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the Redundancy Payments Act 1965,29 a " court " in which the immunity applies ? A solicitor is still liable in contract to his client for matters outside the scope of his new-found immunity as an advocate; if he fails to bring a witness to court he is liable, but if he himself conducts the case and brings the witness but culpably f fails to call him, possibly he is not liable.30 I a solicitor himself conducts in court a case which is far too difficult for him so that it is not properly presented he is not liable. I a solicitor fails to f appear a t court when he has not retained counsel he is liable in contract; if counsel fails to appear counsel is not liable for he has made no contract s 1 and the solicitor is not liable if he attends court for he is not in breach of contract. Lord Davey once said that the right to light has a ragged edge to it.J2 So still has the immunity of advocates, but i t will be Burprising if Parliament sees fit t o alter the position as now stated by the Law Lords. H. W. WILKINSON.

CONCEPTUALIBM TRIUMPHANT THE COURT OF APPEAL IN THE judgments of the Court of Appeal in United Dominions Trust (Commercial) L t d . v. Eagle Aircraft Services Ltd.' are a dismal illustration of the extent to which English legal method is still dominated by conceptual techniques. What is particularly depressing is that the kind of problem which arose in this case has been extensively discussed by American legal writers in an attempt t o demonstrate the fallacies of conceptual thinking, and that over thirty years ago American courts were dealing with this sort of problem with a sophistication which we seem to be unable t o match today. The case involved the liability of a party to a hire-purchase " recourse agreement." The defendants, Eagle, owned a Viking aircraft which they wanted to sell. The aircraft was disposed of by means of a sale to the plaintiffs, U.D.T., a finance company, followed by R hire-purchase agreement between U.D.T. and a third party (Orion Airways Ltd.), and the recourse agreement in question, between U.D.T. and Eagle, whereby Eagle undertook to repurchase the aircraft in certain circumstances. The full terms of the agreement are not given in the report, but the crucial clause provided that if for any reason the hire-purchase agreement was terminated before t.he whole amount payable thereunder had been paid, Eagle would " when called upon to do so " forthwith repurchase the
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30 31 32
1

A party may be represented by counsel or solioitor, rule 7, the Industrial Tribunals (Employment and Compensation) (England and Wales) R c g u l a t i o n ~ 1965 (S.I. 1968 No. 2018). Lord Pearson found this a hard problem to answer, p. 1791. Lord Upjohn, p. 1 7 % ' . Collr v. Home and Colonial Stores El9041 A.C. 179 a t p. 200. [1968] 1 All E.R. 104; [l968] 1 W.L.R. 71.

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aircraft from U.D.T. a t a price equal t o the amount then outstanding on the hire-purchase agreement. There were a number of provisos to this agreement. Proviso (a) required the plaintiffs to assign to Eagle its rights against the hirers if called upon t o do so after Eagle had repurchased the aircraft. Proviso (b) is not given in the report. Proviso (c) required U.D.T. to keep the aircraft insured, and proviso (d) stated that U.D.T. would notify Eagle within seven days of any default made by the hirers in payment of the hire rentals. The hirers defaulted on the instalment due in August 1060, but U.D.T. did not inform Eagle of this until October, whereupon Eagle repudiated all further liability on the ground of breach of proviso (d). I n December 1960 U.D.T. terminated the hire-purchase agreement without informing Eagle. U.D.T. had some difficulty in locating the aircraft but it was eventually traced into the hands of a company called Airwork Services Ltd., who were servicing it, and who claimed a lien on i t for a substantial sum. U.D.T. paid off the lien and had further work done to the aircraft to make i t airworthy without informing Eagle. Eventually they called on Eagle t o repurchase the aircraft under the recourse agreement in May 1961, five months after termination of the hire-purchase agreement. Eagle refused, and when sued, took two points: first, breach of proviso (d); and secondly, that i t was an implied term of the recourse agreement that they could only be called upon t o repurchase within a reasonable time, and that such a time had expired by May 1961. The trial judge (Widgery J.) rejected these arguments, and held Eagle liable under the recourse agreement, but he also held that U.D.T. were liable in damages (to be assessed) for breach of proviso (d). The Court of Appeal allowed the appeal, holding that failure t o call on Eagle to repurchase within a reasonable time was fatal t o U.D.T.s claim. The court expressed no final view on the effect of the breach of proviso (d) but inclined to think, by a two to one majority, that Eagle were also discharged by breach of this proviso. Now if for a moment we put on one side our learning about legal classifications and concepts- options, (unilateral contracts, conditions precedent and so forth-it is clear that the real point a t issue was simply this: was Eagles obligation to repurchase the aircraft conditional (in the strictest and most accurate sense of the word) (a) on compliance by U.D.T. with proviso (d); or (b) on U.D.T. calling on Eagle to repurchase within a reasonable time ? This issue gives rise to two further questions : (1) had the parties expressly agreed that Eagles obligation to repurchase should be conditional on events (a) or (b), always assuming that there was no overriding policy reason for refusing to give effect to the parties express agreement? (2) I not, should f Eagles obligation be treated as conditional by construction or implication of law ? The answer t o question 1 was plainly No. The parties had

