A NOTE ON STATUS AND CONTRACT IN BRITISH LABOUR LAW

AuthorO. Kahn‐Freund
DOIhttp://doi.org/10.1111/j.1468-2230.1967.tb02799.x
Publication Date01 November 1967
A NOTE
ON
STATUS
AND
CONTRACT
IN
BRITISH LABOUR LAW
THE labour law of Great Britain shares with that of the other
nations in our orbit of civilisation two essential jurisprudential
features
:
it is based
on
the contractual foundation of the obligation
to work and of the obligation to pay wages, and
it
is at the same
time permeated by a tendency
to
formulate and to enforce an ever-
growing number of imperative norms for the protection
of
the
worker, norms which the parties to the contract cannot validly set
aside to the detriment of the economically weaker party. This
dual insistence
on
agreement as the legal basis of at least some of
the essential rights and obligations and
on
mandatory regulation
as the source of the content of the relationship has given rise to a
jurisprudential dilemma which has
so
far not been clearly faced
in the literature
on
the subject.
The dilemma arises from the ambiguity of the term
status
in general jurisprudence. Contemporary writers are fond of reiter-
ating that, under the impact of modern developments, Western
society is moving from
‘‘
contract
to
‘‘
status.” This observation
which has been repeated almost mechanically
on
countless occasions
is intended to signify that our society and our law have taken a
course in a direction opposite to that traced more than a century
ago by Sir Henry
Sumner
Maine,’ whose celebrated dictum about
the displacement of
‘‘
status
by
‘‘
contract
is often quoted,
but seldom in
full.
Not infrequently one can sense in the state-
ment that the tendency diagnosed by Maine has been reversed,
a conscious
or
unconscious condemnation of a retrograde evolution.
Did not Maine
link
his
famous remark with the analysis of what he
called
progressive societies
”?
Does not the movement,
or
rather
the alleged movement, from
contract
to
status
constitute
a
regression,”‘ a regression from the
liberal,”
progressive
environment of the nineteenth century to more primitive forms of
social organisation such as those described by Maine in his work
?
The clarification of the
status
concept in analytical jurispru-
dence is more than a
jeu
d’esprit.
Underlying the
quid
pro
quo
*
Except for minor alterations,
this
is
in substance
a
reprint of
a
contribution
to
Hedendaags Arbeidsrecht,
a
volume published
in
1965
in
honour
of
Prof. M.
G.
Levenbach. Thanks are due
to
the publishers
of
the volume,
Messrs. N. Sansom N.V.. Alphen aan den
Rijn,
Netherlands, for granting
the necessary permission.
In
the
1927
reprint
of
the edition of the work
by
Sir Frederick Pollock which
I
am
using the relevant passage
is
at
p.
174.
For a
very
illuminating analysis
of
Maine’s dictum
see
Graveson, Status
in
the
Comm
Law
(1953),
esp. Chap.
III.
1
Maine,
Ancient
Law,
Chap. V. The first edition
was
published
in
1861.
685
686
TEE
MODERN
LAW
REVIEW
VOL.
80
surrounding this notion there may be some very deep-seated his-
torical and structural characteristics of English legal thinking, but
there are also political overtones to which
one
should not turn a
deaf ear.
Sir Henry Maine’s famous dictum occurs at the end of the ath
chapter of
Ancient Law,
a chapter entitled
Primitive Society and
Ancient Law
and largely devoted to family law in particular and
to the law of persons in general. Its wording leaves
no
doubt about
the meaning which Maine attached to the term
status
:
‘‘
If
then we employ Status, agreeably with the usage of the
best writers, to signify these personal conditions only, and
avoid applying the term to such conditions as are the immediate
or
remote result of agreement, we may say that the movement
of the progressive societies has hitherto been a movement from
Status to Contract.”
As
Sir Frederick Pollock pointed out in his comments to this
chapter,2 Maine gave a
‘‘
restricted
)’
meaning to the term
“status.” He thought
of
“status
”-if
one may venture a
definition-as the sum total of the powers and disabilities, the
rights and obligations, which society confers
or
imposes upon
individuals irrespective of their
own
volition. Hence, however
much the incidents and the consequences of marriage may be
regulated by law, marriage does not figure in Maine’s catalogue of
examples of
status
in modern society, whilst infancy and lunacy
do. But the meaning assigned to the term
‘(
status
is also
implicitly restricted in that
it
clearly connotes an element of social
and legal differentiation between categories of persons
:
status has
nothing to do with rights granted to,
or
obligations imposed by law
upon, everyone.
