law and the human body – by rohan hardcastle

Book reviews

The Modern Cy-près Doctrine: Application & Implications, by rachael pmulheron.London: UCL Press/Routledge Cavendish Publishing Ltd, 2006, lxi + 314 +(bibliography and index) 22pp (£62.95 hardback). ISBN 1-84472-086-1.

There is not much modern scholarship devoted to the ancient and rather mystifyingcy-près doctrine, as Dr Mulheron points out in this book, and for that reason alone adedicated study of the doctrine is both timely and welcome. It is timely because thedoctrine has, since the last major studies of it published in the 1950s, been adapted ina new area of enormous growth and potential, the class action; and welcome becauseMulheron’s particular study is both superbly conceived and brilliantly executed. Thebook is a must read for both trusts and charity law practitioners and scholars, and forthose who have anything to do with or an interest in class action procedure.

Mulheron’s book is both a descriptive account of the law and practice of cy-près inthe tradition of the best form of British doctrinal scholarship, as well as beingan exercise in assessing the normative foundation and justification of the doctrine.Mulheron’s argument is that the doctrine is a coherent one, notwithstanding that itsmain areas of effect are contextually poles apart, one area being in the law of equit-able property under trusts and the other being in the area of the law of civil procedure.The author sets up her understanding of the doctrine early in the book at p 3:

‘Where

• property is (or is to be) given by A to B for a designated purpose, under a legallyenforceable obligation (the “original transfer”); AND

• it is or becomes impossible, impracticable, illegal or infeasible for the designatedpurpose to be effected; AND

• in accordance with relevant objective factors, it is legally appropriate that the originalpurpose be carried out by approximation; THEN

• by court or other superior order, the original transfer can legally be altered in amaterial respect – namely, the designated purpose for which the property is given, orthe nature of the property transferred for the designated purpose, or the recipients ofthe property, are altered – to approximate “as near as possible” the original transfer.’

Throughout the study, Mulheron’s objective is to unravel the mass of the case-law andstatutory material, from the wide spectrum of common law jurisdictions, to reveal howthat data both sustains and is explained by this definitional understanding. The lastchapter is accordingly a concise précis to that effect.

Part I of the book examines the cy-près doctrine in the context of trusts, which isof course its original and more widely understood context of operation. Its operationin the area of failing or failed charitable trusts is deftly handled, with a comprehensiveanalysis of both the non-statutory and statutory material. The author throughoutreveals an acute understanding of the various potential mechanisms available fordealing with such failures, including resulting trusts and bona vacantia, and thedoctrinal and policy tensions that lie behind the choice to be made between the threemechanisms and the different destinations of property to which they lead. The authoris clearly a fan of cy-près distribution as a practically feasible continuation of the

Legal Studies, Vol. 28 No. 3, September 2008, pp. 475–488DOI: 10.1111/j.1748-121X.2008.00099.x

© 2008 The Authors. Journal Compilation © 2008 The Society of Legal Scholars. Published by Blackwell Publishing,9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

dedication of property in accord with its originally intended purpose. This preferenceis best seen in Chapter 6 where the author discusses cy-près in respect of non-charitable trusts. This chapter is one of the most succinct and comprehensive studiesof the law of non-charitable purpose trusts in Anglo common law jurisdictions that Ihave read and could most usefully be referenced for undergraduate students. It con-tains a discussion of the well-known case-law from England as well as the majorstatutory developments in the off shore tax havens that have seen fit to offer the vehicleof a non-charitable purpose trust to clients for any variety of motivations, including taxadvantages and ring-fencing of property advantages. The chapter of course discussesin some detail the cy-près possibilities in failing non-charitable purpose trusts, but thatdiscussion does not detract from its value as a general introduction. Sadly, however,the chapter contains one of the most irritating errors that is commonly made by manycommentators – the Goff who decided Re Denley’s Trust Deed [1969] 1 Ch 373 wasof course Reginald Goff J and not Robert Goff J who later became Lord Goff (see p180). Small matters like this do matter because too many of them can begin to sowdoubts about the quality of the scholarship in respect of more important issues.Fortunately Mulheron does not slip further than the Goff fallacy!

Part II examines the cy-près doctrine in the context of litigious remedies. Here, onechapter examines what the author calls cy-près specific performance, the extent towhich courts will order performance of a contractual obligation, which performancecannot in fact be specific for some reason, but which it is accepted can be near aspossible performance to that of the obligation as originally conceived. This is afamiliar scenario, and its discussion within the context of cy-près lends credibility toMulheron’s claim that that doctrine is one which is recognised in its own right and notmerely as one feature amongst many others in the law of charitable trusts. The bulk ofPart II is taken up however by a discussion of the notion of, and use of, cy-prèsdistribution in the context of class action awards and settlements. Class actions arenow a feature of many common law jurisdictions, and are likely to arise in practicemore frequently, given the nature of modern society. One obvious difficulty is this:given that by its very nature a class action award or settlement is designed with a largegroup of potential ‘victims’ or claimants in mind, not all of whom have either beenidentified or are even identifiable, and not all of whom will have experienced the sameextent of or even type of loss, how is the usually large award or settlement fund to bedistributed? Some cy-près scheme of distribution is usually resorted to in order toanswer this problem, and Mulheron’s discussion sets out in a readily accessiblemanner the fundamental principles that have, and might, inform such distribution inthe various common law jurisdictions where they have appeared. Mulheron is, ofcourse, a leading scholar working in the area of class actions and her discussion of thecy-près dimension of that civil litigation procedure deserves to be widely read andtaken very seriously. There are some serious problems in respect of this extension ofthe venerable cy-près doctrine to the class action scenario. Some of the doctrinal andconceptual problems are raised and discussed by Mulheron – fundamentally, how isthe failing charitable trust model of cy-près to be applied analogously in such adifferent context? There are other problems – even if one can satisfy the doctrinaldifficulties, how exactly does cy-près work in practice? This of course is an area inwhich useful work might be done in all the contexts in which cy-près distributions areordered – but while old age lends some element of sanctity and acceptability to cy-prèsof failing and failed charitable trusts, the same cannot be said of class action relatedcy-près. If cy-près is to be no more than a cloak behind which courts hide to distributein a trickle down manner the often very sizeable sums of money involved in class

