Editorial Committee of the Cambridge Law Journal

Les Ordonnances Civiles du Chancelier Daguesseau by Henri RegnaultReview by: H. C. G.The Cambridge Law Journal, Vol. 4, No. 2 (1931), pp. 248-249Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4502548 .

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248 T11e Cclrtbridge l,aw Journal.

lRurther, the author has succumbed to the temptation to devise a novel phraseology, which purports to clarify existing terminology, but in effect only makes it more difficult to understand topics which are alreadJr abundantly obscure. The reader is confl onted with such terms as ' Zygllomic ' and ' Nlesonomic.' The sowalled Immunity Disability relation is explained by the following formula: [A) < + B].

*Surely it is time to call halt to these and similar efforts to transplant the terminology and methodology of the mathematicians, the engineers and the physicists on to the wholly uncongenial soil of legal theory. This process can only lead to the obfuscation of legal concepts, and mllst inevitably bring theoretical jurisprudence into disrepute. Binder, for instance, rendered a great disservice to clear legal thinking when he invented the term ' no7m.' The writings of our English legal philosophers (not excluding Austin), and in particular those of the great modern iFrench jurists, have shown how unnecessary it is to resort to the use of phraseology borrowed in part from Germany and in part from the neo- physicists. The matter is one of some moment, particularly in England, where the study of the law in an academic direction is being pursued in circumstances of difficulty which cannot fail to be enhanced if concepts which s}lould be simplified as much as possible, are stated in words which can only be understood by those who have invented them. It matr be that legal English i9 not sufficiently supple for all purposes, but in that event it can be supplemented by a resort to the phraseology of Roman law, with the aid of which most, if not all, of the difficulties can be surmounted. The invention in any language of terms ' ad hoc X is a dangerous expedient and one which should be avoided whenever possible. It is difficult to avoid the suspicion that some modern writers do not themselves always clearly understand their expositions: it is certain that their readers are often left in the dark.

H. C. G.

Les Ordonnances Civiles du C/tonceliew Da.yuesseau. B5r Prof. ]IENRI 1tEGNALrLT. Paris: Recueil Sirey. 1929. sis an(l 658 pp.

DAalJEssEAu was one of the great French jurists of the early elghteenth century, but his fame rests chiefly on his pioneer work in the field of the ullification of French law. Perhaps the nsost remarkable of his achieve- ments in this direction was the ' Ordonnance sur les Donottons ' of 1731, which forms the subject-matter of Professor Regnault's learned treatise. This Ordonnance., which was absorbed to a large extent into the Code Napoleon, was based on replies elicited by a questionnaire 8ubmitted by Daguesseau to the ' Parlements ' and supelior courts of France. This raw material had disappeared at least so it was thoughSuntil the guardian angel who watches over bibliophiles led Professor Regnault to a book stall on which he found a bound manuscript containing a copy of the replies returned by the Parlement of Grenoble to Daguesseau's questionnaire. The finder has utilized this discovery to the best advantage and has given us an extremely able 3nd careful study of the early French law relating to Gifts. The importance of llis work may be gauged by

248 T11e Cclrtbridge l,aw Journal.

lRurther, the author has succumbed to the temptation to devise a novel phraseology, which purports to clarify existing terminology, but in effect only makes it more difficult to understand topics which are alreadJr abundantly obscure. The reader is confl onted with such terms as ' Zygllomic ' and ' Nlesonomic.' The sowalled Immunity Disability relation is explained by the following formula: [A) < + B].

*Surely it is time to call halt to these and similar efforts to transplant the terminology and methodology of the mathematicians, the engineers and the physicists on to the wholly uncongenial soil of legal theory. This process can only lead to the obfuscation of legal concepts, and mllst inevitably bring theoretical jurisprudence into disrepute. Binder, for instance, rendered a great disservice to clear legal thinking when he invented the term ' no7m.' The writings of our English legal philosophers (not excluding Austin), and in particular those of the great modern iFrench jurists, have shown how unnecessary it is to resort to the use of phraseology borrowed in part from Germany and in part from the neo- physicists. The matter is one of some moment, particularly in England, where the study of the law in an academic direction is being pursued in circumstances of difficulty which cannot fail to be enhanced if concepts which s}lould be simplified as much as possible, are stated in words which can only be understood by those who have invented them. It matr be that legal English i9 not sufficiently supple for all purposes, but in that event it can be supplemented by a resort to the phraseology of Roman law, with the aid of which most, if not all, of the difficulties can be surmounted. The invention in any language of terms ' ad hoc X is a dangerous expedient and one which should be avoided whenever possible. It is difficult to avoid the suspicion that some modern writers do not themselves always clearly understand their expositions: it is certain that their readers are often left in the dark.

