The Gazette 1985

GAZETTE

SEPTEMBER 1985

company) particularly comprehensive and useful. However, although part eight (liquidation) is useful as far as it goes, it could perhaps have been expanded, to give for example a fuller definition and treatment of preferential debts, and to answer some specific points on the question of liquidator's costs. As against this, it may be inappropriate to look for a full treatment of liquidation in a text-book on company law. Enough has been said to indicate this reviewer's opin- ion of the book's presentation and content, but it must also be added that the author writes so elegantly, so fel- icitiously, and so clearly that the book is a positive pleasure not only to read, but to re-read, and even, or so I gather from students, to study - "omne tulit punctum qui miscuit utile dulci". David Tomkin. Cases and Comment on Irish Commercial Law and Legal Technique by Raymond Byrne, The Round Hall Press, Dublin, 1985. 163 pages, £9.95. I must declare an interest as a colleague of the author. This book is an excellent, and by the yardstick of Irish prices, an inexpensive little book, which every practit- ioner and student interested in commercial law should acquire. Even those who hold series of law reports may find it useful to have within one volume these selected cases and the useful commentary. Academics, will also find the collection of cases help- ful, and will be impressed by the quality of the com- mentary. The salient feature of the introduction to the extracts from the cases is that the summary of the facts of the decisions quoted is brief but sufficient, but the critical discussion of Wall -v- Hegarty and Callnan (1980) I.L.R.M. 134. The Author's analysis of Barring- ton J.'s use of part of the Supreme Court decision in Finlay -v- Murtagh (1979) I.R. 149 indicates a short- coming in Barrington J.'s judicial reasoning in Hegarty. In so doing the Author makes it clear what in the par- ticular instance constitutes the difference between ratio and obiter. Within five carefully-worded lines, Mr. Byrne has indicated the substance of Finlay, levelled a tactfully-worded criticism of Wall, and explained the difference between ratio and obiter. This work, according to its preface, is "aimed pri- marily at students in Irish third level colleges taking commercial law as part of a business studies course". The needs of this particular market — a large and an ever increasing one — were largely forgotten until the production of Liam O'Malley's Business Law (Sweet and Maxwell, London 1982), and Denis Linehan's Irish Business and Commercial Law (Irish Legal Publications, Cork, 1981). These works, although both have their def- iciencies and limitations, have proved extremely useful to students, not only of business studies, but of law too. However, useful though these books may be, it has been difficult to guide students away from an exclusive reliance on text-books towards a critical analysis of the leading Irish cases mentioned in the text-books. This book goes a long way to the solution of the problem, by providing a necessarily-limited selection from leading Irish cases (six of which are still unreported) with clear and comprehensive expository and introductory matter.

The fundamental difficulty which Irish academic lawyers face in compiling works of commercial law, whether case-books or commentaries, is the fact that the term "commercial law" or its equivalent "business law" derives from Roman law via the law of certain juris- dictions foreign to Continental Europe. However, these recognise distinctions foreign to us between civil law and commercial law which are in particular circum- stances embodied in different codes and are applicable to distinct transactions or bodies of persons. In Ireland "commercial law" appears to comprehend that body of the general law which deals with the creation, formation and breach of contracts negotiated between businesses, their bankers, agents, employees and indeed competitors (trade marks, passing off). What topics should be included and what left out? Specifically should commercial law deal to some degree with legal reasoning, method and practice isolat- ing from the general law what, in the judgement of the author or teacher, constitutes material of particular importance to an understanding of commercial law? These questions are important, and I did not feel that they were answered or addressed in this book; but in the author's defence, he writes (about the absence of a table of cases, of statutes and an index). . . "in a text of this small size the chapter headings and extracts speak for themselves and . . . it would be an undue burden on readers to add an extra element to the price for a rela- tively small return". However much the reviewer may cavil about the absence of some sort of prolegomena defining what commercial law is, Mr. Byrne's readers will in general side against this reviewer and with the author. This reviewer offers three more criticisms of the book. First, the book deals both with introductory and methodological material, and also with aspects of "core commercial law" such as banking, agency, etc. The balance seems weighted in favour of introductory and general material. For this reason, I was surprised by some of the inclusions. One example suffices. The discussion and comment on McGee -v- The Attorney General (1974) I.R. 284 failed to pass the "so-what" test. Much of this indubitably important aspect of the approach or introduction to the general law relevant to commercial law should be taught either in Introductory Law Courses or Contract Law Courses. There is a case, therefore, for a separate volume dealing with Intro- duction to Legal Method and Reasoning; and I throw down this gauntlet to Mr. Byrne and to The Round Hall Press. Indeed this apart, and addressing the selection of the core commercial law material, readers of Mr. Byrne's work will feel that although his selection of cases is as judicious as is his commentary upon them, his concept of what constitutes commercial law does not correspond with their own. They will not be surprised by the inclusions, but they may be disappointed by omissions, and in subsequent editions, of which I hope there will be many, this work will no doubt contain additional sections. Next, this reviewer would favour a greater element of comparative law in the commentary. References to the direction that the law has taken in other jurisdictions are particularly valuable to students whose field is not prin- cipally law, and who would not be expected, therefore,

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