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© 2008 The Authors. Journal Compilation © 2008 The Society of Legal Scholars

action awards and settlements, and is rather to be justified because it meets thefundamental reasons behind the award or settlement itself, then the ‘near as possible’mantra needs to be taken seriously and we need to be confident that in practice that iswhat is happening. Mulheron’s analysis does not attempt to fulfil that objective, but itis pleasing to see others taking up the point. Professor Jeff Berryman’s intriguingchapter ‘Class Actions and the Exercise of the Cy-Près Doctrine: Time for ImprovedScrutiny’, forthcoming in J Berryman and R Bigwood (eds), The Law of Remedies:New Directions in the Common Law (Toronto: Irwin Press, 2008), is that kind ofstudy. Berryman shows that there are important implications for the application ofcy-près in Canadian class actions – and there is no reason to think these problems arepurely Canadian – which include very practical questions about who gets what, howand why. Many recipients of cy-près distributions in Canada appear to be charities andother public interest organisations that are in effect getting windfall funding – perhapsclass action cy-près amounts to little more than charitable donations given by judgesusing other people’s money? Originally, cy-près was designed to ensure that propertywas kept within the charitable realm – now perhaps cy-près is designed to divertproperty to the charitable realm? Charity is surely, like apple pie and motherhood, agood thing – so who could possibly object? But that is not the question – the questionis whether we want judges dealing out large sums of money with little real expertiseor accountability. Berryman’s study throws up a dimension of cy-près law which itwas beyond the brief taken up by Mulheron in this impressive book to examine. Herexpertise is such that it would be useful to read her views on the matters thrown up byBerryman’s study, perhaps in an article sometime.

Dr Mulheron has done us a considerable service in writing this excellent book,which deserves to be widely read and cited in scholarship and judgments on matterscy-près in the future. The book will be a lasting work of authority, and will it is hopedstimulate further toilers to work in the fields of cy-près!

charles rickett1

Re-examining Contract and Unjust Enrichment: Anglo-Canadian Perspectives, editedby paula giliker.Leiden: Martinus Nijhoff Publishers, 2007, xxx + 337 + (index) 3pp (€126.00 hard-back). ISBN 978-90-04-15563-3.

In the summer of 2006 a conference entitled Anglo-Canadian Perspectives on Con-tract and Unjust Enrichment / Restitution was held at the Canadian High Commission,London, under the auspices of the Legal Studies Group of the British Association ofCanadian Studies. This conference was organised by Dr Paula Giliker and attracted animpressive list of scholars. Contributors were asked to reflect on contemporary issuesin contract and unjust enrichment from an Anglo-Canadian perspective. Ultimately,this conference resulted in this engaging, challenging and often provocative collectionof essays, edited and expertly introduced by Dr Giliker.2

In her introductory chapter Dr Giliker outlines the purpose of this collection ofessays:

1. Sir Gerard Brennan Professor of Law, The University of Queensland.2. Chapter 1: ‘Diverging or Converging – The Ongoing Relationship of the Common Lawsof England and Canada’.

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‘The reader is . . . invited to approach the essays not as an attempt to showthe divergence or convergence of English and Canadian law, but as an exampleof the benefits of maintaining a close dialogue between nations sharing a similarlegal culture . . . The essays highlight the debates currently occurring in thesesystems . . . The reader is . . . not invited to seek “the best system” but to use theanalysis to gain a greater understanding of their own.’3

In our quest for a ‘greater understanding’ of contract and unjust enrichment in eitherEnglish or Canadian law, there are, as Dr Giliker observes,4 at least two benefits whichmight be gleaned from the comparison of these two systems. First, if particular aspectsof contract and unjust enrichment in English and Canadian law have common roots,any subsequent differences of approach may give us a valuable insight into theoperation of the English or Canadian system. Secondly, such a comparison may assistin the future development of contract and unjust enrichment in England and Canada.In particular, as Dr Giliker insightfully notes,5 it can assist English lawyers with ‘thechallenges of interpreting civilian concepts within a common law context.’6 Unfortu-nately, given constraints of space, it is not possible to comment meaningfully on eachof the essays in this fertile collection. Therefore, I propose to highlight and commenton only a few.