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not expressly agreed that Eagles obligation to repurchase should be conditional upon anything except on their being called upon to do so. I t was expressly agreed by proviso (d) that notice of default should be given, but it was not expressly agreed that this should be a condition of Eagles obligation. And the second possible condition-that notice to repurchase must be given within a reasonable time-was not express at all, let alone an express condition of Eagles obligation. Since, then, Eagles obligation to repurchase was not expressly made conditional on event (a) or (b), the question was whether it should have been treated as conditional by construction or implication of law. This was, of course, a policy question, pure and simple. Was it fair, just or reasonable, to treat it as conditional? In answeririg this question a crucial point was the nature of the transaction. Now the transaction here looked like an option, and there is no doubt that in an ordinary option a stipulation as to the time during which the option must be exercised is a condition which must be strictly complied with. But, as Corbin points out, the reason for this is that in most cases the exercise of the option within the stipulated time is elcpressly made a condition of the option. In all the option cases cited by the court in the instant caseYsthe option was expressly made conditional on its being exercised within a specified time, or on some other event, but the court does not appear to have been referred to other authorities in which no time was fixed for the exercise of the option, and in which the court declined to read in an implication that the option must be exercised within a reasonable time. These cases involved options to tenants, and admittedly it is much easier to read in an implication that such an option must be exercised while the tenant is in occupation rather than that it must be exercised within a reasonable time. It is not therefore suggested that these cases should have governed the present case. But they do a t least show that there may be a great deal of difference between an express time limit and an implied time limit. But even if an implied time limit could often properly and fairly be treated as a condition of an option, this is because of the nature of most options. Generally, the right to an option is purchased for a small consideration, and is given for a limited time, so that once the time has expired the option holder has in fact received the full consideration which he purcha~ed.~But the contract in the present case was not an ordinary option contract ; its fundamental purpose was to guarantee the performance of the
a
3

4
5

Contracts, Vol. l A , 5 278. Weston v. Collins (1865)12 L.T. 4; Finch. v. Underwood (1876)2 Ch.D. 310; Hare v. Nicoll [1966] 2 Q.B. 130; W e s t Country Cleaners v. Saly [1966] 3 All E.R. 210. Heraey v. Oiblett (18G4)18 Beav. 174; Moss V. Barton (1866)L.R.1 Eq. 474; Buckland v. Papillon (1867)L.R.2 Ch. 67; Rider V. Ford [19231 1 Ch. 641. Corbin, loc. crt.

