Law and Fact

Legal Method
Law logic and reasoning
Determining the Ratio Decidendi
of a case

Dr. Tabrez Ahmad, 1
technolexindia.blogspot.com

Determining Ratio of a
case
• Since the ratio decidendi of a case has the nature
of a propositional function, it is variable and
becomes elusive. And jurists have even been in
search of it. Any legal system using precedent has
to consider the way in which they are relevant. To
this end the relevancy is found in the fact that
decisions involve some principle of general
application. But the question is: how is this to be
ascertained? Classical theory has regarded the
binding part of a decision as the legal principle
formulated.

Dr. Tabrez Ahmad, 2

• him the ratio decidendi is controlled by the
relation between "the material facts" of the case
and the holding on these facts. While the ratio
consists of the very reasoning necessary to
explain the holding on "the material facts" found
by the precedent judge, he suggests that the
better way to approach the problem is to
elucidate the ratio of a case from the facts
themselves rather than from the principle
enunciated by the Cour.

Dr. Tabrez Ahmad, 3

• Julius Stone challenges Goodhart and distinguishes between
"descriptive" and "prescriptive" ratio decidendi to conclude that
facts may be of many possible "levels of generalisation".
Descriptively the phrase imports an explanation of the court's
reasoning to its conclusion based on sociological, historical and
even psychological inquiry. And the finding from such an inquiry is
true or untrue as a matter of fact. This may be sought at various
levels. Prescriptively the phrase refers to a normative judgment,
requiring us to choose a particular, that is, binding ratio decidendi.
In other words, Stone's argument is that Goodhart's theory yields
indeterminate results because the "principle" derivable from a
case by the Goodhart method of "material facts plus decision" is
entirely dependent on the level of generality at which one chooses
to describe the facts.

Dr. Tabrez Ahmad, 4

• In this context R. Cross defines "the ratio
decidendi of a case" as "any rule of law
considered necessary by the Judge for the
decision of the case: it is that part of the
decision which has binding effect and the facts of
the case play a large part in its identification".
Hence, all other statements of law are obiter
dicta. Now, the word "necessary" is used in the
sense of "essential to the working of a judicial
system". It seems Cross supports Goodhart. And a
binding principle may be sketched as follows.

Dr. Tabrez Ahmad, 5

• Where the facts are a, b, c, d, e, g and a
reported decision is P, the decision is said
to be based on the rule that whenever A,
B, C then X should be decided. Here the
lower case letters stand for the particular
circumstances of the case and capital
letters for general properties of facts so
that a is an instance of A, etc. Thus the
ruling in P can be summarised as:
• P: a, b, c, d, e, g/A.B.C X.

Dr. Tabrez Ahmad, 6

• The novel case, N, is a case of a1, b1, c1, 1, (i.e. not — e1),
f1 and it is governed by P, which is binding on the court.
Now, in case the court decides to follow P, its ruling will be:
• N: a1, b1, c1, d1, 1, f1, /A.B.C X.
• In spite of some difficulties Goodhart's definition of ratio
decidendi may be taken as a working rule. According to him
the ratio is equated with the material facts of the case plus
the decision thereon. And the rules for finding the ratio or
principle may be summed up as follows:
• (1) The principle of a case is not found in the reasons given
in the opinion.

Dr. Tabrez Ahmad, 7

• (2) The principle is not found in the rule of law set forth as
the opinion.
• (3) The principle is not necessarily found by a consideration
of all the ascertainable facts of the case, and the Judge's
decision.
• (4) The principle of the case is found by taking account
• (a) of the facts treated by the Judge as material, and
• (b) his decision as based on them.
• (5) In finding the principle it is also necessary to establish
what facts were held to be immaterial by the Judge, for
the principle may depend as much on exclusion as it does on
inclusion.

Dr. Tabrez Ahmad, 8

• Goodhart himself mentions that his definition suffers from two
infirmities. The first is that the facts are "infinitely various",
though the material facts are strictly limited. Thus the
consideration in a contract is a single material fact but the kinds
of consideration are unlimited. Secondly, it may happen that the
facts, stated by the Judge to be real and material, can be actually
non-existent. This is a hypothetical case. It may be pointed out
that the whole doctrine of precedent is based on the theory that
generally Judges do not make mistakes either of fact or of law. In
other words a decision given per incuriam is an exception that
confirms the general rule. A case may be wrongly decided or
decided for the wrong reason. As pointed out by Simpson: "The
ratio of a case is only binding if it is not inconsistent with statute,
or inconsistent with the ratio of another decision.