In her excellent essay, Drafting an Irish Frustrated Contracts Act: Lessons fromBritish Columbia,7 Dr Cliona Kelly provides a critique of the Law Reform (FrustratedContracts) Act 1943. Dr Kelly also uses the British Columbia Frustrated Contracts Actto identify and analyse the difficulties and challenges in drafting legislation to dealwith the consequences of a frustrated contract. In particular, Dr Kelly examinespossible theoretical underpinnings for such legislation and the controversial issue ofapportionment or otherwise of losses resulting from the frustrated contract. In sodoing, she deals deftly with issues of risk and commercial expectation.

Dr Kelly’s essay is preceded by two searching essays on various aspects of the lawof mistake in contract and unjust enrichment, one by Kate Bracegirdle, Mistake inContract Law and in Unjust Enrichment,8 and the other by Catharine Macmillan, NoLonger Taken to be Cognisant of the Law? Mistake of Law in Contract and Restitutionin Canada and England.9 Both essays refer to the (possible) demise of an equitablejurisdiction to set aside a contract on the basis of a fundamental common mistake,10

and the juxtaposition of Kelly, Bracegirdle and Macmillan’s essays may remind thereader of the words of Lord Phillips M in Great Peace Shipping Ltd v TsavlirisSalvage (International) Ltd:

3. Ibid, p 11.4. Ibid, p 4.5. Ibid, p 4.6. See, in particular, the excellent essay by Bradgate and Saintier, ‘“Compensation” and“Indemnity” under the Agency Regulations: How the Common Law System Copes with theInvasion of Civilian Concepts’, Chapter 15.7. Chapter 7.8. Chapter 4.9. Chapter 5.10. Following the decision of the Court of Appeal in Great Peace Shipping Ltd v TsavlirisSalvage (International) Ltd [2002] EWCA Civ 1407, [2003] QB 679. See also A Chandler, JDevenney and J Poole, ‘Common Mistake: Theoretical Justification and Remedial Inflexibility’[2004] J 34.



‘An equitable jurisdiction to grant rescission on terms where a commonfundamental mistake has induced a contract gives greater flexibility than a doctrineof common law which holds the contract void in such circumstances. Just as theLaw Reform (Frustrated Contracts) Act 1943 was needed to temper the effect of thecommon law doctrine of frustration, so there is scope for legislation to give greaterflexibility to our law of mistake than the common law allows.’11

Given Dr Kelly’s analysis it is, at least, arguable that, overall, Lord Phillips over-estimated the success of the Law Reform (Frustrated Contracts) Act 1943 and under-estimated the task of legislative intervention in relation to the consequences ofcommon mistake. If so, the demise of the role of equity in cases of fundamentalcommon mistake may be regretted.

The parameters of equitable intervention into contracts, and other transactions, is atheme which also emerges from Dr Jesse Elvin’s essay, The Purpose of the Doctrineof Presumed Undue Influence.12 In his paper, Dr Elvin meticulously and profitablyexamines recent appellate court decisions from England and Wales in an attempt tounearth the purpose of the doctrine of undue influence. In so doing, Dr Elvin does notfocus on the practical or evidential nature of the presumption of undue influence13 butrather on the theoretical framework within which the presumption of undue influenceoperates. Accordingly, Dr Elvin’s essay also has implications for so-called actualundue influence.14

Dr Elvin argues that ‘there is no predominant English judicial view about thepurpose of the doctrine’15 and this view is, at least, ostensibly supported by therelevant case-law. However, it is difficult to ascertain the extent to which theseapparent differences of judicial opinion are attributable to the nuances of language,inconsistencies in definition or variations in emphasis.16 Certainly, as Dr Elvin wouldconcede,17 this difficulty is evident in the case-law.18 This difficulty is also evident inthe relevant academic literature. For example, in their seminal paper on undue influ-ence19 Professors Birks and Chin argued that ‘the doctrine of undue influence isabout impaired consent, not about wicked exploitation.’ They classified the latter asdefendant-sided and the former as claimant-sided. In particular they argued that wherea claimant-sided analysis is adopted ‘[I]t is not necessary for the party claiming reliefto point to fraud or unconscionable behaviour on the part of the other.’20 Yet even if,as Professor Birks and Chin argued, undue influence is based exclusively on theclaimant acting under ‘excessive’ influence, it is still possible to characterise undue

11. [2002] EWCA Civ 1407, [2003] QB 679 at [161].12. Chapter 12.13. See D Sim, ‘Burden of proof in undue influence: Common law and codes on collisioncourse’ (2003) 7 Intl J Evidence & Proof 221.14. Royal Bank of Scotland v Etridge (No 2) [2001] UKHL 44, [2002] 2 AC 773 at [14]–[16]per Lord Nicholls.15. Above n 12, p 231.16. R Bigwood, ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation”’ (1996) 16OJLS 503.17. Above n 12, pp 241–243.18. See, for example, Macklin v Dowsett [2004] EWCA Civ 904.19. ‘On the Nature of Undue Influence’, in J Beatson and D Friedmann (eds) Good Faith andFault in Contract Law Oxford: Clarendon Press, 1995).20. Ibid, p 126.

