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 OUTLINE CONTENTS

1 I N T RODUC T ION 1

PA RT 1 F OR M AT IO N OF C O N T R AC T

2 T H E AGR E E M E N T 31

3 F OR M 77

4 C ON SI DE R AT ION A N D PROM I S S ORY E S TOPPE L 94

PA RT 2 C O N T E N T S OF T H E C O N T R AC T

5 T H E T E R M S OF T H E C ON T R AC T 139

6 E X E M P T ION C L AUSE S A N D U N FA I R T E R M S 18 3

PA RT 3 FAC T OR S T E N DI N G T O DE F E AT
C O N T R AC T UA L L I A B I L I T Y

7 I NC A PAC I T Y 2 33

8 M I S TA K E 265

9 M I SR E PR E SE N TAT ION A N D NON-DI S C L O SU R E 315

10 DU R E S S , U N DU E I N F LU E NC E , A N D U NC ON S C IONA BL E
BA RG A I N S 371

11 I L L E G A L I T Y 405

PA RT 4 PE R F OR M A N C E A N D DI S C H A RG E

12 PE R F OR M A NC E 4 37

13 DI S C H A RGE BY AGR E E M E N T 454

14 DI S C H A RGE BY F RUS T R AT ION 4 67

15 DI S C H A RGE F OR BR E AC H 503

16 DI S C H A RGE BY OPE R AT ION OF L AW 52 5

viii Outline Contents

PA RT 5 R E M E DI E S F OR B R E AC H OF C O N T R AC T

17 DA M AGE S 531

18 SPE C I F IC R E M E DI E S 575

19 R E S T I T U T IONA RY AWA R D S 589

2 0 L I M I TAT ION OF AC T ION S 605

PA RT 6 L I M I T S OF T H E C O N T R AC T UA L O B L IG AT IO N

21 T H I R D PA RT I E S 613

2 2 A S SIG N M E N T 6 61

2 3 AGE NC Y 680

In d e x 697
 DETAILED CONTENTS

Preface v
Table of Statutes xx
Table of Statutory Instruments xxviii
Table of European Union Legislation xxx
Table of International and Other National Legislation and Restatements xxxi
Table of Cases xxxii
Some Abbreviations Used in Reference lxxxiv

1 I N T RODUC T ION 1
1. The Nature and Function of Contract 1
(a) Promise or Agreement 1
(b) Functions of Contract 2
(c) Freedom of Contract 4
(d) Sanctity of Contracts 7
(e) The Interest Protected by Contract 8
2. The History of Contractual Obligations in English Law 10
(a) The Early Actions 10
(b) Assumpsit 13
(c) Subsequent Developments 16
3. European and International Influences 20
4. The Content of Contract Law 22
(a) A Law of Contract or of Contracts 22
(b) Effect of Vitiating Factors 23
5. Contract as Part of the Law of Obligations 24
(a) Concurrence of Claims in Contract and Tort 25
(b) Contract and Unjust Enrichment 26
6. Contract and Property 26

PA RT 1 F OR M AT IO N OF C O N T R AC T

2 T H E AGR E E M E N T 31
1. Establishing an Agreement 31
(a) Offer and Acceptance 31
(b) The Test of Intention 34
2. The Offer 35
(a) Offers and Invitations to Treat 35
(b) General Offers 39
(c) Communication of the Offer 41
x Detailed Contents

3. The Acceptance 42
(a) Offer and Acceptance Must Correspond 42
(b) Communication of the Acceptance 45
(c) Acceptor Must Have Knowledge of Offer 52
(d) Prescribed Mode of Acceptance 53
(e) Revocation of the Acceptance 54
4. Termination of the Offer 54
(a) Revocation of the Offer 54
(b) Rejection of the Offer 60
(c) Lapse of the Offer 61
(d) Effect of Death 62
5. Uncertain and Incomplete Agreements 62
(a) Certainty of Terms 63
(b) Incomplete Agreement 69
6. Intention to Create Legal Relations 72
(a) Social Engagements 72
(b) Family Arrangements 73
(c) Determining Intention 73

3 F OR M 77
1. Formal Requirements 77
2. Contracts by Deed 78
(a) How a Contract by Deed is Made 78
(b) When it is Essential to Contract by Deed 80
3. Contracts for Which Writing is Required 80
(a) Statutory Requirements of Writing 80
(b) Contracts of Guarantee 81
(c) Contracts for the Sale or Other Disposition of Land 85
(d) Electronic Contracts 91
4. Formalities Agreed by the Parties: ‘No Oral Variation Clauses’ 92
4 C ON SI DE R AT ION A N D PROM I S S ORY E S TOPPE L 94
1. Consideration 94
(a) Consideration Defined 94
(b) Necessity for Consideration 96
(c) Executory and Executed Consideration 97
(d) Past Consideration 98
(e) Consideration Must Move from the Promisee 100
(f) Consideration Need Not be Adequate 102
(g) Consideration Must be Real 103
(h) Performance of, or Promise to Perform, an Existing Duty 107
(i) Discharge of a Debt 114
(j) Letters of Credit 118
2. Promissory Estoppel 119
(a) Emergence of Promissory Estoppel 120
(b) Scope of Promissory Estoppel 122
 Detailed Contents xi

(c) Three Other Types of Estoppel 129

3. Appraisal of Consideration and Promissory Estoppel 133

PA RT 2 C O N T E N T S OF T H E C O N T R AC T

5 T H E T E R M S OF T H E C ON T R AC T 139
1. Terms, Collateral Warranties, and Representations 139
(a) Terms and Representations 139
(b) Collateral Warranties 142
(c) Extrinsic Evidence 144
2. Conditions, Warranties, and Innominate Terms 146
(a) Introduction 146
(b) Conditions 147
(c) Warranties 150
(d) Evaluation of the Ab Initio Classification of Terms 150
(e) Innominate Terms 151
(f) Distinguishing Innominate Terms and Conditions 153
(g) Loss of the Right of Discharge 156
(h) Part 1 of the Consumer Rights Act 2015 157
3. Implied Terms 158
(a) Terms Implied by the Courts and by Statute 158
(b) Terms Implied by the Courts 158
(c) Terms Implied by Statute 168
(d) Part 1 of the Consumer Rights Act 2015: Terms Treated as Included 175
4. Interpretation of Terms 175
(a) The Objective and Contextual Approach 176
(b) Particular Rules of Interpretation 180

6 E X E M P T ION C L AUSE S A N D U N FA I R T E R M S 183

1. Standard Forms of Contract 183
2. Incorporation 185
(a) Signature 185
(b) Notice 185
(c) Course of Dealing; Usual Trade Terms 189
3. Interpretation of Exemption Clauses 190
(a) Strict Interpretation 191
(b) Exclusion of Liability for Deliberate Breach 192
(c) Exclusion of Liability for Fraud 192
(d) Exclusion of Liability for Negligence 193
(e) Limitation Clauses 195
(f) ‘Fundamental’ Terms and ‘Fundamental Breach’ 196
4. Other Common Law Rules Controlling Exemption Clauses 203
(a) Express Undertakings 203
(b) Misrepresentation of Content or of Effect of Clause 204
(c) Reasonableness at Common Law? 204
xii Detailed Contents

5. Legislative Control of Exemption Clauses and Unfair Terms 205

(a) Exemption Clauses in Non-consumer Contracts: Unfair
Contract Terms Act 1977 205
(b) Unfair Terms in Consumer Contracts: Consumer Rights Act 2015 218
(c) Other Legislative Controls on Exemption Clauses and Unfair Terms 228

