The Gazette 1989

GAZETTE

MARCH 1989

Book Reviews CASES AND COMMENT ON IRISH COMMERCIAL LAW AND LEGAL TECHNIQUE By Raymond Byrne, Round Hall Press, (2nd. ed.) Dublin 1988, 218 pages including preface, tables of cases, constitutional provisions, Irish Statutes, Bills, and EC laws, and index. Price IRE12.95 pb, IRE20.00 hb. Oscar Wilde (not notoriously possessed of reason to be grateful for the labours of Irish lawyers) said, in a different context, that it is "imagination that imitates, and that it is the critical spirit that creates". In the second edition of this work, Mr. Byrne has deployed his critical spirit, his clear mind, and vigorous style in commenting on some of the most important cases in Irish commercial law. A layman can painlessly learn to appreciate something of the judicial approach to commercial problems. A lawyer can refine his understanding of many of the finer points in this complex area. Judges themselves will be able, should they so choose, to see their own decisions within a linear intellectual progression. The approach is refreshing, eschewing the drab, familiar style of many introductory texts to law, and the dull and perfunctory comments favoured by some anthologists, who burden the captive student market with compendiums of Irish cases, fondly believed to be otherwise inaccess- ible, but selected for obscure reasons, illustrating incompre- hensible and peripheral points, and proving that extracts from judg- ments can provide the most boring and frustrating reading possible for students. The book's introduction takes a series of common experiences familiar to everyone, e.g. broken washing machines, difficulties with neighbours, taping music from a radio broadcast etc., and explains the legal implications inherent in such situations. Gradually, the difference emerges between criminal and civil law, EC and Municipal law, the process of statutory enactment and judicial determination is explained, the role

of the Constitution is discussed, and the framework of Irish law revealed. The scene is thus laid for a critical examination of cases on precedent and legal reasoning (chapter 2), interpretation of statutes, (chapter 3), the Con- stitution and constitutional rights (chapter 4), remedies (chapter 5), commercial orgainisation (chapter 6), negligence and tort law (chapter 7), contracts (chapter 8), Agency (chapter 9), sales, credit and financial services (chapter 10), restrictions on unfair competition (chapter 11), and insurance (chapter 12). In a short compass, the reader learns to appreciate some of the important problems in each substantive area, and thus to follow the method of judicial determination of them. It may be that chapters 1-6 could be criticised as covering the same material as that contained in Byrne and McCutcheon's The Irish Legal System: Cases and Materials, Professional Books, Abingdon, 1986. As against this, the material is different, abridged, presented colloquially: thus facilitating the commerce, accounting or E.S.S. student, to whom law is just one element in a variety of disparate courses. The good student will therefore be drawn beyond the first chapters to further reading; the less conscientious student can confine his attentions to one text: no bad option, pedagogically. As an example, in elucidating Madigan -v- AG [1986] ILRM 136, Byrne explains the decision, points out the obvious difficulty in dis- tinguishing between unconstitu- tional and otherwise undesirable legislation, and goes on to explain how judges purport to give approp- riate weight to the counter- balancing constitutional provisions of Arts 40 and 43, referring the reader to further judicial discussion of the same issues pitched at a more recondite level. My main gripe about this excellent book is that some of the chapters (particularly chapters eight and ten) cover very large areas in the commentary, but the cases used as illustrations deal with points which, judged by the commentary, are of minor but specific importance. This is the inevitable penalty of short case-

books. However, there is no mystery in this book why a case is selected, and what it illustrates. An alternative approach might have been to select fewer cases, and insert, as footnotes, extracts from other decisions exemplifying contrasting approaches to the same question, thus giving greater weight to the commentary. But since this criticism involves a request for more of the author and less of the judges, it must be deemed to be an implied com- pliment. The book's undoubted value to students and other rests, not only on the fluency of the commentary and the generally felicitous choice of cases, (one which should not have been included without reference to the Copyright (Amendment) Act 1987) but on the author's hard scholarship and breadth of reading and knowledge. This will be a popular book with students, but it is written by a genuine scholar with a knowledge of the practice of law, who makes no inappropriate intellectual con- cessions to his audience, and whose critical approach clarifies and instructs. David Tomkin DEBT COLLECTION: (1) THE LAW RELATING TO SHERIFFS. LAW REFORM COMMISSION REPORT. LRC 27/88. Price £5.00 The most recent text-books on the law relating to Sheriffs in Ireland were published towards the end of the last century and the most recent legislation relating to Sheriffs is now more than 60 years old. A hundred years ago people did not usually have in their possession goods which they did not own and it was unusual for businesses to be carried on by limited companies. In that relatively uncomplicated society it was a great deal easier for a Sheriff to make a successful seizure than it is to-day. Today, goods which are in the possession of an individual may well be subject to retention of title; they may be on "sale or return"; on hire purchase, or be leased or otherwise owned by somebody else. Businesses are carried on frequently not just by one company

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