Book reviews 479


influence as defendant-sided relief. Thus in Allcard v Skinner21 (1887) 36 Ch D 145,a case which Birks and Chin heavily rely upon in support of their thesis, Bowen LJchose to express himself in the following terms:

‘Passing next to the duties of the donee, it seems to me that, although hispower of perfect disposition remains in the donor under circumstances like thepresent, it is plain that equity will not allow a person who exercises or enjoys adominant religious influence over another to benefit directly or indirectly by thegifts which the donor makes under or in consequence of such influence, unless it isshewn that the donor, at the time of making the gift, was allowed full and freeopportunity for counsel and advice outside – the means of considering his or herwordly position and exercising an independent will about it. This is not a limitationplaced on the action of the donor; it is a fetter placed upon the conscience of therecipient of the gift, and one which arises out of public policy and fair play.’22

Professor Bigwood23 labels this as: ‘Gestalt shifts: subtle variations in the perceptionof the same legal doctrine or closely related legal doctrines.’24

Moreover, any suggestion that the concept of unconscionability should be anchoredto a notion of ‘wicked exploitation’ is, arguably, too restrictive. Unconscionability is adelicate concept and although few would argue that it requires malign intent, it is(perhaps) less obvious, given the connotations of conscience, that relief on the groundsof unconscionability can be claimant-sided. Nevertheless, unconscionability can beclaimant-sided and this can be illustrated by reference to the unconscionable bargaindoctrine, a doctrine which has contextual and historical links with the doctrine of undueinfluence,25 where many of the leading cases exhibit a clear claimant-sided orientation.For example, in Baker v Monk26 in setting aside a conveyance on the ground that it wasan unconscionable bargain, Turner LJ took a steadfastly claimant-sided approach:

‘I say nothing about improper conduct on the part of the Appellant; I do notwish to enter into the question of conduct. In cases of this description there isusually exaggeration on both sides, and I am content to believe that in this casethere has been no actual moral fraud on the part of the Appellant in the transaction;but, for all that, in my judgment an improvident contract has been entered into.’27

If we were to explore further the cases on the unconscionable bargain doctrine whichdisplay a clear claimant-sided orientation, we would also notice, at least, two differentapproaches within them: the ‘causal-connection’ approach and the ‘status’ approach.28

The essence of the causal connection approach is that the resultant bargain is causallylinked to the claimant’s position. By contrast, the essence of the status approach is,perhaps surprisingly, that a court has the power to relieve particular sections of society

21. (1887) 36 Ch D 145.22. Ibid, at 189 (emphasis added).23. ‘Undue Influence: “Impaired Consent” or “Wicked Exploitation”’? (1996) 16 OJLS 503.24. Ibid, at 503.25. See, for example, Evans v Llewellin (1787) 1 Cox CC 333.26. (1864) 4 De GJ & S 388; 46 ER 968.27. Ibid, at 425 (emphasis added), although cf Alec Lobb (Garages) Ltd v Total Oil GB Ltd[1985] 2 WLR 944.28. See J Devenney ‘A Pack of Unruly Dogs: Unconscionable Bargains, Lawful Act (Eco-nomic) Duress and Clogs on the Equity of Redemption’ [2002] JBL 539 and J Devenney and AChandler ‘Unconscionability and the Taxonomy of Undue Influence’ [2007] JBL 541.



from some forms of bad bargain despite the fact that there is no causal connectionbetween the resultant bargain and the claimant’s position.

Notwithstanding the difficulties outlined above, it is clear that a contemporarychallenge for scholars in this area is to determine whether or not a theoretical modelof undue influence can be developed which satisfactorily explains the body of case-law in this area. One possibility29 is to view undue influence as rooted in a notion ofunconscionability which has clear parallels with the unconscionable bargain doctrineas exemplified in cases such as Evans v Llewellin,30 Fry v Lane31 and Cresswell vPotter.32

The search for an appropriate theoretical model, albeit in another context, is also atheme which emerges from Professor Jill Poole’s essay, Awarding Damages forDistress and Loss of Reputation in England and Canada.33 In a detailed and grittyessay, Professor Poole examines the rationale for the general prohibition on therecovery of damages for non-pecuniary loss in contract law, and the rationale(s) forthe so-called exceptions thereto. Ultimately Professor Poole concludes that:

‘. . . distress damages in relation to the fact of the breach should only berecoverable where there has been an explicit or implied contractual assumption ofresponsibility for such a loss.’34

Such a view finds some resonance in the pages of this learned journal,35 and ProfessorPoole offers some thought-provoking analysis of the role of the principles of mitiga-tion in determining whether or not an assumption of responsibility should beimplied.36

In conclusion this is an outstanding, diverse and challenging collection of essays.Indeed it is a collection which should feature in the holdings of every university lawlibrary.

james p devenney37

Secured Lending in Eastern Europe: Comparative Law of Secured Transactions andthe EBRD Model Law, by jan-hendrik röver.Oxford: Oxford University Press, 2007, xxxii + 320 + (appendices + bibliography +index) 62pp (£125 hardback). ISBN 978-0-19-826013-4.

As recent events in the United States and elsewhere have demonstrated, the availabil-ity of a steady supply of credit on reasonable terms and at a reasonable cost is offundamental importance to the modern economy. Perhaps surprisingly in light of itsimportance, the legal infrastructure for secured credit in England and Wales has been

29. See J Devenney and A Chandler, ‘Unconscionability and the Taxonomy of UndueInfluence’ [2007] JBL 541.30. (1787) 1 Cox CC 333, 29 ER 1191.31. (1888) 40 Ch D 312.32. [1978] 1 WLR 255n and cf also D Capper ‘Undue Influence and Unconscionability:A Rationalisation’ (1998) 114 LQR 479.33. Chapter 13.34. Ibid, pp 276–277.35. See A Chandler and J Devenney ‘Breach of contract and the expectation deficit: incon-venience and disappointment’ (2007) 27 LS 126.36. Above n 33, pp 266–268.37. Department of Law, Durham University.