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hire-purchase agreement, as is manifest from the circumstances. To all intents and purposes it was a contract of suretyship or indemnity. The real consideration for the option was not some small or nominal sum, but the very fact that U.D.T. had originally bought the aircraft from Eagle for 20,000. The contract was what American lawyers would call an aleatory contract, i.e., a contract in which one or more promises are conditional on the happening of some fortuitous event.O Now it is well recognised by American lawyers that stipulations as to time are not to be treated as conditions in an aleatory contract, unless they are expressly made SO.^ The reason for this is that in such contracts the performance of the promises made by the parties are not intended to be exchanged as agreed equivalents. For example, the premium in an insurance contract is not intended to. be exchanged as the equivalent of the policy moneys. For this reason it would be wrong to treat an aleatory promise as conditional on the performance of the other partys promise, unless the contract expressly so provides.O A fortiori, the failure to perform a promise in due time should not discharge an aleatory promise. The American approach to such a problem is well illustrated by the decision of a Federal Court of Appeals in Southern Surety Co. v. Alacmillnn C0.O which raised a problem almost identical with that involved in the breach of proviso (d) in our case. The defendants in the American case guaranteed performance of a contract entered into between the plaintiffs and a third party, whereby the third party was to act as distributor for the plaintiffs books. The third party was required to render periodical accounts and stock reports to the plaintiffs, and in the event of any default the plaintiffs were required to notify the guarantor within sixty days. Defaults occurred but owing to fraud on the part of the third partys servants, they were concealed from the plaintiffs, so that notice was given long after the sixty days had expired. The court asked itself two questions: first, had the requirement of notice been made an express condition of the contract? Secondly, if this requirement was not an express condition, should it be treated as a condition by construction of law, or merely as a promise, breach of which might but need not discharge the guarantor ? After careful examination of the contract the court concluded that the term was not a condition but a mere promise, and that since the defendants promise was aleatory, breach by the plaintiffs of their promise sounded in damages only.O
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7 8 9 10

Restatement. Contracts, 5 291; Corbin, Contracts, Vol. BA, 5 728 et seq. Corbin, Vol. BA, $ 8 726, 788. Restatement, Contracts, 5 287. 58 F. 2d. 641 (1032). English courts have adopted s similar approach i n dealing with insurance contracts, in which terms requiring notice of loss within a specified time nre not treated as conditions unless the contract so provides by very clear provisions: nee MacCilZioray on Insurance L a w , 5th. ed.. Vol. 2 , 5 1713 e t seq.

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Compare this approach with that of the Court of Appeal in the present case. The reasons given by the members of the court for their decision are almost entirely conceptual. The agreement to repurchase was not an ordinary bilateral contract but a unilateral contract. It was an option and like all options must be exercised strictly in the time allowed. Since the obligation was unilateral i t followed that i t only became binding when the event specified (or implied) in the promise occurred precisely as stipulated. Such events were therefore conditions precedent and there was no room for any inquiry as to whether non-occurrence of the event had prejudiced the promisor, or could be remedied by a counterclaim for damages. It need hardly be said that this form of reasoninglike all conceptual reasoning-is question-begging. Since the court started with the assumption (which is indeed generally agreed) that the event on which the promise is to take effect in a unilateral contract is always a condition in the strict sense, then of course it follows, once we have classified the contract as unilateral, that if the event does not occur precisely as stipulated, there can be no liability. Hut if policy, justice, fairness demand that the promise should not be treated as conditional, then we should not classify the contract as unilateral.2 Purely as a conceptual matter, the contract could perfectly well have been classified as bilateral. Thus proviso (d) and the requirement to call on Eagle to purchase within a reasonable time could have been treated as promises, breach of which could have been remedied in damages. No hardship would have been done to Eagle had this course been adopted in this case. I they were in fact prejudiced by the f delay they could have claimed damages for breach of contract, to be set o f against the price of the aircraft; but as the aircraft f
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T h e courts approach is also open to the obection that it seems to lead straight to another of those preposterous Bridge v. Campbell Discount Co. 621 A.C. 600 situations, in which a party is better off if a term is construed as a promise which he has broken, than if it is construed as a condition which has not occurred. Thus in the present m e U.D.T. would have been better off if they had actually promised to call on Eagle to repurchase within a reasonable time. and had broken that promise, because the could then a t least have d v e n o n this approach, the argued that the breach sounded i n damages on1 advantage to the protnisee of being held t o %ave made a promise himself should in theory be apparent and not real. Thin is because i t will only in fact prove advantageous to him if the breach of his promise is held not to discharge the promisor, and in strict logic the romisor must be held dischar ed if the promise was conditional. But what gappens in strict logic and w%at happens in practice are not always the same, as is in fact illustrated by the divergent views taken by Widgery J. and the C.A. i n this case. The whole difficulty is avoided if we first inquire whether the promise was conditional, for if i t wils condilional the promisee can never be better off, and may be worse off, if the condition was also a promise by him. Diplock L.J.s conceptual analysis is somewhat unconventional in that ho treats Ihe question as bein whether an obli ation (rather than the whole contract) is unilateral or bfateral. I think t i i s is contrary to the normal usage (cf. Restatement, Contracts, 12) but a more Berious objection is that in a large number of situations it would substitute a conccptual, questionbegging, iasue (is the promise bilateral or unilateral?) for the really impontant issue (is the promise conditional?).

