Restitution Discussion Group Archives
| Sender: |
William Swadling |
| Date: |
Mon, 31 Jul 2000 16:49:26 +0100 |
| Re: |
The "solitary beacon" in Blake |
Duncan Sheehan
wrote:
in Wrotham Park the breach was a breach of a
restrictive covenant, which is a contract; the fact that is also a proprietary
right allowing successors in title to sue doesn't stop it being a breach
of contract when the successor to the covanantor breaches the successor
to the covenantee's right not have these buildings built, or does it?
I accept that it looks odd, but unless we are prepared to say that as
between the original covanantee and covanantor it is a contract and then
as soon as a successor in title steps in it stops being a contract, Lord
Nicholls must be right. But with respect, he seems to make a categorical error.
A contract is a source of rights, both of personal rights and property
rights - the making of a contract is an event which brings rights into
being. No contrast can therefore be drawn between contractual rights and
property rights. Instead, the contrast should be between personal rights
and property rights. And the right which was violated in Wrotham Park
was a property right, while that violated in Blake was a personal right.
The former is therefore not authority for the latter.
And Lord Steyn did after all tell us that taxonomy was
vital.
WJS.
________________________________________________ Tel: +44 1865 277869 (Direct)
William Swadling, MA, LLM,
Fellow and Tutor in Law,
Tutor for Admissions
Brasenose College,
OXFORD, OX1 4AJ.
Tel: +44 1865 277510 (Secretary)
Tel: +44 1865 277830 (Messages)
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