The Gazette 1978

GAZETTE

APRIL 1978

which are not yet in existence as it does to things which belong to another. Thus under the common law it was not possible to assign the copyright in a work which did not exist at the time of the purported assignment: if a work which does not exist, it cannot be said to be owned or possessed by the would-be assignor; and if it can be neither owned nor possessed, it cannot be assigned (Performing Right Society Ltd. v. London Theatre of Varieties Ltd. 11924] A.C.I). But does this mean that a gift of animals in 1962 but not completed till 1971 will pass only those animals which were alive at both dates, and not their offspring? It could be argued against the nemo dat contention that offspring of livestock follow their mothers in ownership, at least to the extent that the conversion of an animal will give rise to an action in respect of that animal's offspring which are unborn at the time of the conversion. Could not the notion that partus ventrem sequitur apply equally to the gift of animals as to their conversion? If so, then the donee in Conner would enjoy the property in all the livestock directly descended from ventres in being when the oral gift was made in 1962. How safe is it to rely upon the rule in Strong v. Bird for completing gifts? From the donor's point of view, perfection of an undelivered gift through the rule in Strong v. Bird is most attractive. The gift is effective at law, but it is not necessary that the donor be troubled by his loss of a The Court of Justice of the European Communities — L. Neville, B. Brown and Francis G. Jacobs (Sweet and Maxwell). A controversial Irishman, G.B.S. wrote: "You see things as they are and you ask 'why?'. But I dream things as they never were; and I ask 'Why not?'." It is well to remember that the E.E.C. Treaty came of age on 25th March 1978. Ireland is still a junior infant member of less than 6 years standing. Nonetheless any member of the public accepts that the Laws and Institutions of the E.E.C. have had fundamental effects on all our lives. This is a fascinating book on the new horizons for the Irish/European Lawyer. It is a short work (248p) and a rarity nowadays, moderately priced book (£3.25 paper- back). It is a book you can read for the pleasure of its information as for hard facts on practice and procedure. For this latter purpose it has a short but comprehensive index; a table of cases in two orders — alphabetical and numbcrical and a Tabic of Community Treaties. This book does not deal with the decision of whether your client's grievance can be remedied in the Court; it deals with by whom and how it is remedied. By whom? The authors are obviously partial to the realist school of jurisprudence. They deal with judges to show you even how many daughters they have! The chapter on the. Advocates General is of spccial interest. A practical example of an opinion of the advocate General

favourite chattel; after all, he does not 'deliver' it until his death acts so as to put the donee, as executor or adminis- trator. into possession of it. But Strong v. Bird , it is submitted, comes to the aid of those alone who do not rely upon it. The reason for this is that only where there is a continuing and immediate intention of the donor to give, and this continuing and immediate intention is terminated by death alone, may the naming of the donee as executor or his appointment as administrator perfect the gift. That this is so is plain from re Freeland 119521 Ch. 110, where the donor of a motor car, by lending it to a friend (albeit with the donee's consent), manifested a present intention which was incompatible with a continuing and immediate intention to give, and the gift was not perfected by the donee's becoming an executrix. In addition to this danger of the gift failing, there is also the possibility that the court will regard an inordinately long period of time elapsing between the undelivered gift and its 'perfection' as evidence that the donor, having made the gift, forgot all about it; and if one forgets entirely to do something it is not easy to claim that one has a continuing and immediate intention to do it (see re Wale [1956] 3 All E.R. 280). Finally there is the risk that the court will view the donor's state of mind as that of promising the donee that he, the donor, would make the gift at a future time; and since promises to give are not perfected by the rule in Strong v. Bird (see re Innes [1910] 1 Ch. 188) the intended gift would fail. In view of these considerations it is manifest that the simplest and most effective way to complete a gift is by immediate delivery. and a Judgement on a case of "laughing" mechanical toys is set out in full. How? The various types of Jurisdiction are set out — Administrative, Civil, Judicial, Review, Constitutional, Preliminary Rulings etc. with a clatter of statistics. The Court is a cohesive and effective legal force. The chapters that follow deal with the various types of procedure, in greater and lesser detail. The reviewer concludes it would be unwise to attempt the conduct of a case unaided by a Luxembourg based lawyer. Cases normally go through four stages: (a) written, (b) investigation, (c) oral, (d) judgment. There are no court fees. Costs normally follow the event. Chapter 11 deals with lawyers in the court. It struck me as one of the less informative chapters. However it is of interest to note a litigant must normally have a lawyer. All practising lawyers of member states have a right of audicnce. Legal aid may be granted by the Court. The last part of the book is an analysis of the Court as law maker and how it approaches interpretation and prcccdent. Indeed its whole general approach must give the Common Law system operators food for thought. The inadequacies of the Irish System on a half-hearted English historical base' come home forcibly to me. We would want a good shakcl By the way if you do get to Luxembourg and get lost this book provides a fine pencil sketch of the Court building you are looking for. ROBERT PIERSE. 89

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