Book reviews 481


allowed to develop in a piecemeal fashion. The situation is perhaps even moresurprising when one considers the long list of proposals for change which haveemerged from various law reform bodies, from the report of the Crowther Committeein 1971,38 to the more recent proposals published by the Law Commission.39 Many ofthese proposals have advocated the complete replacement of the provisions of theCompanies Acts and the Bills of Sale legislation with a comprehensive system for theregistration and priority of security interests based either on Article 9 of the UniformCommercial Code from the United States or one of variations of Article 9 adopted inNew Zealand or the various provinces of Canada. If the success of a law reformprocess can be measured by the number of its proposals which are adopted by thelegislature, then all of the attempts at reform in England and Wales can be consideredfailures.

Dr Röver’s book describes the outcomes of another, perhaps more successfulreform process by surveying the secured transactions laws of seven Central andEastern European countries.40 A common feature of these jurisdictions is that in theaftermath of the fall of communism in the late 1980s they had either no legalprovisions for secured transactions at all, or else had provisions existing in name onlywhich had not been utilised for several decades.41 This book provides an interestingand engaging comparative account of how these seven jurisdictions have sought to fillthat tabula rasa with a modern and efficient set of legal rules which support securedtransactions as a central element of a free market economy.

Chapter 2 sets out the rationale for secured credit at both the micro and macroeco-nomic levels. At the level of the individual lender and borrower, security is said to playa part in reducing the risks associated with lending, preventing ‘risk shifting’ (aphenomenon whereby unilateral acts of the borrower, such as an alteration of itsinvestment strategy to embrace riskier activities than originally contemplated, mate-rially increases the chance that the borrower may default in repayment), and providinginformation to creditors about their debtors. At the macroeconomic level, the avail-ability of security interests increases the amount of credit available in the economywith knock-on effects on levels of investment and economic growth. Having thusestablished the importance of his subject, Dr Röver moves on to set out the method-ology of law reform which was followed by the European Bank for Reconstructionand Development (EBRD) in seeking to provide assistance to countries making thetransition from communism to the free market.42 Chapter 4 gives a critical overview ofcomparative law theory and sets out a number of competing methods available for useby those engaged on comparative law projects. While this chapter will be of someinterest to those who are unfamiliar with the theory of comparative law, it is perhaps

38. Report of the Committee on Consumer Credit (1971) Cmnd 1749 (the Crowther Com-mission). See also the Report by Working Party on Security over Movable Property (1986) (theHalliday Report); Insolvency Law and Practice (1982) Cmnd 8558 (The Cork Committee);AL Diamond, A Review of Security Interests in Personal Property (London: HMSO, 1989).39. See Company Security Interests: a Consultative Report, 2004, LC CP 176; the LawCommission ultimately recommended a less ambitious approach to company security interestsin its 2005 report (Company Security Interests, 2005, Law Com No 296). The Irish Law ReformCommission appears to be about to add to the list of reports and proposals in this part of theworld, having scheduled an examination of the attachment of security interests in personalproperty for inclusion in its Third Programme of Law Reform 2008–2014.40. Bulgaria, Romania, the Czech and Slovak Republics, Hungry, Poland and Russia.41. Röver, p 442. Ibid, Chapter 3 discussed in detail below.



regrettable that the author has chosen not to advocate one particular method over anyother, which leaves this chapter seeming almost incomplete in its conclusions.

The aim of this book is to give a comparative overview of the seven differentjurisdictions. Each jurisdiction is to be compared against four ‘reference systems’ andthese reference systems are the central theme of Part II (Chapters 5–8) of the book.The reference systems considered are the laws of England and Wales, the provisionsof Article 9 of the Uniform Commercial Code (UCC) from the United States, thevarious security devices found in German law and finally the EBRD Model Law itself.Chapter 6 addresses the first three of these reference systems and provides a relativelyshort account of the principal features of each system.

Since Eastern European law is the central focus of the book, the EBRD’s ModelLaw is the main focus of Part II, being accorded a full chapter of its own with a furtherchapter considering the provisions of a set of ‘Core Principles for a Secured Trans-actions Law’ produced by the EBRD to complement its work in producing the ModelLaw. The text of both documents is helpfully included in the appendices to the book.Chapter 7 focuses on the model law and sets out a detailed description of its provi-sions, as well as considering some of the more recent critical commentary. In thecourse of the chapter, attention is drawn to a number of features of the Model Lawwhich merit close attention from those considering how English law might bereformed in the future. These include the fact that in principle, the EBRD system iscapable of applying to interests in immovable property as well as personal property.The Model Law also creates a unitary security interest,43 although it stops short ofadopting a full-blown UCC-style functional approach which enables the Model Lawto avoid drawing finance leases or assignments of receivables within its scope. Finally,the Model Law permits the taking of a charge over all the assets of an enterprise,which is similar to an all assets floating charge. The mechanisms for enforcement ofa security interest place a heavy emphasis on self-help mechanisms, which Englishlawyers will find comfortingly familiar. Chapter 9 completes the foundations for thecomparative study by giving a brief outline of the credit and security laws of the sevenjurisdictions under consideration.

