Theories of Categorization: A Case Study of Cheques

Canadian Journal of Law and Society

Volumn 17, Issue 1, 2002, Pages 115-138

  Hamilton, Jonnette Watson ^a  

^a UNIVERSITY OF CALGARY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85011501153     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S082932010000702X     Document Type: Article

References (111)

1. R.S.C. 1985, c. B-4 [hereinafter “BEA.
2. M. Johnson, The Body in the Mind: The Bodily Basis of Meaning, Imagination, and Reason (Chicago: University of Chicago Press, 1987) at 196.
3. See, e.g. the debate about the meaning of “vehicle” in applying a “no vehicles in the park” rule between H.L.A. Hart, “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593 at 599–612 and
4. L.L. Fuller, “Positivism and Fidelity to Law - A Reply to Professor Hart” (1958) 71 Harv. L. Rev. 630 at 661–69 (discussed in text, infra, Canadian Journal of Law and Society / Revue Canadienne Droit et Societi, 2002, Volume 17, no. 1, pp. 115–137. accompanying note 51).
5. See also N. MacCormick, Legal Reasoning and Legal Theory (Oxford, Oxford University Press, 1977) at 20–52, 117–19.
6. B. Crawford, ed. Crawford and Falconbridge Banking and Bills of Exchange, vol. 2, 8* ed. (Toronto: Canada Law Book, 1986) at 1167, 1171 [hereinafter Crawford and Falsonbridge].
7. J.D. Falconbridge, The Law of Negotiable Instruments in Canada (Toronto: McGraw-Hill Ryerson, 1967) at 2.
8. Bills of Exchange Act 1882 (U.K.), c. 61.
9. Bank of Baroda v. Punjab National Bank, [1944] A.C. 176 at 183 (P.C.).
10. J.-G. Castel, The Civil Law System of the Province of Quebec (Toronto: Butterworths, 1962) at 90.
11. Canadian Pacific Railway v. Robinson, [1892] A.C. 481 (P.C.)
12. adopting the language used in Bank of England v. Vagliano Bros. [1891] A.C. 107 (P.C.).
13. Quebec commentators were unanimous that the Privy Council misstated the true vocation of a civil code: J.E.C. Brierly and R.A. Macdonald, eds. Quebec Civil Law (Toronto: Emond Montgomery, 1993) at 56.
14. See, e.g. J.-L. Bergel, “Principal Features and Methods of Codification” (1988) 48 La. L. Rev. 1073. The author distinguishes between “substantive or true codification” where the object is to “achieve a material and systematic structure of the law” and “formal codification” in which the goal is “regrouping and classifying existing law.”
15. F.P. Walton, The Scope and Interpretation of the Civil Code of Lower Canada (Toronto: Butterworths, 1980) at 95. This systematic treatment of the interpretation of a civil code first appeared in 1907 under the same title (Montreal: Wilson and Lafleur) and was republished in 1980 in both English and French language versions.
16. Quebec Civil Law, The Scope and Interpretation of the Civil Code of Lower Canada 10 at 35.
17. R. David and J.E.C. Brierley, Major Legal Systems in the World Today, 3rd ed. (London: Stevens & Sons, 1985) at 360–61.
18. Quebec Civil Law, Major Legal Systems in the World Today 10 at 108.
19. W. Tetley, “Mixed Jurisdictions: common law vs civil law (codified and uncodified)” (1999) 3 Uniform Law Review 591 &
20. (1999) 4 Uniform law Review 877, online: International Institute for the Unification of Private Law (UNIDROIT)
21. Quebec Civil Law, Uniform law Review 10 at 178.
22. Desgagné v. Fabrique de la paroisse de St.-Phillippe d'Arrida, [1984] 1 S.C.R. 19
23. cited in Quebec Civil Law, S.C.R. 10 at 414.
24. B. Geva, “Negotiable Instruments and Banking” in J.S. Ziegal, B. Geva & R.C.C. Cuming, Commercial and Consumer Transactions: Cases, Texts and Materials, vol. II, 3rd ed. (Toronto, Emond Montgomery, 1995) at 6.
