Law

This book examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like the US, a party may avoid a contract for mistake of fact on a more liberal basis, and a party who deliberately keeps silent knowing that the other party is making a mistake may be guilty of fraud. This is not necessarily the case in England and Wales. Developing a proposal for law reform, the book concedes that the English courts require a law that puts great emphasis on certainty and expects parties to look out for their own interests; but posits that this individualistic approach is not suitable for smaller businesses which are less sophisticated and which are likely to be making low value contracts, so that relative cost of taking advice will be high. The book argues that the solution may not be to reform English contract law generally, but to support the development of an optional instrument on contract law, along the lines of the Common European Sales Law recently proposed by the European Commission. This measure is aimed specifically at the needs of small and medium enterprises, and contains the protective rules found in the other jurisdictions. It is aimed primarily at cross-border sales, but Member States would be given the option of adopting it for domestic transactions too. This would give small businesses the choice of using the current ‘hard-nosed’ law or adopting the more protective optional instrument, recognizing that different parties require different things from the law governing their contract.

The law of estoppel by representation concerns those critical circumstances when the law will not allow a person to go back on what he has previously said. It might also be called the law of consistency. It has developed, from very simple origins, into a complex of ideas, which have proved to be of great practical importance in areas as diverse as land law, contract law, and family law. Development continues, as does the interaction with other areas; changes in recent years in the law's conception of contract, and in its approach to problems of family property, as well as the growth of the law of restitution, have all had their impact on estoppel. This book explores, explains, and criticises the law of estoppel; presents a logical structure for it; and in particular analyses the concept of ‘unconscionability’, which is now seen as a basis for the law.

On January 1, 2000, the German Civil Code (BGB) became 100 years old. It had been remarkably resilient throughout a century marked by catastrophic upheavals and a succession of fundamentally different political regimes. Two years later, however, the most sweeping individual reform ever to have affected the Code entered into force. This was the Modernization of the Law of Obligations Act, triggered by the necessity to implement the European Consumer Sales Directive, but going far beyond what was required by the European Community. The most important practical implication of the Modernization Act is the fundamental reform of the German law of prescription. However, the most remarkable feature of the revised BGB in terms of innovative doctrine is the new regime concerning liability for general non-performance, and for non-conformity in sales law. Radically, the face of the BGB has been changed by the incorporation of a number of special statutes aiming at the protection of consumers. The draftsmen of the new law have thus made an effort to streamline, or harmonise, general contract law and consumer contract law. Topics covered in this book include prescription, remedies for non-performance, liability for non-conformity, and consumer contract law. In all these cases, a historical or comparative perspective is adopted in order to analyse and assess the new rules of German law. Even in its radically new form, the German Civil Code continues to be a characteristic manifestation of German legal culture.

This book's chapters are devoted to the philosophical foundations of one of the most dynamic areas of private law — the law of unjust enrichment. Taking stock of the rapid changes to the law of unjust enrichment over the last decade, some of the most important writers in the area examine central questions raised by demarcating unjust enrichment as a separate area of private law, including how its normative foundations relate to those of other areas of private law, how the concept of enrichment relates to the concept of property, how the obligation to make restitution relates to other private law obligations, how the remedy of restitution relates to principles of corrective justice, and what role mental elements should play in shaping the law. The relationship between unjust enrichment and public law is also considered.

This book is a thorough and thought-provoking analysis focusing on the principles underlying two areas of property law: concurrent ownership and successive ownership. The author first considers the range of rights recognised by the law and the ways in which these rights operate (in particular severance of joint tenancies). The book then moves on to survey the regulation of these rights, principally by statute, providing a detailed examination of the Trusts of Land and Appointment of Trustees Act 1996, and exploring the principles behind the Act. This book provides an in-depth investigation of this legislation, together with the cases discussing it, and the ways in which it relates to earlier principles and authorities. The book is divided into four parts. The first provides an introduction to the subject matter. The second presents several forms of plural ownership of land. The third displays the regulations involved, and finally, the last illustrates other properties concerned in plural ownership.

