I want to start from the basic position in which I was brought up (I expect you were all brought up in it too) that the terms of a contract consist of conditions and warranties, the distinction between them being that the condition is something that is essential to the contract, while the other terms that are collateral or ancillary are merely warranties. If a condition is broken the aggrieved party is discharged from his obligations and can rescind the contract. If it is a warranty that is broken, the breach sounds only in damages.

The Hongkong case—a new approach to breach

The traditional thinking on this point has recently been rather mystified by references to something which is called the fundamental term and which has not yet, so far as I know, been judicially defined. Then there have been some suggestions that what matters is not the fundamental term but the fundamental breach. And finally there is the very important judgment of Diplock L.J. in the Hongkong case in which he opens up new vistas, suggesting that the traditional classification of terms into conditions and warranties has been outmoded and ought to be scrapped in favour of a new approach altogether based on the event.

It must be accepted that whatever sort of approach is made to this topic, whether a new or a traditional one, there must be some way of defining the situation in which the aggrieved party is entitled to rescind. He cannot be allowed to do so for every breach of every term.

In the first part of this article, published in April, the avowed intent was to demarcate and emphasise the difference between the two kindred but separate defences of claim of right and dispute of title. The subsequent publication of the eighth report of the Criminal Law Revision Committee on Theft has shown that the defence of claim of right is to be left untouched by the sweeping proposals contained in the report, and that consequently the subject of this article will not become a mere academic exercise, but will remain a matter of practical importance even if the recommendations are adopted.

The earlier part of this article was primarily devoted to an attempt to isolate the meaning of title, the type of dispute that will lead to the exclusion of the jurisdiction of justices. It was noted that this procedural defence of dispute of title springs from a rule of statutory interpretation that it is always open to the legislature to exclude or modify. Passing reference has already been made to two famous modifications of the defence, in statutes providing for summary trial of assault and battery and malicious damage respectively. These enactments will now be examined in detail. Their special relevance for the object of this article is that the two cases on assault and battery show in the first place that, leaving aside the difficult question whether dispute of title should be extended to disputes as to title to personalty, even within the acknowledged prohibited sphere of disputes as to title to real property, criminal courts can be singularly slow to appreciate that a title to real property of an incorporeal kind is at stake.

The charge of conspiring to defraud is the most important and frequently employed branch of the law of criminal conspiracy. Yet it has been largely ignored in most general discussions of the law of conspiracy, or at best treated as a special case to be exempted from the general attack on a crime which can only be described as an agreement to act illegally. The reasons for this tacit acceptance are largely pragmatic: the charge is clearly useful in bringing to justice a significant number of persons involved in large-scale frauds who might otherwise escape prosecution. A thorough-going assessment of its place in the criminal law is nonetheless long overdue.