The second half of the book contains a detailed comparative account of variousaspects of secured transactions law in each of the selected jurisdiction. Each of the 13chapters in Part III covers a distinct aspect of the law of secured lending including, thetypes of property which may be used as collateral (Chapter 12), the steps necessary tocreate a security interest (Chapter 14), publicity requirements (Chapter 16) andmechanisms for enforcement of the security interest (Chapter 19). The material ineach of these chapters is laid out using a common framework. At the beginning, thereis a brief description of what the chapter will address, followed by a treatment of therelevant law in each jurisdiction. The chapter then concludes with a section whichcompares the different jurisdictional arrangements with reference to the systemsdescribed in Part II. Although this structure has considerable advantages in terms ofthe clarity with which an impressively large volume of information is presented, atsome points it has the unfortunate consequence that the arguments made by eachchapter become a little lost in the wealth of detail provided by the central section.

For those who are concerned with the reform of secured transactions law, whetherin the UK or elsewhere, Chapter 3 will be of particular interest. Having set out a briefhistory of international law reform efforts, the chapter describes a reform process

43. This is somewhat confusingly referred to as a charge, though as is pointed out at p 76, theEBRD charge has no relation to its English equivalent.

Book reviews 483


entitled the ‘adoption model of legal reform’ which was developed by the EBRD’sSecured Transactions Project. This model argues for the adoption of a two-stageprocess: first, focusing on the preparation of reform and, secondly, on its implemen-tation. Both stages are divided into four steps, and throughout a heavy emphasis isplaced on the importance of consensus building and the presentation of the reform tothe public. As is noted in the introduction to this review, law reform efforts in Englandand Wales have failed to produce significant changes in how secured transactions areregulated. Anyone seeking to explain this failure, or indeed considering how a futureattempt at reform might succeed where others have not, would do well to consider theeight-step process charted by the EBRD and Dr Röver.

In an observation that may at first glance appear rather trite, the author notes that‘[a] reform country has to be convinced of the need for reform’44 as the first step inbuilding consensus around a particular course of action. The want of agreement on theneed for change is, however, precisely the rock on which English efforts at reformhave foundered. Among the lessons from Eastern Europe seems to be that academicsand practitioners who support change should invest greater effort in articulatingarguments for why change is needed rather than assuming that this is the case andmoving on to consider what a reform law might look like. Another comment which isworthy of attention is the danger posed by a ‘build and build’ approach to law reform,also discussed in Chapter 3. Röver cautions against tackling a small number of issuesfirst, arguing that this may result in ‘an exhaustion of enthusiasm for reform on a sideissue’45 at the cost of something more comprehensive. In setting the limits for the LawCommission’s recent review of company security interests, English law reformersmight be accused of having fallen into precisely this trap.

In his preface, the author states that his aim was to write ‘an explanatory andpractical, not a learned book’ which would review what has been achieved andconsider what is yet to be done after 15 years of reform in Central and EasternEurope.46 While this book undoubtedly fulfils the needs of those seeking a detailedaccount of secured lending laws in Eastern Europe and is certainly practical in itsfocus, in disclaiming the title ‘learned’ the preface is guilty of short selling the finishedproduct. Dr Röver has produced a work which contains considerable insights into theprocess and outcomes of law reform efforts and in that respect this is a book which isdeserving of a boarder audience than those who toil in the field of secured lending.

noel mcgrath47

Law and the Human Body, by rohan hardcastle.Oxford: Hart Publishing, 2007, xxxii + 204 + (index) 5pp (£40 hardback). ISBN978-1-84113-601-1.

While reading Law and the Human Body by Rohan Hardcastle, I came across a newsstory involving a dispute over an amputated leg.48 It involved a Mr Wood, an Americanman, who auctioned off something called a barbecue smoker. Unfortunately, heseemed to have forgotten that he had stored his amputated leg in it. Mr Whisnant

44. Röver, p 25.45. Ibid.46. Röver, p vii.47. IRCHSS Government of Ireland Scholar, PhD Candidate, UCD School of Law.48. BBC News Online ‘North Carolina pair feud over leg’ 2 October 2007.



bought the smoker. Showing the true American spirit, he set up a small businesscharging adults $3 and children $1 to have a look inside the smoker. The leg ended upat a funeral home, which then faced competing claims for it. In short, Mr Whisnantclaimed he had bought the leg and so it was his; while Mr Wood argued the leg washis, because it had been attached to him. The parties have agreed that the disputeshould be resolved by Judge Mathis: a ‘TV Judge’.49

While a rather trivial example, this story demonstrates the conflicts that can ariseover the law’s interaction with the human body. Such conflicts are at the heart ofRohan Hardcastle’s excellent book, Law and the Human Body. As he is quick to pointout, the issues raised are no longer (if ever they were) obscure ones about the legalstatus of amputated limbs which are only raised in bizarre cases, such as thoseinvolving Mr Wood and Mr Wishnant. Rather, the questions concerning the ownershipof DNA; cell-lines; biobanks and other forms of genetic information can involve vastsums of money and raise issues of huge public significance.