It
presupposes one of two different traditions
or
policies of the law: either that which consists in the differentiation
of legal rights, powers, obligations
or
disabilities in accordance
with the accident of birth, such as the Roman
status libertatis,
status civitatis
or
status familiae
with which Maine was much
concerned,
or
else that which arises from the desire to protect cer-
tain categories of persons
‘‘
on
the single ground,” as Maine says,
that they do not possess the faculty of forming a judgment in
their own interest.” In our society, age and mental health are
the principal factors of this kind, and sex used to be, but has
largely ceased to be one. Thus infancy and lunacy continue to be
examples of
status
in Maine’s sense,
no
matter whether this
affects the ,capacity for having rights
(“
ktat,”
Rechtsfahigkeit
”)
or
the capacity for exercising them
(“
capacitk,”
Handlungs-
ftihigkeit
”).
In addition, citizenship also confers a
‘‘
status,”
or,
if one likes, there is the special status of an
alien
who is sub-
ject to insignificant disabilities in private law and to very far-
reaching disabilities in public law.
2
Pollock’s
Note
L
to
Maine’s Chap.
V.
3
p.
173.
Nov.
1967
STATUS AND CONTRACT
IN
LABOUR
LAW
687
If
the term
‘‘
status
is used in this way,
if
it
is given the
meaning assigned to
it
by Maine, much of what he said in
1861
retains its validity in
1967.
What he called
the gradual disso-
lution of family dependency, and the growth of individual obliga-
tion in its place has continued in the course of the century
since he published the first edition of his famous work. Not as if
the legal obligations arising from the family nexus had become
socially
or
legally less significant, but they have changed their
character. The kinship group may still be a source of social main-
tenance obligations, but they have ceased to have
a
legal characterY5
whereas
on
the other hand the maintenance obligations inside the
household group have been intensified and extended.O Moreover,
they have been supplemented by a network of rights and obligations
within the framework of social insurance which, to some degree,
are based
on
norms of public law serving the provision by
one
member of the household group for another.?
This change in the nature of family obligations is linked with
the changing role of the family in a society in which the household
has ceased to be a unit for the production of goods and services.
The urbanisation and industrialisation of society and the dwindling
of its agricultural sector as well as the growth of large-scale indus-
try, all these factors have transformed the family. But they have
also accentuated and further promoted the
‘‘
movement
’)
traced
by Maine in
1861.
Nowhere is this more clearly visible than in
that branch of labour law which is concerned with the labour
relations of juvenile employees. At first sight the development
since Maine’s day seems to have belied his diagnosis and prognosis.
The employment of children more than two years below the end of
compulsory school age-i.e., below thirteen,
soon
to be changed to
fourteen-has been completely prohibited, apart from an insignifi-
cant exception.8 Children within the last two years of compulsory
school age may not be employed except under very restricted
conditionsYg and the employment of young persons between fifteen
(soon
to be sixteen) and eighteen is subject to a growing body of
regulation.lO Thus, the
‘‘
status
of infancy seems to have
4
p.
172.
6
National Assistance Act
1948.
8.
42.
By
this Act all legal. maintenance obli
ations except those between spouses and those
of
parents towards their chili:
ren were abolished. See now Ministry
of
Social Security Act,
1966,
s.
29.
6
e.g.,
by
8.
23
of
the Matrimonial Causes Act
1950-now
Matrimonial Causes
Act
1965,
8.
22--and
by
various provisions of the Matrimonial Proceedings
(Magistrates’ Courts) Act
1960.
7
Especially the provisions
of
the National Insurance Act
1965
on
a married
woman’s right to
a
retirement pension in virtue
of
her husband’s insurance,
and the provisions
on
the various types
of
widows’ benefit.
8
Children and Young Persons Act
1933,
s.
18,
as amended
by
the Children
and Young Persons Act
1963,
s.
34.
9
The mowt important statutes (apart from the one quoted in note
8)
are the
Education Act
1918,
s.
14,
as
amended
by
the Mines and Quarries Act
1954,
end the Employment
of
Women, Young Persons and Children Act
1920,
passed
to
implement the relevant
I.L.O.
Conventions
of
1919
and of
1920.
lo
e.g.,
under the Factories Act
1961,
and under the Mines and Quarries Act
1954.
