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Law of Obligations — Overview

This theme contains four subjects, namely: Contract, Private Law and Fundamental Rights, Restitution and Tort


Contract

Forthcoming Subject Events


June 2015

Annual Conference of the Society of European Contract Law (SECOLA)
European Contract Law and the EU Charter of Fundamental Rights
Keble College

News

Studies in the Contract Laws of Asia workshop

Mindy Chen-Wishart and Alexander Loke of City University Hong Kong are the editors of a series titled Studies in the Contract Laws of Asia […]

The future of contract law in Latin America

Rodrigo Momberg from the Institute of European and Comparative Law has been awarded a grant from the Fell Fund to study and evaluate the process of harmonization of contract law in Latin America […]

Discussion Groups

These self-sustaining groups are an essential part of the life of our graduate school. They are organised in some cases by graduate students and in others by Faculty members and meet regularly during term, typically over a sandwich lunch, when one of the group presents work in progress or introduces a discussion of a particular issue or new case. They may also encompass guest speakers from the faculty and beyond.

Obligations Discussion Group

Publications

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Showing all 124 Contract publications currently held in our database
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S J Bright, 'Unfairness and the Consumer Contract Regulations' in A Burrows and E Peel (eds), Contract Terms (Hart 2007) [...]

This chapter looks at the meaning of unfairness and its inter-relationship with the method chosen to implement the Unfair Terms in Consumer Contracts Regulations.


ISBN: 978-0-19-922937-6

A S Burrows, A Casebook on Contract (Hart 2007)

A S Burrows, A Casebook on Contract (4th edn, Hart 2013)

A S Burrows, 'Alternatives to Legislation: Restatements and Judicial Law Reform' in Louise Gullifer and Stefan Vogenauer (eds), English and European Perspectives on Contract and Commercial Law: Essays in Honour of Hugh Beale (Hart 2014)

A S Burrows, 'Chapters 19-20, 28 plus annual supplements 2004, 2005, 2006' in Chitty on Contracts 29th edn ( 2004)

A S Burrows and others (eds), Contract Terms (OUP 2007) [...]

Essays from Norton Rose-Oxford colloquium


ISBN: 978-0-19-922937-6

A S Burrows, 'The Influence of Comparative Law on the English Law of Obligations' in Michael Tilbury and Andrew Robertson (eds), The Common Law of Obligations: Divergence and Unity (Hart 2015) (forthcoming)

J Cartwright, J Beatson and A Burrows, Anson's Law of Contract (29th edn, OUP 2010) [...]

New edition of classic text on contract law


ISBN: 9780199282470

J Cartwright, Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer (Hart Publishing 2007) [...]

Book designed to introduce the lawyer who is trained in a civil law jurisdiction to the common law, and to the English law of contract.


ISBN: 978 1 84113 577 9

J Cartwright, Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer, 2nd edn (Hart Publishing 2013) [...]

Second edition of book designed to introduce English contract law to lawyers with a civil law background.


ISBN: 9781849464796

J Cartwright, 'Excluding Liability for Misrepresentation' in A Burrows and E Peel (eds), Contract Terms (Oxford University Press 2007) [...]

Published version of paper from Oxford-Norton Rose Colloquium 2006.


ISBN: 978 0 19 922937 6

J Cartwright, Formation and Variation of Contracts (Sweet & Maxwell 2014) [...]

Book discussing in detail the law on pre-contractual negotiations and the formation of the agreement, contractual formalities, and the doctrines of consideration and promissory estoppel as they apply in both the formation of a contract and the variation of an existing contract.


ISBN: 9781847038029

J Cartwright, 'La preuve en droit continental et en common law - Le point sur la preuve en matière des contrats en droit anglais.' (2013) La Semaine Juridique Notariale et Immobilière 26 [...]

Abstract: There is no "hierarchy of proof" in English law as there is in French law. English law does not use authentic acts; the deed is a private document. Although there are only a few exceptions to the basic rule that no formalities of writing are required for the creation of a contract, nor for its enforceability, yet where the contract is in writing the written document has great significance, particularly in the light of the principles of (objective) interpretation of the contract.

Discussion of the significance of writing in English law of contract. Article is in French.