PA RT 3 FAC T OR S T E N DI N G T O DE F E AT C O N T R AC T UA L
LIA BILIT Y

7 I NC A PAC I T Y 233
1. Grounds of Contractual Incapacity 233
2. The Crown and Public Authorities 234
(a) The Crown 234
(b) Public Authorities 238
3. Corporations and Unincorporated Associations 243
(a) Corporations 243
(b) Unincorporated Associations 246
4. Minors 247
(a) Common Law: Introduction 248
(b) Contracts for Necessaries 248
(c) Voidable Contracts 252
(d) Other Contracts: Unenforceable Unless Ratified 254
(e) The Nature of the Liability of Minors 254
(f) Liability of Minors in Tort 256
(g) Liability of Minors in Unjust Enrichment 257
(h) Restitution in Favour of Minors 261
(i) Third Parties 261
5. Persons Lacking Mental Capacity and Drunken Persons 262
8 M I S TA K E 265
1. Introduction 265
2. Categorizing Mistakes 267
3. Mistakes about the Terms of the Contract 268
(a) ‘Subjective’ and ‘Objective’ Agreement in the Formation of a Contract 268
(b) The ‘Objective Test’ 269
(c) Mistake in Relation to a Written Document 275
(d) Equitable Remedies for Mistakes about the Terms 283
4. Mistakes about the Identity of the Person with
Whom the Contract is Made 285
(a) An Offer can be Accepted only by the Person to Whom it is Addressed 286
(b) The Need for an Identifiable Third Person 288
(c) Written Contracts 291
(d) Transactions Concluded in the Parties’ Presence 291
(e) The Current State of the Law; Critique 293
 Detailed Contents xiii

5. Mistakes of Fact or Law about the Subject-Matter

of the Contract or the Surrounding Circumstances 294
(a) Unilateral Mistakes of Fact or Law 296
(b) Common Mistakes of Fact or Law 296

9 M I SR E PR E SE N TAT ION A N D NON-DI S C L O SU R E 315

1. Introduction 315
2. Misrepresentation 316
(a) Puffs, Representations, and Terms 316
(b) Requirements for Relief for Misrepresentation 317
(c) Remedies for Misrepresentation: an Overview 324
(d) ‘Fraudulent’, ‘Negligent’, and ‘Innocent’ Misrepresentations 327
(e) Rescission of the Contract 329
(f) Damages for Fraudulent Misrepresentation:
the Tort of Deceit 340
(g) Damages for Negligent Misrepresentation: the Tort of Negligence
or Section 2(1) Misrepresentation Act 1967 343
(h) Exclusion and Limitation of Liability 347
3. Consumers’ Rights to Redress under the Consumer
Protection From Unfair Trading Regulations 2008 352
4. Non-disclosure 354
(a) No General Duty to Disclose 354
(b) Particular Duties of Disclosure 356
(c) Duties of Disclosure Giving Rise to Rescission 357
(d) Contracts Between Those in a Fiduciary Relationship 361
(e) Liability in Tort for Non-Disclosure 364
(f) Statutory Duties of Disclosure 365
(g) The Future 367

10 DU R E S S , U N DU E I N F LU E NC E , A N D U NC ON S C IONA BL E
BA RG A I N S 371
1. Introduction 371
2. Duress 372
(a) Nature of Duress 372
(b) Unlawful Pressure 374
(c) Duress Distinguished from Legitimate Renegotiation 377
(d) Threats of Lawful Action 379
(e) Rescission 381
3. Undue Influence 382
(a) Nature of Undue Influence 382
(b) Actual Undue Influence 384
(c) Presumed Undue Influence 385
(d) Rescission 391
(e) Undue Influence by a Third Party to the Contract 393
4. Unconscionable Bargains 397
xiv Detailed Contents

5. Consumers’ Rights to Redress under the Consumer Protection from

Unfair Trading Regulations 2008 399
6. Inequality of Bargaining Power? 400
11 I L L E G A L I T Y 405
1. Introduction 405
2. What Counts as Illegality? 406
(a) Crimes 406
(b) Civil Wrongs 408
(c) Conduct that is Contrary to Public Policy 408
3. The Effect of Illegality 410
(a) Introduction 410
(b) The Effect of Illegality on Contract Enforceability (and Consequent
Restitution) by Reason of Statute 411
(c) The Effect of Illegality on Contract Enforceability (and Consequent
Restitution) at Common Law 413
4. Contracts in Restraint of Trade 426
(a) Introduction 426
(b) Restraint of Trade Defined 427
(c) The Modern Law 429
(d) Reasonableness in the Interests of the Parties 430
(e) Reasonableness in the Interests of the Public 431
(f) Cartel Agreements 432

PA RT 4 PE R F OR M A N C E A N D DI S C H A RG E

12 PE R F OR M A NC E 437
1. Performance Must be Precise and Exact 437
(a) Standards of Contractual Duty 437
(b) Deviation from Contractual Terms 438
2. Time of Performance 438
(a) Stipulations as to Time at Common Law 438
(b) Stipulations as to Time in Equity 439
(c) Law of Property Act 1925, section 41 439
(d) Mercantile Contracts 440
3. Place of Performance 441
4. Order of Performance 441
5. Payment 441
(a) Introduction 441
(b) Interbank Transfers 442
(c) Payment by Negotiable Instrument or Documentary Credit 443
(d) Payment by Credit or Charge Card 443
6. Vicarious Performance 444
7. Alternative Modes of Performance 445
 Detailed Contents xv

(a) Contract Option 445

(b) Performance Option 445
8. Right of Party in Breach to Cure Bad or Incomplete Performance 446
9. Tender 446
(a) Tender of Acts 446
(b) Tender of Payment 447
(c) Early Tender 448
10. Partial Performance 448
(a) Entire and Divisible Obligations 448
(b) Doctrine of ‘Substantial Performance’ 451
(c) Acceptance of Partial Performance by Innocent Party 452
(d) Incontrovertible Benefit 453

13 DI S C H A RGE BY AGR E E M E N T 454

1. Introduction 454
(a) Consideration Applies to Discharge 454
(b) Contracts Evidenced by Writing 455
2. Forms of Discharge by Agreement 455
(a) Release 455
(b) Accord and Satisfaction 456
(c) Rescission 457
(d) Variation 459
(e) Waiver 461
(f) Provisions for Discharge Contained in the Contract Itself 464

14 DI S C H A RGE BY F RUS T R AT ION 467

1. Introduction 467
2. Emergence of the Doctrine 468
3. Instances of Frustration 471
(a) Destruction of Subject-Matter of Contract 471
(b) Non-Occurrence of a Particular Event 472
(c) Death, or Incapacity for Personal Service 473
(d) Requisitioning of Ships and Interferences with Charterparties 474
(e) Sale and Carriage of Goods 476
(f) Building Contracts 477
(g) Change in the Law 477
(h) Performance of Only One Party Affected 478
4. The Theoretical Basis of Frustration 479
(a) Implied Term 479
(b) ‘Just and Reasonable Result’ 481
(c) Foundation of the Contract 481
(d) Radical Change in the Obligation 482
5. Incidence of Risk 485
(a) Express Provision 485
(b) Foreseen Events 486
(c) Prevention of Performance in Manner Intended by One Party 486
xvi Detailed Contents

(d) Delay 487

(e) Inflation 488
6. Self-Induced Frustration 488
(a) Choosing Between Different Contracts 489
(b) Negligent Acts 490
7. Leases and Contracts for the Sale of Land 491
8. Effects of Frustration 493
(a) Common Law 493
(b) Law Reform (Frustrated Contracts) Act 1943 495

15 DI S C H A RGE F OR BR E AC H 503
1. Discharge at Option of the Injured Party 503
(a) Effect of Unaccepted Repudiation 504
(b) Failure of Performance 505
(c) Affrmation of Contract 506
(d) Effect of Election to Accept Breach 506
(e) No Reason or Bad Reason for Claiming to be Discharged 507
(f) Consumer Sale and Supply Contracts: Interaction
with Other Remedies 508
2. Forms of Breach which Justify Discharge 510
(a) Renunciation 510
(b) Impossibility Created by One Party 514
(c) Failure of Performance 516
3. Consequences of Discharge 522
(a) Release from Future Obligations 522
(b) Contract Not Rescinded Ab Initio 522
(c) Accrued Obligations Remain 523
(d) Restitutionary Claims 524
4. Loss of the Right of Discharge 524
16 DI S C H A RGE BY OPE R AT ION OF L AW 525
1. Merger 525
(a) Acceptance of Higher Security 525
(b) Rights Vesting in Same Person 526
2. Discharge by Judgment of a Court 526
(a) Effect of Bringing Action 526
(b) Effect of Judgment for Claimant 526
(c) Effect of Judgment for Defendant 527
3. Alteration or Cancellation of a Written Instrument 527
(a) Rule as to Alteration 527
(b) Bills of Exchange 528
(c) Cancellation and Loss 528
4. Bankruptcy 528
 Detailed Contents xvii

