Restitution Discussion Group Archives
| Sender: |
Gordon Goldberg |
| Date: |
Mon, 12 Nov 2001 12:27:22 |
| Re: |
Etridge and the Constitution |
In my respectful submission Lord Browne-Wilkinson should
not have made it, because (as reported in [1994] 1 A.C. at 196G-197A)
the words of his statement were:
"As to past transactions, it will depend on the facts
of each case whether the steps taken by the creditor satisfy this test.
However for the future in my judgment a creditor will have satisfied these
requirements if it insists that the wife attend a private meeting (in
the absence of the husband) with a representative of the creditor at which
she is told of the extent of her liability as surety, warned of the risk
she is running and urged to take independent advice. If these steps are
taken in my judgment the creditor will have taken such reasonable steps
as are necessary to preclude a subsequent claim that it had constructive
notice of the wife's rights."
If, instead, his Lordship had said,
"It must depend on the facts of each case whether the
steps taken by the creditor satisfy this test. However, as at present
advised, I expect generally a creditor to satisfy these requirements ...
independent advice",
and stopped there, I may have respectfully doubted his
confidence, but I could not have complained of his seeming (if not real)
arrogation.
----- Extract from Original Message----- under the usual terminology any dictum
[statement of law unnecessary for the decision of the particular case]
is non-judicial:
Are dicta "non-judicial"? Certainly there
is no duty on later courts to follow them. But it seems to me that we
are in danger of confusing whether a statement of law is binding (ratio/dictum)
with the very different question whether the judge has stepped outside
his/her proper role (judicial/non-judicial). I don't doubt that B-W's
statement was dictum, but why on earth shouldn't he have made it?
From: Steve Hedley
Date: 12 November 2001 11:22
Subject: [RDG:] Etridge and the constitution
<== Previous message Back to index Next message ==>
»
»
»
»
| For
editorial policy, see here. For the unedited archive, see here. The archive editor is Steve Hedley. |
