Hopkins, Nicholas (2010) The relevance of context in property law: a case for judicial restraint? Legal Studies, 31. (doi:10.1111/j.1748-121X.2010.00186.x).
Abstract
A distinction between the domestic and commercial context is commonly drawn in property law discourse and has been brought into focus by three recent House of Lords decisions. The thesis of this article is that while the distinction is a useful explanatory tool it runs into difficulties when given legal effect by the courts. There is a definitional problem in understanding what is included within each context while the distinction assumes the existence of a dichotomy when in fact the domestic and commercial spheres are better seen as a continuum. In Stack v Dowden the majority of the House of Lords gave context legal effect and considered that different rules should apply to determine ownership of the home. This article locates their decision in the broader debate on judicial restraint and creativity. By analogy with current discussion of due deference in public law it is suggested that, in light of the policy issues involved and the broader ramifications of the decision, insufficient justification was given for the approach adopted by the majority.
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