It is only fitting that the issue of the Cambridge Law Journal that marks the eightieth birthday of its former Treasurer should contain an article on legal history, and the recent case of Letang v. Cooper provides an occasion for returning to the forms of action on which Professor Hollond lectured to generations of Cambridge undergraduates. It is not, however, the purpose of this article to consider Letang v. Cooper itself, but to attempt to trace the evolution of the rule in Williams v. Holland (1833) and thereby to answer the question why plaintiffs in running-down actions preferred to sue in case rather than trespass. Winfield and Goodhart asked themselves this question, but their answer was directed primarily to the period after 1833, by which time the rule had contributed very substantially to the “handsome balance in favour of an action for negligence as against one for trespass.”

Is fitness for purpose a fundamental term in hire-purchase contracts?

The need for clarification of concepts and propositions in the area of the position of exemption clauses has already been demonstrated by the discussion of the difference between “fundamental terms” and “fundamental breach”. In the Charterhouse case we have seen one variety of judicial approach arising from this difference. But there is a further conflict of judicial opinion in the case which calls for further clarification of doctrine. The three members of the Court of Appeal agree that apart from the limited provision of the Hire-Purchase Acts there is to be implied in all hire-purchase agreements a fitness for purpose term. But while Ormerod L.J. describes such a term as fundamental, Upjohn L.J. denies that it possesses this character. Donovan L.J. is probably in accord with the view of Upjohn L.J. though he makes no explicit statement. Upjohn L.J. envisages hire-purchase agreements as containing a fundamental “correspondence with description” term in addition to a non-fundamental “fitness for purpose” term. These judicial opinions are derived from the precedents. These are few in number and can be examined separately. This examination, it is submitted, will show that much of the conflict is terminological and that the subject is in need of further theoretical analysis.

Within the nice, sharp and narrow quillets of the law in Temple Hall where the lawyers' argument had been loud and long over a pedigree question between Somerset and Plantagenet, as within academic bowers, within the broad and rigorous questions of philosophy and jurisprudence, there is opportunity for the application and operation of “Ramsey's Maxim”. This maxim claims that where there is a prolonged and persistent dispute between two persons, it is often the case that the disputants, while they are at odds about the conclusions and arguments derived from or urged in support of premises, are really in agreement about an assumption, hypothesis, premise, fundamental to their argument, which is false. They share a common but false premise.