Pragmatism and Theory in English Law - College of Social Sciences ...

The Strengths of the Pragmatic Tradition 83
lease entitled the tenants to "not less than three months'
notice," and it was argued for the tenant that a notice to
quit "within" three months expired before midnight on the
night in question, while his lease entitled him to stay on
until midnight. I suppose the difference might have been
put in terms of the 24 hour clock by saying that the landlord's
notice required the tenant to leave by 2400 hours,
while the tenant's lease entitled him to stay until 0000 hours
of the following day. This argument was rejected by the
Court of Appeal on the commendable ground that it was
contrary to common sense to inpute so bizarre an intention
to the landlords. More generally, Lord Diplock declared a
couple of years ago that, "If detailed and syntactical analysis
of words in a commercial contract is going to lead to a
conclusion that flouts business common sense, it must be
made to yield to business common sense." 71 To which one
may respond not just with a hearty Amen, but a hope that
others besides business men are entitled to have their dealings
interpreted with common sense.
But it isn't always quite as easy as that. A serious of cases
which followed the Domestic Violence and Matrimonial
Proceedings Act 1976 illustrates how English methods of
statutory interpretation can sometimes come close to
departing from plain common sense. This Act, which was
passed at a time of growing public anxieties over "wife battering"
and similar cases of domestic violence, enabled the
courts to grant injunctions to exclude a spouse from the
matrimonial home in cases of serious violence, and then
went on to grant similar powers to unmarried co-habiting
parties. Unfortunately the Act left a number of questions
TheAntaois [1984] 3 All E.R. 229, at p. 233.