This book provides a critical introduction to the English law of insurance contracts and presents the rules in both their legal and socio-economic contexts. The book first sets out the principles, moving on to develop the implications of certain rules in order to examine the importance of effective insurance and effective insurance law in modern society. Comparative reference is made to the corresponding rules in common law countries and also in major jurisdictions in western Europe, providing a wider view of the relevant law. The book illustrates the different perceptions of insurance and of insurance contract law that are to be found amongst lawyers, insurers, and policy-holders. In particular, the book argues that the perception of many people, and also not least of many judges, is that if any dispute arises with insurers, insurers have an unfair advantage under the law. Moreover, this is in fact usually the case, if insurers choose to use their advantage. Whilst presenting the rules of insurance contract law in the wider context of contract law at large, the book seeks to demystify them and to challenge the assumption that insurance law is or ought to be greatly different from other parts of the law. In particular, it argues that insurance contract law should be available and intelligible to serious enquirers, lawyers, and non-lawyers alike.

This book lays out the key principles underlying the law of restitution, a subject recognised by the House of Lords as a discrete body of law fifteen years ago. The law of restitution is concerned with the questions of when restitutionary remedies may be awarded. These are remedies which operate to deprive defendants of gains rather than to compensate claimants for losses. The traditional approach to the subject assumes that restitutionary remedies are only available to reverse unjust enrichment. This book asserts that restitutionary remedies are triggered by three different types of action: the reversal of the defendant's unjust enrichment, the commission of a wrong by the defendant, and the vindication of the claimant's property rights. Since the publication of the first edition of this book this model has increasingly been recognised by the courts. In this book, the law is examined through analyses of key cases and relevant statutory provisions, demonstrating the way in which the law in used to solve a wide variety of legal problems in a number of jurisdictions. The very different views of academics on the nature and ambit of the subject are also carefully considered. The result will be invaluable to students on restitution courses at every level, practitioners and those engaged in research on the subject.

This book attempts an analysis of the nature of promissory obligations. The subject is one which has attracted a great deal of attention among both moral and linguistic philosophers, but the book contends that much of the philosophical literature is flawed by its unreality and unfamiliarity with the serious problems that arise from the practice of promising. The book conducts a thorough survey of the various philosophical theories, injecting in the discussion many examples and illustrations drawn from law. The first part of the book examines theories of promising associated with Natural Lawyers, utilitarians, and a number of linguistic philosophers. All of these the book rejects as unsound. The last part of the book offers a theory of promissory obligation, which closely parallels theories of contractual obligation.

The victim of a breach of contract may resort to one or more of four remedies: specific enforcement, compensation, refusal to perform, and termination. The availability of these remedies may depend on the fault of the party alleged to be in breach. This book discusses these topics from a comparative perspective. The principle contrast is between civil and common law solutions. Contrasts within each group of systems are also pursued, in particular, those between English and American common law and those between French and German civil law. Some related and hybrid systems are also discussed, as are conventions on international sale of goods. The aim is not to give a detailed analysis of particular systems, but rather to identify types of solutions and to consider how far differences in theoretical approach are reflected in practical results.

The first study of what reputation is, how it functions, and how it is and should be protected under the law, Reputation and Defamation addresses the inconsistencies and failures of the common law that have been observed for over a century. It develops a theory of reputation and uses it to analyse, evaluate and propose a revision of the law. Using the concept of reputation as the vehicle for a study of the history and theory of libel, slander and honour it becomes apparent that, contrary to the legal orthodoxy, defamation law did not aim and function to protect reputation until the early 19th century. Consequently, the historically derived tests for what is defamatory do not always protect reputation adequately or appropriately. The ‘shun and avoid’ and ‘ridicule’ tests should be discarded. The principal ‘lowering the estimation’ test is more appropriate but needs re-working. Christian tradition and Victorian moralism are embedded in the idea of ‘the right-thinking person’ that provides the test's conceptual foundations, but these are problematic in an era of moral diversity. Instead, ‘the right-thinking person’ should be associated with an inclusive liberal premise of equal moral worth and a shared commitment to moral diversity; any departure from this must be justified on sound, expressly stated ethical grounds. That demand serves to protect reputation appropriately and effectively in an age of moral diversity.