Dr. Tabrez Ahmad, 9

• Now cases may differ according as they contain a single opinion or
several opinions. The determination of the ratio decidendi becomes
easier if there is only a single opinion or all the opinions are in
agreement. In case the several judgments agree in the result, but
differ in the material facts on which they are based the principle
is limited to the sum of all the facts considered material by the
various judges. Thus a case involves facts A, B and C and the
defendant is held liable. The first judge finds that fact A is the
only material fact, the second that B is material, the third that C
is material. The principle of the case is therefore, that on the
material facts A, B and C the defendant is liable. If, however, two
of the three judges had agreed that fact A was the only material
one and that the others were immaterial, then the case would be a
precedent one on this point, though the third Judge had held that
the facts B and C were material ones.

Dr. Tabrez Ahmad, 10

• This may sound too mechanical and may be seen in the case
of Golak Nath v. State of Punjab, as decided by the Indian
Supreme Court.
• Five judgments were delivered in the Golaknath case by (1)
the Subba Rao block of Subba Rao, C.J., Shah, Sikri, Shelat
and Vaidialingam, JJ.; (2) Hidayatullah, J.; (3) the Wanchoo
block of Wanchoo, Bharagava and Mitter, JJ.; (4) Bachawat,
J; and (5) Ramaswami, J. They may be reduced to three if
the joint dissenting judgments of the Wanchoo block are
equated with the separate dissenting judgments of (4) and
(5). And the position would be like this: the Subba Rao block
of five; the Wanchoo block of five; and the lone judgment
of Hidayatullah, J. Six propositions seem to have been laid
down by the judgments as follows:


• (a) Parliament cannot amend Part III of the Constitution of
India so as to "take away or abridge" the fundamental
rights; (b) all amendments made prior to February 27, 1967
and affecting fundamental rights other than the "right to
property" have full validity; (c) the effect of the first,
fourth and seventh amendments on the "right to property",
though made prior to February 27, 1967 remains valid and
operative as part of the law of India; (d) the seventh
amendment to Article 31-A(2) is similarly valid and
operative; (e) the seventeenth amendment expanding the
list of statutes in the Ninth Schedule is similarly valid and
operative; and


• (f) the impugned land reform legislation of Punjab and
Mysore (Karnataka) is wholly valid. It is interesting to note
how these propositions are established, (a) is held by the
majority comprising (1) and (2); (b) is held by (2) only,
though it necessarily follows from the view of the Wanchoo
block comprising (3), (4) and (5); (c), (d) and (f) are held
unanimously; and (e) is held by ten Judges with Hidayatullah,
J. dissenting. And the question is how to extract a single
ratio out of these judgments. The answer is that the tangle
of five separate judgments cannot possibly yield any single
ratio. As observed by R. Cross:


• "The ratio decidendi is a conception
peculiarly appropriate to a single judgment.
Accordingly, it is probably impossible to
avoid something in the nature of arbitrary
rules to meet cases in which several
judgments are delivered. The main trouble
is that it is impossible to formulate these
rules with anything like complete
precision."


• Three approaches may be considered in this connection. The
first approach takes the phrase itself as a sufficient guide
to the ratio. Thus in the Golaknath case one is to look for
those propositions of law which were necessary and
sufficient to base the "declaration" made by the Supreme
Court. Article 141 uses the expression "declared" and this is
explained by Subba Rao, C.J. thus: "The expression
'declared' is wider than the words 'found or made'. To
declare is to announce opinion. Indeed the latter involves
the process, while the former expresses result.
Interpretation, ascertainment and evolution are parts of
the process, while that interpreted, ascertained or evolved
is declared as law. The law declared by the Supreme Court
is the law of the land."


• And what was necessary for the decision was the
conjunction of the reasons given either (i) by the 5-man
Subba Rao block and the 5-man Wanchoo block; or (ii) by
the 5-man Subba Rao block and by Justice Hidayatullah; or
(iii) by the 5-man Wanchoo block and by Justice
Hidayatullah. On any of these hypotheses, two sets of
reasons would be necessary; and the one wholly immaterial
and this might be any one of the three. The Wanchoo block
was in a minority in regard to proposition (a) and this does
not mean that its reasons were not "necessary to the
decision". However, these reasons can be ignored only on
the ground that there was sufficient majority to base the
decision without them. But this equally applies to either of
the two sets of "majority" reasons.