ISBN: 0242-5785

J Cartwright, 'Liability in Tort for Pre-Contractual Non-Disclosure' in A Burrows and E Peel (eds), Contract Formation and Parties (OUP 2010) [...]

Discussion and criticism of recent cases holdinbg that a fraudulent breach of a duty of disclosure is actionable within the tort of deceit.


ISBN: 9780199583706

J Cartwright, Misrepresentation, Mistake and Non-Disclosure, 3rd edn (Sweet & Maxwell 2012) [...]

Third edition of work originally published in 2002 (second edition 2007).


ISBN: 9780414049550

J Cartwright, 'Protecting Legitimate Expectations and Estoppel: English Law' in B Fauvarque-Cosson (ed), La Confiance Légitime et l'Estoppel (Société de Législation Comparée 2007) [...]

Discussion of the role of estoppel and the protection of legitimate (or reasonable) expectations in English contract law. Contribution to the 17th Congress of the International Academy of Comparative Law, Utrecht, July 2006. Also published (separately) on-line in the Electronic Journal of Comparative Law at http://www.ejcl.org/103/art103-6.pdf


ISBN: 978 2 908199 53 6

J Cartwright, 'The English Law of Contract: Time for Review?' (2009) 17 European Review of Private Law 155 [...]

Discussion of aspects of the English law of contract which are in need of reform, and the mechanisms by which reform can be achieved. Revised text of Inaugural Lecture delivered on 7 October 2008 in acceptance of the Chair of Anglo-American Private Law at the University of Leiden.


ISBN: 0928-9801

J Cartwright, 'Unilateral Mistake in the English Courts: Reasserting the Traditional Approach' (2009) Singapore Journal of Legal Studies 226   [Case Note] [...]

Case note on Statoil ASA v Louis Dreyfus Energy Services LP


M Chen-Wishart, 'A Bird in the Hand: Consideration and One-Sided Contract Modifications' in AS Burrows, E Peel (eds), Contract Formation and Parties (Oxford University Press 2010) [...]

If we accept that a bird in the hand is the worth two in the bush then the idea that the receipt of performance (even part performance) confers a benefit over and above the right to performance, and can be exchanged for something from the recipient, is consistent with the core idea of the consideration doctrine. All that remains is to replace the bilateral contract analysis in Williams v Roffey with a unilateral contract analysis (the promisor is only bound if the stipulated performance is actually received). This is preferable to three recently mooted alternatives to consideration as the primary test of enforceability: (i) the test of serious intention subject to contrary policies advanced in Antons Trawling v Smith; (ii) the version of promissory estoppel advanced in Collier v Wright, and (iii) leaving it all to the vitiating factors advocated in Gay Choon Ing v Loh Sze Ti Terence Peter.


ISBN: 9780199583706

M Chen-Wishart, 'Bank Charges: A Lesson in Interpreting EC Law' (2009) 125 LQR 389 [...]

This discusses the Court of Appeal decision in Office of Fair Trading v Abbey National and 7 Others [2009] EWCA Civ 116 in which Sir Anthony Clarke MR upheld the High Court's rejection of the banks' claim that their penalty charges are exempt from the test for unfairness under regulation 6(2). It examines the purposive interpretation of the Unfair Terms in Consumer Contracts Regulations 1999 as law of EC origin. It argues that while ensuring transparency is insufficient consumer protection under the Regulations, Sir Anthony Clarke goes too far in effectively requiring terms to be negotiated. The focus of regulation 6(2) is a difficult-to-stabilise something in between; namely, only the exemption of terms which are sufficiently important from the consumer's perspective that they can be said to be meaningfully consented to by consumers. 


M Chen-Wishart, 'Consideration and Serious Intention' (2009) SJLS 434 [...]

The doctrine of consideration has come under increasing attack. In Gay Choon Ing v. Loh Sze Ti Terence Peter, Andrew Phang Boon Leong J.A. of the Singapore Court of Appeal raises the spectre of its replacement with the doctrines of economic duress, undue influence, unconscionability and promissory estoppel. In response to the reasoning of Phang J.A. and others, I argue that: (i) consideration is not a meaningless doctrine; in particular, the adequacy of consideration is relevant to the enforceability of an agreement and ?practical benefit? can be made a meaningful concept; (ii) contract law does not, and should not, enforce all seriously intended undertakings; and (iii) the vitiating factors do not simply interrogate the presence of contractual intention and cannot replace the functions performed by consideration.


