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From Personal Life to Private Law$
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John Gardner

Print publication date: 2018

Print ISBN-13: 9780198818755

Published to Oxford Scholarship Online: May 2018

DOI: 10.1093/oso/9780198818755.001.0001

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Something Came Between Us

Something Came Between Us

Chapter:
(p.20) 1 Something Came Between Us
Source:
From Personal Life to Private Law
Author(s):

John Gardner

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198818755.003.0002

This chapter explores the sense in which the duties of the law of torts and the law of contract may be said to be ‘relational’. It takes a stand against the hyper-relationalism of many writings on private law, and the hypo-relationalism of others. It does so in two moves. First, it introduces the idea of a ‘strictly relational’ duty, which is a duty that one has for the reason that one is in a certain relationship. The second move goes further to argue that private law duties need not be and often are not strictly relational. They are only ‘loosely relational’. The distinction between these moves is explored and refined by reflecting on the duty of care in the law of negligence, and its modern history. Finally, this chapter considers the import, but also the theoretical dispensability, of rights-talk in private law.

Keywords:   law of torts, law of contract, hyper-relationalism, hypo-relationalism, strictly relational duty, loosely relational duty, law of negligence, rights talk

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