H. C. G.

Les Ordonnances Civiles du C/tonceliew Da.yuesseau. B5r Prof. ]IENRI 1tEGNALrLT. Paris: Recueil Sirey. 1929. sis an(l 658 pp.

DAalJEssEAu was one of the great French jurists of the early elghteenth century, but his fame rests chiefly on his pioneer work in the field of the ullification of French law. Perhaps the nsost remarkable of his achieve- ments in this direction was the ' Ordonnance sur les Donottons ' of 1731, which forms the subject-matter of Professor Regnault's learned treatise. This Ordonnance., which was absorbed to a large extent into the Code Napoleon, was based on replies elicited by a questionnaire 8ubmitted by Daguesseau to the ' Parlements ' and supelior courts of France. This raw material had disappeared at least so it was thoughSuntil the guardian angel who watches over bibliophiles led Professor Regnault to a book stall on which he found a bound manuscript containing a copy of the replies returned by the Parlement of Grenoble to Daguesseau's questionnaire. The finder has utilized this discovery to the best advantage and has given us an extremely able 3nd careful study of the early French law relating to Gifts. The importance of llis work may be gauged by

This content downloaded from 195.78.108.51 on Sun, 15 Jun 2014 13:54:33 PMAll use subject to JSTOR Terms and Conditions

Book Reviews. Book Reviews. Book Reviews. 2og 2og 2og

tlie fact that it is prefaced by an mtroduction from the pen of Professor Capitant, who i8 perhaps the leading ' Civiliste ' of the present time. This treatise may, in fact, be regarded as indispensable to a serious study of the history of the French law of property.

H. C. G.

The Contract of Sale of Land, as agected by the Legislatiow of 1925. By T. CYPRIAN WILLIAMS, Bencher of Lincoln s Inn. I,OndOn: SWeet & MaXWe11, Ltd. 1930. 1NVi and 294 PP.

MR. CYPRIAN WILLIAMS, the author of the classic treatise on the Law of Vendor and Purchaser, is one of those great lawyers who have by their achievement honoured the memory of a great father. His work is of so high an order of scholarship that there are few men living on whose part it would not be an impertinence to commend it.

The origin of this monograph on the contract of sale of land is, the author tells uSJ that in the course of rpvising his book on Vendor and Purchaser he decided that it might be useful to publish the present terms of 3n open contract. 3Jut, the law being the ' seamless web ' that it is, one thing led to another, and the result is a sort of digest of the law governing sales of land.

The introduction contains the following warning as to the confusion which the Law student must face. ' He must learn what is the common law of the sale of land; what are the rules of equity which temper, etc.; what are the enactments which Yary) etc.; what are the general conditions of sale which modify, etc.; what are the special conditions of sale which qualify, etc.; and, further, what are the remedies which enable the parties to enforce the contract consisting of the special conditions of sale qualifying, etc., etc.' After this explanation, though both the plain man and the student may not go so far as to endorse Mr. Bumble's conclusion (nfandum, inter juns-consqDltos non nominandqsm) with respect to the law (ses ' Oliver Twist,' Chap. LI), it is likely that they will not dissent from the use of the choice expression ascribed to Oliver Cromwell, and will concur in the description of the average contract for the sale of land as an 'ungodly jumble.'

The appropriate comment }s that the more ungodly the jumble, the greater the gratitude due from the student to Mr. Williams.

It is pleasant to see the dedication in memory not only of the author's brother, also an eminent lawyer, but also of F. W. Maitland.

H. A. H.

The(ry of Legislation. An Essay on the Dynarnics of Publ1c lltnd. BY E. JORD, Professor of Philosophy in Butler Universit>r, Indianapolis. ProOress Pllblishing Compally. 1930. 486 pp.

THIS is an elaborate and learned work in a new field. It appears to be designed for the advanced philosopher, not the average lawyer at least, not the English lawyer. This is borne out bythe following e2tracts:

tlie fact that it is prefaced by an mtroduction from the pen of Professor Capitant, who i8 perhaps the leading ' Civiliste ' of the present time. This treatise may, in fact, be regarded as indispensable to a serious study of the history of the French law of property.

H. C. G.

The Contract of Sale of Land, as agected by the Legislatiow of 1925. By T. CYPRIAN WILLIAMS, Bencher of Lincoln s Inn. I,OndOn: SWeet & MaXWe11, Ltd. 1930. 1NVi and 294 PP.

