The Remedy of An Ejected Licensee
| Published date | 01 September 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00267.x |
| Date | 01 September 1954 |
| Author | J. B. E. Hutton |
THE
REMEDY
OF’
AN
EJE,CTED LICENSEE
DESPITE
the recent cases
(Winter Garden Theatre Case
[1946]
1
All
E.R.
678
at
685,
Bendall
v.
McWhirter
[1952] 2
Q.B.
466
at
480)
in which the courts have stated that they will grant an injunction to
restrain the premature revocation of a contractual licence the learned
editor of Salmond, Mr.
R.
F.
V.
Heuston, has pointed out at
p.
280
that
“
it is still no easier than before to understand what the law
is
.
.
.
if the licensee has been
.
.
.
actually ejected (as in
Hurst’s
case) before the aid of equity can be invoked.” In
Hurst
v.
Picture Theatres,
Ltd.
[1915] 1
K.B.
1,
a licensee, who had been
ejected from the licensors’ premises in breach
of
his contractual
licence, recovered damages for assault against the licensors.
It
is submitted that this remedy may be justified, without the need
to resort to equity, by a principle of the common law applied
by the House of Lords in
Elder Dempster
v.
Paterson Zochonis
[I9241
A.C.
522,
and succinctly stated by Scrutton
L.J.
in
Hall
v.
B*ooklands Auto-Racing Club
[1933]
1
K.B.
205
at
213:
“Where the defendant has protection under a contract,
it
is not
permissible to disregard the contract and allege a wider liability
in tort.”
Sir Frederick Pollock has defined
a
licence as “that consent
which, without passing any interest in the property to which it
relates, merely prevents the acts for which consent
is
given from
being wrongful
”
(Torts,
p.
300).
The terms of a contractual
licence are that for a certain period the licensee may enter on the
licensor’s land lawfully and not as a trespasser. Thus a contractual
licensee is a person who has protection under a contract because
by the contract
it
is
agreed that conduct shall be lawful which
would otherwise be tortious.
At common law a bare licence, even although
it
be contained
in a contract, may be revoked at will by the licensor:
Wood
V.
Leadbitter
(1845) 13
M.
&
W.
838.
But the revocation will be
ineffective unless it can then be enforced either by the licensor
bringing an action for trespass against the licensee
or
by the
former forcibly ejecting the latter without making himself liable
thereby for assault. Thus, according to one view, the right of the
deserted wife to live on in the matrimonial home is founded on the
ineffectiveness of a revocation which cannot be enforced. The
husband may withdraw his permission for the wife to reside in the
home but he cannot then bring an action against her because
section
12
of the Married Women’s Property Act,
1882,
forbids a
husband to sue his wife for a tort, Goddard
L.J.
stating in
Bram-
well
v.
Bramwetl
119423
1
K.B.
370
at
374
:
“
I
have the greatest
448
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