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not registered that equitable interest. The purchaser from the lodger maintained that he was not bound by it. She was saved by the fact that she had been in actual occupation at the time of the sale. The underlying idea is that a buyer can see to his own protection from adverse interests held by those in occupation. Questions can be put. However, the interest of a person in occupation overrides the register simply because its owner is in occupation. It is not necessary to prove that the buyer was at fault in failing to make reasonable enquiries: ‘If there is actual occupation, and the occupier has rights, the purchaser takes subject to them. If not, he does not. No further element is material’ (Lord Wilberforce in Williams & Glyn’s Bank Ltd v. Boland [1981] AC 487 at 504) . . .
The value of legal certainty, which the equitable jurisdiction seems on occasion to undermine, is in general reinforced by insistence on the rigour of formality, especially as against strangers who have given value. Formality has meant writing in one form or another, but nowadays it means above all the public registration of real rights in land. The legislator, in providing that some interests override the register, has attempted to foresee the cases in which, even against strangers, the destruction of unregistered interests would give rise to screams of pain.
Notes and Questions 12.1
1Overriding interests are interests that, in registered land, are enforceable against third parties even if not mentioned anywhere on the register. We come back to this justification for overriding interests in Chapter 15.
2Peter Birks says that prospective sellers and buyers should become contractually bound to proceed at the point at which they ‘need to be able to rely on each other’. Is that the same point as the point at which they wish to be put under a binding obligation to proceed?
3Compare the formalities requirements imposed by section 52 of the Law of Property Act 1925 and those imposed by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989. Which are the more onerous? How far are the differences between the two justifiable?
4Which of the provisions of section 53 apply to land only, and which apply to other kinds of property as well? In the light of the justifications given in this chapter for formalities rules, should it be possible for declarations of trust to be made orally?
Extract 12.2 Lon Fuller, ‘Form and Consideration’ (1941) 41 Columbia Law Review 799
x 2 . T H E E V I D E N T I A R Y F U N C T I O N
The most obvious function of a legal formality is, to use Austin’s words, that of providing ‘evidence of the existence and purport of the contract, in case of
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controversy’. The need for evidentiary security may be satisfied in a variety of ways: by requiring a writing, or attestation, or the certification of a notary. It may even be satisfied, to some extent, by such a device as the Roman stipulatio, which compelled an oral spelling out of the promise in a manner sufficiently ceremonious to impress its terms on participants and possible bystanders.
x 3 . T H E C A U T I O N A R Y F U N C T I O N
A formality may also perform a cautionary or deterrent function by acting as a check against inconsiderate action. The seal in its original form fulfilled this purpose remarkably well. The affixing and impressing of a wax wafer – symbol in the popular mind of legalism and weightiness – was an excellent device for inducing the circumspective frame of mind appropriate in one pledging his future. To a lesser extent any requirement of a writing, of course, serves the same purpose, as do requirements of attestation, notarization, etc.
x 4 . T H E C H A N N E L I N G F U N C T I O N
Though most discussions of the purposes served by formalities go no further than the analysis just presented, this analysis stops short of recognizing one of the most important functions of form. That a legal formality may perform a function not yet described can be shown by the seal. The seal not only insures a satisfactory memorial of the promise and induces deliberation in the making of it. It serves also to mark or signalize the enforceable promise; it furnishes a simple and external test of enforceability. This function of form Ihering described as ‘the facilitation of judicial diagnosis’, and he employed the analogy of coinage in explaining it.
Form is for a legal transaction what the stamp is for a coin: just as the stamp of the coin relieves us from the necessity of testing the metallic content and weight in short, the value of the coin (a test which we could not avoid if uncoined metal were offered to us in payment), in the same way legal formalities relieve the judge of an inquiry whether a legal transaction was intended, and – in case different forms are fixed for different legal transactions – which was intended.
In this passage it is apparent that Ihering has placed an undue emphasis on the utility of form for the judge, to the neglect of its significance for those transacting business out of court. If we look at the matter purely from the standpoint of the convenience of the judge, there is nothing to distinguish the forms used in legal transactions from the ‘formal’ element which to some degree permeates all legal thinking. Even in the field of criminal law ‘judicial diagnosis’ is ‘facilitated’ by formal definitions, presumptions, and artificial constructions of fact. The thing which characterizes the law of contracts and conveyances is that in this field forms are deliberately used, and are intended to be so used, by the parties whose acts are to be judged by the law. To the business man who wishes to make his own or another’s promise binding, the seal was at common law available as a device for the accomplishment of his objective. In this aspect form offers a legal framework into which the party may fit his actions, or, to change the figure, it offers channels for the legally effective
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expression of intention. It is with this aspect of form in mind that I have described the third function of legal formalities as ‘the channeling function’.