MR. CYPRIAN WILLIAMS, the author of the classic treatise on the Law of Vendor and Purchaser, is one of those great lawyers who have by their achievement honoured the memory of a great father. His work is of so high an order of scholarship that there are few men living on whose part it would not be an impertinence to commend it.

The origin of this monograph on the contract of sale of land is, the author tells uSJ that in the course of rpvising his book on Vendor and Purchaser he decided that it might be useful to publish the present terms of 3n open contract. 3Jut, the law being the ' seamless web ' that it is, one thing led to another, and the result is a sort of digest of the law governing sales of land.

The introduction contains the following warning as to the confusion which the Law student must face. ' He must learn what is the common law of the sale of land; what are the rules of equity which temper, etc.; what are the enactments which Yary) etc.; what are the general conditions of sale which modify, etc.; what are the special conditions of sale which qualify, etc.; and, further, what are the remedies which enable the parties to enforce the contract consisting of the special conditions of sale qualifying, etc., etc.' After this explanation, though both the plain man and the student may not go so far as to endorse Mr. Bumble's conclusion (nfandum, inter juns-consqDltos non nominandqsm) with respect to the law (ses ' Oliver Twist,' Chap. LI), it is likely that they will not dissent from the use of the choice expression ascribed to Oliver Cromwell, and will concur in the description of the average contract for the sale of land as an 'ungodly jumble.'

The appropriate comment }s that the more ungodly the jumble, the greater the gratitude due from the student to Mr. Williams.

It is pleasant to see the dedication in memory not only of the author's brother, also an eminent lawyer, but also of F. W. Maitland.

H. A. H.

The(ry of Legislation. An Essay on the Dynarnics of Publ1c lltnd. BY E. JORD, Professor of Philosophy in Butler Universit>r, Indianapolis. ProOress Pllblishing Compally. 1930. 486 pp.

THIS is an elaborate and learned work in a new field. It appears to be designed for the advanced philosopher, not the average lawyer at least, not the English lawyer. This is borne out bythe following e2tracts:

tlie fact that it is prefaced by an mtroduction from the pen of Professor Capitant, who i8 perhaps the leading ' Civiliste ' of the present time. This treatise may, in fact, be regarded as indispensable to a serious study of the history of the French law of property.

H. C. G.

The Contract of Sale of Land, as agected by the Legislatiow of 1925. By T. CYPRIAN WILLIAMS, Bencher of Lincoln s Inn. I,OndOn: SWeet & MaXWe11, Ltd. 1930. 1NVi and 294 PP.

MR. CYPRIAN WILLIAMS, the author of the classic treatise on the Law of Vendor and Purchaser, is one of those great lawyers who have by their achievement honoured the memory of a great father. His work is of so high an order of scholarship that there are few men living on whose part it would not be an impertinence to commend it.

The origin of this monograph on the contract of sale of land is, the author tells uSJ that in the course of rpvising his book on Vendor and Purchaser he decided that it might be useful to publish the present terms of 3n open contract. 3Jut, the law being the ' seamless web ' that it is, one thing led to another, and the result is a sort of digest of the law governing sales of land.

The introduction contains the following warning as to the confusion which the Law student must face. ' He must learn what is the common law of the sale of land; what are the rules of equity which temper, etc.; what are the enactments which Yary) etc.; what are the general conditions of sale which modify, etc.; what are the special conditions of sale which qualify, etc.; and, further, what are the remedies which enable the parties to enforce the contract consisting of the special conditions of sale qualifying, etc., etc.' After this explanation, though both the plain man and the student may not go so far as to endorse Mr. Bumble's conclusion (nfandum, inter juns-consqDltos non nominandqsm) with respect to the law (ses ' Oliver Twist,' Chap. LI), it is likely that they will not dissent from the use of the choice expression ascribed to Oliver Cromwell, and will concur in the description of the average contract for the sale of land as an 'ungodly jumble.'

The appropriate comment }s that the more ungodly the jumble, the greater the gratitude due from the student to Mr. Williams.

It is pleasant to see the dedication in memory not only of the author's brother, also an eminent lawyer, but also of F. W. Maitland.

H. A. H.

The(ry of Legislation. An Essay on the Dynarnics of Publ1c lltnd. BY E. JORD, Professor of Philosophy in Butler Universit>r, Indianapolis. ProOress Pllblishing Compally. 1930. 486 pp.

THIS is an elaborate and learned work in a new field. It appears to be designed for the advanced philosopher, not the average lawyer at least, not the English lawyer. This is borne out bythe following e2tracts:

This content downloaded from 195.78.108.51 on Sun, 15 Jun 2014 13:54:33 PMAll use subject to JSTOR Terms and Conditions