Times Online 08/11/2005

Talk about specific performance *lol*


As God is his counsel . . .
Case Notes by Gary Slapper


RECOURSE to law by disappointed people is extensive. A Brazilian woman is attempting litigation against her partner for failing to give her orgasms, and a Romanian prisoner is trying to sue God for allowing him to sin.

The 31-year-old woman, from Jundiai, asserts in her case that her 38-year-old partner routinely ended sexual intercourse after he reached an orgasm. The claim has been referred to a judge. As such a ruling requires careful deliberation, there must be hope in Brazil that the judge is not prone, in the phrase of Sir John Mortimer, QC, to premature adjudication. In English law there is no legal matrimonial obligation to provide the satisfaction being sought in Brazil. In the context of claims for marriage nullity, the courts have considered the orgasm but dismissed it as having no legal significance. In a 1952 judgment, elegantly garnished with Latin, the High Court held that the necessary and sufficient conditions of vera copula (true sexual union) were simply erectio and intromissio, which amount to nothing more than the act of intercourse.

Pavel M., the Romanian prisoner suing God, founds his claim in contract. He argues that his baptism was an agreement between him and God under which, in exchange for value such as prayer, God would keep him out of trouble. Lawyers for the prisoner, who is serving 20 years for murder, have reported that they would be unable to subpoena God to appear in the case. Divine appearances have arisen in other court roles. In Ottawa, Canada, a man frequently appearing as a defendant was asked by the judge: “Who is your counsel today. Mr Finnerty?” The reply was: “Your honour, God is me counsel!” Turning to the prosecutor, the judge said: “That is pretty tough competition. Would you like an adjournment so that you might consider retaining outside counsel?”

THE High Court recently ruled that in some circumstances, ignorance of the law can be a defence. Contrary to Section 263(1) of the Companies Act 1985, It’s a Wrap (UK) Ltd had paid a dividend despite having made losses. The court decided that there was no obligation for the recipients to repay the dividend if they had no knowledge, or reasonable grounds for believing, that the payment contravened the law. The old maxim “ignorance of the law is no defence” does, however, have some authority. In 1802, Lord Ellenborough, Chief Justice, said that without the principle, the excuse “would be urged in almost every case”. In 1825, however, Chief Justice Abbott assuaged much anxiety in the legal world by declaring: “God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law.”

THE chief of the Metropolitan Police traffic division was recently reprimanded for permitting his police chauffeur to drive at 82mph in a 40mph zone. Chief Superintendent Les Owen was not travelling to an emergency. The first person in Britain to be fined for speeding was the pioneer of the petrol-engine car, Walter Arnold. On January 27, 1896, when there were 20 cars in Britain, Arnold was driving through Paddock Wood in Kent at 8mph — four times over the 2mph limit imposed by the Locomotive Act 1865 for built-up areas. A police officer having his lunch in a nearby cottage abandoned his meal, donned his helmet and chased the car for several miles on a bicycle. On this occasion the long arm of the law was supplemented by powerful legs. The officer eventually apprehended Arnold, who was later fined one shilling (5p).

The author is Professor of Law, Director of the Centre for Law, The Open University, gary.slapper@thetimes.co.uk