The purpose of this article is to consider uncertainty in European Community law. It will be argued that, for reasons inherent in the nature of the Community, EC legislation is generally less clear and more difficult to interpret than British legislation. Five reasons are put forward as to why this might be so. While always undesirable, uncertainty is perhaps to some extent tolerable where Community legislation gives rights to the individual against public authorities: an uncertain right may, after all, be better than no right at all. It is, however, intolerable where obligations are imposed on the individual. One situation in which this arises is where directives are adopted in the field of private law, a rapidly increasing area of Community legislation. These measures will form the main focus of this study, though our attention will not be confined to them. Before considering these matters, we must, however, set the stage by making some preliminary distinctions.

The role played by the concept of legitimate expectations within administrative law has been the subject of much comment in recent years. The object of the present article is not to provide a general overview of the topic. My own views on this matter have been set out on an earlier occasion. The aim of this article is to focus more closely upon the extent to which legitimate expectations can have a substantive as well as a procedural dimension.

It is perfectly settled by a multitude of decisions, that, notwithstanding an assignment of his lease, the lessee continues liable on the personal privity of contract, to the payment of rent and the performance of the covenants, during the whole term; although the lessor concur in the assignment, or, by acceptance of rent, or otherwise, recognise the assignee as his tenant; and although the breach be committed after the assignment; and although a tender be made by the assignee for the very rent for which the lessee is sued; for if a plea of assignment and tender could be supported, a lessor might be compelled to accept an assignee contrary to his inclination. Indeed, by no act of his own can the tenant absolve himself from the charge.

More than a decade-and-a-half ago, Anthony Kronman published an article on contract law and distributive justice that has “become something of a classic in the philosophy of private law.” Kronman's article has received a great deal of attention on both sides of the Atlantic, and it has helped to sharpen the debate between libertarianism and other forms of liberalism. In the present essay, we shall seek to expose two major weaknesses in Kronman's arguments (after we briefly summarise them).