Additional commentary on the report

Introduction

In addition to the commentary contained in the text boxes, a number of other points may usefully be made.

Material facts

We have already discussed the importance of deciding which facts are material (see p.

In many cases, the materiality of one or more of the facts will often be the essential difference between the opposing advocates, as it is central to the technique of distinguishing other decisions (so that they are no longer binding on the court hearing the case). Applying this approach to the facts in Henthorn v Fraser, we can see that the fact that the property was in Flamank Street, Birkenhead, is immaterial. If the property had been in another street in Birkenhead, or for that matter in any other place in England or Wales, the outcome of the case would have been the same. Likewise, removing or varying the details of the postal transactions would not change the outcome of the case unless the changes of time were such that the building society had been able to communicate – and had in fact communicated – its revocation of its offer before Henthorn posted his acceptance. This would, of course, make the case significantly different from a legal point of view and therefore it helps us identify the materiality of the fact that the appellant had posted his acceptance of the offer before the respondent’s revocation had reached him.

Ratio decidendi

The most difficult challenge when reading a law report is identifying the ratio of the case. The main reason for this difficulty is that when judges make statements of law in a judgment they are not expounding the law in general but are making qualified statements of law which are conditioned by the particular facts of the case.

Where a seller offers an option to purchase property at a fixed price, and agrees to keep the offer open for a specified time, the offer continues for the time specified or until any withdrawal is brought to the attention of the potential buyer. If, before it is revoked, the buyer accepts the offer using the post to communicate his acceptance, the contract is completed when the buyer places his acceptance in the post where (1) use of the post is impliedly authorised or (2) where the parties know, or ought to know, that post might ordinarily be used in such dealings.

This ratio is, of course, based only on Lord Herschell’s judgment, but since Lindley LJ explicitly concurs with Lord Herschell it represents the majority view in the case. On a cautionary note it is worth observing that identifying or formulating the ratio of a case is a matter of interpretation rather than a scientific task with a single correct answer. Much legal argument may turn on identifying the ratio of a particular case. At the same time, it cannot be denied, that the ratios of most leading cases are so well established that they are rarely questioned.

Obiter dicta

We have already noted (see pp. 106 and 111–113) that obiter dicta (which are often called simply dicta) are never, strictly speaking, binding on later courts, but may be persuasive. However, as we also noted, it is seriously misleading to leave it at that. The truth of the matter is that dicta have widely varying degrees of weight, ranging from lightweight, mere throwaway, remarks at one end of the spectrum, to substantial and very strongly persuasive statements – so strongly persuasive, indeed, as to be practically binding – at the other end.

In Henthorn v Fraser, Lord Herschell’s remarks on implied authorisation are clearly an attempt to clarify and develop the relevant law, and are a considered response to a point raised in argument by counsel for the appellants (p. 29 of the report), rather than being simply off the cuff. They can, therefore, reasonably be argued to be closer to – although by no means at – the ‘practically binding’ end of the spectrum of possible weights, rather than the mere ‘lightweight throwaway’ end.

Distinguishing

Lord Herschell concludes his judgment by distinguishing the case of Dickinson v Dodds (p. 33 of the report). When judges distinguish an earlier case they are simply saying that the case cited has no relevance to the present case because its material facts were different. Lord Herschell had already indicated (p. 30 of the report) that he thought Dickinson v Dodds was distinguishable when he intervened in the respondent’s arguments before the court. Closer consideration of both cases shows that two material facts in Dickinson v Dodds and Henthorn v Fraser were the same, because both cases involved a prospective buyer who was granted an option to purchase land and in both cases the owner of the land entered into a contract to sell the land to someone else before receiving the buyer’s acceptance. However, the material fact which distinguishes Dickinson v Dodds from Henthorn v Fraser was that in Dickinson v Dodds (but not in Henthorn v Fraser) the prospective buyer knew about the contract to sell the land to the other person before he tried to accept the offer. It was this difference in the material facts which made the two cases essentially different, with the result that the earlier case was distinguishable (and was, therefore, not binding) in the later one. In fact, as Lord Herschell acknowledges (p.

Marginal markings and neutral citations

Some series of law reports use marginal markings, in order to make it easier to provide pinpoint citations, while others do not. The original report of Henthorn v Fraser contains no such markings, while the most common system in the 20th century was to provide marginal letters, evenly spaced down each page. The system of marginal letters worked reasonably well, but it was rather cumbersome for true pinpoint citations, which had to take a form such as ‘page 234, letter D, line 3’. More importantly, this citation would vary from one set of law reports to another, according to the page numbering of the report in question.

The modern judicial practice (dating from 2001 and being an important part of the system of neutral citation, which is explained at pp. 88–89) is for official transcripts of judgments to number each paragraph. Since these numbers are part of the text, rather than depending on the page numbering of each series of reports, they can safely be relied upon, whichever series of law reports is being used. Unless judges use very long paragraphs, marginal markings are, therefore, superfluous in reports of modern cases.