John Stannard

A Tale of Two Presumptions

This article examines the use of presumptions of intent within the law of murder, and some of the problems of analysis to which they give rise. It is argued that much of the confusion in the modern law is caused by the failure of the courts to grasp the different functions of different kinds of presumption in the law of evidence, and that this has led to presumptions of a particular kind being used in the present context for a purpose for which they are not really suited.

Delay in the performance of contractual obligations

PART I: THE OBLIGATION TO PERFORM ON TIME 1. The Proper Time for Performance Where a time is set by the contract Where the contract is silent as to time Performance due on demand Unilateral Obligations 2. The Importance of Timely Performance Time of the essence and its meaning ime of the essence at common law and in equity When is time of the essence? 3. Performance due on a Contingency The nature of a condition precedent Identifying a condition precedent Exceptions PART II: REMEDIES FOR DELAY 4. The Obligation and its Performance The hour of performance Period specified for performance 5. Excuses for Failure to Perform on Time Exclusions and exceptions Agreement, variation, waiver and estoppel Prevention by promisee Supervening events 6. The Effect of Failure to Perform on Time Delay as breach of contract Delay as a failure of condition Frustrating delay Delay as a breach of condition Delay as a fundamental breach Delay as repudiation PART III: REMEDIES FOR DELAY 7. Specific Relief Specific performance Action for the price 8. Notices Making Time of the Essence Genesis of notice procedure The modern doctrine Scope of the procedure 9. Compensation for Delay Damages at common law Recovery or forfeiture of liquidated sum 10. Witholding Performance Witholding performance and termination The normal rule Doctrine of substantial performance Timely performance as a condition precedent 11. Termination Termination where time is of the essence Termination where time is not of the essence 12. Frustrating Delay Preliminary distinctions Factors involved in frustrating delay

Property and Emotions

Relatively little has been written on the connection between property and emotions from a legal perspective, despite the centrality of property in everyday life and the complex relationships that exist between owners and their property. Scholars working in other disciplines have analyzed these links, identifying “proprietary” emotions and corresponding emotional traits. However, little has been mapped onto the field of law. This article looks at key emotions surrounding property as identified in psychological and, to a lesser extent, sociological literature. After mapping these onto selected areas of property law, it posits the need for a deeper and more collective field of inquiry.

The Emotional Dynamics of Consent

Consent is one of the most powerful concepts known to the law; in particular, it can provide a defence in the criminal context by converting unlawful conduct to that which is not only lawful but even to be encouraged. Despite this, the task of formulating a general theory of consent in criminal law has not been an easy one, not least because of the different situations in which it operates. Given that consent fundamentally involves the subjective attitude of the person concerned to the conduct in question, this paper sets out to explore the dynamics of consent by considering a number of factors, including the way in which it operates as a defence to different crimes, the problems to which consent gives rise in the criminal context and the emotional factors which can influence someone to grant it. It is argued that the development of the law both from a theoretical and a practical perspective requires a more informed and nuanced concept of consent in terms of the emotional dynamics involved.

Murder and the Ruthless Risk-Taker

One of the more intractable problems in the criminal law is that of the ruthless risk-taker in the law of homicide. The label ‘ruthless risk-taker’ is used here to denote the killer whose conduct, whilst not directly designed to kill, nevertheless manifests such a callous disregard for human life as to merit the label of a murderer.1 For instance, a terrorist bomber blows up a crowded building without proper warning to those inside,2 or an arsonist pours petrol into an occupied house and sets it on fire.3 Where these actions result in death, the person responsible may deny any intention to kill; indeed, the claim ‘I never meant to kill anyone, but . . .’ is a characteristic mark of the ruthless risk-taker. Such cases cause great difficulty in any legal system where murder is defined as a crime requiring intent. Even where this is not the case, there is still the problem of drawing the line between murder and lesser grades of homicide. Why is this sort of case thought to merit classification as murder rather than manslaughter? The very fact that many experienced judges feel that this should be the case is not entirely without significance;4 but there must surely be more to this than a mere judicial hunch or reflex, be it ever so educated.5 There are at least four arguments for stigmatizing ruthless risk-takers, or at least some ruthless risk-takers, as murderers. The first is the argument from equivalence; this is based on the philosophical view that foresight of consequences is a species of intention, or at