PA RT 5 R E M E DI E S F OR B R E AC H OF C O N T R AC T

17 DA M AGE S 531
1. Damages and Other Remedies for Breach of Contract 531
2. Compensatory Nature of Damages 532
(a) Compensation for Loss 532
(b) Damages are Not Punitive 532
(c) Difficulty of Assessment No Bar 533
(d) The Date for Assessment 533
(e) Compensation for Inconvenience or Mental Distress 534
(f) Loss of Reputation 536
3. Basis of Assessment of Damages 537
(a) The ‘Performance’ or ‘Expectation’ Measure 538
(b) The Reliance Measure 540
4. Causation 542
5. Remoteness 542
(a) The Basic Two-Branched Rule 542
(b) The Impact of The Achilleas 546
(c) Should there be a Difference Between the Tests of
Remoteness in Contract and Tort? 548
(d) Type of Damage 549
(e) Damage Arising in the Usual Course of Things 550
(f) Damage Reasonably Supposed to be in the Contemplation
of the Parties 553
6. Mitigation 554
(a) Acting Reasonably 554
(b) Compensating Advantages may Reduce Damages 555
7. Assessment of Damages in Contracts for the Sale of Goods 556
(a) Non-Delivery 557
(b) Late Delivery 557
(c) Non-Acceptance 558
(d) Breach of Warranty 559
8. Claimant’s Contributory Negligence 561
(a) No Apportionment at Common Law 561
(b) Law Reform (Contributory Negligence) Act 1945 561
9. The Tax Element in Damages 562
10. Interest  563
11. Negotiating Damages  565
12. Agreed Damages Clauses  567
(a) Liquidated Damages and Penalties 567
(b) Application of the Traditional Test 569
(c) Necessity for Breach 572
(d) Amounts Recoverable 573
xviii Detailed Contents

18 SPE C I F IC R E M E DI E S 575
1. Actions for the Agreed Sum 575
2. Specific Performance 578
(a) Adequacy of Damages 578
(b) Want of Mutuality 581
(c) Contracts of Personal Service 581
(d) Uncertainty 582
(e) Constant Supervision by the Court 582
(f) Conduct and Hardship 583
(g) Miscellaneous 584
3. Injunctions 584
(a) Prohibitory Injunctions 585
(b) Mandatory Injunctions 588
4. Equitable Damages 588
19 R E S T I T U T IONA RY AWA R D S 589
1. The Recovery of Money Paid 589
(a) Recovery by the Innocent Party 589
(b) Recovery by the Party in Breach 593
2. Restitution in Respect of Services or Goods 596
(a) Introduction 596
(b) Restitutionary Claims by the Innocent Party 596
(c) Quantum Meruit Compared with Damages 597
(d) Restitutionary Claims by the Party in Breach 598
3. An Account of Profits 599
(a) Introduction 599
(b) Attorney-General v Blake 600

2 0 L I M I TAT ION OF AC T ION S 605

1. Limitation Act 1980 605
(a) The General Rule 605
(b) Persons Under a Disability 606
(c) Effect of Fraud, Concealment, and Mistake 607
(d) Acknowledgement and Part Payment 607
(e) Statute Bars Remedy Not Right 608
2. Bars to Equitable Relief: Laches 608
(a) The Statute Applied by Analogy 608
(b) Laches 609

PA RT 6 L I M I T S OF T H E C O N T R AC T UA L O B L IG AT IO N

21 T H I R D PA RT I E S 613
1. Introduction 613
2. The Acquisition of Contractual Rights by Third Parties 614
 Detailed Contents xix

(a) The Development of the Common Law Rule 614

(b) Remedies of the Promisee 616
(c) Rationale and Appraisal of the Common Law Rule 622
(d) The Contracts (Rights of Third Parties) Act 1999 625
(e) Assignment and Agency 637
(f) Trusts of Contractual Rights 637
(g) Miscellaneous Statutory Exceptions to Privity 641
(h) Contracts Concerning Land 643
(i) Contracts Giving Rise to Tortious Duties of Care to Third Parties 644
(j) Third Parties Taking the Benefit of Exemption Clauses 645
(k) Further Development of the Common Law 652
3. The Imposition of Contractual Liabilities upon Third Parties 652
(a) Introduction 652
(b) Covenants Concerning Land 653
(c) Contracts Concerning Chattels 654
(d) Exemption Clauses Binding Third Parties 658
(e) The Contracts (Rights of Third Parties) Act 1999 660

2 2 A S SIG N M E N T 661
1. Assignment 661
(a) No Assignment at Common Law 661
(b) Assignment in Equity: the Historical Background 662
(c) Assignment under the Law of Property Act 1925 663
(d) Equitable Assignment 666
(e) Assignee Takes ‘Subject to Equities’ 670
(f) Priorities 672
(g) Rights Not Assignable 673
(h) Liabilities Cannot be Assigned 676
2. Vicarious Performance 677
3. Novation 677
4. Assignment by Operation of Law 678
(a) The Effect of Death 678
(b) Bankruptcy 679

2 3 AGE NC Y 680
1. Modes of Creation 681
(a) Actual Authority 681
(b) Ratification 682
(c) Ostensible Authority 685
(d) Usual Authority? 687
2. Effects of Agency 688
(a) The Contractual Relations Between the Principal and the Third Party 688
(b) The Contractual Relations Between the Agent and the Third Party 692

Index 697
 TABLE OF STATUTES

Administration of Justice Act (Act for the better Civil Jurisdiction and Judgments Act 1982
preventing frivolous and vexatious Suits 8 & s 34 . . . 527
9 Will III, c 11) 1696, Civil Liability (Contribution) Act 1978 . . . 18, 19
s 8 . . . 567 Coinage Act 1971 . . . 447
Agricultural Holdings Act 1986 Companies Act 1948
s 12 . . . 103 s 43 . . . 344
Sch 2, para 1(1) . . . 103 Companies Act 1985
Apportionment Act 1870 . . . 576 s 35 . . . 245
s 2 . . . 448, 523, 576, 577 s 35A . . . 246
s 7 . . . 576 s 35B… 245
Arbitration Act 1996 Companies Act 1989 . . . 245
s 41 . . . 489 s 108 . . . 245, 246
s 41(3) . . . 457 Companies Act 2006 . . . 243, 244, 245, 246
s 41(6) . . . 33 s 8 . . . 243
Bills of Exchange Act 1882 . . . 18, 81, 167, 626 s 17 . . . 243
s 3(1) . . . 81 s 28(1) . . . 243
s 17 . . . 693 s 31(1) . . . 243
s 17(2) . . . 79 s 33 . . . 34, 625
s 22 . . . 250 s 39 . . . 246
s 25 . . . 693 s 39(1) . . . 245, 686
s 26 . . . 693 s 40(1) . . . 246
s 27(1) . . . 100 s 40(2) . . . 246
s 31(5) . . . 693 s 40(2)(b)(i) . . . 245
s 61 . . . 526 s 41 . . . 246
s 62 . . . 457 s 43 . . . 246
s 64 . . . 528 s 44 . . . 79, 246
s 69 . . . 528 s 46(1) . . . 79
Bills of Lading Act 1855 . . . 649 s 51(1) . . . 684, 694
Bills of Sale Act 1878 . . . 679 s 83 . . . 693
Carriage by Air Act 1961 s 171 . . . 246
Sch 1, Art 23 . . . 228 s 544 . . . 663
Sch 1A, Art 26 . . . 228 Competition Act 1998 . . . 5, 429
Sch 1A, Art 47 . . . 228 Consumer Credit Act 1974 . . . 5, 223, 368, 402
Carriage of Goods by Road Act 1965 . . . 228 s 55 . . . 368
Sch 1, Art 41 . . . 228 s 60 . . . 78, 81, 368
Carriage of Goods by Sea Act 1971 . . . 650 s 64 . . . 78, 81
s 3 . . . 437 ss 67–8 . . . 78
Sch . . . 196, 202, 646 s 76 . . . 464
Sch 1, Art III.8 . . . 228 s 86B . . . 464
Carriage of Goods by Sea Act 1992 . . . 619, 625, s 86D . . . 464
626, 642 s 86E . . . 464
s 2 . . . 649 s 87 . . . 464
s 2(1) . . . 626 s 88 . . . 464
s 2(1)(a) . . . 642 s 100 . . . 572
s 2(5) . . . 642 s 105(1) . . . 83
s 3(1)(a) . . . 642 ss 137–40 . . . 402
s 3(3) . . . 642 ss 140A–140C . . . 402, 403
Cheques Act 1957 ss 140A–140D . . . 229
s 3 . . . 442 s 173(1) . . . 228
 Table of Statutes xxi

