Monthly Archives: January 2012

An attempt to answer some rudimentary questions on contract law.

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1. How does an invitation differ from an offer?

An invitation to treat is suggesting that someone enter into discussions with a view to forming a contract. Negotiations are just beginning at the stage of an invitation to treat. It is using the verb ‘treat’ in the sense of treaty – it is working towards and an agreement. The terms are only gradually being defined. A display of goods in a shop window (or any analogous situation) is taken as an invitation to treat.

On the other hand an offer in the legal sense is proposing a certain agreement to the offeree. An offer implies no further negotiations – it is a take it or leave it proposition. The offeree may accept or reject the offer. If the offer is accepted then a contract has been formed. If the offeree rejects it then the offer is terminated. Of course the offeree is free to make a new offer (even on exactly the same terms as were offered by the original offeree) but that makes the person who was the original offeree the offeror the second time around.

An invitation to treat and an offer are determined by what a reasonable person would infer from what was said and done. The law does not try and figure out what either party intended but only to construe what a reasonable person would from the circumstances.

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2. Does a railway or airline timetable constitute an offer?

A railway timetable is comparable to a display of goods since goods and services are analogous to each other. One has to work through what happens with railway timetables and airline timetables. These timetables may include prices in them.

Airlines and railways and entitled to change their timetables and prices as they see fit. They have have to delay services or cancel them. When timetables are altered or planes and trains are delayed, re-routed or canceled this is not seen as a breach of contract.

An offer means that once the offeree accepts he is entitled to have the goods and services for the advertised price and if the offeror fails to provide them then the offeror is in breach of contract.

When one sees the timetable although the terms of carriage are pre-defined there is still some negotiation to be done. The prices vary enormously because of which seat one picks on a plane even in economy class (the emergency exit seat costing more) and the amount of luggage one takes. Therefore for this and many other reasons this is an invitation to treat and not an offer.

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3. How do courts treat the display of goods in a shop window differently from a display in an automated machine?

A display of goods in a shop window is different from in an automated machine for several reasons. A display of goods in a shop window is a classic example of an invitation to treat. This was established in Pharmaceutical Society v Boots in 1953. These goods may then be haggled over and the shopkeeper may entice the customer by throwing in additional items for free. There may be certain items that a shopkeeper will not sell to certain customers because they are under age or the shopkeeper suspects that the potential customer (even and adult) will put certain items to a dangerous use. Therefore the shopkeeper is not obliged to sell the items if they are asked for.

A display of goods in an automated machine is an offer – this was decided in the case of Thornton v Shoe Lane Parking in 1971. This is partly because and automated machine cannot negotiate. This offer can be accepted by the offeree simply by inserting the requisite amount of money into the machine and purchasing the goods. There can be no further discussion of terms and conditions with a machine – that is why it is an offer.

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Was the decision in R v Clarke influenced by the consensus theory of contract? Should it have been?

The judgment in R v Clarke was that ”there cannot be assent without knowledge of an offer; and ignorance of an offer is the same thing as not hearing an offer or hearing about it and forgetting it later.”

This decision seems to have indeed been influenced by the consensus theory of contract. The consensus theory of contract requires that there be ”consensus ad idem” – that is to say both agreeing to the same. One cannot agree to a thing that one does not know about. People hear so many things, so many offers that it is very easy to forget over time. It is a core principle of English law that uninformed consent is no consent at all. This applies in this case. A reasonable person in the R v Clarke case would conclude that either Clarke did not know about the offer or Clarke knew at one time but subsequently forgot about it.

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How might the decision have been different if Clarke had been a poor but honest widow?

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A wrote to B offering 300 bags of cement at 10 pounds a bag. B wrote in reply that she was very interested to know but needed to know whether they were premium quality cement. The following morning, soon after A read B’s letter, B heard a rumour that the price of cement was about to rise. She immediately sent a fax to A stating, ‘Accept your price of 10 pounds a bag for Premium Quality cement.’ Assuming that the cement is premium quality is there a contract? (If so does the price include delivery)? Explain your reasoning.

Yes, there is a contract here. Crucially B made an ”offer” as the text says and this is an offer in the legal sense and not just in the sense that it is used in non-legal contexts. The key elements of an offer were there – A wrote to B specifically talking about a definite number of goods and a definite price. This is more than a display of goods situation. B did not accept or first or make a counter-offer. What B was doing was to seek more information and this is permitted while still keeping the offer open.

As A wrote to B presumably then A expected a reply by the same means. B’s question was by letter. B sent a fax accepting the offer as B was eager to accept the offer forthwith so as to take advantage of the good price.

No, delivery is not included. There was no mention of delivery by either party. In such situations the onus is on the buyer to take possession of the goods by collecting them himself or herself. It is also possible for the buyer to hire someone else to do it but this is a separate matter from the purchase. So long as the goods are there ready for collection A has done all he needs to do to honour the contract.

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What is the position under the last shot rule if, after an exchange of forms, the seller fails to deliver the goods?

A number of forms have been exchanged in an attempt to come to an agreement. The last form is the one that is actually agreed to and that is the one that creates the contract. That is the essence of the last shot rule.

Assuming that the seller is contractually required to deliver the goods and not simply have them available for collection then the seller is in breach of contract. The buyer is entitled to take legal action against the seller to compel the seller to deliver them or else to pay compensation to pay for the cost of delivery.

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You offer to buy a kilo of oranges for 9p from your local shop. Nothing further is said, nor do you receive any written correspondence. The next day, however, a kilo or oranges is delivered to your door. Is there a valid acceptance of the contract? Has there been communication of acceptance?

