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This book examines the legal issues that arise when we seek to avoid the untoward consequences of an action by claiming that our perception was flawed. We all make mistakes: we might overpay a debt, make an unfavourable contract, or be sued or accused of a crime as a result of our mistake. Claims to alleviation on the grounds of mistake are likely to arise wherever the law prescribes a state of mind (some kind of intent) as a prerequisite for the application of a legal rule. This book asks when the fact that a person made a mistake should entitle them to alleviation. This may involve the intention to enter into a contract or a payment, in which case a person could seek its reversal, or it might involve the intent to commit a tort or crime, in which case they could seek forgiveness for the offence. The book defines ‘alleviating’ mistakes as those which entitle a person to relief from untoward consequences of their mistake. There is no general ‘law of mistake’ and, despite their similarities, few discussions of mistake in one setting pause to consider mistakes in other contexts. The goals of fields as disparate as contracts and criminal law are very different: how do these differences affect the treatment of mistakes? The book sets out a new taxonomy of mistakes. Its analysis reveals that over the past century, there has been a remarkable increase in the receptivity of courts and scholars to claims for both reversal and forgiveness—a waxing of alleviating mistakes.

This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, will we have any claim for the expenses that we incurred, or for a reward? This book examines and compares the responses of the Roman, French, German, and English legal systems to these problems, providing a treatment of English law in relation to ‘liability for nonfeasance’ (or ‘liability for omissions’) and negotiorum gestio (or ‘the doctrine of necessity’). In Part I, the book examines English law, which draws a distinction between action and inaction or ‘feasance’ and ‘nonfeasance’. In general, one is not held liable for failing to act. It explores the theoretical justifications for drawing this distinction and the different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. The book examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, the book concludes by demonstrating close interconnections between the two traditionally independent issues.

European Contract Law unification projects have recently advanced from the Draft Common Frame of Reference (DCFR) to a European Commission proposal for an optional Common European Sales Law (CESL) which is to facilitate cross-border marketing. This book investigates for the how CESL and DCFR rules would interact with various aspects of domestic law, represented by English and German law. Nineteen chapters examine such interface issues, e.g., pre-contractual relationships, notions of contract, formation, interpretation, and remedies, extending to non-discrimination, third parties, transfers or rights, aspects of property law, and collective proceedings. They go beyond a critical analysis of CESL and DCFR rules by demonstrating where and how CESL rules would interact with neighbouring areas of English and German law before English and German courts, how domestic traditions might influence the application, which aspects might motivate sellers and buyers to choose or reject CESL, and which might serve as model for national legislators. The findings are summarized in the final two chapters.

This book is the culmination of a project of twenty leading British and American contract scholars, and one UK Supreme Court Justice, to examine comparatively a number of topics from UK and US contract law. It compares and contrasts in detail their respective national laws of contract in areas ranging across contract theory and structure, formation of contract, policing of contractual content, interpretation of contracts, damages, sales law, agency, and consumer law reform. Through pairings of the British and American authors, as well as observations of the editors on each of the topics covered, comparative analysis is used to illuminate the contract law of each country, and in so doing to make a valuable contribution to a neglected field of legal scholarship. There is coverage of the contract law of the United States, England, and Scotland, as well as of model law instruments such as the Principles of European Contract Law and the Restatement (Second) of Contracts.

This third volume in a series on Comparative Succession Law concerns the entitlement of family members to override the provisions of a deceased person’s will to obtain money or assets (or more money or assets) from the person’s estate. Some countries, notably those in the civil law tradition (such as France or Germany), confer a pre-ordained share of the deceased’s estate or of its value on certain members of the deceased’s family, and especially on the deceased’s children and spouse. Other countries, notably those in the common law tradition (such as England, Canada, or Australia), leave the matter to the discretion of the court, the amount awarded depending primarily on financial need. Whichever form it takes, mandatory family provision is both a protection against disinheritance and also, therefore, a restriction on testamentary freedom. The volume focuses on Europe and on countries influenced by the European experience. In addition to detailed treatment of the law in Austria, England and Wales, France, Germany, Hungary, Italy, the Netherlands, Norway, Poland, Scotland, and Spain, the book also has chapters on Australia and New Zealand, South Africa, the United States, Canada, the countries of Latin America, and the People’s Republic of China. Some other countries are covered more briefly, and there is a separate chapter on Islamic law. The book opens with accounts of Roman law and of the law in medieval and early-modern Europe, and it concludes with a comparative assessment of the law as it is today in the countries and legal traditions surveyed in this volume.