Consumer Credit Act 2006 . . . 5, 464 s 25(1) . . . 452

ss 19–21 . . . 402, 403 s 26 . . . 520
Consumer Insurance (Disclosure and s 26(3) . . . 447
Representations) Act 2012 . . . 319, 329, 358 s 26(4) . . . 447
s 1 . . . 358 s 28 . . . 441, 509
s 2 . . . 329, 358 s 28(3) . . . 440
s 2(5) . . . 356 s 29 . . . 501
s 6 . . . 358 s 31 . . . 205, 219
Sch 1, Pt 1 . . . 329 ss 34–37 . . . 5
Sch 1, para 5 . . . 323 ss 34–41 . . . 175
Sch 1, para 6 . . . 323 s 34 . . . 437
Sch 1, para 7 . . . 323 ss 36–37 . . . 142
Consumer Protection Act 1987 . . . 402 s 41 . . . 5, 437
Pt I . . . 608 ss 42–43 . . . 579
s 7 . . . 228 s 42 . . . 157, 175, 509
s 41(4) . . . 228 s 42(1) . . . 579
Consumer Rights Act 2015 . . . 5, 19, 20, 22, 103, s 43(3) . . . 580
142, 153, 157, 158, 168, 173, 174, 175, 183, 190, s 47 . . . 219
195, 198, 199, 200, 203, 205, 208, 211, 218, 219, ss 49–52 . . . 5
220, 224, 226, 227, 228, 229, 334, 348, 351, ss 49–53 . . . 175
403, 409, 503, 508, 509, 556, 559, 569, 579, s 49 . . . 437
580, 594, 636 s 50 . . . 142
Pt 1 . . . 156, 157, 164, 175, 219, 403, 508, 579 s 51 . . . 596
Pt 2 . . . 5, 19, 20, 205, 219, 224, 349, 351, 402, ss 54–55 . . . 579
569, 636 s 54(2) . . . 580
s 1 . . . 205 s 54(7)(f) . . . 509
s 1(1) . . . 219,509 s 55(3) . . . 580
s 2 . . . 205 s 57 . . . 193, 219
s 2(2) . . . 219 s 58 . . . 580, 581
s 2(3) . . . 219 s 58(3) . . . 580
s 3(3)(d) . . . 2 s 61 . . . 205
ss 9–17 . . . 5 s 62 . . . 193, 219, 349, 351, 445, 459, 464
ss 9–18 . . . 175 s 62(1) . . . 227
s 9 . . . 437 s 62(4) . . . 220
ss 11–12 . . . 142 s 62(5) . . . 220
s 15 . . . 509 s 63 . . . 445, 459, 464
s 16 . . . 509 s 64 . . . 221, 222
s 17 . . . 437 s 64(1) . . . 221
ss 19–20 . . . 157, 175 s 64(2) . . . 221, 223
s 19 . . . 579 s 64(3) . . . 223
s 19(1)–(2) . . . 579 s 64(4) . . . 223
s 19(3) . . . 509 s 64(5) . . . 223
s 19(12) . . . 509 s 64(6) . . . 221, 223
s 19(13) . . . 157 s 65 . . . 187, 193, 219, 647
s 20 . . . 509 s 67 . . . 227
s 20(5) . . . 509 s 68 . . . 227
s 20(6) . . . 509 s 69 . . . 182
s 20(7) . . . 509 s 70 . . . 220, 228
s 20(8) . . . 509 s 76 . . . 205
s 20(20) . . . 509 s 77 . . . 228
s 20(21) . . . 509 Sch 2 . . . 220, 226, 459
s 21 . . . 509 Sch 2, Pt 1 . . . 220, 221, 223, 445, 464
s 22 . . . 509 Sch 2, para 2 . . . 445
s 23 . . . 579 Sch 2, para 3 . . . 445
s 23(3) . . . 580 Sch 2, para 4 . . . 594
s 24 . . . 509 Sch 2, para 5 . . . 569, 572
xxii Table of Statutes

Sch 2, para 6 . . . 220 s 6(7) . . . 625

Sch 2, para 7 . . . 220, 464 s 7(1) . . . 613, 625
Sch 2, para 8 . . . 220, 464 s 7(2) . . . 636
Sch 2, para 11 . . . 220, 445 s 7(3) . . . 636
Sch 2, para 13 . . . 445 s 8 . . . 624, 630
Sch 2, para 15 . . . 445 Copyright Act 1956
Sch 2, para 16 . . . 220 s 8 . . . 96
Sch 2, para 17 . . . 351 Copyright, Designs and Patents Act 1988
Sch 2, para 18 . . . 220 s 90 . . . 663
Sch 3 . . . 228 s 94 . . . 663
Sch 3, para 2(3) . . . 228 s 170 . . . 96
Sch 4 . . . 205, 208 Sch 1, para 21 . . . 96
Sch 4, para 1 . . . 349 Corporate Bodies’ Contracts Act 1960 . . . 246
Sch 4, para 4 . . . 219, 351 County Courts Act 1984
Sch 4, para 5 . . . 211 s A1(2) . . . 526
Sch 5 . . . 228 s 35 . . . 526
Consumer Safety Act 1978 . . . 402 s 38 . . . 584
Contracts (Rights of Third Parties) Act s 69 . . . 564
1999 . . . 18, 19, 101, 613, 614, 624, 625–36, Crime and Courts Act 2013
638, 640, 641, 644, 646, 647, 649, 651, 652, 660 s 17(1) . . . 526
s 1 . . . 634 Criminal Justice Act 1993
s 1(1)(a) . . . 626 s 52 . . . 407, 413
s 1(1)(b) . . . 626, 627, 628, 629, 630, 631, 632, 645 Criminal Law Act 1967
s 1(2) . . . 626, 627, 628, 632 s 14(2) . . . 674
s 1(3) . . . 626, 627, 632, 649, 651 Crown Proceedings Act 1947 . . . 234
s 1(4) . . . 625, 633, 660 s 2(1)(a) . . . 237
s 1(5) . . . 632 s 2(1)(b) . . . 237
s 1(6) . . . 624, 647 s 11 . . . 237
s 2 . . . 641, 642 s 21 . . . 234
s 2(1) . . . 635 Currency Act 1983 . . . 447
s 2(1)(a) . . . 635 Currency and Bank Notes Act 1954 . . . 447
s 2(1)(b) . . . 635 Defective Premises Act 1972
s 2(1)(c) . . . 635 s 6(3) . . . 228
s 2(2)(a) . . . 635 Electricity Act 1989
s 2(2)(b) . . . 635 s 3(2) . . . 6
s 2(3) . . . 636 s 16 . . . 6
s 2(3)(a) . . . 636 s 18(4) . . . 6
s 2(3)(b) . . . 636 Electronic Communications Act 2000
s 2(4)(a) . . . 636 s 7 . . . 91
s 2(4)(b) . . . 636 s 8 . . . 92
s 2(5) . . . 636 s 8(1) . . . 92
s 3 . . . 641, 642 Employers’ Liability Act 1880 . . . 250
s 3(2) . . . 634 Employment Rights Act 1996 . . . 5, 237
s 3(3) . . . 634 ss 1–2 . . . 78
s 3(4) . . . 632, 634 ss 4–6 . . . 78
s 3(5) . . . 634 s 64 . . . 473
s 4 . . . 625 s 86 . . . 466
s 5 . . . 634 ss 114–115 . . . 582
s 5(a) . . . 634 s 130 . . . 582
s 6(1) . . . 625 s 191 . . . 237
s 6(2)–(4) . . . 624 s 192 . . . 237
s 6(2) . . . 625 Energy Act 1976 . . . 368
s 6(3) . . . 625 s 15(3) . . . 368
s 6(5) . . . 625, 647 Enterprise Act 2002 . . . 5, 429
s 6(6) . . . 625 Pt 8 . . . 228
 Table of Statutes xxiii

