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I respectfully agree with your first paragraph. Indeed, so far as I am aware, the common law never has and, because of the unreliability of economic predictions, never should owe anything to economic analysis.

Thus, in my submission, the common law's protection of private property was not doctrinaire capitalism, but a corollary of the liberty of the subject. In Pepper v. Hart [1993] A.C. 593, to appreciate as a defence of that liberty Lord Mackay of Clashfern, L.C.'s traditional resolution (at 614A) of the statutory ambiguity in favour of the taxpayer is warranted by both authority and history.

In Pryce v. Monmouthshire Canal & Rly Coys (1879) 4 App. Cas. 197 at 202-3, Earl Cairns, L.C., said:

"My Lords, the cases which have decided that Taxing Acts are to be construed with strictness, and that no payment is to be exacted from the subject which is not clearly and unequivocally required by Act of Parliament to be made, probably meant little more than this, that, inasmuch as there was not any a priori liability in a subject to pay any particular tax, nor any antecedent relationship between the tax-payer and the taxing authority, no reasoning founded upon any supposed relationship of the tax-payer and the taxing authority could be brought to bear upon the construction of the Act ..."

In the absence of a voluntary relationship taxation must be, in the words of 44(1) Halsbury's Laws (4th edn reissue, London 1995) 1240, "detriment inflicted through the state's coercive power". Every coercion of the subject detracts from his liberty; and taxation detracts especially from his property. A sufficiency of property is itself essential to independence, without which (as present and former colonies constantly claim) liberty is a delusion.

Historically (if I recall correctly my undergraduate studies) this is demonstrated, inter alia, by the ancient Roman mob's willingness to accept the tyranny of anyone who could guarantee the supply of corn from Egypt. Conversely in this country (if I remember aright the last chapter of E.P. Thompson's Whigs and Hunters) the courts' upholding of rights of property constituted the main protection against imprisonment and hanging of those actively opposing the enclosures of the 18th century.

-----Original Message-----
From: Lionel Smith
Date: 30 July 2000 23:54
Subject: RDG: "Efficient Breach"

I agree with Gerhard Dannemann that when one looks closely, there is not that much in the concept of efficient breach, and that it is actually a rationalisation of a purely contingent understanding of remedies in contract law which owes a great deal to OW Holmes and very little to logic or even economic analysis. Duncan Sheehan said:

The only dictum guarding against [efficient breach] seems to be where Lord Nicholls comments that a breach enabling a party to enter into a more profitable contract elsewhere is not by itself sufficient reason for granting restitutionary damages.

But it is also true that Lord Nicholls seemed to think there was something in the argument in "Disgorgement of the Profits of Breach of Contract: Property, Contract and 'Efficient Breach' ". There the concept of efficient breach is criticised as insupportable, even within the world of economic analysis, in the absence of detailed empirical evidence as to transaction costs (of the kind Gerhard described), evidence which I for one have never seen. And that leaves aside the larger question of whether economic analysis is relevant in analysing private law. See eg Ernest Weinrib and Ronald Dworkin passim.

Lionel