Yes, a contract has been formed. I offered to buy the oranges for that price. Going into the shop where goods were in view was responding to an invitation to treat. When I suggested paying that amount for a kilo of oranges that was an offer on my part. The shop has accepted the offer by delivering the oranges. Any lawyer will say that contracts can be accepted through behaviour and not just through words whether written or spoken. See Carlill v Carbolic Smoke Ball Company 1893. This contract has been validly accepted by the shop – the offeree in this case. The shop has communicated this fact through its conduct. I may not have intended to make an offer in a legal sense but a reasonable person would infer that this was a statement of definite action on my part and thus it is a legally binding offer.

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What rules do you think the courts should adopt for communication by fax or email?

Let us start by examininng the postal acceptance rule how see how suitable or unsuitable that principle would be to apply to fax and email. A letter of acceptance seals the contract as soon as it is posted. This rule was developed because the post took days or weeks and occasionally the letter never gets through. Moreover, post is a permissible means of an offeree accepting a contract so long as the offeror did not specify that another means is to be used for acceptance and only specified means of communication is permissible. The idea was to put the risk on the offeror and that is one principle which can be taken from the postal acceptance rule and transferred to the case of email and fax acceptance. The time lag between sending a letter and it being received were not to be used by the offeror to offer the contract to others unless the contract allowed him to do so.

Fax and email provide near instantaneous communication. The question arises as to whether the moment of acceptance is to be taken as the time of sending or the time of receiving. Using the moment of sending as the time of acceptance is unreasonable in this case because the time lag between email and fax on the one hand and letters on the other hand are two quite different things. Therefore the time of acceptance ought to be taken as the time of receipt. It is up to the offeror to check emails and faxes regularly if he or she knows that an acceptance might come. This is consistent with the principle laid down in the postal acceptance in putting the inconvenience and risk involved in a time lag onto the offeror. There is a counter-argument to be made that the postal acceptance rule should be extended to email and fax. One could look to Bruner v Moore in 1903 and this involved a telegram. However, this was a very long time ago and has been superseded by faster forms of communication. It is true that the postal acceptance principles were established even further back than Bruner v Moore but the difference is that instant communication has proliferated whereas the speed of the postal service has not improved unduly.

Courts are loathe to extend the postal acceptance rule to forms of near immediate communication. Furthermore, the postal acceptance rule is an exception to the general principle that the moment of acceptance is the time of receipt of the communication and as it is possible and fair to return to this general principle in the case of fax and email it is thus right to do so.
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What reasons have been given by the courts for the postal acceptance rule?

The postal acceptance rule was devised in the matter of Adams v Linsell 1818 and refined in Household Fire Insurance v Grant 1879.

The reasons given for the postal acceptance rule are several. One of them is that an offeror would offer a contract to an offeree. The offeree would ponder the matter and then communicate acceptance by post. There would be some delay between the letter of acceptance being sent and it being received. In the meantime the offeror might well make the offer anew to other offerees on the same terms. The offeror might be given an acceptance by a second offeree in the interim – this second offeree might do so by more immmediate means such as in person. The original offeree would then have missed ought and would be unfairly disadvantaged if this were permitted to happen and thus the offeror would be in breach of contract.

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In what circumstances would the postal acceptance rules not operate?

They would not operate if postal acceptance was not contemplated as a means of communication by the offeror. If the offeror used another means, especially a faster one such as a phone call, then this would suggest that the offeror expected the offeree to communicate and acceptance by a similarly speedy means. This principle was established in 1974 in Holwell Securities v Hughes.

In another instance the postal acceptance rule would have to be disapplied if the offeror stipulated that another form of communication must be used and only the said form of communication was to be permitted in this case.

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When is ever can an offeror waive the need for communication?

As established in Felthouse v Brindley 1862 an offeror may wave the need for communication only if doing so does not put the offeree at an unfair disadvantage. In Carlill v Smoke Ball Company it was held that performance is acceptance in some cases and in certain cases there is no need for an acceptance to be communicated.

If for instance the police put out an appeal for information and offer a reward one does not need to contact the police – accept the offer and then go and try to ascertain the information. As soon as one has the information one is entitled to go to them and accept the offer by performing the task asked for which is furnishing them with the desired particulars. Offers that are made to all and sundry like this tend to be of this nature – they do not call for communication of acceptance.

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Where a method of acceptance has been proscribed by an offeror
A. may the offeree choose to use another equally effective method of communicating his acceptance?
B What does equally effective mean?

C Whose interest should prevail?

A. An offeree may chose another equally effective means of communicating acceptance provided that the offeror did not add the stipulation that only the requested method of communication is acceptable to the offeror.

B. Equally effective means fast, likely to get through and permanent – as in written and not a spoken form.

C The interest of the offeror should prevail because she or he went to the bother of stating the preferred method of communcation. Should the offeree choose to disregard this than she or he must not inconvenience the offeror by selecting a less favourable means of communication with the regard to the needs of the offeror.

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Albania: travel writing.

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Albania is the sort of place that gives shitholes a bad name but it is at least a little bit interesting.

I was staying in Ulcinje on part of my Easter European not-so-grand tour. Ulcinje is just inside Montenegro. I stayed in an unremarkable one star hotel on the edge of this small town. I strolled into the town centre and had a gawp at the fishing harbour. It was pleasant enough but I cannot dub it pictureseque which one often can with harbours. The main street was inordinately wide for such a modest town and a slope rose up abruptly on either side. Buildings only a couple of storeys high lined it.

