW Financial Services (GB) Ltd v Bhagwanani (2007) All ER (D) 26 (CA) 224 James Penner Bradford v Pickles (1895) AC 587 227 University ofS Brady v Steamship African Queen 179 F Supp 321 (E D Va 1960) 39 Brewer Street Investments Led v Barclays (1954) 1 QB 428 (CA) 146 Bridges v Hawkesworth (1851) 21 LJQB 75 (QB) 209 HenryE.Smi Brown v Gobble 196 W Va 559, 474 S.E.2d 489 (1996) 204 Harvard Uniw Bryant v Lefever (1879) 4 CPD 172 231 Buckinghamshire Counry Council v Moran (1989) 3 WLR 152. 2 ALL ER 225 (CA) 80 Buckley v Gross (1863) 122 ER 213 210.218 Burrows v Sharp (1991) 23 HLR 82 151 Cambridge Water Co. Ltd v Eastern Counties Leather Pic (1994) 2 AC 264, (1994) 1 All ER 53 225 Campbell v Griffin (2001) EWCA Civ 990, All ER (D) 294 151 Campbell v Race 61 Mass 408, 54 Am Dec 728 (1851) 63 Canada Colors & Chemicals Led v Shea Brothers (1945) OWN 828 (Ont He]) 218 Canada Trust Co. v Ontario Human Righrs Commission (1990) 69 DLR 4d 321. 200 Chicago, B & Q. R. Co. v Chicago 166 US 226 (1897) 100 Claridge v South Staffordshire Tramway Co. (1892) 1 QB 422 206 Clark v Maloney 3 Harr 68; 1840 WL 353 (Del 1840) 209 Clarke v Adie (1876) 2 App Cas 423 (HL) 212