• The result is that the first supposed test of the ratio decidendi
would lead to an insoluble choice amongst three pairs of sets of
reasons with each pair comprising two different sets of ideas. In
practice, of course, the choice is not wholly insoluble. It is evident
that the reasons of the Wanchoo block are inconsistent with those
of either the Subba Rao block or Justice Hidayatullah. But the
last two reasonings are not necessarily inconsistent. Their
compatibility tends to assume that these two judgments form the
source of the ratio. Here one may hold with Chief Justice
Centlivres in the South African case of Fellner v. Minister of the
Interior, that even if a case has no apparent ratio decidendi, the
actual "decision" is "binding". In the narrowest sense of "decision",
this gives binding force only to proposition ( f); but on a wider
meaning of "decision" all the propositions are binding.


• The second approach may be formulated in terms of
"counting heads". Here one simply adds up the number of
Judges giving the propositions. Of course, the search is for
a majority of the participating judges. Let us take a case
with four views, p, q, r and s and in a court of 11 Judges — p
is supported by 4 judges, q and r by 3 each, and s, by the
remaining one. On a strict version of "counting heads" none
of the four views would be established, since none had a
clear majority. On the looser version p had more support
than any of the others and it would be part of the ratio. But
this violates Article 145(5) of the Indian Constitution,
requiring that the "judgment" and "opinion" need be
"delivered with the concurrence of a majority of the
Judges present at the hearing of the case".


• As observed by Greenbery S.A. in the Fellner case: "The
object of the enquiry is to ascertain what is the ratio
decidendi and not what are the opinions of Judges. Insofar
as the law is built up by judicial (precedent), it is not built
up on a counting of heads of all the members of the Court.
It is in the reasons of the majority of the Court for the
order that the ratio decidendi is to be sought, the reasons
of the dissenting Judges being irrelevant for this purpose"
In this context, "counting heads" in its looser version would
help us only as to the acceptance of "prospective
overruling".


• The third approach may be termed "the majority
of the majority". If the Golaknath decision is
proposition (a), it is supported by 6 of the 11
Judges and 5 support it for identical reasons. By
equating the ratio with the reasons given by "the
majority of the majority", Golaknath is confined
to the single judgment delivered by Chief Justice
Subba Rao with Justice Hidayatullah concurring
with him. And the difficulties involved in
extracting a ratio from Golaknath lead one to
prefer a pragmatic approach to precedent —
construction to rationes


Legal Method
Analysing of the "Common Cause


• The "Common Cause" is a registered Society. Under Article
32 of the Indian Constitution the Common Cause and three
retired government servants asked for striking down
certain provisions of the Commutation of Pension Rules
applicable to civilian and defence pensioners, since they
permit the Union of India to recover more than what is paid
to the pensioners upon commutation. Besides, the
petitioners sought for a direction asking the Government to
rationalise its scheme of commutation. The Single Judge of
theSupreme Court has delivered two judgments — one
relating to the civilian employees and the other relating to
the defence personnel — and tried to make it a single
judgment.


• During the course of the hearing the Union Government agreed to
restore the commuted portion of the pension in respect of "all
civilian employees at the age of 70 years or after 15 years
whichever is later". The facts are: (1) commutation makes available
a lump sum to a pensioner; (2) there is the risk factor involved in
case the pensioner dies before full recovery; (3) some
Governments including State and Union have formulated a 15-year
rule for restoration of the commuted pension; and (4) the 15-year
formula is not justifiable because it permits recovery of more
than the dues. The court has considered facts (1), (2) and (3) as
material and ignored fact (4) in coming to the decision that
restoration would take place on the expiry of 15 years from
retirement. But this decision is given per incuriam, since it abets
"unjust enrichment" banned by Section 70 of the Indian Contract
Act, 1872.


• As observed by Gajendragadkar, J. of the
Supreme Court in State of West Bengal v. B.K.
Mondal: "What Section 70 prevents is unjust
enrichment and it applies as much to individuals as
to Corporations and Government." In this context,
Simpson observes: "The ratio of a case is only
binding if it is not inconsistent with statute, or
inconsistent with the ratio of another decision."
And since the 15-year rule in the Common Cause
violates both it cannot be the ratio of the case.
In the result, it goes out.


