Statute Law Repeals - Law Commission - Ministry of Justice

2.12 Chapter 23 of the Statute dealt with the notion of waste. It made it illegal for
“fermors” deliberately to “make waste, sale, or exile” (without written permission)
of any house, woods, men or any other thing belonging to tenements demised to
them. In our consultation paper we took the view that chapter 23 created criminal
sanctions and that it had been left to the common law to develop the tort of waste
- which today embraces both commissive (or deliberate) waste and permissive
(or passive) waste - as a civil remedy. We indicated that repeal of chapter 23
would not adversely affect the common law position, and that retention of criminal
sanctions was no longer necessary. Moreover, the mischief at which the Statute
was aimed is ordinarily countered in modern times by specific safeguards in
commercial leases which are enforceable as contract law. 13
2.13 Although bodies such as the Chancery Bar Association and the Conveyancing
and Land Law Committee of The Law Society accepted our view that repeal of
chapter 23 could safely go ahead, two individual respondents asserted strongly to
us that the tort of waste would be undermined by repeal, leaving an inadequate
(or no) remedy in its place. They argued that waste was a common law right of
action conceived before the Statute of Marlborough, and that the Statute was
designed simply to extend the range of liability to include tenants for years. By
repealing chapter 23 the tort of waste would be abolished at worst or weakened
at best. Its loss, and therefore reliance simply on contract, would mean that the
ability to reach beyond original contracting parties (for example, to a not-toocareful
liquidator where a tenant becomes insolvent) would be lost also.
2.14 We are minded, on balance, to accept that there is room for argument on chapter
23. Our purpose in statute law repeals is to recommend for repeal only statutes
which are obviously obsolete or spent. That is not the case here.
2.15 The only specialist area in which we can recommend repeal relates to a small
aspect of the Statutes of the Exchequer, which are of uncertain date, but which
may have been enacted around 1322. 14 The long title applied to the statute by
the Ruffhead edition is “What Distress shall be taken for the King’s Debts, and
how it shall be used”. In essence, the statutes regulated the taking and
impounding of animals, how they were to be fed, cared for and sold, and what
livestock was to be exempt. Breach of the regulatory regime was to sound in
damages.
13 Since publication of our consultation paper in July 2010 we have also looked closely at the
decision in Dayani v Bromley LBC (No 1) [1999] EWHC Technology 186 (HH Judge
Havery, QC) where it was said that action on the case in the nature of waste, although
owing some of its basis to the Statute of Marlborough (particularly so far as life tenants and
tenants for years were concerned), was a development of the common law and was not
dependent upon the construction or existence of the Statute. Moreover, it was the common
law rather than statute which decided that permissive as well as commissive waste was
actionable.
14 If this date were correct then the citation could be 15 Edw.2 c.0 (1322). We discuss the
possible dating in our published consultation paper. In Ruffhead’s Edition of the statutes
the citation is given as 51 Hen.3 Stats. 4 and 5.
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