I saw a roadside memorial in English and Albanian. I cannot read Albanian but I can recognise it. Montenegrin is practically the same language as Serb to the point that people ask if Montenegrins are a different ethnic or cultural group at all – are they not just a type of Serb? What was a town in Montenegro sporting a sign in Albanian and not in the local language. Sadly there is bitter blood between many Serbians and many Albanians. The English text spoke of the mass killings of Albanians in Kosovo in 1999 and the fact that many refugees had fled here. I later looked it up. This little town belonged to Albania but was wrested from it decades before. Nonetheless the populations was mostly Albanian.

I found it deeply frustrating that though they were part of Serbia at the time they would not accept Serb dinars. The fact that the currency is called dinars was a matter of puzzlement to me. Is dinar not a Middle Eastern word? Serbia was part of the Ottoman Empire for centuries and many Serbs will tell you that they were treated horrendously under Ottoman rule. Why keep the word dinar for their currency? Surely they should cast off this antique relic of foreign oppression and substitute for it a Slavonic word like rouble or call their currency crown or dollar or pound or anything else. In this town they only took Euros.

I dined in a tastelessly furnished lowish class restaurant in the middle of town. The sun was beginning to set and the tidy waiter came out to me. As he was pouring my water I studied him. He was tall and slim – he wore a wine coloured waistcoat to match his dicky bow – he had a white shirt and black trousers. There was a reddish hue to his skin and his mid brown hair had a side parting. He had small intense, intelligent eyes. I asked him why they would not take Serb dinars. He spoke astonishing good English with a mild accent. He told me that they had had great trouble with hyper inflation and before they Euro they had used the deutschmark. A few years after I left Montenegro broke away from Serbia.

It is hackneyed to say it was a sleepy town but it was. There was a lot of empty land about and it was oddly pale and dun in hue almost desert-like. The houses were dull colours and higgledy piggledy. It was not at all your exquisite Adriatic seaside spot. It could have been but this luckless little town had not made much of the hand dealt it.

Back in my hosteliery I slept well in my room. I arose not long after the sun set out on her diurnal round. I chatted to the rambunctious receptionist who had arranged my pickup by a minibus going to Albania.

After having scoffed my comestibles I bade the receptionist a hearty farewell and stood outside the hotel. I stood on pebbles by the dusty road. Little hillocks tapered away dotted with tufts of drooping off-green bushes. Beside me stood a boy of about my own age. His dark blue jeans and matching denim jacket topped off a grey T shirt. His brown hair was geled back. He must have thought himself very handsome. He had a touch of the Tartar tar brush. He spoke to me in German – I do not recall his opening gambit. He was an Albanian who had been working in Switzerland. We two separated brethren got into an ecumenical dialogue which is quite an undertaking minutes after the morning repast. I told him I spoke French better than German (for some reason English never arose). ”Tu ne crois pas en dieu?” / ”Non” I confirmed my earlier viewpoint.
”Mais qui a fait tout ca? Les collines, les champs, le ciel et la mer?”
”Je ne c’est pas mais ca ne preuver pas qu’il y a un dieu.”
I listened a while longer to his Muslim sermon. Like I say, these Albanians are at least not boring.

Minutes later a white minibus that had patently taken a pounding down the years came to a screeching halt. I would swear he wore a cream coloured thobe. He had a beard like Osama – that bit I am not misremembering. The curly hairs of his beards were acquiring the grey patina of a sage. Was one eye clearly sightless or is my imagination running away with me? (Note to self: Put it in for effect). The chubby faced driver nodded in salutation. We slung our bags in the back and climbed aboard the half full minibus.

Away we roared. The bockety road curved this way and that over the raggedy countryside. I saw a few little lakes and untidy hills rumpling the landscape. The minibus bounced along at rather too high a speed for safety’s sake. It was an exciting journey.

20 minutes later we pulled up at a grim one roomed building that served as the border post. I was stamped out of Montenegro. The Albanian border guard wore his shabby black uniform with evident pride. This swarthy little chap saw my Irish passport and went down a list on a piece of paper that was wrinkled from usage. There it was printed the entry fee for Irish citizens. I cannot remember how many. I did not have the money, maybe it was the currency. I refused flat out. Looking back in it seems exceedingly dim of me.

The kindly Osama who was our driver was surprised that I professed to be penniless, ”Wie kanst du essen in Albania?” he did an eating gesture with his right hand, mimicking flicking a ball of rice into his hairy chops.
”Ich kann geld in Bankomat finden.” German was obviously his foreign language unless of course he thought that Ireland was a German-speaking country. This might be the case – not that many people in western Europe would be sure that the language of Albania is Albanian. Honest Osama offered to pay for me and I said I would pay him back when we reached Shkoder. I recall saying something about the exchange rate being 5 to 1 – as in 5 leke to 1 Euro. Leke is the currency of Albania but you probably knew that.

The needfuls being completed we all piled back into that pummeled old white minibus and the jalopy drove off. The countryside was as scrappy as the country itself. I notice a largish lake and an ancient tower in a very poor state of repair. I had spotted on the map a lake near this town of Shkodra. I thought back to about 1990 when Communism came to an end in Albania. I remember seeing an orphanage in Shkodra on the news and it was as horrid as can be.

About 20 minutes later we entered this unprepossessing city of mid grey ferro concrete towers. The fact that they chose to build everything in block shapes said it all about the country. The Communists had demanded uniformity and decried individuality. The streets were tatty and often unpaved. The country was liberal only in its scattering of litter. A few shops displayed bargain basement wares behind stained windows. Aptly it was raining when we pulled into Shkodra. It was like a cloudy Purgatory. 

Osama dropped us off at a street corner. I went to a cash point and withdrew some dosh. I paid him back and he said farewell in German.