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was eventually sold as scrap it seems very probable (unless U.D.T. were uncommonly incompetent) that the aircraft was virtually worthless anyhow when the hire-purchase agreement was terminated. The actual result thus seems unjust, though i t is in line with the general tendency of the English courts (to which the insurance cases are perhaps exceptional) to treat stipulations as conditions rather than as promises, breach of which can be remedied in darn age^.'^ Is it too much to ask that the courts should justify this tendency in rational terms rather than with conceptual mumbo-jumbo ? P. S. ATIYAH.

CHARITY AND THE WELL-TO-DO SICK THE limits subject to which gifts for the relief of the sick will be held to be made for charitable purposes were considered in two recent and contemporaneous decisions, one of the Privy Council and the other of the Court of Appeal. I n Le Cras v. Perpetual Trustee Co. L t d . , one of the issues to be determined was whether a bequest of income to the Sisters of Charity for the general purposes of a private voluntary hospital was a valid charitable gift. Lord Wilberforce, in delivering the judgment of the Board, said: A gift for the purposes of a hospital is prima facie a good charitable gift. This is now clearly established, both in Australia and in England, not merely because of the use of the word impotent in the preamble to 48 Eliz. c. 4,z though the process of referring to the preamble is one often used for reassurance,s but because the provision of medical care for the sick is, in modern times, accepted as a public benefit suitable t o attract the privileges given to charitrable institutions. But two
1s
1

For some other illustrations of this tendency, see Treitel, 30 M.L.R. 139 at pp. 144-148. Le Cras v. Perpetual Truslee Co. L t d . [1967] 3 All E.R. 915, an appeal from a decretal order of the Supreme Court of New South Wales; Re Adams (deceased) [l967] 3 All E.R. 286. Judgment in the Adams case was delivered between the hearing and judgment in Le Cras caw. I n neither was any reference made to the other. The preamble to the Statute of Elizabeth referred to aged impotent and poor people, adjectives which are interpreted disjunctively. There are few modern reported cases where a bequest or donation was made or an institution waa being carried on for a clearly specified objecl which was for the benefit. of the public a.t large and not for individuals, and yet the object was held not to be within the spirit and intendment of the Statute 01 Elizabeth. There is, however, another line of cases where the bequest did not clearly specify the precise object to which it was to be applied, but left a discretion to trustees or others to choose objects within a certain field. There the courts have been much more strict, so that if i t i.s possible that those entrusted with the discretion could, without infringing the testators directions, n apply the b uest i any wa which would not be charitable then the claim that %e bequest ia czaritable fails. Scottish Bunal Re orm and Cremation Society L t d . V. Gtasgow City Corporation [lo671 3 Al,l L.R. 216, per Lord Reid at p. 218. [l967] 3 All E.R. 916 at p. W. VOL. 31 12
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