CORRESPONDENCE
| DOI | http://doi.org/10.1111/j.1468-2230.1957.tb00446.x |
| Date | 01 May 1957 |
| Published date | 01 May 1957 |
816
THE
MOD=
LAW REVIEW
VOL.
20
time of the marriage would, however, blend with the background of English
no less than American law, since procedural muddles
21
and the nineteenth-
century discovery of
a
man’s right
to
“do
as
he likes with
his
own” have
resulted in divorcing the duty of providing for family dependants from public
POUC~,
and making
it
dependent upon the precise wording of
a
statute.22
The learned author
is
probably right in suggestingas that contracts to
make wills are generally entered into by laymen, frequently in the face of
professional reluctance. or active disapproval, and that the background of many
such contracts is the desire of the elderly to receive care and affection from
friends, relatives and servants in return for
an
uncertain sum payable upon
their death. That such agreements may frequently be oppressive to those
rendering the services
seems
indi~putable.~~
This
careful study of the
American law clarifies, though
it
cannot answer, the question whether it is
preferable for the courts to enforce such rather unsatisfactory agreements
(subject to the initial overriding dificulty
of
proving
a
firm
contract to make
payment of an unspecified amount,
at
death or whether the English courts
have adopted the better course
in
discouraging them, by letting
it
be known
that
only
in the rarest cases will such contracts be enforceable, and leaving it
to
the
parties to make more satisfactory arrangements for current payments.
0.
M.
STONE.
21
see Pollock and Maitland,
History
of
English
Law
Befo~e the Time
of
Edward
I,
Vol.
2,
Chap.
7,
p.
400.
22
In the Inheritance (Family Provision) Act,
1988,
as
amended in
1962,
the
court
is given a discretion, albeit within very narrow limits, but for example
the Intestates’ Estates Act,
1962,
under which
a
survivin spouse, whether
guilty of
8
matrimonial offence
or
not, whether living with t%e deceased at the
time
of
the death or not, and irrespective of the duration of the marriage,
is
entitled
to
the deceased’s
persona^
chattels and the first
€6,000
of the estate,
free
of
death duties, before the issue of the deceased is entitled
to
any
share,
seems
contra
to
public policy.
2.3
At p
187-13.
s4
Nor toes the possibility
of
relinquishing a child for adoption
as
consideration
for such a contract
@.
87) appear very desirable.
as
In
England the decision in
Maddison
v.
Alderson
(1SaS)
8
App.Cas.
467
is a
stern
naming
of the difficulties attendant upon the enforcement of
such
arrangemen
ts.
See,
e.g.,
Re
Pa~k
[1964]
P.
89.
CORRESPONDENCE
THE
EDITOR,
The Modem
Law
Rezrierer.
March
26,
1957.
Sir,
As
completely to omit any reference to
re8
ipra
loqwitwr
in
a
discussion of
vicarious liability for medical negligence would be
a
grave fault,
I
hope the
reviewer of the third edition of my book
Law
relating
to
Hospitals
(20
M.L.R.
195)
will forgive my pointing out that
I
did, in fact, refer to
that
doctrine on p. 142.
I
willingly concede that the doctrine deserved fuller
treatment than
I
gave it and
also
mention in the index.
His
other criticisms,
tor which
I
am grateful, will be taken into account in any future revision of
the work. Yours faithfully,
S.
R.
S~LLER.
Enfield, Middlesex.
To continue reading
Request your trial