The book is in two parts. Following a general introductory chapter, the first partconsiders the legal position of dead and living bodies in American, Australian, Cana-dian and English jurisdictions. There follows a chapter dedicated to the Human TissueAct 2004. Dr Hardcastle provides an extremely helpful summary of this complexpiece of legislation. The second part of the book looks at some of the theoretical issuesraised and considers how the law could develop in the future. There is a chapterlooking at the extent to which the body can be said to be subject to property rights. Thenext considers how, assuming the body is treated as property, rights in it can be createdor allocated. The penultimate chapter considers interests in respect of the body thatcan be claimed outside the context of property rights. The final chapter provides aconclusion.

The question of whether the body can be subject to property claims or other legalinterests has been considered in many books and articles. This book covers the legalcases and academic analysis thoroughly and effectively. The book can rightly claim toprovide a most thorough and sophisticated analysis of the current law concerning thebody. I very much doubt there are any more detailed analyses available on the law onthe ownership of hair clippings, urine or excrement. I certainly hope not. Not only isthe level of detail impressive, but also the fact that Hardcastle makes use of materialfrom a wide range of jurisdictions.

Hardcastle’s analysis of the law on dead bodies explains how it has traditionallybeen based on the principle that there is ‘no property’ in a dead body. However, inmore recent times the ‘work or skill exception’ has been developed, under which adead body or body part which has been subject to the exercise of skill or work canbecome property. His discussion of this exception and, later, of its possible jurispru-dential basis is especially incisive. His analysis concludes that the current law is in a‘muddle’50 and ‘demands attention’.51 This is somewhat of an understatement. AsHardcastle demonstrates, the law is ‘haphazard and inconsistent.’52 It is not possible tofind a clear legal structure or set of principles which govern the current law. A host ofquestions concerning the work and skill exemption remain unanswered: Is an inten-tion to create a novel item required?; Does the exception require work, skill or both?;

49. ‘TV judge to decide who gets amputated leg’ available at http://www.usatoday.com/community/utils/idmap/29945868.story.50. Hardcastle, p 20.51. Ibid, p 203.52. Ibid.

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http://www.usatoday.com

What kinds of rights are created when the exception applies?; To whom are the rightsallocated?; Does the exception apply to separated parts of dead bodies or also liveones?53 As Hardcastle argues, the uncertainty in the law is not simply due to thecommon law style of development of the law, but is due to a lack of explanation overprecisely what is the theoretical foundation for the exception.

If the legal status of dead bodies and their parts is murky; the law on living bodiesis murkier yet. Rohan Hardcastle explains that there is no common law authority inEngland or Australia which analyses whether a person can claim property rights tobiological material removed from their bodies.54 That is astonishing, although itreflects the point that only in recent times has there been any real commercial value inliving body parts. True, hair has been sold for centuries, but never for great sums.

While one might forgive the legal system being slow to respond to commercialsignificance of bodies and therefore lacking a coherent basis for the law, there is lessexcuse for there not being a coherent framework underpinning the Human Tissue Act2004. As several commentators have pointed out, the Act does not appear to upholdconsistently an approach based on the right of autonomy over one’s body or aproperty-based approach. Indeed, it is hard to find a coherent philosophy underpinningthe Act.55 We need, Hardcastle argues, a ‘clear set of guiding principles’ to deal withremoved bodily material, without which the law cannot deal effectively with novelissues.56

The 2004 Act can, however, be defended. The fact that law does not have a clearprincipled basis might not be surprising, given the complex competing principles andpolicy in play. As the debates surrounding the Human Tissue Act have shown, the lawis dealing with a morass of competing attitudes to our bodies. Our bodies are ours andyet not ours; we want control over some of our bodily products, but certainly notothers; there is the public and private interest in the bodies of some; we value ourbodies as more than property, but sometimes want to treat them as property. Throwinto the pot the interests of researchers, hospital managers, would-be organ donors,medical staff, relatives of patients and the brew bubbles away even more merrily. It ishardly surprising that the resulting law in the Human Tissue Act 2004 is messy anduneasy. That is because our bodies are messy and our attitudes towards them areuneasy. Hence, I am not convinced by Hardcastle’s call for a law that is based on firmconceptual foundations is either possible or desirable. The law is unshapely and nounderlying principle can be detected, but that may be desirable and inevitable. Theconsequence of that, and the disadvantage of it, is that it renders the law unpredictable,especially when dealing with novel questions.

But what does Rohan Hardcastle see as the solution to the law’s approach tobodies? He is adamant that the starting point must be an assessment of when and howbodies can become property. He argues:

‘Courts have focused primarily on policy concerns flowing from the abilityof sources to sell separated biological materials when examining the question ofproperty rights. The balancing of policy concerns should be a secondary question.Although there may be legitimate justifications for limiting what individuals are

53. Ibid, p 36.54. Ibid, p 100.55. Eg D Price ‘Property, Harm and the Corpse’ in B Brooks-Gordan, F Ebtehaj, J Herring,M Johnson, and M Richards Death Rites and Rights (Oxford: Hart Publishing, 2007).56. Hardcastle, p 20.



permitted to do with biological materials, the more appropriate starting point forlegal analysis is to consider whether property law can determine who is entitled tocontrol such materials.’57