M Chen-Wishart, 'Consideration, Practical Benefit and the Emperor’s New Clothes' in Beatson and Friedmann (eds), Good Faith and Fault in Contract Law (Oxford University Press 1995)

M Chen-Wishart, Contract and Reciprocity: The Hochelaga Annual Lectures of the Hong Kong University Law Faculty (Hochelaga 2011)

M Chen-Wishart, Contract Law (OXford University Press 2005)

M Chen-Wishart, Contract Law (4th ed, Oxford University Press 2012)

M Chen-Wishart, Contract Law, 2nd ed (Oxford University Press 2008)

M Chen-Wishart, Contract Law, 3rd edition (Oxford University Press 2010)

M Chen-Wishart, 'Controlling the Power to Agree Damages' in P Birks (ed), Wrongs and Remedies in the Twenty-First Century ( 1996)

M Chen-Wishart, 'Creditors Beware' (1993) 2 Property Review 140

M Chen-Wishart, 'Creditors Beware II' (1993) 2 Property Review 499

M Chen-Wishart, 'Objectivity and Mistake: the Oxymoron of Smith v Hughes' in J Neyers, R Bronough, SGA Pitel (eds), Exploring Contract Law (Hart 2009) [...]

The author explores the contours of the ?objective test of intentions? and concludes that Smith v Hughes and other ?mistake of terms? cases said to represent exceptional subjectivity trumping the objective approach are straightforward applications of objectivity; there is no need, indeed no room, for resort to subjectivity. Further, stabilizing the language of ?mistake,? ?defective consent,? and ?void? allows  vital distinctions to be drawn between contract formation and vitiation which explains why known non-correspondence of any term prevents contract formation, while mistaken assumptions must be shared and fundamental to void a contract.  It also allows us to map the related areas of rectification, non est factum, mistaken identity and misrepresentation.


ISBN: 9781841139067

M Chen-Wishart, 'Restitutionary Damages for Breach of Contract' (1998) 114 Law Quarterly Review 363

M Chen-Wishart, 'Taking Securities, Taking Advantage' (1993) New Zealand Law Journal 224

M Chen-Wishart, 'The Contractual Mistakes Act 1977 and Contract Formation' (1986) Otago Law Review 334=354

M Chen-Wishart, 'The Enforceability of Additional Contractual Promises: A Question of Consideration?' (1991) New Zealand Universities Law Review 270

M Chen-Wishart, 'The O’Brien Principle and Substantive Unfairness' (1997) 56 Cambridge Law Journal 60

M Chen-Wishart, 'The Purposes and Methods of English Contract Law' (2011) 12 Peking University Law Review 681

M Chen-Wishart, Unconscionable Bargain (Butterworths 1989)

M Chen-Wishart, 'Unconscionable Bargains' (1987) New Zealand Law Journal 107

M Chen-Wishart, 'Undue Influence Vindicating Relationships of Influence' (2007) OUP 231

M Chen-Wishart, 'Unfairness of Bank Charges' (2008) 124 LQR 561 [...]

This discusses the High Court decision in Office of Fair Trading v Abbey National Plc and 7 Others [2008] EWHC 875 (Comm). First, it examines the relevant considerations in determining,  and the standard required for language to be, 'plain and intelligible'. Second, it assesses Andrew Smith J's reasoning and conclusion that the relevant bank charges fall outside the exemption for so-called 'core' terms.  Third, it criticisesthe banks' argument that contravention of good faith requires procedural unfairness.


H Collins, 'Cosmopolitanism and Transnational Private Law ' (2012) 8 European Review of Contract Law 311 [...]

