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Aec. Oct. 1, 18955

LONDON:

PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FETTER LANE, E.C.

To the Memory

OF

JUDAH PHILIP BENJAMIN, Q.C.

PREFACE.

A FEW WORDS as to the point of view from which this Commentary has been written may not be out of place.

Lord Herschell, in his judgment in The Bank of England v. Vagliano ([1891,] A. C., pp. 144, 145), thus expounds the true principles of interpretation of a codifying Act. The observations had actual reference to the Bills of Exchange Act, 1882, but are equally applicable to the Sale of Goods Act. The noble Lord says:

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"I think the proper course is in the first instance to examine the language of the statute, and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not to start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. . . . I am, of course, far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate. Or again, if in a code of the law of negotiable instruments words be found which have previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such instruments, the same interpretation might well be put upon them in the code. I give these as examples

merely; they, of course, do not exhaust the category. What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special ground."

And further on Lord Herschell says:

"The Bills of Exchange Act was certainly not intended to be merely a code of the existing law. It is not open to question that it was intended to alter and did alter it in certain respects. And I do not think that it is to be presumed that any particular provision was intended to be a statement of the existing law, rather than a substituted enactment."

We have in the following Commentary endeavoured to keep these principles in view. It must not, however, be forgotten that, as the Act is not intended to be exhaustive, there are rules of the common law which are not dealt with at all, but are preserved by s. 61 (2). With regard to these Lord Herschell's remarks above quoted do not apply.

To those, however, who may be of opinion that, in the light of the above judgment, too much space has been devoted in our Commentary on the express provisions of the Act to a declaration of the previous law, we would briefly explain the raison d'être of the book.

Before doing so, however, we may point out that s. 4 (which substantially re-enacts s. 17 of the Statute of Frauds) would seem not to be included in the scope of the principles of interpretation enunciated by Lord Herschell. As every lawyer knows, the section, short as it is, contains a mass of law large enough to occupy no less than 180 pages of "Benjamin on Sale," and, whether or not every line of it be (as has been said) "worth a subsidy," or have rather

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