Law of Obligations

This book is concerned with the conflict between the goals of justice and economic efficiency in the allocation of risk, especially risk pertaining to safety. The book approaches the subject from the premise that the market is central to liberal political, moral, and legal theory. The first part of the book rejects traditional rational choice liberalism in favor of the view that the market operates as a rational way of fostering stable relationships and institutions within communities of individuals with broadly divergent conceptions of the good. However, markets are needed most where they are most difficult to create and sustain, and one way to understand contract law in liberal legal theory, according to this book, is as an institution designed to reduce uncertainty and thereby make markets possible.

The chapters presented in this book examine the fast-growing compensation culture and the consequential pressure on courts to widen the range of situations in which individuals can claim damages from the State. Within domestic legal systems, there has been a considerable extension of tortious liability which is impinging on the State and its resources. The chapters address statutory and administrative compensation, and examine the influence of group actions and of globalization. Pressure on domestic legal systems has been increased by transnational courts, notably the Court of Human Rights and the European Court of Justice. This book argues that this trend towards judicialization is undesirable, and that greater use should be made of extrajudicial remedies. It contends that the issue of compensation is too important to be left to the courts.

This book examines the topical sphere of governmental liability in damages, arguing that that there has been an important shift in the traditional English law approach as illustrated in a series of recent House of Lords decisions. A detailed analysis is made of the torts applying to public bodies, including negligence, misfeasance in public office, nuisance and breach of statutory duty, as well as the influence of European human rights law and community law, with discussion of the availability of damages under the Human Rights Act 1998 and the impact of the controversial decision of the European Court of Human Rights in Osman v UK, and the subsequent retreat in Z v UK. The discussion of state liability is also placed within the context of the evolving attitude of the courts to public law remedies, with a detailed reconsideration of the relationship between ultra vires and liability in damages. From a comparative law perspective, it is argued that, contrary to orthodox doctrinal opinion, there are many similarities in the English and French law of administrative liability, with parallels in the treatment of different types of loss, causation, finding of fault, and underlying policy concerns. The book discusses the direction in which English law might now move, as well as analysing less orthodox sources of compensation, such as the practice of the ombudsmen and statutory funds including the new French medical negligence compensation scheme.

This study examines the ways in which the law of tort provides protection against injury to financial assets such as money, property, and contracts. In the past 25 years or so there has been much debate and litigation concerned with the extent to which the law of tort should be involved in compensating for economic loss caused by negligent conduct. Many believe that the primary role of tort law is to provide a system of compensation for death and personal injury and that it has, at most, only a marginal part to play in protecting economic interests. This book is an attempt to examine the whole of tort law in terms of the protection of financial assets and of people's interest in creating and preserving wealth. It discusses the concepts and principles which tort law utilizes to this end, and the relationship between tort law and other legal techniques of providing such protection. The book focuses primarily on the kinds of financial interests the law of tort protects and on the sort of protection it provides. This approach allows an examination of functions of tort law and of the justifications, both social and doctrinal, for the imposition of tort liability so far as it is concerned with the protection of wealth.

Uncertainty is present in virtually every tort litigation. Generally, courts tackle the uncertainty problem by requiring the plaintiff to prove his case by the preponderance of the evidence. However, on numerous occasions tort plaintiffs encounter systematic difficulties in establishing their allegations against defendants. This phenomenon is prevalent in the area of mass torts, which has occupied the centre of the tort law agenda in the past three decades. In this area, victims of torts systematically fail to establish their lawsuits against wrongdoers even when it is clear that the latter are responsible for enormous damages. The uncertainty problem is not limited to the mass tort context. In many other contexts, tort and evidence law doctrines also fail to offer satisfactory solutions to that problem. Typically, this failure occurs in cases that involve indeterminate causation, an evidentiary barrier that prevents factual attribution of the litigated damage to the defendant’s wrongdoing. Due to this failure, victims of torts are left under-compensated and their wrongdoers under-deterred. This book provides a treatment of the problem of uncertainty in torts at both doctrinal and policy levels. It presents and critically examines the existing doctrinal solutions of the problem. It also offers a number of original solutions to the problem, such as imposition of collective liability and liability for evidential damage. The book combines the traditional doctrinal depiction of the law, as evolved in England, Canada, United States, and Israel, with general theoretical insights that include economic analysis.

The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.

This book gives a concise account of the law of unjust enrichment. It attempts to move away from the use of obscure terminology inherited from the past and insists on the switch from restitution to unjust enrichment, from response to event. It organises modern law around five simple questions: Was the defendant enriched? If so, was it at the claimant's expense? If so, was it unjust? The fourth question is then what kind of right the claimant has, and the fifth is whether the defendant has any defences. This text is the second edition, which was revised and updated by the author before his death in 2004. It represents the final thinking of the world's leading authority on the subject.

Vagueness leads to indeterminacies in the application of the law in many cases. This book responds to the challenges that those indeterminacies pose to a theory of law and adjudication. The book puts controversies in legal theory in a new light, using arguments in the philosophy of language to offer an explanation of the unclarities that arise in borderline cases for the application of vague expressions. However, the book also argues that vagueness is a feature of law, and not merely of legal language: the linguistic and non-linguistic resources of the law are commonly vague. These claims have consequences that have seemed unacceptable to many legal theorists. Because law is vague, judges cannot always decide cases by giving effect to the legal rights and obligations of the parties. Judges cannot always treat like cases alike. The ideal of the rule of law seems to be unattainable. The book offers a new articulation of the content of that ideal. It argues that the pursuit of justice and the rule of law do not depend on the idea that the requirements of the law are determinate in all cases. The resolution of unresolved disputes is an important and independent duty of judges — a duty that is itself an essential component of the ideal of the rule of law.