ss 214–218 . . . 228 Housing Act 1985 . . . 5, 368

s 214 . . . 228 s 125(4A) . . . 368
s 219 . . . 228 Housing Act 1988 . . . 5
Enterprise and Regulatory Reform Act Housing and Planning Act 1986 . . . 368
2013 . . . 5, 429 s 125(4A) . . . 368
Equality Act 2010 . . . 5, 37 Human Rights Act 1998 . . . 22, 241
s 29 . . . 5 s 12 . . . 582
s 31(2) . . . 5 Human Tissue Act 2004
s 124 . . . 5 s 32 . . . 411
s 142(1) . . . 412 Identity Documents Act 2010
Estate Agents Act 1979 ss 1–3 . . . 294
s 18 . . . 78 Immigration Act 1971
European Communities Act 1972 s 24B . . . 412
s 9 . . . 245 Immigration, Asylum and Nationality
European Union (Withdrawal) Act 2018 . . . vi, Act 2006
5, 21, 219, 242, 366, 402, 509 s 15 . . . 412
s 2(1) . . . 21 s 21 . . . 412
s 8 . . . 21 Income Tax (Earnings and Pensions) Act 2003
Factors Act 1889 ss 401–403 . . . 563
s 9 . . . 335 Indian Contract Act 1872 . . . 19
Fair Trading Act 1973 . . . 5 s 20 . . . 308
Family Law Reform Act 1969 Infants Relief Act 1874 . . . 254, 255, 259
s 1 . . . 247 s 1 . . . 255, 261
Financial Services Act 1986 . . . 366 s 2 . . . 254
s 47 . . . 368 Insolvency Act 1986
Sch 8 . . . 366 s 44 . . . 679
Financial Services Act 2012 . . . 5, 366 s 238 . . . 103
Pt 7 . . . 328 s 260(2) . . . 117
s 24 . . . 366 s 281(1) . . . 528
Financial Services and Markets Act 2000 . . . 5, s 283(1) . . . 679
20, 86, 365, 366, 368, 402 s 291A . . . 679
Pt 9A . . . 366 s 296 . . . 679
Pt XVI . . . 20 s 306 . . . 679
ss 26–30 . . . 412 s 307 . . . 679
ss 80–82 . . . 362, 365 s 311(4) . . . 679
s 90 . . . 344, 362 s 315 . . . 679
s 90(1) . . . 365 s 323 . . . 679
ss 138–140 . . . 366 s 340 . . . 117
s 138D . . . 366 s 344 . . . 679
s 150 . . . 366 s 436 . . . 679
s 382 . . . 328 Insurance Act 2015 . . . 19, 319, 329, 358, 642
Sch 10 . . . 365 s 1 . . . 358
Sch 17 . . . 20 s 3 . . . 358
Fraud Act 2006 ss 4–6 . . . 358
s 2 . . . 328 s 7 . . . 358
Gambling Act 2005 . . . 106, 412 s 8(1) . . . 358
Gas Act 1986 s 8(5) . . . 358
s 9(2) . . . 6 s 9 . . . 358
s 10 . . . 6 s 14 . . . 358
Gas Act 1994 . . . 6 s 14(1) . . . 356
Hallmarking Act 1973 . . . 368 s 14(2) . . . 356
s 11 . . . 368 s 21(2) . . . 358
Hire-Purchase Act 1964 Sch 1, para 2 . . . 359
s 27 . . . 288 Sch 1, paras 3–6 . . . 359
Housing Act 1980 . . . 5 Insurance Companies Act 1982 . . . 402
xxiv Table of Statutes

Judgments Act 1838 s 1(3)(a) . . . 79

s 17 . . . 564 s 1(3)(b) . . . 79
Land Charges Act 1972 s 1(4) . . . 79
s 2(5) . . . 654 s 1(9)–(10) . . . 79
s 4(6) . . . 654 s 2 . . . 71, 85, 86, 87, 88, 90, 91, 455, 460
s 17(1) . . . 103 s 2(1) . . . 8, 86, 87, 88
Land Registration Act 2002 s 2(3) . . . 87, 691
s 28 . . . 654 s 2(4) . . . 88, 283
s 29 . . . 654 s 2(5) . . . 86, 89, 90
Landlord and Tenant Act 1927 s 2(5)(b) . . . 86
s 18 . . . 539 s 2(5)(c) . . . 86
Landlord and Tenant Act 1985 . . . 5 s 2(6) . . . 86
s 4 . . . 78 Law of Property (Miscellaneous Provisions) Act
Landlord and Tenant Act 1987 . . . 5 1994 . . . 19
Landlord and Tenant (Covenants) Act 1994 Pt I . . . 175
s 3 . . . 643 Law Reform (Contributory Negligence) Act
Late Payment of Commercial Debts (Interest) 1945 . . . 561–2
Act 1998 . . . 564 Law Reform (Enforcement of Contracts) Act
s 1(3) . . . 564 1954 . . . 77, 81
s 2(1) . . . 564 Law Reform (Frustrated Contracts) Act
s 3(2) . . . 564 1943 . . . 18, 313, 448, 495–502
s 4 . . . 564 Law Reform (Miscellaneous Provisions) Act 1970
s 5 . . . 564 s 1 . . . 109
ss 7–10 . . . 564 Limitation Act 1939
s 9 . . . 564 s 26(b) . . . 607
s 11 . . . 564 Limitation Act 1980 . . . 605–8, 636
Law of Property Act 1925 . . . 80, 86, 63–65, 681 s 3 . . . 294
s 1(6) . . . 252 s 3(2) . . . 608
s 40 . . . 691 s 4 . . . 294
s 40(1) . . . 84, 86, 88, 90 s 5 . . . 605
s 41 . . . 439 s 6 . . . 605
s 49(2) . . . 594 s 8 . . . 605
s 52 . . . 80 s 11 . . . 605
s 53(1) . . . 681 s 11A(3) . . . 608
s 53(2) . . . 89 s 12 . . . 605
s 54 . . . 80, 681 s 13 . . . 605
s 56 . . . 644 s 14 . . . 605
s 56(1) . . . 643, 644 ss 14A–14B . . . 606
s 78(1) . . . 643 s 17 . . . 608
s 84(7) . . . 103 s 28 . . . 606
s 136 . . . 370 s 28(2) . . . 606
s 136(1) . . . 663, 666 s 29(5) . . . 607
s 137(3) . . . 673 s 29(7) . . . 608
s 141 . . . 643 s 30 . . . 608
s 142 . . . 643 s 32 . . . 607
s 146 . . . 465 s 32(1)(a) . . . 347, 607
s 174 . . . 397 s 32(2) . . . 607
s 185 . . . 526 s 33 . . . 605
s 205(1)(xx) . . . 643 s 36(1) . . . 608, 609
s 205(1)(xxi) . . . 103 s 36(2) . . . 609
Law of Property (Miscellaneous Provisions) s 38(2) . . . 606
Act 1989 . . . 19, 79, 84, 85, 86, 87, 88, 89, 90, Limited Liability Partnerships Act 2000 . . . 243
691, 693 s 1(3) . . . 245
s 1 . . . 78, 79, 85 s 6 . . . 246, 247
s 1(1)(b) . . . 77 Local Government Act 1972 . . . 103
s 1(1)(c) . . . 79 s 135 . . . 239, 242
s 1(2)(a) . . . 79 s 137 . . . 239
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 Fig. 198 Fig. 199

Tabetic arthropathy. (Case of E. A. Neuropathic arthritis (tabetic joints).

