The Gazette 1991

NOVEMBER 1991

GAZETTE

Professor of Laws at Trinity College, Dublin, Dr. Paul Brand, Dr. Geoffrey Hand, Mr. Justice Ronan Keane, Mr. Daire Hogan, Solicitor and Dr. Colum Kenny have contributed (or are about to make further signifi- cant contributions) to our fuller understanding of Irish legal history. The Irish Legal History Society, a society which owes its existence to the vision of Professor Osborough, has already advanced the know- ledge of the history of Irish law. The author notes that the story of the common law is a good tale but it is not a romance. Many lawyers have tried to convince themselves and others that it has divine attributes. The modern after-dinner speaker who raises his glass to 'Our Lady of the Common Law' has many predecessors. The author refers to reports from at least the fifteenth century of statements such as: 'The common law is nothing but common reason', 'Our law is founded on the law of God', and even 'The common law has been for all time since the world began'. The author correctly notes that the common law can only be understood if it is seen for what it is: not a romantic ideal or a divine gift or the acme of the judicial genius or even the legal aspect of the most politically wise and refined race, but an interesting human construct, the creature of times and places, of economic forces and class interest, of battles for power between political factions and trials of wits between lawyers of great skill and inventiveness. We are fortunate that the common law system has recorded the names of the judicial innovators and of judges who withstood the innovators. The system of reporting cases in common law countries allows the names of judges to stand out in a way they cannot in the anonymous reports of the countries of that other great system, the civil law of continental Europe. The author is under no illusions about some of the judges who have (Continued on Page 355) 351

D.L.R. (2d) 354, and found for the plaintiff. In the English case the majority (Willmer and Danckwerts L.JJ.) held that the use of the words "on or before" gave the maker of the document an option to discharge his obligation by paying the amount at a date earlier than the date named thus creating an uncertainty and contingency in the time of payment. Professor Guest, like Pringle J; and the five judges of the Supreme Court of Canada, prefers the reasoning employed by Ormerod L.J. in his dissenting judgment (see p. 67). He con- sidered that the terms of the docu- ment created no uncertainty as the maker would not be under any obligation to pay the note until the specified date arrived. Williamson -v- Rider, however, was followed in Clayton -v- Bradley [1987] 1 W.L.R. 521. Another difference between British and Irish law noted by Professor Guest concerns the process used for the clearing of cheques through a clearing house. In previous editions of Chalmers the view had been put forward that presentment to the paying bank takes place when the cheque was delivered to the employee or agent of the paying bank at the clearing house and this view was adopted by the Supreme Court, reversing Murnaghan J., in Royal Bank of Ireland-v- O'Rourke [1962] I.R. 159. In Barclays Bank pic -v- Bank of England [1985] 1 A11 E.R. 385, however, Bingham J. (as he then was) said that he preferred the approach of Murnaghan J. and held that presentment only took place when the cheque was presented for payment at the branch of the paying bank on which it was drawn. Nine other Irish cases appear in the work although Reade -v- Royal Bank of Ireland [1922] 2 I.R. 22, which is referred to at p. 617, is omitted from the Table of Cases. In addition a relatively large number of Commonwealth authorities are also cited (156 Canadian, 78 Australian and 19 New Zealand) as well as assorted decisions from Malaya, Sri

Lanka, South Africa and the United States of America. Professor Guest also provides, where relevant, com- parative references to the Geneva Convention providing a Uniform Law for Cheques and the American Uniform Commercial Code. The full text of the United Nations Con- vention on International Bills of Exchange and International Pro- missory Notes is included as an appendix. Another appendix contains a helpful set of precedents of pleadings. For most lawyers bills of exchange and promissory notes are, as Professor Guest remarks in the Preface, "a rather technical and arcane area of the law". Never- theless he has succeeded in his aim of writing "a systematic, even readable, treatise" on bills of exchange, cheques on a bank and promissory notes. He provides a full, coherent and up-to-date (the Preface being dated January 1, 1991) account of the law and the work can be unequivocably commended. The Background of the Common Law. Second Edition, By Derek Roebuck, Oxford University Press/OUP, Hong Kong, 1990, £6.99 sterling. Professor F.H. Newark writing in (1947) 7 NILQ 121 noted that Ireland may one day have its Reeves or Holdsworth. Professor Newark added that it would not be an easy task to write the legal history of Ireland. Fortunately, over the past six decades, there has been a "quickening interest" in research in Irish Legal History. Scholars such as Dr. R.B. McDowell, Dr. A.G. Donaldson and Dr. V.T.H. Delaney have made their contributions to the study of legal history. In recent times, scholars such as Professor W.N. Osborough, Tony Kerr Statutory Lecturer in Law, University College Dublin