As a legal mechanism for doing justice between individuals under conditions of scarce resources, private law derives its legitimacy from both national governmental institutions that pursue a particular scheme of social justice and to a lesser and often overlooked extent from cosmopolitan principles of civil law. The cosmopolitan view of private law suggests that it is in an important sense found, not made, discovered by the exercise of reason, moral argument, and logical thought. It is not tied to any particular political structure, whether state, village or empire. European Union private law relies for its legitimacy almost entirely on its pursuit of a thin theory of justice concerning the enhancement of individual choice, which inevitably brings it into conflict with national private law systems that pursue broader schemes of social justice. Transnational commercial law (or the new lex mercatoria) also relies upon the narrow justification of the enhancement of cross-border trade, but its creation by private actors increases its efficacy and efficiency. Both European Union private law and transnational commercial law lack, however, adequate links to cosmopolitan principles of law and broad conceptions of social justice, with the effect that their legitimacy is weaker than that of national private law systems. The principal conclusion of this analysis is the contention is that the cosmopolitan strand of legitimacy, if it is to provide adequate support for transnational law, must realign itself with concerns about social justice.


ISBN: 1614-9920

H Collins, 'Does Social Justice Require the Preservation of Diversity in the Private Laws of Member States of Europe?' in T. Wilhelmsson, E. Paunio, and A. Pohjolainen (eds), Private Law and the Many Cultures of Europe (Kluwer Law International 2007)

H Collins, 'Does \'Fragmented Europeanisation\' Require a European Civil Code? ' (2009) 3-4 Tidskrift Utgiven Av Juridiska FöReningen 213

H Collins, 'Flipping Wreck: Lex Mercatoria on the Shoals of Ius Cogens' in S. Grundmann, F. Moeslein, K. Riesenhuber (eds), Contract Governance - Dimensions in Law and Interdisciplinary Research (Oxford University Press 2014) (forthcoming)

H Collins, 'Governance Implications for the European Union of the Changing Character of Private Law' in F. Cafaggi and H. Muir-Watt (eds), Making European Private Law (Edward Elgar 2008)

H Collins, 'Lord Hoffmann and the Common Law of Contract ' (2009) 5 Juridiska Foreningen I 474

H Collins (ed), Networks as Connected Contracts (Hart Publishing 2011)

H Collins, 'Private Production of Transnational Law through Standard Form Contracts' in H. Eidenmuller (ed), Regulatory Competition in Contract Law and Dispute Settlement (Hart Publishing 2013)

H Collins (ed), Standard Contract Terms in Europe: A basis for and a Challenge to European Contract Law (Kluwer Law International 2008)

H Collins, 'The (In)compatibility of Human Rights and Private Law ' in Hans-W. Micklitz (ed), Constitutionalization of European Private Law (Oxford University Press 2014)

H Collins, 'The Constitutionalization of European Private Law as a Path to Social Justice? ' in H-W Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Edward Elgar 2011)

H Collins, 'The European Economic Constitution and the Constitutional Dimension of Private Law ' (2009) 5 European Review of Contract Law 71 [...]

DOI: 10.1515/ERCL.2009.71

Intervening in the debate about the future of the European Union and the need for a balanced economic constitution that will consolidate a distinctive European social model, the essay argues that private law shares constitutional qualities with other public law sources such as abstract declarations of social and political rights, and that the construction of European private law is a necessary ingredient of the project for establishing a European economic constitution. In making this argument, the essay examines the concept of an economic constitution, its relation to the idea of a private law society, and the criticisms that have been made of the existing European economic constitution that it is unbalanced.


ISBN: 1614-9920

H Collins, 'The Hybrid Quality of European Private Law' in R. Brownsword, H-W. Micklitz, and L. Niglia (eds), The Foundations of European Private Law (Hart Publishing 2011)

H Collins, 'The Vanishing Freedom to Choose a Contractual Partner ' (2012) 76 Law and Contemporary Problems 71 [...]

An individual?s right to choose a contractual partner marks an intersection between fundamental rights and basic contract law. As a fundamental right, the freedom to choose is emblematic of individual liberty and personal autonomy, values that lie at the core of a liberal society.


ISBN: 0023-9186

H Collins, 'The Weakest Link: Legal Implications of the Network Architecture of Supply Chains' in M. Amstutz and G. Teubner (eds), Networks: Legal Issues of Multilateral Co-operation (Hart Publishing 2009)

H Collins, 'Why Europe Needs a Civil Code' (2013) 21 European Review of Private Law 907 [...]

Arguments in favour of the creation of a civil code for the European Union are usually framed in terms of the internal market agenda, which seeks to remove real or supposed obstructions to trade, such as the diversity of national laws. Although those arguments for a European civil code are found inadequate and to some extent misconceived, a different reason for the creation of a civil code consisting of principles rather than detailed rules is advanced, based on the idea that Europe needs to construct a transnational civil society that will provide the foundations for greater political solidarity between the peoples of Europe and thereby legitimate more effective transnational institutions of governance.