638
THE
MODERN
LAW
REVIEW
VOL,
90
gained in legal significance because of the special need for pro-
tecting the young, in their
own
and in the general interest. Yet, a
closer
look
at the legal principles involved, and especially at the
sanctions used by the law for the enforcement of these protective
rules, reveals that the instrument employed for the enforcement of
these standards
of
protection is not that of creating new
dis-
abilities
arising from status but that of imposing administrative
and penal sanctions
on
the employer
or
potential employer. The
law does not strike at the validity of the contract, but makes the
employer criminally liable for making
it.
Maine would not have
recognised this as an example of the growth of the significance of
status in the sense in which he used the word.
He would,
on
the other hand, have seen a confirmation of his
view in the,
so
to speak,
contrary motion
of the development
of infants’ contracts of employment by the courts.” Briefly this
development was in the direction of enlarging the
common
law rule
that a contract made by a person under twenty-one years for the
acquisition of
‘‘
necessary
goods and services is valid, and thus
forms an exception to the rule that infants have
no
contractual
capacity. This exception has been extended
80
as
to
cover
con-
tracts which are for the benefit of the infant, and the courts are now
committed to the view that contracts of employment are for the
infant’s benefit. They are valid even
if
they contain clauses which
are not beneficial
to
the infant,” except where they are quite
unusual and objectionable, as,
e.g.,
clauses exempting the employer
from liability for accidents
lS
or
restraining the infant’s right
to
compete with his former employer after the termination of his
employment
.14
This tendency
or
policy of the law
to
enlarge the freedom of
infants to enter into contracts of employment is not in the least
incompatible with the tendency to suppress child labour and
to
restrict juvenile labour. The rule which seeks to prevent persons
under twenty-one from entering into contractual transactions was
one of those which made sense in a society of craftsmen, small
traders and peasants in which young people could be expected
to
form part of the economic
unit
constituted by their father’s estab-
lishment. The widening of the infant’s contractual capacity with
regard to employment was the necessary consequence
of
the indus-
trial revolution,
as
was the growing need for protecting him against
its exercise by placing restraints
on
potential employers.
So
much
has this policy of reducing the incidence of status become part of
the law that even in the law of civil procedure, in the field of
procedural capacity, statute provides that infants can, without a
next friend,”
enforce
their contracts of employment in the
11
For
this
888
Cheshire
and
Fifoot,
Law
of
Contracts
(6th
ed..
1964),
p.
351.
I?
See
e.g.,
Clement8
v.
London
and
North
Western
Ry.
[1894]
2
Q.B.
65.
Is
Olsen
v.
Cwry
[193s]
3
All
E.R.
Nl.
14
Leng
v.
Andrew8
[1909] 1
Ch.
763.
Nov.
1967
STATUS
AND
CONTRACT
IN
LABOUR
LAW
689
county courts.l5 This aspect of labour law thus furnishes proof
that the tendency analysed by Maine has not only not been
reversed but that it has been intensified. He
lived in a world in which the significance of international frontiers
seemed to be diminishing, in the England of mid-nineteenth-century
liberalism, of free trade, and freedom of migration.
In
our world
the importance of citizenship as a true
‘‘
status
’’
element has
grown by leaps and bounds, partly as a result of war, and partly as
a result of the ever-growing facilities
for
international migration.
Legal,
Le.,
status, hurdles have taken the place of the economic
difficulties, such as the high cost of transportation, which were the
obstacles to free migration in Maine’s day. This increasing insis-
tence
on
reserving to citizens the free access
to
the country and,
which is decisive in our context, to its labour market is not by any
means confined
to
transient wartime measures. The legislation
on
the admission of aliens which began modestly before the First
World War
l6
and was greatly enlarged in its course has continued
to be enforced ever since,l’ and
it
has recently been supplemented
by legislation restricting access to citizens of the Commonwealth
who are not citizens of the United Kingdom.18 Here, in this branch
of immigration and labour market legislation, we are facing a true
example of the growth of status. Maine-as we have seen-spoke
in terms of what he called
progressive
’’
societies-perhaps he
would have identified all laws hampering the free movement of men
and women as
‘‘
retrogressive.” He would, however, also have
identified these laws as out of tune with the general tendency of the
law, a tendency clearly
in
the direction of promoting and not of
restricting access to the labour market and that mobility of labour
which is the antithesis to a social organisation based
on
status. The
legislation
on
aliens and
on
Commonwealth immigrants is the excep-
tion which proves the validity of Maine’s rule.