25. Crawford and Falconbridge, Commercial and Consumer Transactions: Cases, Texts and Materials 4 at 1245.
26. Carlos v. Fancourt (1794), 5 T.R. 482
27. 101 E.R. 272.
28. See also MacLeod Savings & Credit Union v. Perrett, [1981] 1 S.C.R. 78 at 86–87.
29. Compare Quebec Civil Law, S.C.R 10 at 104 (similar irst step in interpretation of a civil code).
30. Quebec Civil Law, S.C.R 10 at 101.
31. G. Lakoff & M. Johnson, Metaphors We Live By (Chicago: University of Chicago Press, 1980) at 186–87, 202 [hereinafter Metaphors We Uve By].
32. S.L. Winter, ‘Transcendental Nonsense, Metaphoric Reasoning, and the Cognitive Stakes for Law” (1988) 137 U. Pa. L. Rev. 1105 at 1107–08.
33. G. Lakoff, Women, Fire and Dangerous Things: What Categories Reveal about the Mind (Chicago: University of Chicago Press, 1987) at 172
34. G. Lakoff and M. Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought (New York: Basic Books, 1999) at 379 [hereinafter Philosophy in the Flesh].
35. Johnson, Philosophy in the Flesh: The Embodied Mind and its Challenge to Western Thought 2 at 39
36. G. Fauconnier, Mappings in Thought and Language (Cambridge: Cambridge University Press, 1997) at 67–68.
37. Crawford and Falconbridge, Mappings in Thought and Language 4
38. Carlos v. Fancourt and MacLeod Savings & Credit Union v. Perrett, Mappings in Thought and Language 30.
39. Law Reform Commission of Canada, The Cheque: Some Modernization (Ottawa: Minister of Supply and Services Canada, 1979) at 6.
40. For a history of the cognitive sciences, see H. Gardner, The Mind's New Science: A History of the Cognitive Revolution (New York: Basic Books, 1987).
41. E. Rosen, “Human Categorization” in N. Warren, ed. Advances in Cross-Cultural Psychology, vol. 1 (New York: Academic Press, 1977). This and other papers by Rosch are the classics in prototype theory.
42. See, e.g. L. Wittgenstein's later work, such as his Philosophical Investigations (Oxford: Basil Blackwell, 1963). In family resemblance, certain non-necessary features are highly common and salient - most typical instances have them. Wittgenstein's famous example of a category whose members do not share common properties but do share family resemblances is the category of games.
43. The discussion of the category birds is drawn from B. Tversky and K. Hemenway, “Objects, Parts, and Categories” (1984) 113 Journal of Experimental Psychology: General 169
44. Lakoff, Journal of Experimental Psychology: General 37 at 41–45.
45. L.J. Rips, “Inductive Judgments about Natural Categories” (1975) 14 Journal of Verbal Learning and Verbal Behavior 665
46. cited in Lakoff, Journal of Verbal Learning and Verbal Behavior 37 at 42.
47. Hart, Journal of Verbal Learning and Verbal Behavior 3
48. Fuller, Journal of Verbal Learning and Verbal Behavior 3.
49. The ideas in the discussion of the Hart-Fuller debate are borrowed in an adapted and abbreviated form from a more complete analysis in Winter, Journal of Verbal Learning and Verbal Behavior 36 at 1172–1180
50. S. L. Winter, A Clearing in the Forest: Law, Life, and Mind (Chicago: University of Chicago Press, 2001) at 198–207 [hereinafter A Clearing in the Forest].
51. Hart, A Clearing in the Forest: Law, Life, and Mind 3 at 606–608
52. Fuller, A Clearing in the Forest: Law, Life, and Mind 3 at 663–669.
53. Hart, A Clearing in the Forest: Law, Life, and Mind. See also H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961) at 123–25.
