I keep six honest serving men
(They taught me all I knew);
Their names are What and Why and When
And How and Where and Who.
I send them over land and sea,
I send them East and West;
But after they have worked for me
I give them all a rest.
I let them rest from nine till five,
For I am busy then,
As well as breakfast, lunch and tea,
For they are hungry men;
But different folk have different views;
I know a person small -
She keeps ten million serving men,
Who get no rest at all!
She sends ’em abroad on her own affairs,
From the second she opens her eyes -
One million HOWSt,w o million Wheres,
And seven million Whys!

The doctrine of privity has two main aspects. The first is that a third party is not to be burdened or prejudiced by a contract. This appears sound and wil not be examined further. The second aspect of the doctrine is controversial. A third party cannot take advantage ofa contract made by A and B for his benefit. The potential benefit to C can take two forms. A positive benefit is the right to some material advantage, such as money, property or services. A negative benefit consists in the conferring of an immunity. there is authority for the denial of both kinds of benefit to C. Tweddle u Atkinson and Dunlop u Selfridge established clearly that a third party does not have an ius quaesitum, tertio or active right. The House of Lords in Scruttons u Midland Silicones extended the privity rule so as to deny that C can take advantage of a negative benefit.

There can be few passages ofjudicial exegesis which have claimed more attention, analysis and controversy than Lord Herschell’s famous, or infamous, statement of principle in Makin u A-G for New South Wales. His Lordship had appeared to assert an absolute rule against adducing evidence of bad character in order to prove the defendant’s guilt on the basis ofhis criminal disposition; and in Boardman v DPP Lord Hailsham expressly approved this prohibition on use of the ‘forbidden chain of reasoning’. A recent judgment by Gibbs CJ in the High Court of Australia contains a lucid modern restatement of Lord Herschell’s principle:

‘The prosecution cannot adduce evidence tending to show that the accused has been guilty ofcriminal acts other than those with which he is charged if the evidence shows only that he had a propensity to commit crime, or crime of a particular kind, or that he was the sort of person likely to have committed the crime charged.

What little empirical work there has been in the field of contract law has revealed that the parties do not always regard the legal enforceability of their agreements as a high priority. Problems arise when this attitude is combined with the use of standard terms by one or both parties. Perhaps the best known example ofthis is the ‘battle ofthe forms standard forms are exchanged with no attention being given to their inconsistencies and it then becomes very difficult to determine which set of terms actually form the basis of the contract. Another problem occurs where the parties have carefully negotiated some part of their contract only to discover, when a dispute arises, that it is inconsistent with the standard terms which were incorporated into the contract and to which neither party had paid much attention. This article is concerned with the problem which occurs when one party has a set ofstandard terms but has introduced them into the transaction after the contract has been concluded.

While finding fault with House of Lords’ decisions in the field ofcriminal law is by no means a new academic sport, the present decade is proving particularly fruitful for the critic. The precise ramifications of Caldwelll and Lawrence are still being thrashed out. seymour, on manslaughter, was unforgiveably ambiguous. Moloney and Hancock and Shankland left the mental element in murder hopelessly opaque. In impossible attempts Anderton v Ryan revealed a degree of ineptitude which even the House of Lords had to recognise in overruling itselfonly a year later in Shivpuri.

It is not simply a questionofacademics taking issue with the outcomeof a particular decision. The further, and in some respects even more worrying, aspect of many of these decisions is the quality of the legal reasoning they embody.

We seem to be stuck fast over recklessness. The model direction in Caldwell is almost universally deplored, particularly in respect of its operation in cases like Elliott v C and R (Stephen Malcolm) but the lords show no sign of repenting, even though in both of the cases last cited expressions of disapproval ascended to them from a Divisional Court. Lord Roskill, an out-and-outer on the point, asserted that the model direction applies ‘throughout the criminal law unless Parliament has otherwise ordained in a particular case’, which if accepted would reverse the present decisions that the direction does not apply to offences of malice, as most offences against the person still are.

We urgently need action, which could be achieved by legislation or, much more quickly, by the lords themselves if they were so inclined.

This article deals with what must be a common domestic scenario. It concerns the entitlement, if any, of a claimant (C) to the property of a deceased person (D) where D, during his lifetime, had promised C that he (C) would obtain certain property on D’s death, but where, on D’s death, C is not able to establish either a valid will in his favour or entitlement under the intestacy laws.

Of course if C simply relies on a a gratuitous promise by D without any more, then any claim will fail. The promise is not an enforceable contract, or a perfect gift or an effective testamentary disposition, but there are circumstances where C could obtain aremedy foundedonsuch apromise.