Mortgagee Powers Rhetoric

18 Pages Posted: 30 Jun 2006

See all articles by Matthew Conaglen

Matthew Conaglen

The University of Sydney Law School

Abstract

This article addresses the rhetoric of land law's interpretive community at the time of, and following, the House of Lords' decision in Boland. It is argued, contrary to the views of other commentators, that the decision was not strongly motivated by a concern to see social justice done between commercial lenders and wives but, rather, was a sensible and socially realistic application of clear statutory provisions understood within the context of land law orthodoxy. Furthermore, decisions following Boland which have been said to have sapped its strength also cohere comfortably within that community's stable rhetoric. Consequently, it cannot be argued that proportionality in human rights law requires a return to the supposed high point of Boland when considered carefully, the evidence, both from Boland itself and from land law's wider interpretive community, shows that such a high point did not exist.

Suggested Citation

Conaglen, Matthew, Mortgagee Powers Rhetoric. Modern Law Review, Vol. 69, No. 4, pp. 583-600, July 2006, Available at SSRN: https://ssrn.com/abstract=913122 or http://dx.doi.org/10.1111/j.1468-2230.2006.00600.x

Matthew Conaglen (Contact Author)

The University of Sydney Law School ( email )

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The University of Sydney
Sydney, NSW 2006
Australia
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