54. The Concept of Law, at 612.
55. See also B. Weissbourd & E. Mertz, “Rule-Centralism versus Legal Creativity: The Skewing of Legal Ideology through Language” (1985) 19 L. & Soc. Rev. 623
56. tracing parallels between Hart's theory of law in Concept of Law L. & Soc. Rev. 54
57. J. Searle's Linguistic Theory in Speech Acts (Cambridge: Cambridge University Press, 1969)).
58. Winter, Linguistic Theory in Speech Acts 36 at 1178–1179.
59. Fuller addressed cultural variations in our understanding of parks in Anatomy of the Law (New York: Frederick A. Praeger, 1968) at 58–59.
60. See A Clearing in the Forest, Anatomy of the Law 52 at 204–207 and 260–66 for an extended discussion of how predictability in interpretations of various laws affecting parks has been structured by their relationships to human purposes and uses that have varied over time and by location and culture.
61. S. Glucksberg & B. Keysar, “How Metaphors Work” in A. Ortony, ed. Metaphor and Thought, 2nd ed. (Cambridge: Cambridge University Press, 1993) 401
62. A. Goatly, The Language of Metaphors (London: Routledge, 1997) at 173–177
63. Metaphors We Live By, The Language of Metaphors 35 at 123–124.
64. P. Kay, “Linguistic Competence and Folk Theories of Language: Two English Hedges” in Proceedings of the Ninth Annual Meeting of the Berkeley Linguistics Society (Berkeley: Berkeley Linguistics Society, 1983) 128
65. cited in Lakoff, Proceedings of the Ninth Annual Meeting of the Berkeley Linguistics Society 37 at 122–125.
66. Proceedings of the Ninth Annual Meeting of the Berkeley Linguistics Society 8.
67. See e.g. Emanuel v. Robarts (1868), 9 B. & S. 121
68. 3 Digest 213
69. Forster v. Mackreth, [1867] L.R. 2 Ex. 163
70. 36 L.J. Ex. 94
71. 4 R.C. 210.
72. Certification was virtually unknown in the U.K. but well established in Canada in the 1880s: see Boyd v. Nasmith (1889), 17 O.R. 40 (C.P.D.).
73. J. Watson Hamilton, “The Canadian Law of Post-Dated Cheques: Indeterminate Rules, Unpredictable Results” (2001) 35 Can.Bus. L.J. 280.
74. Keyes v. Royal Bank of Canada, [1947] S.C.R. 377 at 383 and 386.
75. Quebec Civil Law, S.C.R. 10 at 146.
76. See, e.g. Banque Canadienne Nationale v. Richard Amusement, [1954] C.S. 193
77. Canadian Bank of Commerce v. Brash, [1957] O.W.N. 322 (C.A.)
78. Toronto-Dominion Bank v. Perma-Shine, [1982] O.J. No. 842 (S.C.), online: QL (OJ)
79. Bank of Nova Scotia (c.o.b. “Money Mart”) v. Sarkar, [1995] N.S.J. No. 342 (S.C.), online: QL (NSJ).
80. See, e.g. Forster v. Mackreth, N.S.J 67
81. Dumas v. Boivin (1936), [1937] 75 R.J. 1
82. Reisler v. Kulcsar (1965), 57 D.L.R. (2d) 730 (Que. Q.B. Appeal Side)
83. Bobell Trucking v. Trin-Can Enterprises (1982), [1983] 2 W.W.R. 232 (B.C. Co. Ct.)
84. Wheatland Investments (c.o.b. Money Mart Regina) v. Sask Tel, [1994] S.J. No. 558 (Q.B.), online: QL (SJ)
85. See, e.g. Sterling Finance Corp. v. Laflamme, [1962] C.S. 145 (Sup. Ct.)
86. imons v. Ginnetti, [1984] B.C.J. No. 1216 (Co. Ct.), online: QL (BCJ). In one case, a post-dated cheque appears to have been categorized as all three types of BEA instruments
87. see G.T.S. Contract Sales and Marketing v. Chateau Conservatories, [1994] B.C.J. No. 1584 at para.