There were furgons marauding the plashy streets. A furgon is a minibus. I had never heard the word before. Soon I was to discover that this word means the same in French, Romanian and Russian. It is originally French for wagon – as in horse drawn wagon, not a train wagon, that would be a wagon. Anyhow, these minibuses had seen better days as had this down in the mouth town. The Albaninians did not seems as glum as this sorrowful city. Albania suffers from a  terrible image abroad – which is hugely flattering in comparison to the reality. 

I hailed a furgon headed to Tirana. The men waved at me as if to indicate they could not stop for me at that moment. Then the did a U turn and came back for me and pulled up on the far side of the grimey road. They explained that the police would fine them if they had stopped on that side of the road. They were short men of a sunny disposition. They wore faded jumpers full of holes. I spoke to people in a mixture of German and Italian. 

The furgon headed out of town – south to Tirana. I re-read my guide book again. I was astonished by Lonely Planet’s account of a ‘sworn virgin’. This is a woman – whose maidenhood is believed – who has no menfolk left in her family. She can become and honorary man. She will dress as a man and act as one. She will be accepted as a man in every sense except she will not be able to wed. She will fulfill the functions of a man since it is impossible for a family to function without a man. Seven years later in Azerbaijan I saw some women who seemed to be performing the same role but I never found out if this concept of an honorary man also exists in Azeri culture.

I slept fitfully and awoke regularly AS WE SHUNTEd down the pike to Tirana. The road was narrow and packed. This was the main road in the whole country. The land was flattish and not quite verdant. It rained sporadically. 

At last we approached the grim outskirts of Tirana – or as they call it in Albanian ‘Tirane’. The city was never more than a handful of storeys high. The streets were almost clogged and this abundance of vehicles indicated that the country was not as poor as you might think. The cars were mostly in a parlous condition and very old though. I spoke to an Albanian in his fifties who boasted a distinguished grey beard and a receding hairline. We spoke in Italian. I told him where I wanted to go and showed him the hotel I had selected from the guidebook. 

The furgon deposted us and this kindly gent offered to help me. I put my trust in him and he repaid it. We got in a taxi together and he spoke to the driver. I was eager to find out the price lest I be given a demand for an extorionate sum. The bearded chap who was assisting me said we would find out later. We twisted through some narrow streets lined with decaying and seeping buildings. It was only a five minute drive and the fare was well within a reasonable range. 

I thanked both the driver and this oldish man who had taken me under his wing. I strode up the the hotel that looked more like a block of flats. A little middle aged man was the receptionist and quite possibly the manager. This chubby sort greeted me warmly in something approximating English. Soon I was signed in. He showed me to my room which was across the seedy street in another building! The room was capacious but not commodious. There was one tiny window too high up to admit much illumination. Soon I forked over the leke and took the chance to have a shower and lie down for a real sleep. 

After a couple of hours I awoke as a new man. I headed out and into the city. I used the man in Lonely Planet to navigate the short distance from this uninspiring hotel to the main drag. This boulevard had a museum of sorts at one end of it. There was a grass verge in the middle of this boulevard. I did not doubt that this street was used for military parades at times – the sort of thing where tanks drive far too fast. That is what thrills Communists. I passed a high walled government complex on my left. Some black uniformed, bum fluffed youths stood around listlessly cradling AK 47s. There is always something amiss with organisations that dress all in black: the UVF, the SS, the Black Panthers, the All Blacks…

I saw a few buildings I could almost call handsome. I had a bit to eat. There was a small square where several men stood on the edge of the road with calculators on strings around their necks. They had bundles of banknotes. I took the opportunity t try to exhange my dinars. They were having none of it. They wanted dollars or Euros. That was it. I went into the national museum and I learnt about Ancient Illyria. I saw some smart hotels as I walked by. 

There was a large concert hall sort of thing. It looked like a failed attempt at a space age building. I entered this large domed edifice. I had some question to ask. I asked a suave looking young man there. He could not comprehend English so I tried him in Italian and he was able to help. 

I went to the Blloku. This was an area of a few streets that was the exclusive purview of the party elite in the Communist days. There was the house of Enver Hoxha. This waxwork of a tyrant was the man who held the country i subjugation for 40 years. In a pleasing irony his not very luxurious house is now the American Cultural Centre. He must be spinning in his mausoleum – which I did not visit in the end. 

I got to the end of the main street. I turned a little bit off to the right. There was the main railway station in the whole land. It had only four platforms. I am a train geek so gawping at these gaves me a passing pleasure. These locomotives were wan. They were French and German ones that seemed to have passed their service lives. 

I walked by on a street to the right of the main drag – to the right in relation to the direction I had originally walked which was north. I bought some shaving foam in a corner shop. 

I got back to my hotel soon enough.

I headed out later to buy a ticket to Macedonia. This land held no allure. I headed out at midnight to the bus. I boarded. I had not checked out just left the key in the door of the room.

I soon fell into a conversation with an Albanian of about my age. I shall call him Freezy for the double reason that I do not recall his real name and I knew a Freezy at my college. In fact this boy on the bus was from Kosovo. He spoke excellent Englosh and was studying to be a dentist like his father. He apologised to me for the London Tube bombings which had not occurred long before. I assured him there was no need to do so. He said he was a Muslim but could not understand how people could commit such a vicious crime and say it was in the name of Islam. He had fulsome praise for Tony Blair – a man who by then was detested in his own country. Those of the Albanian ethnicity will never forget how he saved them from being massacred by Milosevic’s men. Freezy wanted to go to the United Kingdom but said the problem was it was difficult to get a visa. ”It’s not the money” he said and instantly rubbed his nose vigorously turning his face away. Lie. The poor boy was too ashamed to say that the UK was very expensive for him. We chatted most of the way. Bizarrely we started heading in the wrong direction – we went to the port city nearest Tirana. Then we turned east again and bypassed Tirana and headed for the frontier. 

