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In 1967, AWB Simpson published a landmark article which demonstrated that the concept of ‘continuous and apparent’ easements, a fundamental part of English law (then and now) on the implication of easements was derived from the French Code civil via an English treatise written by Charles Gale in 1839. Simpson justifiably described his contribution as ‘a cautionary tale, containing several morals’. However, his account is incomplete principally because he used only English sources. This chapter shows that many other ‘morals’ emerge from a more extensive comparative and historical analysis of this reception. The roots of the concept of ‘continuous and apparent’ did not run very deep in the pre-Revolutionary law when it emerged in the Code civil in 1804 and, remarkably, it had never before been used for the purposes of implying easements. Unsurprisingly, given these inauspicious origins, the interpretative problems which the concept caused in English law were already visible in French law in 1839 but, intriguingly and significantly, they were omitted in the first and subsequent editions of Gale’s treatise. This omission is critical; the inherently flawed French concept of ‘continuous and apparent’ was absorbed into English law by judges who relied almost exclusively on the various editions of Gale’s treatise. Filling in the gaps in the story told by Simpson reveals much about English private law in the second half of the nineteenth century and in the first decades of the twentieth; it also has important implications for theoretical thinking about transplants in comparative legal scholarship.
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