In seeking to understand this channeling function of form, perhaps the most useful analogy is that of language, which illustrates both the advantages and dangers of form in the aspect we are now considering. One who wishes to communicate his thoughts to others must force the raw material of meaning into defined and recognizable channels; he must reduce the fleeting entities of wordless thought to the patterns of conventional speech. One planning to enter a legal transaction faces a similar problem. His mind first conceives an economic or sentimental objective, or, more usually, a set of overlapping objectives. He must then, with or without the aid of a lawyer, cast about for the legal transaction (written memorandum, sealed contract, lease, conveyance of the fee, etc.) which will most nearly accomplish these objectives. Just as the use of language contains dangers for the uninitiated, so legal forms are safe only in the hands of those who are familiar with their effects. Ihering explains that the extreme formalism of Roman law was supportable in practice only because of the constant availability of legal advice, gratis.
The ideal of language would be the word whose significance remained constant and unaffected by the context in which it was used. Actually, there are few words, even in scientific language, which are not capable of taking on a nuance of meaning because of the context in which they occur. So in the law, the ideal type of formal transaction would be the transaction described on the Continent as ‘abstract’, that is, the transaction which is abstracted from the causes which gave rise to it and which has the same legal effect no matter what the context of motives and lay practices in which it occurs. The seal in its original form represented an approach to this ideal, for it will be recalled that extra-formal factors, including even fraud and mistake, were originally without effect on the sealed promise. Most of the formal transactions familiar to modern law, however, fall short of the ‘abstract’ transaction; the channels they cut are not sharply and simply defined . . .
x 5 . I N T E R R E L A T I O N S O F T H E T H R E E F U N C T I O N S
Though I have stated the three functions of legal form separately, it is obvious that there is an intimate connection between them. Generally speaking, whatever tends to accomplish one of these purposes will also tend to accomplish the other two. He who is compelled to do something which will furnish a satisfactory memorial of his intention will be induced to deliberate. Conversely, devices which induce deliberation will usually have an evidentiary value. Devices which insure evidence or prevent inconsiderateness will normally advance the desideratum of channeling, in two different ways. In the first place, he who is compelled to formulate his intention carefully will tend to fit it into legal and business categories. In this way the party is induced to canalize his own intention. In the second place, wherever the requirement of a formality is backed by the sanction of the invalidity of the informal transaction (and this is the means by which requirements of form are normally made effective), a degree of channeling results automatically. Whatever may be its legislative motive, the formality in such a case tends to effect a categorization of transactions into legal and non-legal.
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Just as channeling may result unintentionally from formalities directed towards other ends, so these other ends tend to be satisfied by any device which accomplishes a channeling of expression. There is an evidentiary value in the clarity and definiteness of contour which such a device accomplishes. Anything which effects a neat division between the legal and the non-legal, or between different kinds of legal transactions, will tend also to make apparent to the party the consequences of his action and will suggest deliberation where deliberation is needed. Indeed, we may go further and say that some minimum satisfaction of the desideratum of channeling is necessary before measures designed to prevent inconsiderateness can be effective. This may be illustrated in the holographic will. The necessity of reducing the testator’s intention to his own handwriting would seem superficially to offer, not only evidentiary safeguards, but excellent protection against inconsiderateness as well. Where the holographic will fails, however, is as a device for separating the legal wheat from the legally irrelevant chaff. The courts are frequently faced with the difficulty of determining whether a particular document – it may be an informal family letter which happens to be entirely in the handwriting of the sender – reveals the requisite ‘testamentary intention’. This difficulty can only be eliminated by a formality which performs adequately the channeling function, by some external mark which will signalize the testament and distinguish it from non-testamentary expressions of intention. It is obvious that by a kind of reflex action the deficiency of the holographic will from the standpoint of channeling operates to impair its efficacy as a device for inducing deliberation.
Despite the close interrelationship of the three functions of form, it is necessary to keep the distinctions between them in mind since the disposition of borderline cases of compliance may turn on our assumptions as to the end primarily sought by a particular formality. Much of the discussion about the parol evidence rule, for example, hinges on the question whether its primary objective is channeling or evidentiary . . .
x 6 . W H E N A R E F O R M A L I T I E S N E E D E D ? T H E E F F E C T O F A N I N F O R M A L S A T I S F A C T I O N O F T H E D E S I D E R A T A U N D ER L Y I N G T H E U S E O F F O R M A L I T I E S
The analysis of the functions of legal form which has just been presented is useful in answering a question which will assume importance in the later portion of this discussion when a detailed treatment of consideration is undertaken. That question is: In what situations does good legislative policy demand the use of a legal formality? One part of the answer to the question is clear at the outset. Forms must be reserved for relatively important transactions. We must preserve a proportion between means and end; it will scarcely do to require a sealed and witnessed document for the effective sale of a loaf of bread.
But assuming that the transaction in question is of sufficient importance to support the use of a form if a form is needed, how is the existence of this need to be determined? A general answer would run somewhat as follows: The need for investing a particular transaction with some legal formality will depend upon the extent to which the guaranties that the formality would afford are rendered superfluous by
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forces native to the situation out of which the transaction arises – including in these ‘forces’ the habits and conceptions of the transacting parties.