We crossed the border in Macedonia around midnight.

There are attractive towns in Albania apparently. I know a chum who has been to the coast. It is like Greece 40 years ago in both the good and bad senses. Unspoiled is another way of saying underdeveloped. I may yet return to Albania. It is seen as very unsavoury. Many people traffickers are Albanians but most Albanians are of course good people like in any other country. Sadly kelptocrats and thugs seem to get to the top in Albania. 

 

Austria: travel writing.

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I spent some glorious days one bright May fornicating in Germany. This was among one of the most blissful weeks in my life. How I rue that I threw it all away. I booked my flight back to Blighty from Salzburg in Austria largely so I could cross the border and say I had been to Austria.

Chessi and I went to her grandparents. They asked what I did. She told them, ”Er ist ein Geschichtes Lehrer” Her grandfather replied, ”Er ist ein junger Geschichtes Lehrer.” Later grandmother asked her discretely if I was her boyfriend and Chessi told her yes. Chessi asked if she could borrow their car and they agreed.

Away were drove. She did not tell them that she was getting up at 5 am to drive me to Salzburg. At dawn we arose and raced off. The autobahns were clear and allowed a rewaring view over long fields of a perfect mid green and dense pine forests. Everything was so orderly and clean – the colours so uniform but somehow never boring. In a service station we bought the vignette which allows one to drive in Austria.

Over the border. There were border posts but no one manned them anymore. Off we raced through empty roads.

Chessi was almost falling asleep at the wheel. I put my hand on her crotch and gave her reason to stay alert. When the opportunity afforded we turned off the road and onto an unpaved path in the forest to to submit to a primordial urge.

In time we arrived at Salzburg’s W.A. Mozart Airport. We took a snap of me in the airport car park. It was one of our favourite.

Into the terminal. It was limpid and few passengers were about. Two surprisingly untidy Austrian policemen sauntered about totting unnecessarily large guns.

In a tiny shop there I asked for a coffee and added, ”Ich will milch bitte.” Chessi later told me that this is poor form as ”will” comes across as a demand ever when followed by ”bitte”.

I said goodbye to my golden haired golden girl that gladsome morning. How she is proof that the world was fashioned by a benign god. Woe is me for losing her.

Off to the departure lounge. I looked out across the valley to see it blocked in by majestic Alps wearing their summer bonnets of snow. It was so sunny and the colours were so strong and clearly defined. It was all so satisfying – good strong geographical features.

I boarded the plane and sat near a British Indian couple and their two little children. Up, up and away.

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That glorious summer I returned to Salzburg with Chessi. We entrained at Munchen and traveled across the border. Yet another divine day of brilliant sunshine.

Rucksacks on our backs we toddled out of the station looking like the epitome of student tourists. The station – it is the one tatty building in an otherwise ravishing city. I wondered why the station is a functional greyish white block-shape as if thrown up in an unimaginative hurry. Chessi explained that during the Second World War the station was the top target for Allied airmen. The aim was to destroy the German transport network – Austria then being part of Germany. Destroy the railway tracks, the warehouses full of supplies, destroy the trains, destroy the repair workshops and possibly kill the railway staff. The railway stations had to be rebuilt hastily after the war when Austria was in the economic doldrums. There were no time or dosh to be spent on beautifying them.

The walk from the station passes through some low rise salubrious residential areas. The neat little blocks of flats are almost colourful. Blooming flowerpots fronted every window. The flat streets looked combed clean. Does nobody drop litter in Austria? The cool Alpine air coupled with the day’s radiance was ideal. After a few minutes walking we arrived at the youth hostel. It was plain but pleasant and like everything in Austria, preternaturally limpid. What civic pride

Up to our room. There were a few bunkbeds and no one else was there. Again a welcome to Austria by some hearty fornication. Oh to have my blonde goddess again! Youth is wasted on the unfaithful. There was a risk of more hostel guests walking in on us. A frisson of risk making the energetic encounter all the more desperate – an excuse to finish fast.

Out again into the air so very fresh. Yon alps peaked with virgin snow. The crystalline waters of the Salzach River gushed lustily under the bridge we passed. I caught sight of Schloss Mirabell – ‘Marvel Palace’ to you. One work German the other Latin – why not make the name one or the other? This opulent residence was built by the Archbishop of Salzburg to house his mistress. The flagrant abuse of church funds for his sinfulness was probably barely questioned at the time. I have to hand it to the guy. His arrant hypocrisy really is quite admirable. If I were an archbishop I would love to behave like that. A dazzling flowerbed of every colour sat beneath that palace of sin.

We walked over the bridge and into the heart of Salzburg. The old city is an enticing set of small streets – few of them straight. Many buidings are remarkably well preserved even from medieaval times.

One house stands out – facing the bridge. It is very tall, a few stories, in brown wood. Its legend boldly states, ”Mozarts Geburtsheim” – Mozart’s birthplace. This then is the city where Wolfgang Amadeus Mozart first appeared. Being never far from broke we did not feel we could stump up the few euros to visit it. There was so much external tourism to be done. Every street was enthralling in its own way. Shops sold doll diedies and what one can only call viennoiserie. The Austrians are very keen on high end chocolate. Somehow they seldom grow fat. Viennoiserie really means posh pastry and the like. It is all a little too effete for my liking. I enjoyed gazing on the handiwork but it was too overrefined to eat besdies I probably would not like the taste. I once heard an American woman tell me food is an art form. I think that is bullshit. A bed is made to be slept on…

On to the cathedral square.