Taking that approach he dismisses the ‘work and skill’ exception as inadequate indetermining whether separated materials should acquire the status of property. Heconvincingly argues that the exception lacks an adequate philosophical basis and thatit draws ‘artificial distinctions.’58

So if the ‘work and skill exemption’ is not up to the task of informing us whenproperty rights are created, what is? Hardcastle’s preference is for the ‘detachmentprinciple.’ This is, quite simply, that as soon as a peeve of the human material isdetached from the body, it becomes property. He justifies this in this way:

‘Recognising that property rights are created on detachment represents anatural extension of the right to bodily integrity. Before separation, biologicalmaterials remain part of the human body. The law provides protection for thehuman body, and such protection is enforceable generally against other members ofsociety. It would seem inconsistent if the act of detachment changed biologicalmaterials from material fully protected by the law into material receiving no legalproperty whatsoever.’59

Hardcastle then addresses the question of who is the owner of the property if thedetachment creates property interests. His answer is straight forward: the source of theproperty (ie the person from whom the material is removed). He justifies this by anargument that the property right in separated bodily material is, in essence, an exten-sion of the right to bodily integrity. Of course, this is not an answer that can be usedin relation to dead bodies. Here he argues the interest vests in the estate of thedeceased and is thereby protected by the executor.

Dr Hardcastle then enters the fray of the dispute between those who argue that thecorrect legal regime to deal with interests in the body should be based on propertyrights and those who prefer to rely on rights such as rights to bodily integrity, dignityand autonomy. The great benefit he finds in property rights is that they are enforceableagainst all other members of society. This means they provide better protection toindividuals whose body parts have been removed. He accepts that there may benon-proprietal interests which will not be protected by a property-based approach,specifically freedom from emotional distress and autonomy. However, he sees theformer as being best dealt with through the development of a tort of the intentionalinfliction of emotional distress. As for autonomy interests, he argues that in fact thesecan be protected effectively through a property approach. Developing jurisprudenceunder Article 8 of the European Convention on Human Rights and the law of negli-gence may offer some further protection.60

Hardcastle is clear that he sees the property rights approach as the best startingpoint. Indeed, he argues that until we are clear on whether the body is property and ifso who owns it, we cannot start to address troublesome issues such as whether aperson should be free to sell their body parts. Hence he argues: ‘The law must initiallydetermine who has the legal right to control separate biological materials. Only after

57. Ibid, p 143.58. Ibid.59. Ibid, p 147.60. Ibid., p 201.

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an adequate answer is provided to that question can such policy considerations beidentified and addressed.’61 So, rather than arguing ‘we should not allow bodies to beregarded as property because then people would be allowed to sell their bodies whichwould be undesirable’; we should first decide as a matter of principle whether bodiesare property. Then, if they are, we should consider whether there are policy reasons forrestricting how people should be able to deal with their bodily property.62 In fact, heprovides no answer as to how the law should deal with the sale of bodily material,calling instead for empirical studies to ascertain the problems that arise from com-mercial selling of body parts.63

Again, there may be questions concerning the legitimacy of such an approach. If,let us say, the empirical evidence Hardcastle demands, indicates that the sale of bodyparts is a major social problem and one which we must combat with all force. Indeed,the studies suggest that people’s proprietal attitudes towards their and other people’sbodies is causing harm, there may be an argument for law not basing the law on aproprietal model, whatever the jurisprudential arguments for doing so. In other words,I am not convinced that we can so easily separate out the conceptual categorisation ofthe body and the practical consequences of doing so.

There is one aspect of bodies which I found rather lacking in Hardcastle’s analysisand that was communal nature of bodies. Our bodies are, in fact, constantly changingand interacting and sharing with other bodies. The body is far less clearly connectedto the individual than Hardcastle implies.64 There are, for example, a series of cases inthe European Court of Human Rights on the rights of family members to deal with thebodies of their loved ones as they wish.65 Although Hardcastle does briefly (pp 59–60)refer to possible claims under Article 8 by families over a body, these are not fullyexplored. Similarly, the writing on the reactions of families involved in the scandalsconcerning the removal of body parts from children without consent is not discussed.66

Further claims by religious communities based on religious rights may becomerelevant.

In conclusion, this book provides a powerful indictment of the current law onbodies. The first part of this book lays bare the lack of legal principle and analysis thatunderlies the law, even in the recent Human Tissue Act 2004. This is done in ascholarly and effective way. I have no doubt that Hardcastle’s proposals for reformwould produce a more intellectually satisfying state for the law to be in. However,intellectual satisfaction is not all that is required of the law. Our bodies are complex,messy and leaky. It should be no surprise that the law on bodies shows the samequalities.

jonathan herring67

61. Ibid 204.62. Ibid 203.63. Ibid.64. P-L Chau and J Herring ‘My body, your body, our bodies’ (2007) 15 Medical Law Review34.65. Ploski v Poland (1995), Pannullo and Forte v France (1997), Jones v UK (2005).66. Eg M Brazier ‘Retained organs: ethics and humanity’ (2002) 22 Legal Studies 550; MMaclean ‘Letting Go . . . Parents, Professionals and the Law in the Retention of Human Mate-rial after Post Mortem’ in A Bainham, S Day Sclater and M Richards (eds) Body Lore and Laws(Oregon: Hart Publishing, 2002).67. Exeter College, Oxford University.



law and the human body – by rohan hardcastle

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