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  • Writer's pictureWilliam Tyler

Old Law, New Law

In a civil case brought in The High Court, and subsequently which went on appeal to The Court of Appeal, Gaius, the Roman lawyer and jurist who lived in the second century AD, and whom I studied, unbelievably now, in the original Latin back in 1964,was cited as support for a line of argument by one of the lawyers arguing in the case.

The case itself revolved around the sale of fish lakes. Borwick Development Solutions (BDS) claimed that the sale of the lakes did not include the fish stock in them. The final sale of the lakes were sold by BDS's Receivers to Clear Water Fisheries (CWF). The original sale specified the lakes and the stock in them but the final sale, conducted by the Receivers, only referred to the land where the fish lakes were. No reference to the fish stocks.

In the first hearing CWF argued unsuccessfully that the fish came with the lakes. The fish stocks, said The High Court, remained the property of BDS. CWF appealed and argued that the fish were included in their purchase of the lakes, although not specifically mentioned.. BDS's lawyers argued on appeal that the fish did indeed remain with them and had not been included in the sale.

CWF's lawyers argued their case of the fish being included in the purchase by citing Gaius's 'Second Commentary' written in 161 AD. Gaius had written, '...wild beasts, birds, and fishes, as soon as they are captured [in this case the lakes filled by BDS with captive carp] become, by natural law the property of the captor, but only continue so long as they continue in his power'. The 'but' is the important bit. As BDS no longer owned the lakes then the carp could no longer be regarded as being under their power or control. The Court of Appeal accepted this argument based on natural justice and the writings of Gaius. How my Roman Law tutor, Dr Kelly, would have relished this.

I also relish the idea, when we have such convoluted. and often badly drafted, Parliamentary legislation, such as the Act governing lockdown. The old ways of simple commonsense can still win the day in an English court. There is hope yet!

It also shows in dramatic form how history can be relevant in the present. I am reminded of a solicitor friend of mine who won a land law case at Gloucester, years ago, by citing medieval case law; but in fairness he did hold both a history and law degree.

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05 de mai. de 2020


Most interesting, I shared William's Blog with my son in law who is a QC. His comments below are also interesting I think:

"Yes : I saw that case – it was reported in The Times a few days ago as well … Remarkable. Especially as Scots law is closer to Roman law than is English law.

The most famous fish case however is the celebrated answer of CB Fry in his law exams. He had spent the time playing sport – he played both football and cricket for England – and had not done much work.

The question was something like: Discuss the Anglo-Norwegian fishing disputes 1920-1927 from the point of view of (a) the…

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