L Gullifer, 'Agreed Remedies' in Andrew Burrows and Edwin Peel (eds), Commercial Remedies: Current Issues and Problems (Oxford University Press 2003) [...]

Book from the Norton Rose Oxford Law Colloquium held in September 2002


ISBN: 0-19-926465-1

L Gullifer (ed), English and European Perspectives on Contract and Commercial law: Essays in honour of Hugh Beale (Hart Publishing 2014)

T Krebs, 'Yearworth and the Law of Contract' (2012) Journal of Medical Ethics Special Issue - Human Body Parts/Property

D P Nolan, 'Following in their Footsteps: Equitable Estoppel in Australia and the United States' (2000) 11 King's College Law Journal 202

D P Nolan, 'Hongkong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd, The Hongkong Fir (1961)' in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in the Law of Contract (Hart Publishing 2008)

D P Nolan, 'Offer and Acceptance in the Electronic Age' in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010)

W E Peel, 'Affirmation by Termination' (2009) 125 Law Quarterly Review 378   [Case Note]

W E Peel, 'Agreements to Negotiate in Good Faith' in Andrew Burrows and Edwin Peel (eds), Contract Formation and Parties (OUP 2010) [...]

An essay concerning the limits to the enforceability of agreements to negotiate and a proposal for reform


ISBN: 978-0-19-958370-6

W E Peel and Andrew Burrows (eds), Commercial Remedies (Oxford University Press 2003) [...]

Edited collection of essays, responses and conference discussionconcerned with current issues and problems in the law of remedies


ISBN: 0-19-926465-1

W E Peel and Andrew Burrows (eds), Contract Formation and Parties (OUP 2010) [...]

A collection of essays on the 'formation process' and 'third parties' based on the papers presented at the Oxford-Norton Rose Law Colloquium, September 2009


ISBN: 978-0-19-958370-6

W E Peel and Andrew Burrows (eds), Contract Terms (OUP 2007) [...]

Edited collection of essays from colloquium on contractual interpretation and particular contract terms


ISBN: 978-0-19-922937-6

W E Peel, 'Desideratum or principle: the compensatory principle revisited' (2015) 131 Law Quarterly Review 29   [Case Note] [...]

A note of the decision of Teare J. in The Glory Wealth on the extent to which the courts, when assessing damages for breach of contract, may take into account post-termination evidence that the claimant would not have been able to perform his future obligations.


W E Peel, Halsburys Laws of England (Vol 22 (Contract), LexisNexis 2012) [...]

A treatise on the law of contract; in particular: (i) Introduction, (ii) Form & Formalities; (iii) Formation, (iv) Consideration & Privity, (v) Contractual Terms, (vi) Illegality, (vii) Frustration, (viii) Discharge of Contractual Promises, (ix) Joint and Several Promises


ISBN: 9781405763592

W E Peel, 'No liability for service of an invalid notice of 'Event of Default'' (2006) 122 Thomson Sweet & Maxwell/Law Quarterly Review 179   [Case Note] [...]

a casenote on the HL decision in Concord Trust v Law Debenture Trust Corp


ISBN: 0023-933X

W E Peel, 'Reasonable exemption clauses' (2001) 117 Law Quarterly Review 545   [Case Note] [...]

A casenote on the Court of Appeal's decision in Watford Electronics Ltdv Sanderson CFL Ltd


ISBN: 0-421-755-407

W E Peel, 'Remoteness revisited' (2009) Law Quarterly Review 6   [Case Note] [...]

A comment on the decision of the House of Lords in The Achilleas


ISBN: 0023-933X

W E Peel, 'The Common Law Tradition: Regulation of Boilerplate Clauses in English Law' in G. Cordero-Moss (ed), Boilerplate Clauses, International Commercial Contracts and the Applicable Law (CUP 2011)

W E Peel, 'The rule against penalties' (2013) Law Quarterly Review 152   [Case Note] [...]

A note on the decision of the HCA in Andrews v ANZ Banking Group Ltd [2012] HCA 30


ISBN: 0023-933X

W E Peel, 'The Termination Paradox' (2013) Lloyds Maritime & Commercial Law Quarterly 519 [...]