In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International Court of Justice identified a category of international obligations called erga omnes, namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all. Without losing sight of the theoretical dimension of obligations erga omnes, this book adopts a pragmatic approach, attentive to the traditional sources of international law and evaluating obligations erga omnes in light of state practice and court decisions (including the South West Africa and the Nuclear Tests cases). After discussing a broad spectrum of key international concepts, including jus cogens, objective regimes, and state servitudes, the book analyzes the four examples of obligations erga omnes given by the International Court in its obiter dictum on obligations erga omnes: the prohibition of aggression and genocide, and the protection from slavery and racial discrimination. From this analysis, the book infers five common elements of obligations erga omnes, including their reflecting basic moral values. The book then examines these common elements in light of other candidates of obligations erga omnes proposed in the international literature and state practice. Before drawing general conclusions, the book addresses the relationship between erga omnes and jus cogens, and between erga omnes and actio popularis.

This book is both an examination of, and a contribution to, our understanding of the theoretical foundations of the common law of contract. Focusing on contemporary debates in contract theory, the book aims to help readers better understand the nature and justification of the general idea of contractual obligation, as well as the nature and justification of the particular rules that make up the law of contract. The book is in three parts. Part I introduces the idea of ‘contract theory’, and presents a framework for identifying, classifying, and evaluating contract theories. Part II describes and evaluates the most important general theories of contract; examples include promissory theories, reliance-based theories, and economic theories. In Part III, the theoretical issues raised by the various specific doctrines that make up the law of contract (e.g., offer and acceptance, consideration, mistake, remedies, etc.) are examined in separate chapters. The legal focus of the book is the common law of the United Kingdom, but the theoretical literature discussed is international in origin; the arguments discussed are thus relevant to understanding the law of other common law jurisdictions and, in many instances, to understanding the law of civil law jurisdictions as well.

This book develops the implications of that venerable Aristotelian notion of justice for understanding contemporary private law. Over the last decades corrective justice has become a central but controversial idea among legal scholars and theorists. This book presents corrective justice as the normative idea latent in the institutions and concepts of a fair and coherent regime of liability. It begins by setting out the conceptual components of corrective justice: the correlativity of the parties normative positions as the structuring idea of their relationship, and a robust notion of rights and their correlative duties (conceived in Kantian terms) as the content appropriate to legal relationships structured in that way. It then describes the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. The book integrates the concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Combining legal and philosophical analysis, it presents private law in non-instrumental terms, as a distinctive mode of moral discourse that focuses on the normativity intrinsic to the parties relationship.

The book considers the development of tax evasion offences and the relationship between them and the pertinent evidential rules, prosecution structures, and decision-making processes. It gives a short history of the differing responses to evasion of Customs and Excise, on the one hand, and Inland Revenue, on the other. In particular, the Inland Revenue’s historical leaning away from the use of prosecution is explored. The book looks at the interlocking mesh of common law and statutory offences that criminalize evasion, the avoidance/evasion distinction and some developments that tend to blur it, and the major issues in evidence. Growing concern about financial crime, arising largely from the financial crisis of 2007–8 and amplified by HSBC Suisse in 2015 and the Panama Papers in 2016, has generated calls for far more, more vigorous, and more punitive responses to tax evasion and greater international co-operation against mechanisms for giving anonymity to the ownership of property. The relationship between tax evasion and the proceeds of crime is taking on increasing importance. Treating the proceeds of criminal tax evasion as falling within the proceeds of crime regime inevitably expands the scope of both. The announcement in 2013 by the then DPP, Keir Starmer, of a policy of increasing rates of prosecution for tax evasion raises squarely the issue of whether increased involvement of criminal law and criminal justice in tax evasion would be good or not.

The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between these two rights. The central proposition that this book makes is that defamation law needs to be reformed to balance the conflicting rights. This discussion flows from a theoretical analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most apposite to freedom of expression in this context is the argument that free speech is integral to democracy. The argument from democracy emphasizes that speech on matters of public interest should receive greater protection than private speech. This book argues that fundamental rules of defamation law need to be reformed to take into account the dual importance of public interest speech on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional scrutiny. The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the importance of dignity to the claimant, and the free speech interest of the public in receiving accurate information on matters of public interest.

The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.

This book is based closely on the lectures delivered by Tony Weir in 1996 as part of the Clarendon Law lectures series sponsored by Oxford University Press. It is a book which contains a number of controversial propositions, defended with vigour. The three lectures reproduced here deal with liability in tort for intentionally inflicted economic loss. They are characterized by a very unusual combination of bold leading statements and multi-layered supporting analysis. There are also Appendices containing full case transcripts of recent, significant cases, including Millar v. Bassey and de Voto v. Pacific.

