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GAZETTE
APRIL 1978
which are not yet in existence as it does to things which
belong to another. Thus under the common law it was not
possible to assign the copyright in a work which did not
exist at the time of the purported assignment: if a work
which does not exist, it cannot be said to be owned or
possessed by the would-be assignor; and if it can be
neither owned nor possessed, it cannot be assigned
(Performing Right Society Ltd. v. London Theatre of
Varieties Ltd.
11924] A.C.I). But does this mean that a
gift of animals in 1962 but not completed till 1971 will
pass only those animals which were alive at both dates,
and not their offspring? It could be argued against the
nemo dat
contention that offspring of livestock follow
their mothers in ownership, at least to the extent that the
conversion of an animal will give rise to an action in
respect of that animal's offspring which are unborn at the
time of the conversion. Could not the notion that
partus
ventrem sequitur
apply equally to the gift of animals as to
their conversion? If so, then the donee in
Conner
would
enjoy the property in all the livestock directly descended
from
ventres
in being when the oral gift was made in
1962.
How
safe is it to rely upon the rule in
Strong
v.
Bird
for
completing gifts?
From the donor's point of view, perfection of an
undelivered gift through the rule in
Strong v. Bird
is most
attractive. The gift is effective at law, but it is not
necessary that the donor be troubled by his loss of a
favourite chattel; after all, he does not 'deliver' it until his
death acts so as to put the donee, as executor or adminis-
trator. into possession of it. But
Strong
v.
Bird
, it is
submitted, comes to the aid of those alone who do not
rely upon it. The reason for this is that only where there is
a continuing and immediate intention of the donor to give,
and this continuing and immediate intention is terminated
by death alone, may the naming of the donee as executor
or his appointment as administrator perfect the gift. That
this is so is plain from
re Freeland
119521 Ch. 110, where
the donor of a motor car, by lending it to a friend (albeit
with the donee's consent), manifested a present intention
which was incompatible with a continuing and immediate
intention to give, and the gift was not perfected by the
donee's becoming an executrix. In addition to this danger
of the gift failing, there is also the possibility that the court
will regard an inordinately long period of time elapsing
between the undelivered gift and its 'perfection' as
evidence that the donor, having made the gift, forgot all
about it; and if one forgets entirely to do something it is
not easy to claim that one has a continuing and
immediate intention to do it (see
re Wale
[1956] 3 All
E.R. 280). Finally there is the risk that the court will view
the donor's state of mind as that of promising the donee
that he, the donor, would make the gift at a future time;
and since promises to give are not perfected by the rule in
Strong
v.
Bird
(see
re Innes
[1910] 1 Ch. 188) the
intended gift would fail. In view of these considerations it
is manifest that the simplest and most effective way to
complete a gift is by immediate delivery.
Book Review
The Court of Justice of the European Communities — L.
Neville, B. Brown and Francis G. Jacobs (Sweet
and Maxwell).
A controversial Irishman, G.B.S. wrote: "You see things
as they are and you ask 'why?'. But I dream things as
they never were; and I ask 'Why not?'." It is well to
remember that the E.E.C. Treaty came of age on 25th
March 1978. Ireland is still a junior infant member of less
than 6 years standing. Nonetheless any member of the
public accepts that the Laws and Institutions of the
E.E.C. have had fundamental effects on all our lives.
This is a fascinating book on the new horizons for the
Irish/European Lawyer. It is a short work (248p) and a
rarity nowadays, moderately priced book (£3.25 paper-
back). It is a book you can read for the pleasure of its
information as for hard facts on practice and procedure.
For this latter purpose it has a short but comprehensive
index; a table of cases in two orders — alphabetical and
numbcrical and a Tabic of Community Treaties.
This book does not deal with the decision of whether
your client's grievance can be remedied in the Court; it
deals with by whom and how it is remedied.
By whom? The authors are obviously partial to the
realist school of jurisprudence. They deal with judges to
show you even how many daughters they have! The
chapter on the. Advocates General is of spccial interest. A
practical example of an opinion of the advocate General
and a Judgement on a case of "laughing" mechanical
toys is set out in full.
How? The various types of Jurisdiction are set out —
Administrative, Civil, Judicial, Review, Constitutional,
Preliminary Rulings etc. with a clatter of statistics. The
Court is a cohesive and effective legal force. The chapters
that follow deal with the various types of procedure, in
greater and lesser detail. The reviewer concludes it would
be unwise to attempt the conduct of a case unaided by a
Luxembourg based lawyer. Cases normally go through
four stages: (a) written, (b) investigation, (c) oral, (d)
judgment. There are no court fees. Costs normally follow
the event.
Chapter 11 deals with lawyers in the court. It struck
me as one of the less informative chapters. However it is
of interest to note a litigant must normally have a lawyer.
All practising lawyers of member states have a right of
audicnce. Legal aid may be granted by the Court.
The last part of the book is an analysis of the Court as
law maker and how it approaches interpretation and
prcccdent. Indeed its whole general approach must give
the Common Law system operators food for thought.
The inadequacies of the Irish System on a half-hearted
English historical base' come home forcibly to me. We
would want a good shakcl
By the way if you do get to Luxembourg and get lost
this book provides a fine pencil sketch of the Court
building you are looking for.
ROBERT PIERSE.
89