In
the light of all this, how can we explain the inclination of
modern writers to reverse Maine’s diagnosis, and to maintain that
our society is
now
moving from contract to status? What, for
example, did Dicey mean when, in his work
on
law and public
opinion in England, first published in
1905,
he said that
‘‘
the rights
of workmen in regard to compensation for accidents have become a
matter not of contract, but of status
”?
la
How, to take another
In
one respect, however, Maine has proved to be wrong.
15
Up
to
€500:
County Courts Act
1959,
8.
80,
as amended by County Courts
Jurisdiction Order
1965,
taking the place
of
earlier similar provisions.
16
Aliens Aot
f?05.
For its background see Thornberry,
Law, Opinion &nd the
Immigrant
(1962) 25
M.L.R.
654.
1‘
Aliens Restriction Act
1914;
Aliens Restriction (Amendment) Act
1919;
Aliens Order
1953.
18
Commonwealth Immigrants Act
1962.
19
A.
V.
Dicey,
Lectures on the Relation between Law and
Public
Opinion in
See
on
this Graveson,
ubi
England during the 19th Century
(1926).
p.
284.
supra,
p.
48
et seq.
640
THE
MODERN
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80
example, can we account for a very interesting and enlightened
observation by a member of the Court
of
Appeal who, less than
twenty years ago, castigated the practice of large undertakings to
exercise oppressive private legislative power under the guise of
66
standard contracts,” and added that
it
was
‘‘
such misuse of
contract which makes the legislature tend to substitute status
”?
What did he mean when he used that word
?
He meant something radically different from what Maine had
referred to in his observation, however much that observation may
have been at the back
of
his mind and of every English lawyer who
afterwards read his judgment. What he was referring to was a legal
relation based
on
agreement but regulated by law, in the sense that
its existence and its termination depended
on
the volition of the
parties, but its substance was determined by legal norms withdrawn
from the parties’ contractual freedom. Dicey too was contem-
plating a situation created by agreement but regulated by impera-
tive provisions of the law
:
in his days workmen’s compensation was
an obligation imposed upon an employer towards his employee
21
-it
was before the days of social insurance against accidents at
work.2a
It
could not be contracted out, but
it
presupposed the
existence of a contract of employment,
or
at least
of
an employment
relation entered into by the parties. This was what Maine would
not have recognised as
66
status
”;
indeed
it
was what he had
expressly excluded from his analysis.
Nor
would he have seen a
status relation in the terms of a statute designed to take the place
of standard contracts, such as statutes enforcing the liability of
transport undertakings for the safety of their passengers irrespective
of contractual clauses purporting to exclude
or
to
restrict them,2s
or
minimum conditions and warranties enforceable by hirers and
buyers under hire-purchase and conditional sale
agreement^.^'
In
all these situations the law operates upon an existing contractual
relation, but
it
moulds this relation through mandatory norms
which cannot be contracted out to the detriment of the weaker
party (employee, passenger, customer in general).
It
is this pheno-
menon which is characteristic
of
the legal developments of our time,
nowhere more
so
than in the field of labour law.
How can we explain the conceptual confusion between two legal
phenomena as different
as
the imposition of rights and duties irres-
pective of the volition
of
the person concerned, and the shaping of
a contractual relation into which he has freely entered? Let us
admit that in terms of legal policy there may but need not be a
20
Per
Scott
L.J.
in
Henson
v.
London
d
North Eastern
Ry.
[1946] 1
All
E.R.
653,
at p.
657.
21
Workmen’s Compenaation Ads
1897
and
1906.
22
National Insurance (Industrial Injuries) Act
1946,
now
National Insurance
(Industrial Injuries) Act
1965.
23
Road Traffic Act
1960,
E.
151;
Transport Act
1962,
S.
43
(7).
See Kahn-Freund
Law
of
Carriage
by
Inland Transport
(4th
ed.,
1965),
p.
652
et
seq.
24
Hire-Purchase Act
1965,
88.
16-19,
S.
99
(3).
NOV.