• We are now concerned with the defence personnel judgment. Here
Misra, J. comes to the right point and adopts the "years of
purchase" basis and goes back to the 15-year rule by adding two
years to the period necessary for the recovery on the basis of
years of purchase. It may be noted that this addition of two years
is not justifiable because of the existence of the "multiplier
effect" involved in the "years of purchase". A multiplier is the
number by which the amount of a specific capital investment is
multiplied to give the resultant total amount by which the income
has increased. Let us take a concrete example. If I-Investment, Y
= income or capital value, then the multiplier K = Y/1 or KI = Y. In
other words, the multiplier of investment (monthly payment
because of commutation) to obtain capital value (lump sum given by
way of commutation) is known as the years' purchase. And the
number of years' purchase is found by dividing the capital value
(lump sum) by investment (monthly payment by pensioner).


• The total amount obtained by a pensioner at a time is the product of the
monthly payment out of the pension and the number of years necessary for
full recovery by Government. In the judgment this has been ignored and
the "multiplier" widened so as to make it equal to 15 years. But there is
absolutely no scope for the addition of two years to the multiplier as is
evident from the above equation. Moreover, this multiplier is a variable in
respect of each pensioner, because of the variability of I and Y involved in
the commuted pension. Therefore, it cannot be equated with the fixed 15-
year rule by the addition of two years to the multiplier. It is a
mathematical paradox. Finally, the judgment makes "equity" or equality
stand on "the more or less basis". Mathematically this is absurd. For "more"
is denoted by the sign > , "less" by < , while equality by =. Now, if > or <
remains = cannot take the field. This, it is most respectfully submitted,
sounds like an Orwellian paradox: "All animals are equal, but some animals
are more equal than others."


• In this context we are to extract the ratio from the Common
Cause. The Court's decision is the restoration of the commuted
portion of the pension on the expiry of 15 years from retirement.
This applies to civilian and defence pensioners and is made
effective from April 1, 1985. And the question is: what is the ratio
decidendi of the case? It has already been shown that the court
has accepted the 15-year rule since the Governments have
accepted it. This, it is submitted, cannot be called a judicial
decision. For Misra, J. concludes: "Many of the State Governments
have already formulated schemes accepting the 15-year rule. We
do not think we would be justified in disturbing the 15-year rule so
far as civilian pensioners are concerned." Here Section 70 banning
"unjust enrichment" is violated and the Court is blissfully ignorant
of this. The 15-year rule has been challenged by the Common
Cause because it abets the commission of this offence. This is the
justification for the Court's intervention in the matter.


• However, the correct yardstick has been evolved by the
court in respect of the defence pensioners: "the ' years of
purchase' basis". Unfortunately, the court has erred, it is
submitted, in adopting two bases on commutation according
as the pensioners are civilian or defence while coming to the
same decision as to the restoration of the commuted
portion of pension. This is wrong. As pointed out by the
Supreme Court in D.S. Nakara v. Union of India: "The
pensioners for the purpose of pension benefits form a class.
The equal treatment guaranteed in Article 14 is wholly
violated inasmuch as the pension rules accord differential
and discriminatory treatment to equals in the matter of
commutation of pension. Division is thus both arbitrary and
unprincipled."


• The Court has proceeded from the start on the
two yardsticks — one for the civilian pensioners
and the other for the defence personnel. The
civilian yardstick is the 15-year rule, while the
defence yardstick is "the years purchase' basis".
Thereafter, the latter has been equated with the
former by the addition of two years. But this
does more injustice than justice. Yet the Court
claims that this is 'equitable'. This is, to say the
least, unfair.


• Now, the question is: what is the ratio? It has already been
shown that there has been a double-think in the adoption of
two yardsticks on the restoration of the commuted portion
of pension. For, the 15-year rule and "the 'years of
purchase' basis" are two contradictory ideas and they
remain irreconcilable. Secondly, double-talk appears in
lengthening the procrustian bed of the years of purchase
basis so as to make it fit in with the 15-year rule. Thirdly,
the case gives the impression of two judgments, concurrent
and dissentient. And the concurrent judgment has been
arrived at without any legal reasoning. It is the function of
the "hunch" in judicial decision. Here the Judge decides by
feeling, and not by judgment; by "hunching" and not by
ratiocination. As observed by Hutcheson


• "The vital, motivating impulse for the decision is an intuitive
sense of what is right and wrong for that cause. And that
Judge having so decided enlists his every faculty and
belabours his laggard mind, not only to justify that intuition
to himself, but to make it pass muster with his critics.
Judges really do try to select categories or concepts into
which to place a particular case so as to produce what the
judge regards as a righteous result." Since the decision on
the 15-year rule is given per incuriam, it has no binding
effect at all. Fourthly, in case the one goes out, the other
remains. Hence, the dissentient judgment, namely, "the
'years purchase' basis" remains and attains the status of
concurrent judgment.


