If you possess a PhD in Anglo Saxon please write in and explain how our forbears would have understood “on behalf of”.
This appeal has been triggered by the judgments in Morrells of Oxford Ltd v Oxford United Football Club [2001] 04 EG 147 which demonstrate that there is still no agreement on the true meaning of section 79 of the Law of Property Act 1925.
So far as material the section provides (italics supplied):
“A covenant relating to any land of the covenantor… shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if such successors and other persons were expressed.”
As explained by Jane Turley, of Eversheds, in
The second (hereafter the “responsibility school” ) says that the section does no more than affirm that covenants relating to land operate in the same way as most other contractual promises; that is to say, if you undertake to do or not to do something, you assume the risk of that thing not being done or being done, as the case may be.
According to the responsibility school “on behalf of” would mean “with responsibility for” successors and others – thus, in order to make a successor liable, the party having the benefit of the covenant will have to look outside section 79.
In Morrells two members of the Court of Appeal added their voices to the running burden school. However, there is a sneaking suspicion in this corner of the Web that linguistic research would vindicate the responsibility school.
At the end of the day the section 79 issue was very much a side show – as indeed it was in Earl of Sefton v Tophams Ltd (No 2) [1967] 1 AC 50, where Lord Wilberforce took it for granted that the responsibility school was correct.
The conclusion in Morrells that the covenantor’s successor was not bound by the restriction sought to be enforced flowed from a relatively straightforward construction of the covenant in question. The lessons for the draftsman may be found in Sandi Murdoch’s review of the case: see
If you possess a PhD in Anglo Saxon please write in and explain how our forbears would have understood “on behalf of”.
This appeal has been triggered by the judgments in Morrells of Oxford Ltd v Oxford United Football Club [2001] 04 EG 147 which demonstrate that there is still no agreement on the true meaning of section 79 of the Law of Property Act 1925.
So far as material the section provides (italics supplied):
“A covenant relating to any land of the covenantor… shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of himself his successors in title and the persons deriving title under him or them, and, subject as aforesaid, shall have effect as if such successors and other persons were expressed.”
As explained by Jane Turley, of Eversheds, in A vicarious revolution Estates Gazette 17 March 2001, p169, there are two schools of thought on the meaning of the italicised words. The first (hereafter the “running burden school”) sees the covenantor as a kind of agent for his successors (in existence or otherwise), who will accordingly, unless otherwise stated, assume the commitment if and when the land comes into their hands.
The second (hereafter the “responsibility school” ) says that the section does no more than affirm that covenants relating to land operate in the same way as most other contractual promises; that is to say, if you undertake to do or not to do something, you assume the risk of that thing not being done or being done, as the case may be.
According to the responsibility school “on behalf of” would mean “with responsibility for” successors and others – thus, in order to make a successor liable, the party having the benefit of the covenant will have to look outside section 79.
In Morrells two members of the Court of Appeal added their voices to the running burden school. However, there is a sneaking suspicion in this corner of the Web that linguistic research would vindicate the responsibility school.
At the end of the day the section 79 issue was very much a side show – as indeed it was in Earl of Sefton v Tophams Ltd (No 2) [1967] 1 AC 50, where Lord Wilberforce took it for granted that the responsibility school was correct.
The conclusion in Morrells that the covenantor’s successor was not bound by the restriction sought to be enforced flowed from a relatively straightforward construction of the covenant in question. The lessons for the draftsman may be found in Sandi Murdoch’s review of the case: see Restricted areas Estates Gazette 2 December 2000, p116.
