ANOTHER LOOK AT BOWMAKERS v. BARNET INSTRUMENTS
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01317.x |
| Date | 01 January 1972 |
| Published date | 01 January 1972 |
ANOTHER
LOOK
AT
BOWMAKERS
v.
BARNET INSTRUMENTS
ON
the evidence of current textbooks,l
Bomakers
v.
Barnet Instru-
?nents
seems no nearer to universal acceptance now than when
it was first decided
a
quarter
of
a
century ago. Many lawyers,
Me
suspects, see
it
as an anomaly which, someday, the House of
Lords will overrule as being both inconsistent with principle and
long the subject of general criticism. Yet
it
would surely be
un-
fortunate
if
it
were ever to suffer that fate. The common law on
illegal contracts
is
Draconian enough, in all conscience, and the
rule in
Bomalcers
v.
Barnet Instruments
does offer
a
measure of
relief, even
if
only in a rather limited sphere. Accordingly,
if,
as
is
believed, there is
a
way in which the decision can be supported both
in logic and in law, it is the more desirable that
it
should be put
forward, even at this late stage.
In the
Bomakers
case,
it
will be recalled, the plaintiffs as
owners claimed damages for the conversion of some machine tools
held by the defendants under
a
series of three hire-purchase agree-
ments. These agreements were identified in the statement of claim,
as they have been ever since, as agreements
1,
2
and
3.
The plain-
tiffs had originally purchased the tools the subject of agreements
1
and
2
from
one Smith under an illegal contTact of sale. All three
hire-purchase agreements were also illegal. The defendants had,
30
their own advantage, sold off the tools held under agreements
1
and
3.
They still retained the tools under the second agreement,but
had failed to yield them up on demand. The remaining facts are
stated only sketchily in the report, but it
is
a reasonable inference
that the defendants had defaulted in payment of hire. Again,
though the report does not say whether the agreements contained
any clause allowing termination for non-payment of hire,
it
is
reasonable to suppose that there was such a clause, since the
agreements were stated
to
be
"
in familiar form."
'
At the hearing, the defendants conceded that, notwithstanding
the illegality, property in the tools the subjeot of agreements
1
and
2
had passed from Smith to the
plaintiff^.^
For
their part, the
plaintiffs conceded that, because all three hire-purchase agreements
1
Cheshire and Fifoot,
The Law
of
Contract,
7th
ed.
(1969).
pp.
a5306;
Anson
on Contract,
23rd ed. (1969).
pp.
3'62-363;
Sutton and Shannon on Contracts,
7th
ed. (1970),
p.
283n.; Treitel,
Law
of
Contract,
3rd ed.
(1970),
pp.
422-424;
Gluest,
The Law
of
Hire Purchase
(1966),
p.
438;
Vol.
1,
Chitty on Contracts,
23rd
ed. (1968),
pp.
440-441; Paton,
Bailment
in
the Common Law
(1952),
pp.
34-36.
2
rig451
K.B.
65.
3
Ibid.
at p.
66.
4
Ibid.
at
p. 70.
38
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