An article dealing with the circumstances in which termination for breach of contract pursuant to the express provisions of the contract may prevent submission that the contract was terminated for repudiatory breach, analysing the basis for such a finding (which appears to lie in affrmation), its consequences, and potential solutions for parties wishing to retain the right to sue for repudiatory breach


ISBN: 0306-2945

W E Peel, Treitel: The Law of Contract, 12th edition (Thomson, Sweet & Maxwell 2007)

W E Peel, Treitel: The Law of Contract, 13th ed. (Sweet & Maxwell 2011)

W E Peel, 'Whither contra proferentem' in Andrew Burrows & Edwin Peel (eds), Contract Terms (OUP 2007)

Guenter Treitel, '' in Michael Bridge (ed), Benjamin's Sale of Goods (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 18: Third Parties' in Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 19: C.I.F. Contracts' in Michael Bridge (ed), Benjamin's Sale of Goods (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 20: F.O.B. Contracts' in Michael Bridge (ed), Benjamin's Sale of Goods (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 21: Other Special Terms and Provisions in Overseas Sales' in Michael Bridge (ed), Benjamin's Sale of Goods (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 27: Specific Performance and Injunction' in Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 2: The Agreement' in Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 3: Consideration' in Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell 2012)

Guenter Treitel, 'Chapter 40: Gambling Contracts' in Hugh Beale (ed), Chitty on Contracts (Sweet & Maxwell 2012)

J Vella, 'Sham Transactions' [2008] LMCLQ 488

Simon Whittaker, 'Can the Contract Control the Contract? "Entire Agreement Clauses" in English Law' in F. Addis (ed), Le Clausole di Forma nelle Condizioni Generali di Contratto (Giuffe Editore, Miilan 2008) [...]

The article analyses the law governing the effectiveness of entire agreement clauses in English law


Simon Whittaker, 'Chapter 1 Introductory; Chapter 4 Form; Chapter 8 Capacity; Chapter 15 Unfair Terms in Consumer Contracts; and Chapter 44 Suretyship' in H Beale (ed), Chitty on Contracts (29th edition) (Sweet and Maxwell 2004) [...]

Continued updating and rewriting of chapters (including new section on the HRA and contracts).


ISBN: 1 0 421 842 806

Simon Whittaker, 'Contract networks, freedom of contract and the restructuring of privity of contract' in F. Cafaggi (ed), Contractual Networks, Inter-Firm Cooperation and Economic Growth (Edward Elgar Publishing, Inc. 2011) [...]

This article considers why English lawyers have not generally been attracted by the notion of 'network contracts' to regulate complex economic relations.


ISBN: 978 1 84844 889 6

Simon Whittaker, 'Contratos abusivos, cláusulas abusivas y prácticas comerciales desleales' in S Camara Lapuente (ed), La Revision de las Normas Europeas y Nacionales de Proteccion de los Consumidores (Thomson Reuters (Legal) Ltd 2012) [...]

Abstract: This article explores the relationship between EU legal rules which control unfair terms and unfair commercial practices with particular references to the substantive unfairness of the central bargain

ISBN: 978-84-470-3981-4

Simon Whittaker, 'Good Faith, Implied Terms and Commercial Contracts' (2013) 129 Law Quarterly Review   [Case Note] [...]

This note concerns the decions of the High Court in Yam Seng Ptd. Ltd. v International Trade Corporation [2013] EWHC 111 (QB).


Simon Whittaker, 'Identifying the Legal Costs of Operation of the Common European Sales Law' (2013) 50 Common Market Law Review 85

Simon Whittaker, 'Price Variation Clauses' in M. Fabre-Magnan, J. Ghestin, P. Jourdain (eds), Etudes offertes a Genevieve Viney (L.G.D.J. 2008) [...]

This essay explores the validity of price variation clauses in English law


ISBN: 978-2-275-03136-1

Simon Whittaker, 'Termination Clauses' in A. Burrows and E. Peel (eds), Contract Terms (in A. Burrows and E. Peel, Contract Terms (OUP, 2007) 2007) [...]

This work analyses the different types of contract terms which allow an injured party to terminate on the ground of breach of contract and explains and criticises the controls which statute and the courts have put in place to control them.