This book examines the American law of contract interpretation in detail. Intended primarily for lawyers, judges, legal scholars, and law students, the book focuses attention on the elements of contract interpretation — the evidentiary facts that are legally relevant when interpreting a contract. The book describes and analyzes how courts do and should perform three practical tasks in contract interpretation. First, courts identify the terms to be interpreted (under the parol evidence rule); second, courts decide whether a contract is relevantly ambiguous; third, fact-finders (judges or juries) resolve any ambiguities that appear. The book examines these issues through the lens of three theories that are supposed to tell us how to perform the three tasks to further the goals of contract interpretation. These theories are literalism, objectivism, and subjectivism. In the last chapter, the author makes a novel proposal, which he calls “objective contextual interpretation”.

This book examines the gradual emancipation of the individual in national and international law and the changing social attitudes towards personal choice in constituting identity. It demonstrates that this desire of persons for choice is not limited to Western industrial society but a historical development powered by such independent variables as urbanisation, the communications revolution, education, and economic development. These factors are changing the way persons affiliate: their attitudes towards nationality, religion, careers, sexuality, and gender roles. In the new climate of personal freedom, individuals increasingly select the components of their identity, choosing one or several from among multiple possible affiliations and questioning — even sometimes rejecting — the imposed or inherited forms of socialisation, but despite such resistance, the book demonstrates that we are now entering the age of the individual.

This book is a key point of reference on English private law for lawyers in the UK and throughout the world. The book acts as a first point of reference for practitioners approaching a private law issue for the first time, whilst simultaneously providing an overview of all the key areas of private law. This includes contract, tort, unjust enrichment, land law, trusts, intellectual property, succession, family, companies, insolvency, private international law, and civil procedure. Each section provides a distillation and analysis of the subject. This new edition includes all the recent developments since the publication of the second edition in 2007. It covers some areas that were previously not addressed including arbitration in civil procedure, the Human Rights Act 1998 in tort law, and regulatory reform in the light of the global financial crisis.

This is a revised edition of the paperback Essays on Contract, which was published by OUP in 1988. With the addition of a previously unpublished chapter, this chapter is an up-to-date and comprehensive account of the views on the law and theory of contract. The new essay, ‘Freedom of Contract and the New Right’, charts the latest shift in the development of contract law, this time back in the direction of Freedom of Contract. This shift, the author argues, can be traced directly to the growing strength of the ‘New Right’ and its advocacy of political and economic freedom.

The coverage in this new edition has been expanded with material on the latest developments in legislation, legal literature, and the case law of the European Court of Human Rights, the European Court of Justice, and the highest courts in France, Germany, and England. The first part of the book begins with chapters on the state of tort law in France, Germany, and England, and the European Union. A concluding chapter for this part provides an overall view of the European field, linking the variety of rules with cultural diversity, examining the consequences for European harmonization, and emphasizing the importance of a European policy discourse. The second part analyses and compares the classic requirements for liability in a comparative and supranational perspective: protected interests, intention, and negligence, breach of statutory duty, stricter rules of liability, causation, damage, damages, and contributory negligence. It also discusses the role of tort law in protecting human rights against violations by the state and businesses. The final part assesses the field from a comparative and supranational point of view. It shows how national and European rules are applied in a number of categories, such as in liability of public bodies, liability for defective products, road traffic accidents, vicarious liability, and environmental liability.

This book provides a description of the German law of unjustified enrichment. It explains how German law generally allows restitution for transfers made without legal ground (rather than on the basis of individual unjust factors), an approach which the late Peter Birks proposed for English law to adopt, and which the House of Lords was careful not to rule out for the future in Deutsche Morgan Grenfell v Inland Revenue. Part I explains the workings of German unjustified enrichment law within the particular context of German contract, tort, and property law. It shows how the German general unjust enrichment clause is controlled by limiting its scope to intentional transfers, and complemented by specific grounds of unjust enrichment. This part also explains defences against and measure of enrichment claims. Part II places German law in the comparative context of three different fundamental approaches towards unjustified enrichment, shows some unexpected similarities between English and German law, and discusses whether English law could and should adopt the German approach. The book gives equal prominence to structural issues and legal doctrine on the one hand, and practical application of the law on the other. It provides leading German cases and relevant statutory provisions in English translation.

This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines breach of contract and remedial issues.

The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at least temporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering. The book exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to Take account of shifting pressures and changing circumstances.