Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - BOOK REVIEWS BUTTERWORTH LECTURES 1990–91
BUTTERWORTH LECTURES 1990–91. F. M. B. Reynolds, D.C.L., F.B.A., Professor of Law and Fellow of Worcester College, Oxford and P. B. H. Birks, D.C.L., F.B.A., Regius Professor of Civil Law and Fellow of All Souls College, Oxford. Butterworths, London (1992) vi and 112 pp. Paperback £19.95.
The two substantial papers in this publication are representative of the very best of English legal scholarship. Both papers are meticulously researched, take full advantage of comparative sources and analyse important contemporary problems with imagination and a commendable breadth of vision.
The first paper is by Dr F. M. B. Reynolds, now Professor Reynolds. The paper is called “The Implementation of Private Law Conventions in English Law: The Example of the Hague Rules”. For a trading nation such as England the subject is of great importance. Professor Reynolds points out that the Carriage of Goods by Sea Act 1924, which enacted an advance version of the Hague Rules, was enacted 24 days before the signature of the Convention. Despite judicial misgivings, that exercise in harmonization of international trade law proved beneficial and in Britain’s best commercial interests. Today such a sense of urgency is wholly absent. The Vienna Sales Convention came into force on 1 January 1988. To date more than 30 states have ratified this Convention. There is still no sign that this country will ratify it. The Convention is popular among businessmen worldwide. In due course commercial realities will compel the ratification of the treaty. But in the meantime the failure to ratify the Convention places our businessmen at a disadvantage in the international market place.
Professor Reynolds focuses on three separate topics: the problem of the conflict of laws; the problem of the bearing of the Hague Rules on actions in tort; and the problem of displacement of the Hague Rules by deviation. The analysis of the problems and the solutions advocated fall beyond the scope of this review. But Professor Reynolds draws certain conclusions which are worth noting. He observes that conflict of laws is an infant subject in this country. We have a great deal to learn from Continental legal scholars in this field. He refers to the shackles of the doctrine of privity. He draws attention to the unsatisfactory results which it brings about in situations where goods are dealt with and handled by many people internationally. It is not surprising that the Law Commission is considering remedial legislation of English law in this field: Law Commission Consultation Paper No 121. But Professor Reynolds makes the important point that in the context of international Conventions judicial decision should be able to escape from the rigidity of the privity of contract. He also observes trenchantly that the peculiarities of the doctrine of deviation are out of place in the operation of an international Convention. His paper amounts generally to an eloquent plea for greater use of the comparative method and specifically to a plea for a broad international approach in the construction of international Conventions.
The second paper is by Professor P. B. H. Birks. He addresses a broad canvass under the title “Civil Wrongs: A New World”. Professor Birks played a notable role in persuading the courts that the law of restitution is squarely based on unjust enrichment, and in “emancipating it (the law of restitution) from the obscure and distracting language of the forms of action”. This theme is discussed by Professor Birks. He insists that the law of unjust enrichment has an independence which places it outside the field of civil wrongs. And his paper is mainly concerned with the field of civil wrongs. But one of the many rewards of studying and re-studying Professor Birks’ paper is the better realization of the coherence and interdepen-
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