ISBN: 978-0-19-922937-6

Simon Whittaker, 'The Proposed \'Common European Sales Law\': Legal Framework and the Agreement of the Parties' (2012) 75 Modern Law Review 578 [...]

The European Commission’s Proposal for a Regulation on a Common European Sales Law (‘CESL’) seeks to create a European scheme of contract law available for parties to choose to govern cross-border contracts for the sale of goods, supply of ‘digital content,’ and for the supply of related services.This article explains the background to the Proposal, sketches out the purposes and scope of the CESL, and considers and criticises its legal framework (and in particular its relationship with private international law) and the key requirement of the parties’ agreement. In the author’s view, the CESL scheme remains an unconvincing basis for the achievement of its economic purposes and, as regards consumer contracts, puts too much reliance on the agreement of the consumer as a justification for the loss of their existing protection under EU private international law rules.


Simon Whittaker, 'Unfair Contract Terms, Unfair Prices and Bank Charges' (2011) 74 Modern Law Review 106   [Case Note] [...]

This note assesses the decision of the UK Supreme Court in the 'Bank Charges' case in the light of the decision of the case-law of the ECJ


Courses

The courses we offer in this field are:

Undergraduate

FHS (Phase II)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the third term of the first year, and all three terms of the second year.

Contract

Contract

The syllabus comprises the general principles of the law governing enforceable agreements. It is not concerned with special rules governing specific types of contracts, such as sale, carriage or employment, except where these are significant for the general principles. The principal topics normally discussed are: (a) the rules relating to the formation of agreements and to certain further requirements which must be satisfied to make agreements legally enforceable; (b) the contents of a contract and the rules governing the validity of terms which exclude or restrict liability and unfair terms in consumer contracts; (c) the nature and effects in a contractual context of mistake, misrepresentation, duress and undue influence; (d) the general principle that right and duties arising under a contract can only be enforced by and against the parties to it and its main exceptions; (e) performance and breach, including the right to terminate for failure in performance and the effects of wrongful repudiation; (f) supervening events as a ground of discharge under the doctrine of frustration; (g) remedies for breach of contract by way of damages, action for the agreed sum, specific performance and injunction. (h) the basis of contractual liability.

Contract is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.

The subject is taught in tutorials arranged by your college tutor. Particular areas are also explored in lectures.

Syllabus:

Candidates will be required to show a knowledge of such parts of the law of restitution as are directly relevant to the law of contract. Questions may be set in this paper requiring knowledge of the law of tort.

Teaching Conventions:

The teaching is based on the assumption that questions will not be asked on contracts that are illegal or contrary to public policy or on gaming and wagering contracts; and that detailed knowledge will not be expected of formal requirements, agency, assignment or contractual capacity.

 

Diploma in Legal Studies

Contract

Contract

The syllabus comprises the general principles of the law governing enforceable agreements. It is not concerned with special rules governing specific types of contracts, such as sale, carriage or employment, except where these are significant for the general principles. The principal topics normally discussed are: (a) the rules relating to the formation of agreements and to certain further requirements which must be satisfied to make agreements legally enforceable; (b) the contents of a contract and the rules governing the validity of terms which exclude or restrict liability and unfair terms in consumer contracts; (c) the nature and effects in a contractual context of mistake, misrepresentation, duress and undue influence; (d) the general principle that right and duties arising under a contract can only be enforced by and against the parties to it and its main exceptions; (e) performance and breach, including the right to terminate for failure in performance and the effects of wrongful repudiation; (f) supervening events as a ground of discharge under the doctrine of frustration; (g) remedies for breach of contract by way of damages, action for the agreed sum, specific performance and injunction. (h) the basis of contractual liability.

Contract is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.

The subject is taught in tutorials arranged by your college tutor. Particular areas are also explored in lectures.

Syllabus:

Candidates will be required to show a knowledge of such parts of the law of restitution as are directly relevant to the law of contract. Questions may be set in this paper requiring knowledge of the law of tort.

Teaching Conventions:

The teaching is based on the assumption that questions will not be asked on contracts that are illegal or contrary to public policy or on gaming and wagering contracts; and that detailed knowledge will not be expected of formal requirements, agency, assignment or contractual capacity.