Smith.) (Lexer.)

Locomotor ataxia is a common disease, but syringomyelia has

been regarded as exceedingly rare. Nevertheless, Schlesinger has
collected 130 cases of it, in one-fourth of which bone and joint
symptoms were present. That the nervous system is primarily at fault
is made clear, among other things, by the rapidity of involvement
occasionally seen, where, for instance, an entire limb becomes
edematous, with every indication of severe disturbance. In tabes the
lower extremities suffer more often than the others; the reverse is
true in cases of syringomyelia. While floating bodies in the joints and
ossification of the muscles and soft parts are common in arthritis
deformans, they seldom occur in the neuropathic lesions.
Suppuration and necrosis are rare in any of these forms, occurring
more frequently in the finger than elsewhere, and are probably due
to infection of those areas where sensibility is lost and trifling injuries
less guarded against. The neuropathic lesions are more commonly
symmetrical, and are often accompanied by a cretinic general
appearance (Figs. 196, 197, 198, 199, 200 and 201).

Fig. 200

Skiagram of joints shown in Fig. 199. (Lexer.)

 Fig. 201

Arthropathy of syringomyelia. Left elbow, illustrating disintegration, etc., without

ulceration or suppuration. (Quenu.)

The joint complications of syringomyelia are frequently

characterized by skin lesions which tend to suppurate, by sudden
edema, occasionally followed by phlegmon and even necrosis, also
by other disturbances of innervation.
Surgical treatment of these lesions is less discouraging than would
at first appear, as even in these patients serious wounds heal readily,
while in healthy tissues primary union may occur. The wisdom,
therefore, of incision, resection, or even amputation may be decided
on their merits, and there can be no objection to open drainage when
it would otherwise be indicated. Even in cases of spontaneous
fracture proper treatment usually gives good results, although the
amount of callus may seem disproportionate.
In any of the joints distorted by deforming osteoarthritis or
neuropathic lesions, the question of partial or complete resection or
exsection may be discussed upon its merits, since these operations,
when duly indicated, have often given satisfactory results, even in
elderly people.
Diagnosis.—Differential diagnosis will be made more easy by the
exclusion of syphilis and of the acute or ordinary
infectious forms of disease. The relative freedom from pain, the
relaxation of the joint structures, the large amount of fluid present,
and the age of the patient will aid in excluding all but the neuropathic
elements associated with spinal disease.
Treatment.—Treatment is rarely curative; usually it can be
palliative at best. Measures above mentioned, when
they seem indicated, coupled with mechanical support, by which the
parts may be maintained as nearly as possible in their proper
position, will give the best result. If the disease be monarticular,
exsection will frequently give a satisfactory result. Multiple lesions
rarely permit of serious operations.

HYSTERIA AND HYSTERICAL JOINTS.

A different form of distinctly neuropathic joint affection is the so-
called hysterical joint. This is characterized by the absence of every
objective and the presence of nearly every subjective symptom. It
occurs most often in young women and girls, follows perhaps some
trifling injury, and involves most commonly the joints of the lower
limbs. These cases are characterized by a disproportion between the
character of the complaint and the actual condition. Imitation of
organic trouble is a predominant feature of all hysterical complaints,
and is nowhere seen to better advantage than in these cases. The
pain, the tenderness, the loss of ability and even the muscle spasm
and muscle atrophy of genuine lesions will be simulated. So true is
this that diagnosis largely rests on the exaggeration of symptoms
which have no apparent existence. Hyperesthesia is sometimes
extreme, but pertains usually to the waking hours. Rarely is there
actual swelling or thickening, or any objective evidence whatever of
disease, save perhaps muscle atrophy due to disuse. It is possible to
have the hysterical element as a complication of actual joint disease,
but the truly hysterical joints usually are easily recognizable.
Treatment.—The treatment of such a joint should be psychical as
well as physical. Sometimes appeals to reason, at
other times to fear or necessity, will be the wiser course. Restoration
of self-confidence is an important feature, and these are the cases
where any form of faith cure will produce its most brilliant results.
Many of these cases are bedridden, and need to have elimination
stimulated in every possible way. They also need sunlight, fresh air,
massage, and renewed use of the parts. Hyperesthesia is best
treated by continuous application of ice-cold compresses, intermitted
perhaps daily for the purpose of using the “flying cautery,” as already
described.

GONORRHEAL OR POSTGONORRHEAL ARTHRITIS.

This condition may occur during the active stage of gonorrhea or
after its apparent subsidence. It was probably the discovery of the
pathogenic gonococcus by Neisser, in 1879, which gave to this
lesion an identity of its own, and induced the profession to abandon
the name gonorrheal rheumatism, by which it had been known. It
has nothing to do with rheumatism, and should not be linked with it in
name any more than in idea. In well-marked cases the gonococcus
will nearly always be found, usually in pure culture, in the joint fluid.
It appears in different degrees of severity, from a mere hydrops,
which is mild, accompanied by slight tissue changes, to a
phlegmonous condition, with widespread destruction of joint
structures and serious constitutional disturbances. As between these
extremes there may be a pyarthrosis or empyema, which is usually
the result of a mixed infection.
 As a complication of urethritis it occurs in 4 or 5 per cent. of cases,
the percentage being larger in children than in adults, the knee being
affected in about one-third of these cases. It is not necessarily
monarticular, however, and sometimes several joints will be involved.
Along with the joint condition there will frequently occur cardiac
lesions (endocarditis) and eye complications. In fact, some of these
cases terminate fatally through the mechanism of a seriously
involved heart, i. e., septic endocarditis or myocarditis. When it
occurs in the ankle or in the tarsal joints the ligaments and
surrounding bursæ are often involved. This involvement, unless
recognized and properly treated, may lead to serious deformity, e. g.,
flat-foot of the most painful kind. Many of these lesions at the heel
are accompanied by true exostoses, which are often painful and
more or less disabling (“painful heel”). Thus, Jaeger has recently
reported a group of ten such cases. These may require excision. In
general this form of arthritis is characterized by severe pain, often
worse at night, and a peculiar distortion of the swollen joint, because
it is usually complicated by a distention of the adjoining tendon
sheaths and bursæ, which is rare in other forms of arthritis. It has
been aptly stated that if in these cases the same zeal were displayed
in seeking for gonococci that has often been shown in looking for
uric acid it would be less often neglected. So far as treatment is
concerned, I desire in this place only to call attention to the absolute
inutility of all the so-called antirheumatic remedies and diet.
However, if the urine be hyperacid it should be corrected by ordinary
means. At first absolute rest, with the local use of the ichthyol-
mercurial or Credé ointment, should be given. Such antiseptics as
one has most confidence in may also be administered internally for
their general beneficial effect. An overdistended joint should be
tapped and irrigated. As soon as the presence of pus can be
determined, either with or without exploration, the joint should be
opened, thoroughly irrigated, and drained. If this were always done
in time the more severe phlegmonous and destructive cases would
rarely occur.