88. Ex parte Richdale; In Re Palmer, [1882] 19 Ch. D. 409 at 417 (CA.) [emphasis added].
89. Pollock v. Bank of New Zealand (1901), 20 CA. 174 at 183 [emphasis added].
90. Brien v. Dwyer (1978), 22 Australian Law Reports 485 at 488 (H. C. Aus.) [emphasis added].
91. Wheatland Investments, Australian Law Reports 74 at para. 6 [emphasis added].
92. See e.g. Bank of Nova Scotia v. Kelly Motors Danforth, [1961] O.W.N. 34.
93. Crawford and Falconbridge, O.W.N. 4 at 1744.
94. The differentiation between post-dated cheques and “double-dated instruments” also appears in M.H. Ogilvie, Canadian Banking Law, 2nd ed. (Toronto: Carswell, 1998) at 573.
95. In Lavoie v. Abbott, [1963] C.S. 600 (Superior Court), the double-dating of a cheque was held to deprive “it of the essential characteristic of a cheque that it be payable on demand and it therefore cannot be considered a cheque in virtue of article 165 of the Bills of Exchange Act” (Canadian Banking Law, at 603). Instead, the instrument in Lavoie was found to be a bill of exchange payable at a fixed date. The court also acknowledged that a double-dated cheque functioned like a promissory note and even went on to consider, in the alternative, that the double-dated instrument before it might be “more in the nature of a promissory note than of the nature of a bill of exchange” (Canadian Banking Law, at 604). Regardless of the ambiguous categorization, the court managed to reach a conclusion about the legal rights of the parties to the instrument based on the rules applicable to bills of exchange payable at a fixed or determinable future time.
96. In Flamand v. Martin, [1948] B.R. 33 (C.A.)
97. the majority held that the use of two dates transformed the instrument into a promissory note (B.R. at 35 (per Bisonnette, J.)).
98. The concurring opinion of Mackinnon, J. also held that “as this cheque is post-dated it is in effect a promissory note” (B.R. at 37).
99. The Flamand categorization of double-dated cheques as notes was followed in Sterling Finance Corp. v. Laflamme, B.R. 75.
100. See e.g. Moreault v. Normandin (1933), 71 R. J. 355 (S.C.), where the cheques were marked “negotiable le 3 mars 1932” and “negotiable le 3 avril 1932.”
101. Boyd v. Nasmith (1889), 17 O.R. 40 (C.P.D.), referring to the “usual custom of the bank when cheques are marked ‘good'.”
102. O.R 7.
103. See also Re Commercial Bank of Manitoba (1894), 10 Man. L.R. 187 at 199, where Bain J. held “that when a banker marks or certifies a cheque. he does not intend to accept it but only to certify it, and there is a difference between “acceptance” and “certification.”
104. The ascendancy of the equivalent to acceptance theory over the payment theory was capped by A.E. LePage Real Estate Services Ltd. v. Rattray Publications (1991), 5 O.R. (3d) 216 (Gen. Div.), aff d (1995), 21 O.R. (3d) 164 (C.A.).
105. (1987), 60 O.R. (2d) 189 (H.C.J.), aff d (1987), 62 O.R. (2d) 220 (C.A.).
106. B. Geva, “Irrevocability of Bank Drafts, Certified Cheques and Money Orders” (1985) 65 Can. Bar Rev. 107 at 129 [emphasis added].
107. (1925), [1926] 1 D.L.R. 433 (S.C.C.).
108. See, e.g. Rapid Discount v. Geintzer, [1963] C.S. 454 (Sup. Ct.) and
109. Nadeau v. Turner, [1957] C.S. 355 (Sup. Ct.).
110. See S.L. Winter, “The Meaning of ‘Under Color of Law’ “ (1992) 91 Mich. L. Rev. 32 and
111. S.L. Winter, “The Metaphor of Standing and the Problem of Self - Governance” (1988) 40 Stan. L. Rev. 1371 for arguments based on the author's applications of a cognitive theory of categorization to the concepts “under color of law” and “standing” that there are three major kinds of indeterminacy which are unavoidable when we try to apply laws and general rules.