A Romalpa clause provides that, even after delivery, the seller retains title to goods agreed to be sold, until payment of the price of those goods or, in many cases, until payment of all sums due to the seller from the buyer. Its object is that, should payment not eventuate, the goods, though in the buyer's possession, are still the seller's property and available for resale by him. In the Scottish appeal of Armour v. Thyssen Edelstahlwerke A. G.1 the House of Lords encountered this example of a Romalpa clause:

IT IS now 18 years since the Law Commission Report which led to the introduction of the reformed R.S.C., Order 53,1 the procedure which still governs all applications for judicial review in England and Wales. The Law Commission has now returned to the field with its 1994 Report entitled Administrative Law: Judicial Review and Statutory Appeals.2 During the interval between the two reports, judicial review has undergone enormous change in terms of both thequantity of claims brought3 and the substantive and adjectival developments in the jurisprudence. Moreover, important additions to the reform agenda have been made from a variety of sources.4 The Law Commission's latest contribution could thus hardly be better timed.

Barclays Bank p.l.c. v, O'Brien1CIBC Mortgages p.l.c.v. Pitt2presented the House of Lords with an opportunity to consider when a creditor should be prevented from eforcing a transaction against a person who entered int it as a result of the undue influence or misreprentation of another. Lord Browne-Wilkinson's declared objective was to restate the law on this point “in a form which is principled, reflects the current requirements of society and provides as much certainty as possible”.3 Whether he achieved these three aims is a question on which commentators disagree. According to one, his Lordship proved himself “a master of the judicial art”4 by achieving all three.5 Another has argued that his judgments “may give rise to as much confusion as this difficult area has already witnessed”6 and that, in his efforts to attain the second of his goals, he overlooked the first and the third.

It has long been established that the (involuntary) alienation which occurs when a bankrupt's estate vests in his trustee severs any beneficial joint tenancy, with the effect that the trustee holds the co-owned property as a beneficial tenant in common.1 The timing of such severance is of vital interest to unsecured creditors and the other coowners alike. If a beneficial joint tenant dies before severance is deemed to have taken place, his unsecured creditors are unable to claim against any share of the property, for it is an essential characteristic of joint tenancy that each joint tenant is entitled to the whole interest or estate, but only for his lifetime: upon the death of a joint tenant, his potential “share” accrues to those remaining in accordance with the right of survivorship. If, however, a co-owner dies after his interest has been severed, his share of the property is available for distribution among his creditors. Where a jointly-owned home is the debtor's only substantial asset, the distinction is crucial.

A plaintiff who is deprived of a thing might seek out that very thing in order to assert his rights. The victim of a car thief tries to find the car. This is a natural response to such a misfortune, although it is not necessarily a fruitful one. Alternatively, the plaintiff might find that the original thing has been used to acquire some new asset: for example, the thief has swapped the car for a motorcycle. In that case, especially if for some reason the plaintiff will be unlikely or unable to establish a claim in relation to the car, the plaintiff might choose to assert a claim in relation to the motorcycle.

Both the existence of and theoretical justification for defences to an action in unjust enrichment have been the source of controversy since the action was first recognised in Moses v. Macferlam.* The House of Lords' recognition of a defence of change of position in Lipkin Gorman v. Karpnale Ltd1 goes some way towards meeting the criticisms levelled at the courts' general failure to develop and clarify the defences to restitution. The judgments of Lord Goff and Lord Templeman have properly been acclaimed for imposing some measure of order upon an important aspect of the law of restitution. However, problems remain. Lipkin Gorman does not provide an exhaustive analysis of either change of position or its inter-relationship with other defences.

It is a commonplace that statements of legal doctrine sound both more determinate and more authoritative than they necessarily are. And this must be especially true of the maxims of equity,1 which possess a peculiarly Delphic quality, wrapped as they are in metaphor, grandly unqualified, and acknowledging no authority but transcendent wisdom. Therein may have lain their particular usefulness to the law.2 But therein too lies a worry. For it follows that reasoning based on a maxim especially facilitates the introduction of unarticulated valuejudgments; and indeed that such reasoning carries an unusually high risk of actual error, as the judges themselves miss their way.

In a series of modern cases, the English Courts have struggled with the problem of the undue influence or misrepresentation of third parties. Most of the cases have concerned women who have been persuaded or deceived into giving guarantees to financial institutions for the business debts of their sexual partners. In the recent case of Barclays Bank p.I.e. v. O'Brien, * the House of Lords made a fresh effort to tackle this difficult issue. Lord Browne-Wilkinson, with whom the other Lords agreed, attempted “to restate the law in a form which is principled, reflects the current requirements of society and provides as much certainty as possible.”1

HILLEL STEINER'S book An Essay on Rights1 proposes and develops an intriguing suggestion: that we should approach the discussion of justice at “the elementary particle level”. “The elementary particles of justice” Steiner tells us “are rights”:

Rights are the items which are created and parcelled out by justice principles. We learn something about justice by examining the formal or characteristic features of rights. These features constrain the possible content of justice principles in much the same sense as architectural precepts must be informed by the properties of the construction materials they orchestrate.2

The issue of miscarriages of justice1 has been at the heart of much recent discourse—legal, political and social—concerning the English criminal justice system. Indeed the crisis of confidence in the system has prompted attempts to re-establish legitimacy, which include such tried and tested methods as changes of personnel,2 and the appointment of a wide-ranging Royal Commission 3 which followed the attempt to quell the disquiet by the more focused May Inquiry.4 Much of the concern has arisen from the conduct of terrorist trials in Britain in the mid-1970s, the most important and significant 5 of which for the purposes of this paper were the trials of groups of terrorist suspects commonly known as the Birmingham 6,6

This article examines a variety of legal systems with a view to assessing the role currently played within each of them by the principle of unjust enrichment. By focusing on the characteristic features of unjust enrichment claims it seeks to demonstrate that, although there are significant differences between the ways in which different countries handle such claims, there is also much that those systems have in common. While under the common law the principle of unjust enrichment has endured a long struggle for recognition, in civil law systems it has been acknowledged for centuries. This may be because in civil law countries the principle has been expected to play only a residual, and therefore non-threatening, role in the law of obligations while in common law countries it has been called upon, if at all, to serve as the basis for the whole of the law of restitution. We should not assume, however, that all common law systems share one set of characteristics while all civil law systems share another. In some respects there is more in common between systems drawn from each category than there is between systems drawn from the same category. Mixed legal systems, as one might expect, tend to display characteristics drawn from both.

THE privilege against self-incrimination has always attracted controversy. Legal historians continue to disagree over its origins,1 and its justification has been keenly debated ever since Bentham's famous attack on it as a misguided concession to the guilty.2 This debate has recently entered a new and critical phase as the result of diametrically opposed developments by, on the one hand, the courts and legislature in England and, on the other, by the institutions of the European Convention of Human Rights.

It is the purpose of this article to draw attention to the case of Dudley v. Ellis (1559), * discovered in the record of the Court of Chancery while searching for trust cases in the years after the Statute of Uses. Together with the now famous case of Bertie v. Herenden (1560),1Dudley v. Ellis provides a vivid illustration of the role which trusts might play in times of trouble.