1967
STATUS AND CONTRACT
IN
LABOUR LAW
641
common factor. This is the desire
to
protect persons who, not only,
as Maine thought, owing to lack of
(‘
faculty of forming a judgment
in their
own
interests,” but also owing to inferior bargaining
power, are liable to be exploited by others. This policy underlies
some of the legal provisions
or
principles which,
in
Maine’s sense,
belong to the area of
‘(
status.” They do underlie the law of
infants, but certainly not that of aliens. But they also underlie
those rules which shape the content of contracts. Yet the legal
techniques employed by the two types of legal norms are
so
funda-
mentally different that their confusion needs to be explained. Why,
then, do English lawyers see a reversion to
status
in rules which
leave the parties free to contract
or
not to contract, but restrict
their freedom
to
contract except
on
certain
minimum
terms
?
The reason must be found in a gap in the conceptual equipment
of English law which itself reflects the social and jurisprudential
principles of its growth. The distinction between
jus
cogens
and
jus
dispositivum,
between
‘(
imperative
and optional
norms
of
the law of contract, is familiar to every practising lawyer in any
Continental legal system.
It
fits naturally into the thinking of
lawyers brought up and working in a world of legal thought in
which the systematic regulation of the law of contract through
general norms applicable to all contracts and special
norms
appli-
cable to defined types has for almost two centuries been a common-
place. The distinction is not commonly used in English legal
practice, although
it
is beginning
to
become more and more familiar
to academic writers. The reason appears
to
be that the positive
regulation of the substance of contractual relations has only within
fairly recent times become one of the recognised functions of the
legislature. The law of contract was developed by the courts, and
the principal conceptual instruments which they handled were the
intention of the parties (which to a large extent fulfilled and still
fulfils the function of the
jus
dispositivum
on
the Continent) and
public policy which, in a few extreme cases, may destroy a contract,
but which cannot mould
it.
Thus the idea of the positive regula-
tion by law of the content of contractual relations is, as English
legal history goes, fairly new. Protective legislation, such as that
imposing standards of health, safety
or
welfare in factories, mines,
etc.,
or
maximum hours of work, was and is thought of not as
operating
on
a contract but as imposing extra-contractual obliga-
tions, enforceable through criminal prosecutions and through
actions in tort. And even the one apparent exception, the Truck
ActsYa5 which for centuries have imposed upon employers the
obligation to pay their workers
‘(
in current coin of the realm and
not otherwise
yy
and which for almost a century-and-a-half
ae
have
prevented them from making deductions from wages, have been
held to impose not contractual but
statutory
yy
obligations with
25
This legislation
goes
back to the 15th century.
26
Truck Act
1831
;
Truck Amendment Act
1887
;
Truck Act
1896.
VOL.
30
22
642
THE YODEIlN
LAW
REVIEW
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80
important consequences
for
the application
of
the statutory periods
of
limitation^.^^
The idea that they shaped the contract itself
through the instrumentality
of
rules
of
jus
cogens
was not accept-
able.
Although in recent times changes have become visible, especially
in
relation
to
legislation
on
minimum wages,as
on
the effect
of
compulsory awardsYaQ and
on
minimum periods
of
notice,ao the idea
of
the contract moulded by
jus
cogens
has not yet penetrated into
what may be called the general legal atmosphere which lawyers
breathe. Hence the tendency to think
of
anything that is impera-
tive
or
compulsory as imposed
in
the way status is imposed. We
have the extensive phenomenon
of
a body
of
affirmative rules
regulating the substance
of
contracts
of
employment,
of
hire-
purchase, etc. But this is incompletely absorbed
into
the concep
tual structure
of
the law. Here may be one explanation
for
the
somewhat desperate but also occasionally somewhat tendentious
inclination
to
link
this phenomenon with
status,” that hall-mark
of
a
‘(
non-progressive
society.
It
is, however, undeniable that modern British labour law
exhibits institutions which make the confusion more than plausible.
The most interesting
of
these is the body
of
special rules which
apply to dock workers.a1 These show that social necessity may
compel the legislature to reduce the contractual element
of
the
labour relation to the barest minimum.
In
the light
of
the juris-
prudential indications given above it would still be difficult
to
classify the legal position
of
the dock-worker as one
of
status
in
the
sense contemplated by Maine, but
it
would not be absurd
to
do
so.
The essence
of
the matter is that under the relevant legislation
neither the employer
nor
the worker is free to choose whom he
wishes to employ
or
for
whom he wishes to work,
nor
is the worker
free to reject offers
of
employment.
To
understand this remarkable
and quite exceptional phenomenon one must see the social back-
ground
of
this legislation. The policy underlying it can be sum-
marised
in
the word
‘‘
decasualisation.” This means that the law
seeks to protect the worker against the
‘(
casual
)’
nature
of
the
employment which
for
decades had been the curse
of
the docks.