There stood a statute of Theodor Herzl. He was not always someone that Salzburg exalted.

David Duke – he is wrong about a lot but not about everything.

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I first heard of David Duke over 20 years ago. He stood for the governoship of Louisiana. He came very close to winning. He stood as a Republican but the leadership of the Republican Party under George H W Bush disavowed him. Duke shot to prominence in the late 1970s as Grand Wizard of the Ku Klux Klan. He was only in his 20s then.

Let me stress that the Ku Klux Klan is a revolting organisation. It long advocated virulent racial hatred. It ought to be banned as a terrorist organisation. I stand for free speech – including speech that the great majority of people find to be deeply offensive. However, the KKK is beyond the pale of civilised discourse. The KKK committed hundreds is not thousands of ritual murders in its history. Most of its victims were black men who were murdered in the most ghastly ways in public. A carnival atmosphere would prevail when these poor men who killed. The KKK also killed Hispanics, Jews and whites who stood up to the KKK. The KKK has not committed many slayings in the last 50 years but it still glorifies its gory history.

I am an anti-racist. I believe in racial equality and racial integration. I have had friends of all races. I believe in having people of different races as neighbours on my street, in my building. I am happy to have a person of any race as my colleague and as my superior. I have no problem with inter racial marriage and I would marry someone of a different race.

David Duke’s philosophy is appalling. I heard him on Irish radio speaking out against immigration as Ireland would lose its culture. I do not want too much immigration but I am not against all immigration. I have been an immigrant myself.

Duke lived abroad as a child. He spent some time in the Netherlands but this does not seem to have enlightened him.

He has moderated his views. He says he is now a white civil rights advocate. I support racial equality. This does not mean swapping discrimination against one race for discrimination against a different race. That is what the US does.

Duke says that the US is run by Jewish extremists. This is far fetched. He is right to say that Zionists have undue influences but Zionists are not the same as Jews. Some Jews are non-Zionist and some are anti-Zionist. The like of Duke with his anti-Semitic rhetoric is more likely to make Jews Zionists. They seek to make Israel a safe place for themselves to go if things turn ugly in the US.

The one thing I tend to agree with Duke on is not wanting Western countries to go to war against Iran. Casualties would be heavy and I believe that war can be avoided. I allow that I may be wrong. I am not abosolutely convinced that avoiding military action is the right course of action but I do lean that way very heavily. The Israeli Government seems to be spoiling for a fight. Some American opinion formers are also beating the drums for war. I hope it does not come to that.

I wish the First World War and the Second World War had been avoided. I see how great powers were reduced to puny status by losing wars and other great powers that won such wars (the British Empire) were greatly enfeebled as a result.

David Duke certainly was anti-Semitic. He devoted many pages in one of his books to ”the Jewish Question”. I am unsure what the question is and I dread the answer. He now says he is anti-Zionist but not anti-Jewish. He is blatantly anti-Zionist but I am unsure if he is anti-Jewish. I doubt he has shed his anti-Jewish prejudice entirely.

Many of the Zionists are Gentiles. Christian fundamentalists (mostly Republican voters) tend to be heavily Zionist. However, Democrats including those with impeccably secularist credential often have a strong penchant for Zionism. Therefore it is wrong to conflate the Jewish faith or ethnicity with Zionism.

Duke makes some valid points about the folly of a war against Iran but he is the wrong person to make such arguments since he is so disreputable. Well into his adult life he advocated some barbaric nostra. His racialism makes it hard to give him a fair hearing. Any worthwhile arguments he musters are tainted by his earlier disgusting views.

”Faith and Duty” by Nicky Curtis M.M. – a review

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This book was lent to me by an alehouse. ”Faith and Duty” is a memoir composed by a former British soldier. He was born in Yorkshire and grew up there in God’s own county. He was brought up as a Roman Catholic. He noted that he had Irish grandparents on one side and emphasised that his red headed granny was the typical image of an Irishwoman. In the small town where he was raised the coalmine was the main employer. That seemed to be the only job unless one enlisted in the Armed Forces. He left school early and joined the British Army as soon as he was early as possible. His father was served with distinction in the Second World War.

He seems to have been a very tough character – never once complaining about how difficult it must have been to go through basic training. It is certainly more than I could take. He was intitally in the Yorkshire and Lancashire Regiment. This is one of those many forgotten regiments that was later merged into others. It was merged into the Green Howards which is a Yorkshire regiment.

I was surprised by how enthralling the narrative was. It was composed with a vocabulary that was beyond demotic and evoked the scenes very well. It made me wonder whether he had had a ghost writer as by his own admission he was not an educated man. At times there was the use of serviceman’s slang. He also wrote with gallows humour about the death of enemies. He was desensitised as he needed to be.

He was posted to Northern Ireland as the Troubles broke out. He said he was sympathetic towards the Catholics since they were denied the vote owing to the no house no vote rule. This is highly inaccurate. It is true that for local elections only the head of household and spouse could vote. As Roman Catholics owned or rented proportionately fewer houses this meant that fewer had the vote for local elections. This law was changed in 1969 and had been changed in 1949. He glosses over the intention of the IRA to start a conflict and wrest Northern Ireland from the United Kingdom and solder it to the Republic of Ireland which itself would be put through a revolution. The explanation of the true situation takes rather longer than his glib summary of the roots of the Ulster conflict.

He writes how welcoming many Roman Catholics were towards soldiers like himself at the outset. They were glad to be defended against loyalist thugs. Some seemed to sympathise with teenaged squaddies thrown into a conflict they did not comprehend.

