This thesis examines the 1914 House of Lords decision in Kreglinger v New Patagonia Meat & Cold Storage Co Ltd, a decision which represented a shift in the legal doctrine known as the equity of redemption. It suggests that explanations of the decision which have been given hitherto are unsatisfactory. It therefore presents an explanation for the change in legal doctrine that is located in the broad context of the changing property interests of those sections of the community with which the doctrine was most closely associated in the nineteenth century. Part I discusses some methodological problems which this thesis encounters. It also examines the concept of property as expounded by a select number of major western intellectual theorists on the subject. This part also contains a critical examination and rejection of the two main theorists of classical Marxism who have discussed the relation between law and property. The first part of Part II (chapters 5 - 10) outlines the legal development that culminated in Kreglinger, and rejects the legal reasoning that is used to achieve the decision. The chapters suggest that the major legal reasons given in the decision to support the result are unsatisfactory, and that though there are reasons that the case itself fails to examine which might have been given to provide a better basis for - 3 - the decision, these reasons are also, in the final analysis, insufficient to justify the decision. The penultimate chapter then suggests that as the legal arguments used in the decision are not coherent, it is necessary to search for reasons outside the law to explain the change in the equity of redemption. This chapter indicates that the landholding section of society, on whose behalf the doctrine had originally been developed, had undergone an important, though slow, change in attitude to their lands. The equity of redemption had been associated with the desire of landowners to retain their landed estates, the property which they valued above all else, almost in spite of the cost. But during the nineteenth century, in particular, landowners gradually decided that the sacrifices that became necessary in order to do so were no longer acceptable. By the end of the nineteenth century, many landowners were willing to dispose of their landed estates (where they could do so). They had become concerned to protect a financial asset, rather than try to keep their land no matter what the cost. It is suggested that the dev~lopment from land as a special privileged form of wealth, as an asset to be valued in non-commercial terms, to land treated as just another form of financial asset, is a change of attitude that helps explain the development of the equity of redemption as set out in Kreglinger. The property of landowners had become capital, and this was reluctantly recognised by both landowners and judiciary. The classic equity of redemption was therefore of less importance for the class it was supposed to benefit and it is this development which explains the change in legal doctrine.
| Identifer | oai:union.ndltd.org:bl.uk/oai:ethos.bl.uk:591051 |
| Date | January 1982 |
| Creators | Warrington, Roland Alan |
| Publisher | University College London (University of London) |
| Source Sets | Ethos UK |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
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