Work in the docks is, however, by its nature
(‘
casual
’)
in
the sense
27
Pratt
v.
Cook
[1940]
A.C.
437.
28
Wages Councils Act
1959,
8.
12;
A$ricultural,,Wages Act
1948,
8.
11.
Such
legislation has
‘I
compulsory normative effect.
It
moulds the contract.
See
(on
an
earlier similar statute)
Gutseli
v.
Reeoe
[1936] 1
K.B.
272.
29
Terms and Conditions
of
Employment Act
1959,
s.
8
(4).
80
Contracts of Employment Act
1963,
8s.
1 and
2,
and, with regard
to
compensBtion for dismissal,
lay-off
and short time
in
the case of redundancy,
the Redundsncy Payments Act
1965.
31
Dock Workers (Regulation of Employment) Act
1946
and the Dock Workers
Employment Scheme made under the Act and embodied
in
Schedule
2
to
the
Dock Workers (Regulation
of
Employment) (Amendment) Order
1967.
See
Barnard
v.
National
Dock
Labour Board
[1953] 2
Q.B.
18;
Vine
v.
National
Dock
Labour Board
[1967]
A.C.
483.
Nov.
1967
STATUS
AND
CONTRACT
IN
LABOUR
LAW
648
that
it
is
difficult
to
predict from one day to the next how much
work there will be,
i.e.,
how many ships will have
to
be loaded
or
unloaded.
It
is a volatile labour market the fluctuations of which
have in the past led to the gravest hardships.
seeks to minimise these by a licensing system reducing the numbers
of
casual employers
and designed to transform the casual
worker into
a
permanent worker.
the earlier legislation. This gives protection through the formation
of
a pool financed by the employers (who are organised in boards)
a6d out of this pool those dock-workers who are registered are
paid
attendance money
for the period during which
no
work
is available for them. But to protect the pool
it
was laid down
that any worker who is registered must not refuse work offered
by a registered employer, that he must not accept work from a
non-
registered employer, and that a registered employer must, for
relevant work, use registered workers as long as they are available.
The very complicated details of the scheme need not be analysed
here. SutEce
it
to say that here we have a case in which a worker,
once he has been registered, loses his freedom
to
contract
or
not to
contract, and that in this sense one may be tempted to say that his
status
as a registered dock-worker imposes upon him an obliga-
tion to work.
Yet whilst, as said above, such a view would not be completely
wrong, it would nevertheless be incompatible with Maine’s concept
of status.
For
the worker’s duty to work and the employer’s duty
to employ ultimately derive from their registration,
i.e.,
from an
act of their own volition and not from a
character
indelebilis
imposed upon them by the law itself. “rue enough, social pressure
may compel the worker to register, but we have throughout this
analysis ignored that social compulsion which may and often does
in practice make nonsense of what the law calls “freedom of con-.
tract.’’ Moreover, in the legal sense, we are accustomed to consider
freedom to contract
or
not
to
contract as compatible with the
utmost legal pressure to enter into contracts: a person in receipt
of unemployment benefit who refuses
to
enter into a contract of
employment may for
six
weeks be deprived of benefit, and he may
also be deprived of benefit for the same period
if
he gives up
his
employment without good cause.34 Here, then, our society accepts
an indirect compulsion to enter into and to continue in contracts of
employment. Nevertheless, employment has not become a matter
of status.
In
a sense the Dock Labour Scheme is an intensified
The present law
It
does not, however, affect
82
Docks
and Harbours Act 1966,
8s.
1-19, based
on
the Final Report
of
the
Committee
of
Inquiry under the Rt. Hon. Lord Devlin into certain matters
concerning the port transport industry, Cmnd. 2734 (1965).
33
Docks
and Harbours Act 1966,
8.
24.
“he
Scheme varies the 1947 Scheme in
some important details, but not in its principles.
84
National Insurance Act 1966,
8.
22.
644
THE
MODERN
LAW REVIEW
VOL.
80
version
of
the same legislative principle which underlies the relevant
provisions
on
unemployment insurance.
In
view of the impending codification of the law
of
contract
it
may be of some importance that its conceptual framework should
be unambiguous, and the minor analytical point here discussed
may therefore be of more than academic significance.
0.
KAHN-FREUND."
*
Professor
of
Comparative
Law,
University
of
Oxford.

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