In the Court of Appeal recently, Nourse L.J. declared Credit Lyonnais Bank Nederland NV v. Burch to be “as clear a case for the setting aside of a transaction against a mortgagee as it was possible to think of”. Curiously, however, relief on the basis of Barclays Bank pic v. O'Brien was given although: (i) the relationship between the surety and principal debtor, of employee and employer, clearly falls outside that of an “emotional or sexual nature” (and no such relationship existed in fact) particularised in O'Brien as one factor giving rise to a lender's constructive notice of the transaction's potential invalidity and; (ii) the Bank twice wrote to the proposed surety advising of the unlimited nature of the charge and of the desirability of obtaining independent legal advice; moreover, (iii) there is surprising dicta suggesting that the nature and extent of the manifest disadvantage in the transaction to the surety may be so severe that, to be enforceable, the lender must not only urge independent advice, it must insist upon it, and must reasonably believe that the advice was obtained, was competent and even, that it was followed.

If a plaintiff makes a payment to a defendant under the coercion of a third party, it has been said that the plaintiff's action in restitution to recover the payment from the defendant is dependent upon whether the defendant had notice of the third party's coercion. That is an error, to which the analysis here is intended as a corrective. The true view is that the plaintiff's action in restitution is dependent only upon the fact of the coercion vitiating his consent; notice is relevant only to separate the question whether the defendant can rely on the defence of bona fide purchase for value without notice.

Just as all the best titles have already been used, so have all the best opening lines. To begin, I can do no better than quote the opening words of the inaugural lecture given by my predecessor, Peter Stein, when he took up the Chair of Jurisprudence in the University of Aberdeen. I have changed the names. “When a pupil is appointed to succeed his master in any office it is natural that his feeling of honour should be tempered by humility. But when the master is a scholar of the calibre of Peter Stein, the pupil must exert himself to prevent his humility from degenerating into despair.”

In the phrase “moral responsibility”, the term “moral” can register two different ideas. On the one hand, it may introduce a particular field of application and a corresponding class of consequences, which are informal and social rather than formal and supported by force. Used in this way, “moral responsibility” is distinguished from legal responsibility. A quite different use of the term is involved when “moral” is introduced to imply a certain basis of assessment, one that places particular emphasis on the voluntary. In this sense, moral responsibility can be proposed as a basis of assessment even when what is in question is legal responsibility, for instance in relation to the criminal law.

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g., deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.

ONE of the less vaunted aspects of the Criminal Justice and Public Order Act 1994 is Part X, entitled “Cross-Border Enforcement”. On closer scrutiny, one quickly discovers that the borders in question are those internal to the distinct legal jurisdictions of the United Kingdom—in other words, the territories of England and Wales, Northern Ireland and Scotland. As for “enforcement”, it is apparently the enforcement of the law via police powers and not the enforcement of court judgments which is the concern. As with other, more notorious parts of the Act, three main questions need to be answered in order to reach an understanding of these provisions: what prompted Part X to be passed; how does it seek to attain its objectives; and does it seek to attain its objectives in ways which are effective and appropriate?

Two competing conceptions of contractual obligation dominate modern contract theory. “Neo-classical” scholars characterise contracts primarily as self-imposed, promissory obligations, while “progressive” scholars contend that contracts are primarily state-imposed obligations that have more in common with restitution and tort. Most theorists, located somewhere between these poles, divide the contractual domain into zones of self- and state-imposed obligations but disagree about where to draw the border. This essay considers one of the difficult border areas, the law of impossibility, frustration and mistake, which it will refer to collectively as “excuse”.

In his ground-breaking book The Paths to Privity V.V. Palmer has identified the period between 1500 and 1680 as the “formative period”of the doctrine of privity of contract. Within that period there were, he suggests, “basically four individual paths to privity for the beneficiary”: the interest theory, the benefit theory, the agency cases, and the consideration theory. This article is concerned with the first of these theories, and in particular with the role played within that theory by the concepts of use and trust.