TUBERCULOUS ARTHRITIS.
 Tuberculous disease of the joints is one of the most frequent of
surgical lesions. It has produced characteristic appearances which
have been known under the name of “scrofula of joints,” until a
clearer recognition of the pathology of the condition led to the
abandonment of the term scrofula. Tumor albus, or white swelling,
was another term commonly applied to these lesions, because of the
anemic appearance of the surface of the swollen joint.
Tuberculous arthritis assumes different phases in proportion to the
involvement of the different component structures of the joint. Some
cases begin purely as a tuberculous synovitis, and may for a long
time be limited to the synovial structures. Others begin within the
spongy texture of the expanded joint ends of the long bones, the
disease spreading from such foci and involving everything in the
path which its products take in the effort to secure spontaneous
evacuation, products of softening and infection travelling in the
direction of least resistance.
It has been the writer’s custom to always follow Savory, in his
suggestion to students to let their mental pictures of consumption of
the lungs and pleuræ serve for illustration in similar disease of joints.
Thus the cancellous bone structure much resembles the lung tissue
in its spongy character. In both a capsule surrounds the mass of
tubercle, and in each, by breaking down of its contents, a cavity is
formed. Moreover, the pleura bears practically the same
resemblance and relation to the lung and the chest wall that the
synovialis does to the bone end and the joint cavity; as we may have
pleuritis with phthisis, so we may have synovitis with tuberculous
ostitis; and as adhesions tend to form in the pleural cavity, so also do
they in the synovial cavity. Furthermore, in each case obliteration of
deeper veins causes the more prominent appearance of the
subcutaneous veins, and as tuberculous pleurisy often terminates in
empyema, so does tuberculous hydrarthrosis often terminate in
pyarthrosis, perhaps with fungous ulceration. In almost every
feature, then, the progress and effect of tuberculosis in the lung and
bone end may be likened to each other.
In some clinics bone and joint tuberculosis constitute nearly one-
third of the total of cases treated. Joints of the lower limb are the
ones most frequently involved in children, while in the adult those of
the upper extremity are generally attacked. It is not often that more
than one joint is involved at one time. The relation of traumatism to
this disease has been frequently discussed, and is variously
regarded. The disease is more common in those who are
predisposed to it by environment or by heredity, in the latter case
hereditary evidences usually being well marked. In such predisposed
individuals, especially in the early years of life, severe injuries are
usually promptly repaired, while the milder traumatisms, which are
often frequent and to which too little attention is paid, seem often to
so far lower tissue resistance as to favor an infection to which the
individual is already favorably predisposed. The true position to take,
then, would appear to be this, that traumatisms rarely lead directly to
joint tuberculosis, but only indirectly by affecting tissue susceptibility.
Thus lesions which begin in the epiphyses lead to what is known
as osteopathic joint disease, while those which have their origin in
the synovia give rise to the arthropathic forms. The former are more
common in children and the latter in adults (Fig. 202).
Pathology.—In regard to the pathology of these conditions it does
not vary from that mentioned in the earlier portion of
this work in connection with the general subject of Surgical
Tuberculosis. The deposit of tubercle in the tissue whose resistance
has been weakened is followed by the formation of granulation
tissue, which, so long as the germs survive, tends to increase and to
make room for itself at the expense of surrounding tissue. At the
same time there occurs a tissue struggle by which the attempt is
made to throw around an active focus a protecting barrier, which in
soft tissues consists of condensed fibrous and connective tissue,
and, in bone, of a sclerotic capsule, as though the intent were to
imprison the disturbing cause, and, by completely enclosing it, effect
protection. When this attempt at encapsulation is successful
spontaneous recovery follows. It will be made successful, to some
extent at least, by treatment whose most important local feature is
physiological rest. On the other hand, when the attempt is
unsuccessful and the barrier is transgressed by granulation tissue,
the lesion will advance in the direction of least resistance, while its
progress will be made known, especially as it approaches the
surface, by very significant signs: adhesion of the overlying
structures and finally of the skin, with purplish discoloration of the
latter. Finally softening occurs with escape of granulation tissue,
which, so soon as it is freed from pressure, will grow more luxuriantly
and with more color, constituting the fungous granulation tissue, to
which German pathologists so often allude, or so-called “proud
flesh.” When this appears upon the surface it is soon infected with
pyogenic organisms, breaks down, and an abscess cavity results,
connecting with the original focus and its extensions. This may be so
placed as to lie outside the joint capsule, which, in some respects, is
fortunate for the patient. The joint function may then be
compromised to only a minor degree.

Fig. 202

Central sequestrum. (Ransohoff.)

Often the direction of least resistance is toward the joint cavity, this
fungous tissue loosening and perforating cartilage or periosteum
before it enters the joint. Having penetrated it again it grows
extensively until the cavity is distended, its rapidity of growth
diminishing with the degree of pressure produced by its
surroundings. This pressure will also make it less vascular, and
when such a joint is opened it at first appears pale and anemic. In
proportion as the joint distends it loses in motility, while should
recovery occur spontaneously or as the result of treatment this tissue
will to some extent disappear, to be replaced by adhesions by which
pseudo-ankylosis is produced. The extent of the intra-articular
involvement will cause obstruction to the deeper return circulation,
and thus is brought about the prominence with which the
subcutaneous veins appear. The degree of hydrarthrosis is
apparently not limited except by the distensibility of the joint. In the
articular or arthropathic forms there is always more or less synovial
outpour.
Fig. 203
 Tuberculous panarthritis. (Ransohoff.)

To the condition already described may be added the destruction

produced by suppuration, infection occurring either through the
circulation, as is quite possible, or through some trifling surface
abrasion. In more chronic cases caseation may occur, especially in
bone foci. Finally, as the result of a combination of morbid
processes, there is produced more or less complete disorganization,
all of which is summed up in the term tuberculous panarthritis. To
that condition in which the articular surfaces are more or less
studded with fungous patches the term pannus of the joint is often
applied. To reiterate, then, as between a chronic hydrarthrosis and a
destructive panarthritis, perhaps even with necrosis of epiphyses, it
is but a difference of degree and of combination of infectious
processes (Figs. 203, 204, 205 and 206).
Among the other consequences of panarthritis may be the
formation of sequestra in or near the epiphyses, and such
destruction as shall lead to pathological dislocation, the latter being
well illustrated in Figs. 204 and 207. This dislocation is always the
result of the pull of muscles thrown into that condition of reflex
spasm which is a characteristic feature of this disease. It appears
conspicuously at the knee, usually as a backward subluxation (Fig.
207), and at the hip as an upward dislocation, sometimes with more
or less apparent migration of the acetabulum. Another consequence
of tuberculous hydrarthrosis, which frequently persists even long
after the subsidence of the acute stage of the disease, is the
occurrence within the joint cavity of rice-grain or melon-seed bodies,
for whose presence it is not easy to account. The generally received
explanation is that they are the result of fibrinous outpour, whose
fluid portions have been absorbed, while the remaining nearly pure
fibrin is broken up into particles and rounded off by attrition during
the movements of the joint. They may accumulate in astonishing
amount, thus stamping the disease as having a chronic rather than
an acute character. After a time they provoke a fresh outpour of fluid,
as a result of the irritation which they produce. This fluid is at first
usually clear serum, but becomes turbid or seropyoid, and, if
infected, becomes pure pus, in which the rice-grain bodies are
dissolved or disintegrated.

Fig. 204

Bony ankylosis of knee. (Ransohoff.)

 Fig. 205 Fig. 206

Section of bony ankylosis of hip. (Original.) Tuberculous panarthritis,

illustrating various types of
degeneration and destruction.
(Lexer.)

