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Historiography and the Law of Property Act 1925: the return of Frankenstein

Historiography and the Law of Property Act 1925: the return of Frankenstein
Historiography and the Law of Property Act 1925: the return of Frankenstein

This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

equitable interests, land law, legal estates, legal history, legislative history, overreaching, trustees
0008-1973
600-629
Roche, Juanita
08f153e2-2ff8-4134-bb23-049b157c06fc
Roche, Juanita
08f153e2-2ff8-4134-bb23-049b157c06fc

Roche, Juanita (2018) Historiography and the Law of Property Act 1925: the return of Frankenstein. Cambridge Law Journal, 77 (3), 600-629. (doi:10.1017/S0008197318000697).

Record type: Article

Abstract

This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

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More information

Accepted/In Press date: 1 April 2016
e-pub ahead of print date: 24 September 2018
Published date: 1 November 2018
Keywords: equitable interests, land law, legal estates, legal history, legislative history, overreaching, trustees

Identifiers

Local EPrints ID: 428505
URI: http://eprints.soton.ac.uk/id/eprint/428505
ISSN: 0008-1973
PURE UUID: 9702d670-5eaf-444b-af17-6a62e23b2250
ORCID for Juanita Roche: ORCID iD orcid.org/0000-0002-9682-3129

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Date deposited: 01 Mar 2019 17:30
Last modified: 17 Dec 2019 01:22

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Author: Juanita Roche ORCID iD

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