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Book reviews

1 January 01

Reviews of Law of Contract (Treitel); McDonald’s Conveyancing Case Notes; LawBasics: Human Rights

by David Flint, Robert Rennie, Phil Forte

The law of contract

10th edition

Several years ago there might not have been much call among Scottish solicitors for a text dealing solely with the English law of contract. However, times have changed. Many Scottish firms now find themselves increasingly involved in work with an English flavour. In such situations an understanding of the fundamental principles of the English law of contract can prove helpful, if not essential. This tenth edition of Sir Guenter H Treitel’s work can be strongly recommended to anyone looking for a comprehensive yet accessible treatment of the subject.

The first edition of this work was published in 1962 and subsequent editions have appeared every four years or so since. In his introduction to this tenth edition Treitel points out that almost a quarter of the text is new, and that smaller changes have been made on virtually every page. The new terminology introduced by the Civil Procedure Rules makes an appearance when appropriate.

This edition also takes account of 250 new cases covering significant developments in areas such as damages and liability for misrepresentation, the effect of exemption clauses on third parties, “acceptance” of a breach by inactivity, the tort liability of solicitors to disappointed beneficiaries who are not their clients, “stigma” damages (Mahmud v BCCI) and numerous cases on undue influence which came after the Barclays bank v O’Brien case.

Reference is also made to various statutes which have come into force since the previous edition, including the Late Payment of Commercial Debts Act 1998 and the Competition Act 1998. There is even reference to the Human Rights Act 1998. One caveat, however, as the author points out in the preface, is that at the time of writing the Contracts (Rights of Third Parties) Act 1998, which makes massive inroads into the English doctrine of privity of contract, was not yet in force. In fact, it had just passed the committee stage in the House of Lords (with only minor amendments). The Contracts (Rights of Third parties) Bill, as it then was, is discussed extensively in the chapter on third parties. However, it would make sense for the reader to have a copy of the Act to hand when reading this chapter.

The reader certainly gets his or her money’s worth. The book runs to over 1000 pages, yet the layout, the various subject headings within chapters and the index are such that the reader can navigate through it with ease. In fact, even the most impatient among us will find that that it is an easy book to “dip into”.

Perhaps the single most impressive aspect of this work is the manner in which the author deals with the basic building blocks of the law of contract. It is a testament to the quality of the chapters dealing with offer and acceptance, consideration, contractual intention, performance, breach and remedies, that Scottish practitioners may, on occasion, find themselves choosing to consult those chapters in situations other than those where the sole object of the exercise is to ascertain the contractual position under English law.

David Flint

Professor McDonald’s conveyancing case notes

CD-Rom Production (Dundee University)

I must confess that I have come to information technology rather late in  the day. I still make photocopies of important conveyancing cases from Green’s Weekly Digest, The Scots Law Times, Scottish Civil Law Reports and Session Cases hoping against hope, I suppose, that my rather fallible index will act as some sort of prod to my memory. All too often, however, I find myself scratching my head and thinking, when I look at a difficult problem, “there was a case about this last year”. It is perhaps surprising just how many cases there are on conveyancing and heritable property issues and of course everyone’s memory is fallible. We have all probably experienced the feeling of déjà vu which arises when we are presented with a set of circumstances and think that the matter or a matter very similar has come before a court in a reported case. All the important conveyancing cases are here and they are of course accessible. Cases can be accessed by name but also, and more importantly, by topic using the usual search facilities.

The case notes were of course designed originally for students but given the amount of case law that there now is in relation to heritable property and conveyancing these case notes are also valuable to those practitioners who specialise in conveyancing and related heritable property matters. They would be an undoubted asset in any busy practitioner’s library.

Professor Robert Rennie

Law basics

Human Rights

This latest and timely offering in Green’s LawBasics series of Student Study Guides deserves a wider market than the Scottish university undergraduates at which it is aimed and it will certainly find it. Practitioners (and anyone else with a professional or academic interest in basic human rights law in Scotland) should not be put off by the student pretensions of this book. Certainly, it should not be judged by its cover alone as that promises (but the text fails to provide) specimen examination questions with model answers. This book is really a pocket sized, yet comprehensive guide to the regime of Human Rights Law that is, like its cousin, EC Law, inexorably covering the land and finding its way into the estuaries and up the rivers of the UK. We are all going to have to learn how to swim with this tide of law and Dr. Brown’s summary of the current position is as good a place as any to take the plunge.

In only 100 pages, including Contents, Table of Cases and Index, the author traces the origins and development of the ECHR, the post 1998 reconstructed ECHR institutions, the eight main principles of interpretation of the Convention and the 1998 Act itself; followed by individual chapters on the main substantive Convention rights which are now incorporated into UK domestic law (to life, liberty, a fair hearing, respect for private life, freedom of thought, conscience and religion, freedom of expression and so on). The aim is to describe the current position thus the author eschews unhelpful speculation on, for example, the likely effects of the as yet unsettled (at the time of going to print – but now signed by EU member states in October) European Union Charter of Fundamental Rights. However, problems, such as whether a Church is a public authority or not, are highlighted for the benefit of readers and solutions weighed up. Similarly, throughout the text, the author compares and contrasts the various leading authorities. For example, on freedom of expression, cases dealing with attempts to restrain press freedom are explored by reference to various ECHR cases in the knowledge that the UK has inherited a whole body of ECHR jurisprudence.

Domestic UK cases are also noted, such as the old familiar Kaur and T, Petitioner Scottish decisions as well as recent ones such as Little v HMA (1999) and HMA v McGlinchey and Renicks (2000), both on delay in prosecution, and others. Such is the pace of developments in this field that cases such as Clancy v Caird 2000 SLT 546 (temporary judges in civil cases, Art. 6) and County Properties Ltd. v The Scottish Ministers, as yet unreported, 25th July 2000 (human rights for developers, Art. 6), are not referred to. However, a surprising omission is that of the most celebrated of Scots human rights decisions, namely, Starrs and Chalmers v Ruxton (PF, Linlithgow), 2000 JC 208, 2000 SLT 42, HCJ – the temporary sheriffs case. Presumably, any rewrite of the chapter on Article 6, Right To A Fair Hearing, will include reference to Starrs, Clancy and County Properties.

I could find no comment on how some of the old cases might fare under the new regime but that would have been asking too much in a book of this type. Still, it might have been illuminating to read Dr. Brown’s considered views on, say, Raffaelli v Heatley (1949) or Piddington v Bates (1961), concerning breach of the peace and public order respectively, and how they might have been decided under the new regime. Then again, as the author points out, the ECHR (and hence the HRA) jurisprudence is unique.

Perhaps, we should not be looking back over our shoulders at old UK case law, although that does not explain the curious omission of the Starrs case. This book helps to point us in the correct direction of the bold, cosmopolitan, new world of Human Rights which is not to be confused with the parochial, old world of civil liberties. Of course, I shouldn’t be referring to it as new and foreign at all since the ECHR has been around for 50 years and was drafted by a Brit in the first place.

LawBasics may be designed chiefly to cure pre-exam student jitters but I suspect that this particular example from the series will also serve well to soothe the professional stress of worried practitioners dismayed by yet another root and branch change to another one of the former age old constitutional familiarities. In the 21st century, we are all going to have to be human rights lawyers. Human rights are percolating through to every area of business. They cannot be neatly compartmentalised as a topic best left to experts in that field. Everyone is going to have to come to terms with ECHR jurisprudence and this book is certainly an excellent starting point for the relatively uninitiated. I would recommend it to lawyers and laymen alike notwithstanding the absence of Starrs and specimen exam questions.

Phil Forte