Recovery is possible in many cases when the lesions have not

advanced too far. It is rarely ideal, and usually leaves some evidence
of its existence in limitation of motion, thickening, or other
recognizable symptom. Constitutional as well as local measures
have much to do with bringing about this result. It is for this reason
that it is so essential to take tuberculous-joint patients out of the
environment in which ordinarily they live and get them outdoors,
exposed to sunlight and benefited by the best of nutrition. Rest,
oxygen, and hypernutrition are the three best general measures for
combating these conditions. When recovery does occur it is by the
death of all active germs, the absorption to varying extent of disease
products, including granulation tissue, and the organization into
fibrous and cicatricial tissue of the unabsorbed residue. No tissue
which has been actually disorganized is completely restored. The
best that can be hoped for is substitution of fibrous or cicatricial
tissue. Function may be more or less completely regained. This will
depend largely upon how early treatment is instituted. In general it
may be said that there is always hope for tuberculous joints if
suitable treatment be instituted early and if the environment can be
made satisfactory. Unfortunately this is not often possible, and the
best that can be hoped for is subsidence of disease at the expense
of more or less ankylosis, perhaps deformity, while, at the worst,
there may be loss of joint if not of life. It might be misinterpreted
should it be said that there is one kind of treatment for the wealthy
and another for the poor, yet so much does depend upon what the
patient or the parents can afford in the way of change of
surroundings that the whole plan of treatment often depends upon
the patient’s circumstances. Radical measures may therefore be
deemed best in those who cannot afford long delay and
temporization, while at other times expensive apparatus and change
of residence may bring about the desired result.
The general appearance of a tuberculous joint is one of manifest
enlargement which is made more conspicuous by wasting of the limb
above and below. Nevertheless by actual measurement it will usually
be found to have a greater circumference than its fellow of the
opposite side. Its covering skin is pale and often glistening, with
prominent veins, while in proportion to the distention by fluid there
will be more or less distinct fluctuation. When the joint is evidently
distended and does not fluctuate the inference is that it is filled with
granulation tissue. There will also be marked thickening of all the
articular coverings, the synovial membrane itself being often as thick
as sole leather. At points where perforation may threaten there may
be dimpling and retraction of the skin, with fixation and discoloration.
Symptoms.—Tuberculous joint disease is characterized
especially by loss of function, muscle spasm, muscle
atrophy, pain and tenderness of rather significant character, and the
other joint features already mentioned. Loss of function may be
partial or complete. It depends on the amount of tenderness and the
deformity already produced by muscle spasm. Motility is more or
less restricted even under an anesthetic. This is induced by actual
limitation of motion by products of exudation, by muscle spasm and
wasting, and by the involuntary shrinking of the patient when tender
joint surfaces are pressed against each other.

Fig. 207

Backward displacement of tibia due to the muscle spasm of a tuberculous knee-

joint, with final bony ankylosis. (Lexer.)

Muscle spasm is one of the most significant features of these

cases as well as almost the earliest. It is of the greatest diagnostic
value, and, if genuine, should never be neglected. It subsides under
the use of an anesthetic, hence it is not advisable to employ
anesthetics for diagnostic purposes. It produces at first fixation,
without particular deformity, but may lead later to this or to
pronounced subluxation. It is most helpful in the early stages when it
does not particularly interfere with a medium range of motion, and
seems to lock the joint before the extreme of motility is reached.
Muscle spasm is pronounced even after muscle atrophy is well
advanced, and serves more and more to fix joints until they are held
by adhesions formed within. Muscle atrophy is also significant and
begins about the time when diagnosis becomes fairly possible, i. e.,
in the early stage of the disease. With the advance of disease it
becomes more pronounced and a joint which is fixed by intra-
articular lesions will stand out prominently because of the notable
wasting of the muscles by which ordinarily it would be moved. It is
this which gives the elbow and knee especially their spindle shape.
(See Plate XXXIV.)
 Pain is also a characteristic feature, especially that which is
produced by motion and allayed by rest and that which is
accompanied by involuntary muscle spasm, and occurs during sleep,
i. e., the so-called osteocopic or starting pains of tuberculous
panarthritis. These occur most distinctively in children, but may be
complained of at any period of life. Children thus affected will cry out
sharply during their sleep and appear for a few seconds very much
distressed, and yet do not awaken sufficiently to recall or describe
their sensations. The explanation of this phenomenon is a sudden
reflex spasm of the muscles by which tender joint surfaces have
been suddenly pressed tightly together and pain thereby provoked.
Something of this kind may occur in syphilitic bone disease, but,
taken in connection with the other signs and symptoms above
mentioned, such pains are practically pathognomonic.
The various measures to which orthopedists and surgeons resort
for employment of traction, by splints or weights, are directed against
overcoming muscle spasm by tiring out the muscles. It must not be
thought that by any reasonable degree of traction joint surfaces are
actually separated widely from each other. All that it is expected to
accomplish is by a steady pull to exhaust the muscles, and prevent
them from thus exercising deleterious pressure by pulling joint
surfaces together.
The pain complained of is by no means necessarily limited to the
joint involved; in fact, some of the most significant pains are those
which are described as referred. These furnish illustrations of the
fact, well known to physiologists, that irritation in the course of a
nerve is referred to its distribution; thus in hip-joint disease most of
the pain will be centred in the knee, and when the knee is involved
the ankle will be the part to which the patient will refer much of his
discomfort.
There also comes an overuse of the unaffected joints of a limb by
which the diseased joint may be spared as far as possible. The
flexors, as a group, being always stronger than the extensors, the
former will overcome the latter in time, and these joint contractures
are a later expression of chronic muscle spasm. This is true even
when atrophy is well advanced.
 Tuberculous joint disease usually has at first no particular
constitutional complications. These come on later in proportion as
the general health suffers from the confinement entailed by the
disease. General health will suffer quicker when the lower limb is
involved than when it is the upper. By the time joint lesions are well
advanced careful observation will usually reveal a rise of evening
temperature and progressive anemia. The symptoms included under
the term hectic are those belonging to the destructive stage and are
due to a combination of causes in which auto-intoxication figures
largely.
Diagnosis.—Tuberculous joint disease is usually easy of
recognition, except perhaps in the earliest stages. (See
the general subject of Orthopedic Surgery.) Differential diagnosis
between this condition and syphilis, or between it and hysteria, has
occasionally to be made, and may at first cause some difficulty. An
hysterical hip or knee may so strongly simulate tuberculous disease
as to lead one at first into serious doubt. Again, as between the
tuberculous and non-tuberculous forms of hydrarthrosis, there may
often be doubt, even after aspiration and examination of the fluid. In
fact, that which began as one may terminate as the other.
Fortunately in these last cases local treatment is about the same for
each, and, while the question of diagnosis may never be absolutely
satisfactorily decided, the patient may nevertheless recover in either
event.
Treatment.—The treatment of tuberculous arthritis should be both
local and general, one being about as important as the
other. The general treatment for this as for every other tuberculous
disease may be summed up as follows: The remedies for
tuberculous disease are oxygen and hypernutrition. The best place
for the patient is the place where these means can be procured. As
explained above, this will, to a considerable extent, depend upon the
circumstances of the patient or the family. When it can be afforded a
high altitude is almost as good for joint tuberculosis as for that of the
lungs. The nearest approach that can be made to it will be the most
desirable. Hypernutrition will in some cases consist almost in forced
feeding. Here as elsewhere in tuberculous disease it is of at least
theoretical as well as of practical advantage to saturate the system
with some bactericidal remedy, if such there be, and for obvious
reasons. Creosote or its congeners, in more or less palatable form,
seem at present to best serve this purpose. In addition to this
arsenic, iron, and the iodides, the latter especially if there be any
suspicion of syphilitic complication, can be used to advantage. In
proportion as patients become confined to the house their
elimination is usually restricted. All measures then by which
elimination may be improved will be indicated.
The use of tuberculin, or some of its modifications, has been
occasionally followed by excellent results. It is an agent to be
employed with great discretion, but is well worth a trial in those
cases where its effects may be carefully watched.
Locally the most important measure is the enforcement of
physiological rest of the affected parts. This may imply confinement
to bed, especially when the spine, the pelvis, and the hip are
affected, but should be reinforced by mechanical contrivances, by
which traction or “extension” may be carried out. The purpose of
traction, as mentioned above, is to overcome muscle spasm and
thus ensure rest. It is effected by many of the orthopedic
apparatuses. (See chapter XXXIII.[32]) It may be enforced by fixed
dressings of plaster, etc.
[32] The fundamental idea expressed in all of the methods for enforcing
rest by traction is of American origin, and constitutes one of the advances in
surgery for which the world is indebted to America. For a long time it was
referred to in Germany as the American method, and yet now the Germans
claim so much for it that one of their surgeons has written a book of 600
pages devoted to the employment of traction for various surgical purposes,
in which but very little credit is given to the men who originated it.