He rightly labelled the Ulster conflict a corporals’ war. This was not so much about grand strategy and generals achieving a tactical breakthrough. It was to be won parish by parish and street by street. After the initial upsurge in violence things came under control by about 1974. The IRA could no longer cruise around at will seeking targets. They had to meticulously plan attacks for months. Ordinary soldiers on the ground had to be very vigilant and handle tricky situations correctly.

He writes poigniantly about the pain of losing comrades. I was surprised thinking he would close his heart to grief as some seem to because otherwise they could not cope.
He always wrote of the people of Northern Ireland as ”Irish”. I have no objection to this. One could be more specific and say Northern Irish in contradistinction to Southern Irish. He wrote of Irish accents in Northern Ireland and again I accept this. Unionists would prefer him to say ”NORTHERN Irish” or Ulster.

He became an undercover soldier. He penetrated IRA areas posing as an English businessman. He married a Northern Irish Protestant girl.

The episodes when he was undercover and in hairy situations were gripping. There were some sweaty moments for me. He succeeded as a writer in having me identify with him. He described his modus operandi and those of the IRA. His account of Captain Robert Nairac was fascinating. Nairac is one of the most colourful and impressive operatives from the Trouble. He seemed to answer to no chain of command. He exploits are legendary and as with most legends probably partly mythical. He is suspected by some of being complicit in loyalist sectarian murders. He is also suspected by some RUC officers of having been a double agent – in fact passing information to the IRA. He was a Roman Catholic and had some Irish ancestors. The author says this claim is balderdash – he thought about it and concluded that Nairac did far too much damage to the IRA for such a theory to sustaianable.
He notes that Edward Heath decided that medals could be awarded for service in Northern Ireland. This was a little controversial as it implied that the Northern Ireland conflict was a war when the government said it was a civil disorder issue – a crime wave.

Curtis’ take on the 31 January 1972 is original and scintillating. He notes that the Paras over reacted but they were provoked by lesser acts of violence. The rioters chose the wrong people to mix it with. It suited the IRA to spark off such an incident as it made them more popular. He observes that the high command of any armed forced is willing to sacrifice its own to up the ante from time to time.

Much of the book was captivating. There were passages I hurried past as they were banal.

Overall, highly recommended. I often encourage people to read the books a review. I know it is gratifying to be bitchy sometimes but if a book drags then I put it down.

Bonnie Caledonia – will she or won’t she? By Marmaduke O’Connor.

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The Scottish Government has declared its intention to hold a referendum on Scotland declaring independence. The poll is planned to take place in 2014 to co-incide with the 300th anniversary of the Battle of Bannockburn. Bannockburn was a stunning Scottish victory over the English and Welsh Army despite a three to one disadvantage in numbers. This spectacular feat is immortalised in O Flower o’ Scotland ”Stood against them/ Proud Edward’s army/ And sent them homeward/ To think again.” Those who advocate Scotland remaining in the United Kingdom claim the propised timing of the referendum is deeply cynical – designed to capitalise on the sentimentalism that the commemmorations will evoke and bound to degenerate into anti-English racism. Those who argue for Scotland to stay in the UK are Unionists. Those who call for Scotland to separate from the UK are Nationalists.

The two burning questions are – will Scotland hold a referendum? If so will the majority plump for breaking away from the United Kingdom. In brief – Yes to the former and No to the latter.

Since 2007 the Scottish Government has been run by the Scottish National Party (SNP). Tony Blair once panned the SNP as standing for ”separatism: no policies”. However, the SNP have policies on every issue and they come from a moderate left position. The SNP led by Alex Salmond has governed that country of the United Kingdom quite effectively. Arguably they have done a better job than the Labour-Liberal Democrat coalition that preceded them.

As recently as the 1960s the suggestion of Scotland leaving the United Kingdom was seen as a lunatic fringe proposal by the great majority of Scots. The SNP used to score about 2% in elections. The great majority of Scots regarded themselves as British first and Scots second. There was seen as no contradiction between being British and being Scottish. One of the principal arguments against Scotland becoming a sovereign state was thet there was a great economic benefit to the Union. Then in the early 1970s Scotland struck oil. The argument was transformed overnight – ”it’s our oil.” Scotland should split from the rump of the United Kingdom and enjoy its wealth – why should Scotland share its mineral resources with Northern Ireland, Wales and England? Middle Eastern countries had gone from Third World to First World in half a generation – all due to oil. Scotland was already a First World country and super wealth seemed to beckon. With the Troubles erupting in Ulster the United Kingdom seemed like and entity in danger. The British aspect of Scots identity declined somewhat and the particularly Scots aspect rose in salience. There are some people in Scotland who reject the word British altogether and say that British is a codeword for English. Unfortunately some people are too ignorant to tell British and ENglish apart.

The economic argument for Scotland remaining in the Union has long been dismissed by SNP head honcho Alex Salmond. Salmond read Economics at St Andrew’s University. He worked as an economist for the Bank of Scotland. Counterintuitively he argues that Scotland suffers economically from her membership of the United Kingdom and that she bankrolls South Britain and not the other way around.

