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GAZETTE
MARCH 1989
Book Reviews
CASES AND COMMENT ON
IRISH COMMERCIAL LAW
AND LEGAL TECHNIQUE
By Raymond Byrne,
Round Hall Press, (2nd. ed.)
Dublin 1988,
218 pages including preface,
tables of cases, constitutional
provisions, Irish Statutes, Bills,
and EC laws, and index.
Price IRE12.95 pb, IRE20.00 hb.
Oscar Wilde (not notoriously
possessed of reason to be grateful
for the labours of Irish lawyers)
said, in a different context, that it
is "imagination that imitates, and
that it is the critical spirit that
creates". In the second edition of
this work, Mr. Byrne has deployed
his critical spirit, his clear mind, and
vigorous style in commenting on
some of the most important cases
in Irish commercial law. A layman
can painlessly learn to appreciate
something of the judicial approach
to commercial problems. A lawyer
can refine his understanding of
many of the finer points in this
complex area. Judges themselves
will be able, should they so choose,
to see their own decisions within a
linear intellectual progression.
The approach is refreshing,
eschewing the drab, familiar style
of many introductory texts to law,
and the dull and perfunctory
comments favoured by some
anthologists, who burden the
captive student market with
compendiums of Irish cases, fondly
believed to be otherwise inaccess-
ible, but selected for obscure
reasons, illustrating incompre-
hensible and peripheral points, and
proving that extracts from judg-
ments can provide the most boring
and frustrating reading possible for
students.
The book's introduction takes a
series of common experiences
familiar to everyone, e.g. broken
washing machines, difficulties with
neighbours, taping music from a
radio broadcast etc., and explains
the legal implications inherent in
such situations. Gradually, the
difference emerges between
criminal and civil law, EC and
Municipal law, the process of
statutory enactment and judicial
determination is explained, the role
of the Constitution is discussed,
and the framework of Irish law
revealed.
The scene is thus laid for a
critical examination of cases on
precedent and legal reasoning
(chapter 2), interpretation of
statutes, (chapter 3), the Con-
stitution and constitutional rights
(chapter 4), remedies (chapter 5),
commercial orgainisation (chapter
6), negligence and tort law (chapter
7), contracts (chapter 8), Agency
(chapter 9), sales, credit and
financial services (chapter 10),
restrictions on unfair competition
(chapter 11), and insurance
(chapter 12). In a short compass,
the reader learns to appreciate
some of the important problems in
each substantive area, and thus to
follow the method of judicial
determination of them.
It may be that chapters 1-6 could
be criticised as covering the same
material as that contained in Byrne
and McCutcheon's
The Irish Legal
System: Cases and Materials,
Professional Books, Abingdon,
1986. As against this, the material
is different, abridged, presented
colloquially: thus facilitating the
commerce, accounting or E.S.S.
student, to whom law is just one
element in a variety of disparate
courses.
The good student will therefore
be drawn beyond the first chapters
to further reading; the less
conscientious student can confine
his attentions to one text: no bad
option, pedagogically. As an
example, in elucidating
Madigan -v-
AG
[1986] ILRM 136, Byrne
explains the decision, points out
the obvious difficulty in dis-
tinguishing between unconstitu-
tional and otherwise undesirable
legislation, and goes on to explain
how judges purport to give approp-
riate weight to the counter-
balancing constitutional provisions
of Arts 40 and 43, referring the
reader to further judicial discussion
of the same issues pitched at a
more recondite level.
My main gripe about this
excellent book is that some of the
chapters (particularly chapters
eight and ten) cover very large
areas in the commentary, but the
cases used as illustrations deal
with points which, judged by the
commentary, are of minor but
specific importance. This is the
inevitable penalty of short case-
books. However, there is no
mystery in this book why a case is
selected, and what it illustrates.
An alternative approach might
have been to select fewer cases,
and insert, as footnotes, extracts
from other decisions exemplifying
contrasting approaches to the
same question, thus giving greater
weight to the commentary. But
since this criticism involves a
request for more of the author and
less of the judges, it must be
deemed to be an implied com-
pliment.
The book's undoubted value to
students and other rests, not only
on the fluency of the commentary
and the generally felicitous choice
of cases, (one which should not
have been included without
reference to the Copyright
(Amendment) Act 1987) but on the
author's hard scholarship and
breadth of reading and knowledge.
This will be a popular book with
students, but it is written by a
genuine scholar with a knowledge
of the practice of law, who makes
no inappropriate intellectual con-
cessions to his audience, and
whose critical approach clarifies
and instructs.
David Tomkin
DEBT COLLECTION: (1) THE
LAW RELATING TO SHERIFFS.
LAW REFORM COMMISSION
REPORT. LRC 27/88. Price £5.00
The most recent text-books on the
law relating to Sheriffs in Ireland
were published towards the end of
the last century and the most
recent legislation relating to
Sheriffs is now more than 60 years
old.
A hundred years ago people did
not usually have in their possession
goods which they did not own and
it was unusual for businesses to be
carried on by limited companies. In
that relatively uncomplicated
society it was a great deal easier
for a Sheriff to make a successful
seizure than it is to-day.
Today, goods which are in the
possession of an individual may
well be subject to retention of title;
they may be on "sale or return"; on
hire purchase, or be leased or
otherwise owned by somebody
else. Businesses are carried on
frequently not just by one company
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