• And the question of its expansion into the 15-year rule does
not arise, since the latter violates Section 70 of the
Contract Act and is not enforceable. Finally, "the 'years
purchase' basis" becomes the ratio decidendi leading to the
order for restoration of the commuted portion of pension
to the pensioners. And the 15 years' limitation does not
apply. In other words, the number of years necessary to
repay the total lump sum would govern the recovery and no
pensioner can be made to pay more than what is paid to him.
And this is what the Common Cause has asked for.


Ratio in the "Common
Cause"


• Theories falling under quasi-contract are founded on a
broad principle that unjust enrichment should not be
retained at the expense of one who has suffered. In French
law this principle is known by the name of actio de in rem
verso, which "is founded on the principle of equity which
forbids one man to enrich himself at the expense of
another". This is applicable where "the estate of one person
being enriched without lawful cause at the expense of
another person, the latter, in order to obtain what is due to
him, does not enjoy the benefit of any action based on
contract, quasi-contract, delict or quasi-delict".


• Some recent codes provide for the return of unjust
benefit. This may be seen in Article 123 of the Polish Code,
Article 703 of the Japanese Civil Code, Articles 399-402 of
the Civil Code of Soviet Russia, Article 62 of the Swiss
Federal Code of Obligations, Article 812 of the German Civil
Code and Article 179 of the Chinese Code. The American
Restatement of the Law of Restitution, 1937 at p. 634
provides for an accounting by the plaintiff as a condition
for restitution. Lord Wright in England has pleaded for a
new law of restitution in place of the fiction of the implied
contract, where it is unreasonable and unjust for the
defendant to retain the benefit he has received.


• The doctrine of unjust enrichment flowing from quasi-
contract was partially stated in Section 70 of the Indian
Contract Act, 1872. And the Supreme Court noticed it in
State of West Bengal v. B.K. Mondal in which it was applied
to Government. Subsequently, the concept of unjust
enrichment has suffered a sea change at the hands of the
Supreme Court in Mulamchand v. M.P. State The Court has
held that Section 70 is based on a different kind of
obligation: "The juristic basis of the obligation in such a
case is not founded upon any contract or tort but upon a
third category of law, namely, quasi-contract or
restitution." In this connection the Supreme Court has
quoted with approval the observations of Lord Wright in
Fibrosa v. Fairbairn


• thus: "Any civilised system of law is bound to provide
remedies for unjust enrichment or unjust benefit, that is,
to prevent a man from retaining the money or some benefit
derived from another which it is against conscience that he
should keep. Such remedies in English law are different
from remedies in contract or in tort and fall within a third
category of the common law called quasi-contract or
restitution." The concept has been further widened so as to
include both law and equity. Hence the Indian Supreme
Court has been pleased to note the latest development of
the law by quoting the observations of Lord Denning in
Nelson v. Larholt


• "It is no longer appropriate to draw a distinction between law and equity.
Principles have now to be stated in the light of their combined effect.
Remedies now depend on the substance of their right, not on whether they
can be fitted into a particular framework . The right here is not peculiar to
equity or contract or tort, but falls naturally within the important category
of cases where the court orders restitution if the justice of the case so
requires." And the principle of restitution has been brought on a par with
the American Restatement of the Law of Restitution. This means according
to the Supreme Court that "a person (seeking) restitution has a duty to
account to the defendant for what he has received in the transaction from
which his right to restitution arises". This is the present position of the
law of restitution since Section 70 of the Contract Act started on its
journey in 1872. And the Common Cause v. Union of India has been decided
on this law, though the Court has not uttered a single word in this regard.
Lord Denning's expression summarises the law: "restitution if the justice
of the case so requires". And the Indian Supreme Court has approved of
this in Mulamchand.