If the majority of people vote No to separation from the United Kingdom this could spell disaster for the SNP. Not only will their totemic policy have been chopped down but the party will likely go into electoral meltdown. In 1978 the Labour Government held a referendum on devolution for Scotland. 40% of registered voters had to vote Yes for devolution to be enacted. Although a majority voted Yes this did not reach the required threshold of 40% of registered voters because some people did not vote. Therefore devolution was not enacted. The SNP duly spent a decade in the doldrums. Margaret Thatcher’s Conservative Government was deeply unpopular in Scotland where rising unemployment in the 1980s was attributed to her Monetarist policies. There was an increasing dissonance between Scotland and the remainder of the United Kingdom. While England mostly vote Conservative Scotland mostly voted Labour but was lumped with a Conservative government which seemed indifferent to Scottish suffering under Thatcher’s policies. Most notably the Communit Charge (branded ”poll tax” by its critics) was introduced in North Briton before it was brought in elsehwere in the United Kingdom. This was because the rates came up for review first. However, this is not the way it was seen by most people in Scotland. Nationalists and the Labour Party presented this as surefire evidence of the Conservative Party’s mistreatment of Scotland as an afterthought.

Then came the referendum in 1997 when the people of Scotland voted 75% for a Scottish Parliament to be re-established. Scotland remained in the United Kingdom. Many issues were devolved to Edinburgh – health, education, some taxation, transport, criminal justice and culture. However, the UK Parliament (where Scotland is of course still represented) controls issues for the whole of the United Kingdom (including Scotland) such as defence, foreign affairs and sovereign financial matters.

The United Kingdom has been Scots dominated for 15 years. Tony Blair was born in Edinburgh to an Irish-born but Scots raised mother and a father who was born to English parents but adopted by Glaswegians as an infant. Blair has a claim to be Irish, Scots and English but surely he has a better claim to be Scots than anything else. The Scots comprised only 9% of the British population but made up over 30% of the Labour Cabinet for most of the time. Because Blair had a pukka accent picked up at a Scotch public school some people wrongly imagined that he hailed from the Home Counties. Gordon Brown who was Prime Minister from 2007-10 was unmistakably Scots. David Cameron – as his surname indicates – is partly North British.

What does the SNP propose? If a majority of votes are cast in favour of Scotland seceding from the United Kingdom then negotiations would begin between London and Edinburgh. Within months Scotland would have declared sovereignty and would leave the United Kingdom and become the Kingdom of Scotland. Queen Elizabeth would be Queen of Scots – the first person so styled since Queen Anne in 1707. Queen Elizabeth would be Queen of Scots as she is Queen of Canada and Queen of Jamaica and so forth. However, in this case Scotland is close to where she spends most of her time and she has palaces there already – Holyroodhouse and Balmoral.

The Royal Regiment of Scotland would leave the British Army and the Scottish Army would be re-established. Some ships from the Royal Navy would be given to the Royal Scottish Navy. The British Navy’s nuclear submarines are based at Faslane near Glasgow. The SNP is committed to a Scotland without nuclear weapons and if Scotland breaks off from the United Kingdom then this nuclear base would have to be closed down.

Scottish passports – so far only a joke item one could buy in service stations – would become a reality.

Scotland, making up 9% of the British population would presumably have to assume about that proportion of the national debt. This would be one of the sticking points of any haggling between the Scots Government and the government of the rump of the UK. The oilfields in the North Sea would also be an issue. How are the territorial waters to be divided up? Would a line be drawn due east from Berwick-upon-Tweed? Or would the line at sea continue north-east following the course set by the land border? Northern Ireland, Wales and England would argue that North Sea oil is a combined resource and Scotland is only entitled to a small share of it and not to all of it.

Scotland joined the European Union as part and parcel of the UK in 1973. If Scotland declares sovereignty her acceptance into the EU is not a forgone conclusion. The SNP’s policy is the self-contradictory ”independence in Europe”. An independent Scotland might have to reapply for membership of the EU. Owing to the EU’s deep economic problems and Scotland’s high unemployment and dependence on state spending it is conceivable that the European Union might refuse Scotland membership.

Currency would be the real fly in the ointment. Although bank notes printed in Scotland look different from those in most of the UK (these say ”Bank of England” on them) bank notes issued by Royal Bank of Scotland, Clydesdale Bank and so on are still pounds sterling. If Scotland left the UK it is questionable whether Scotland would still be allowed to use the pound sterling. The SNP says that the Euro ought to have been adopted long ago. With the Eurozone in severe difficulties joining the Euro does not seem like such a panacea to all economic ills. Would Scotland be admitted to the Eurozone? That is a moot point.

Why has the issue re-emerged now? The SNP had 4 years to call a poll on suzerainity? The time was ripe. Labour has been the strongest party in Scotland since 1955. Although she was eclipsed by the SNP in 2007 Labour remains very strong in Scotland. The Labour Government at Westminster was reasonably popular north of Hadrian’s Wall. However, when the Conservatives formed the government in London in coalition with the Liberal Democrats in 2010 this changed the landscape. The SNP like to portray Cameron as a second Thatcher – licking his lips at the prospect of plunging Scotland into a decade of unemployment and misery. The austerity measures introduced by Cameron have had only limited impact in Scotland because the Scots Parliament controls most finance for itself.

By 2014 the economic situation is likely to have improved a little but still be brittle. Many voters may conclude that it would be rash ply and uncharted course at a time of such uncertainty. The SNP’s claims of a heartless Tory regime south of Hadrian’s Wall inflicting suffering on Scotland will ring hollow. The SNP itself will grow unpopular after having been in office for 7 years. The referendum may turn into a midterm protest vote at the perceived shortcomings of the Hollyrood government. Labour, the Liberal Democrats and the Conservatives have all pledged to work together to argue for keeping the United Kingdom together. The occasional opinion poll shows a majority for Scottish sovereignty but most opinion polls show a majority for the status quo.

If the SNP were really confident that most people wanted Scotland to breakaway from the United Kingdom then they would have called a poll the first chance they had in 2007. The probability is that the United Kingdom will remain united.