Whether there is any need, for example, to set up a formality designed to induce deliberation will depend upon the degree to which the factual situation, innocent of any legal remolding, tends to bring about the desired circumspective frame of mind. An example from the law of gifts will make this point clear. To accomplish an effective gift of a chattel without resort to the use of documents, delivery of the chattel is ordinarily required and mere donative words are ineffective. It is thought, among other things, that mere words do not sufficiently impress on the donor the significance and seriousness of his act. In an Oregon case, however, the donor declared his intention to give a sum of money to the donee and at the same time disclosed to the donee the secret hiding place where he had placed the money. Though the whole donative act consisted merely of words, the court held the gift to be effective. The words which gave access to the money which the donor had so carefully concealed would presumably be accompanied by the same sense of present deprivation which the act of handing over the money would have produced. The situation contained its own guaranty against inconsiderateness.
So far as the channeling function of a formality is concerned it has no place where men’s activities are already divided into definite, clear-cut business categories. Where life has already organized itself effectively, there is no need for the law to intervene. It is for this reason that important transactions on the stock and produce markets can safely be carried on in the most ‘informal’ manner. At the other extreme we may cite the negotiations between a house-to-house book salesman and the housewife. Here the situation may be such that the housewife is not certain whether she is being presented with a set of books as a gift, whether she is being asked to trade her letter of recommendation for the books, whether the books are being offered to her on approval, or whether – what is, alas, the fact – a simple sale of the books is being proposed. The ambiguity of the situation is, of course, carefully cultivated and exploited by the canvasser. Some ‘channeling’ here would be highly desirable, though whether a legal form is the most practicable means of bringing it about is, of course, another question.
Extract 12.3 Glaister-Carlisle v. Glaister-Carlisle, The Times, 22 February 1968, CA
When a husband, vexed with his wife because he believed she had carelessly allowed his white miniature poodle bitch to mate with her black poodle, threw the bitch at her, saying ‘She is your responsibility now’, the conduct and words were so equivocal that English law would not regard it as a perfected gift of the poodle by him to her.
The Court of Appeal (the Master of the Rolls, Edmund Davies LJ and Cairns J) so held in allowing an appeal by Mr Thomas Glaister-Carlisle from the decision of Judge Glanville-Smith declaring in proceedings under section 17 Married Women’s Property Act 1882 that the poodle was the property of his wife, Mrs Phyllis Mary GlaisterCarlisle. The Court of Appeal declared that the bitch was the husband’s property and ordered that it be handed over to him within seven days.
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The Master of the Rolls said that the bitch had lived up to her name, Springtime Ballyhoo. She had had an illicit love affair with a black pedigree poodle, Alexis, who lived in the same house. One expected consequence of this was that she had puppies. Other unexpected consequences were that on one occasion the police were called in; lawyers had been consulted; the magistrates had heard about it; the county court judge had decided it; and now the Court of Appeal had to consider it.
Her dam was owned by the husband and she was born in 1960. The husband registered her in his name with the Kennel Club. He was clearly her owner. He wanted her to have puppies and took her by arrangement to a Miss Evans, who owned Alexis. The dogs mated; the bitch had puppies; and in 1962 her owner married Miss Evans. They set up house and had the dog and bitch with them.
In September 1964, the wife had a broken leg. As they did not want the bitch to have puppies again, the wife had apparently asked the husband to take her to a Mrs Boon to get her out of the way, but it was not done in time. One afternoon when the wife was in a room unable to get out of her chair she heard skirmishing in the next room and a little squeak. She thought the dogs had probably mated and told her husband. There seemed to have been a row, each blaming the other.
Much of the case depended on what then happened. There were two versions. The husband’s version was that he said: ‘I say they have mated. This time you can bear the responsibility and expense . . . If there is a litter you win; if no litter you lose’, and that the wife seemed to agree. The wife said that the husband had picked up the bitch, had thrown it at her, and had said that ‘She is your responsibility now’, that he had wanted to put the bitch down but instead had given it to her.
After the row the husband took the bitch to Mrs Boon for three weeks and paid the bill. Later, when it was plain she was going to have puppies, they both took her to Mrs Boon and the wife paid. The wife took the puppies. During that time the parties had been at arm’s length and in February 1965 the husband left the house.
About May there was an uproar when he tried to claim the bitch, and he was bound over. From that time he said he kept watch, trying to see the bitch. Lawyers’ letters were exchanged; and eventually the husband began proceedings under section 17 of the Married Women’s Property Act 1882 to determine to whom the animal belonged. On Christmas Day 1966 he kidnapped the bitch and again there were proceedings. Eventually, the matter came before the county court judge on the one question: Did the bitch belong to wife or husband?
The judge found there had been a gift by the husband to the wife. The husband now appealed, saying there was no evidence on which he could so find and that he made the wrong inference from the facts he found. Accepting that the appeal from the county court in regard to property under £200 in value, like the bitch, was only on points of law, was the judge justified in the inference he drew?
Under the common law, in order that there should be a gift, there must be a delivery of possession by the one to the other, an acceptance, and above all a manifest intention by words or conduct to transfer the property absolutely from one to the other.
As between husband and wife it was often very difficult, because, as was said in Bashall v. Bashall (1894) 11 TLR 152, a husband might often deliver a thing to his