• Since the law of restitution is applicable to commutation,
the 15-year rule is arbitrary and it causes injustice. Here it
is necessary to bring out the distinction between ratio
decidendi and obiter dictum. As observed by H.J. Abraham:
"Ratio decidendi refers to the essence, the vitals, the
necessary core of the decision; obiter dictum is more or
less extraneous, presumably unnecessary-to-the decision
point made by the author of an opinion. In other words, the
former constitutes the legal rule to be followed and
adhered to below; the latter is an expression of a brief
viewpoint, or sentiment, which at least in theory, has no
binding effect


• Of the two reasons — "the 15-year rule" and "the 'years of
purchase' basis" — the first cannot be justified since it incarnates
injustice in the shape of unjust enrichment. In other words, the
15-year rule is an "unnecessary to the decision point made by the
author of an opinion: (it) is an expression of a brief sentiment
(having) no binding effect". Hence, it is an obiter dictum. On the
other hand, "the 'years' purchase' basis" is "the necessary core of
the decision: (it) constitutes the legal rule to be followed and
adhered to below". In other words, this is the ratio decidendi,
having the binding effect. As pointed out by Simpson: "the reason
why a judge enunciates the rule of law upon which he acts is that
the rule justifies his action: not any rule will serve as a
justification, but only a rule which is acceptable as a rule of the
legal system."


• There is perpetual flux in the total push and pull of the
universe and a judge faces a twofold task: (1) he must first
extract from the precedents the underlying principle, the
ratio decidendi; (2) he must then determine the path or
direction along which the principle is to move and develop.
Unfortunately Misra, J. has not in the Common Cause
followed the salutory advice given by Cardozo. In case of
conflict of principles, one may point to one conclusion and
another may point to a second conclusion. A judge is to
choose between two paths, selecting one or the other and in
some cases he is to hit upon a third, which will be the
resultant of the two forces in combination or will represent
the mean between the extremes. This is illustrated by the
case of Riggs v. Palmer


• wherein it was decided that a legatee murdering his testator would not be
permitted to enjoy the benefits of the will. Three principles contended for
mastery. The first was the principle of the binding force of a will disposing
of the testator's estate in conformity with law. This pushed to the limit of
its logic seemed to uphold the title of the murderer. The second principle
was that Civil Courts might not add to the pains and penalties of crimes.
This pushed to the limit of its logic seemed to uphold his title. Over against
these two was the third principle rooted in justice, namely, that no man
should profit from his own iniquity. And the logic of this principle prevailed
over the logic of the other two. In the Common Cause also the same may be
noticed. The logic of "the years' purchase basis" is to prevail over the logic
of the 15-year rule, since the former is rooted in justice while the latter is
not. And the ratio decidendi of the case is "the 'years purchase' basis". In
the words of the Supreme Court: "A decision is binding not because of its
conclusion but in regard to its ratio and the principle laid down therein."


Conclusion
• In a famous dictum Lord Halsbury said: "A case is only authority
for what it actually decides. I entirely deny that it can be quoted
for a proposition that may seem to follow logically from it. Such a
mode of reasoning assumes that the law is necessarily a logical
code, whereas (it) is not always logical at all." Literally interpreted
it would be fatal to any system of precedents. But what Halsbury
meant is that there is more to the law than a mechanical process
of logical deduction. It is obvious that the Judge has in every case
to decide for himself which of the circumstances of the alleged
precedent were relevant to the decision and whether the
circumstances of his own case are in their essentials similar. Once
he has decided which principle to apply, a bit of logic may enter
into his application of principles. But there cannot always be a
principle which imposes itself or an absolutely inescapable logical
deduction. Generally there is a choice


• And this has been explained by Chandrachud, C.J. in Deena
v. Union of India thus: "Any case, even a locus classicus, is
an authority for what it decides. It is permissible to extend
the ratio of a decision to cases involving identical situations,
factual and legal, but care must be taken to see that this is
not done mechanically, that is, without a close examination
of the rationale of the decision cited as a precedent."
• In this context the role of the Judge is described by Lord
Wright while discussing Bell v. Lever Bros thus


• The judge could go step by step with previous authorities to
the point that an agreement based on mistake (is)
unenforceable. Then he would have to decide whether the
same result followed when the prior contract was indeed
existing, but could be cancelled without compensation and
was voidable. Here the ways parted, and the judge had to
make up his mind by analogical reasoning, and by his
perception of what was just or convenient."
• And the Common Cause, it is submitted, leaves much to be
desired insofar as the "analogical reasoning" and the
"perception of what was just" are concerned.


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