 

Postgraduate

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Contract (also part of the BA course)

Contract

The syllabus comprises the general principles of the law governing enforceable agreements. It is not concerned with special rules governing specific types of contracts, such as sale, carriage or employment, except where these are significant for the general principles. The principal topics normally discussed are: (a) the rules relating to the formation of agreements and to certain further requirements which must be satisfied to make agreements legally enforceable; (b) the contents of a contract and the rules governing the validity of terms which exclude or restrict liability and unfair terms in consumer contracts; (c) the nature and effects in a contractual context of mistake, misrepresentation, duress and undue influence; (d) the general principle that right and duties arising under a contract can only be enforced by and against the parties to it and its main exceptions; (e) performance and breach, including the right to terminate for failure in performance and the effects of wrongful repudiation; (f) supervening events as a ground of discharge under the doctrine of frustration; (g) remedies for breach of contract by way of damages, action for the agreed sum, specific performance and injunction. (h) the basis of contractual liability.

Contract is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales.

The subject is taught in tutorials arranged by your college tutor. Particular areas are also explored in lectures.

Syllabus:

Candidates will be required to show a knowledge of such parts of the law of restitution as are directly relevant to the law of contract. Questions may be set in this paper requiring knowledge of the law of tort.

Teaching Conventions:

The teaching is based on the assumption that questions will not be asked on contracts that are illegal or contrary to public policy or on gaming and wagering contracts; and that detailed knowledge will not be expected of formal requirements, agency, assignment or contractual capacity.

 


People

Contract teaching is organized by a Subject Group convened by:

Simon Whittaker: Professor of European Comparative Law

in conjunction with:

Alexandra Braun: Associate Professor of Law
Adrian Briggs: Professor of Private International Law
Susan Bright: Professor of Land Law, McGregor Fellow
Andrew Burrows, QC: Professor of the Law of England
John Cartwright: Professor of the Law of Contract
Mindy Chen-Wishart: Reader in Contract Law
Hugh Collins: Vinerian Professor
Paul S Davies: Associate Professor of Law
Andrew Dyson: College Lecturer and Tutor in Law
Stefan Enchelmaier: Professor of European and Comparative Law
Joshua Getzler: Professor of Law and Legal History
James Goudkamp: Associate Professor of Law
Sarah Green: Associate Professor of Law
Katharine Grevling: Associate Professor of Law
Louise Gullifer: Professor of Commercial Law
Jonathan Herring: Professor of Law
Andrew Higgins: Associate Professor of Civil Procedure
Thomas Krebs: Associate Professor of Commercial Law
Ewan McKendrick: Registrar
Andrew McLeod: Research Fellow
Peter Mirfield: Emeritus Emeritus Professor of the Law of Evidence
Donal Nolan: Associate Professor of Law
Edwin Peel: Professor of Law
Sandy Steel: Associate Professor of Law

assisted by:

Carmine Conte: DPhil Law student
Quentin Cregan: DPhil Law student
Jodi Gardner: DPhil Law student
Jesse Wall: DPhil Law student

Also working in this field, but not involved in its teaching programme:

Horst Eidenmüller: Freshfields Professor of Commercial Law
Donald Harris: Retired. Formerly Director of the Centre for Socio-Legal Studies at Balliol
Geneviève Helleringer:
Dori Kimel: Reader in Legal Philosophy
Rodrigo Momberg Uribe: Career Development Fellow in Comparative Law
Dan Prentice: Emeritus Emeritus Professor of Corporate Law
Francis Reynolds: Emeritus Emeritus Professor of Law at Worcester College
Guenter Treitel: Emeritus Emeritus Vinerian Professor of English Law at All Souls
Niranjan V: Stipendiary Lecturer in Law

Graduate students working in this field:

Tatiana Cutts: DPhil Law student
Tom Dysart: DPhil Law student
Olumide Famuyiwa: DPhil Law student
David Heaton: MPhil Law student
Matthew Kruger: MPhil Law student
Krishnaprasad KV: MPhil Law student
Kelry Loi: DPhil Law student
Natalie Mrockova: DPhil Law student
Poorna Mysoor: DPhil Law student
Aleksi Ollikainen: DPhil Law student
Andelka Phillips: DPhil Law student
Jenifer Varzaly: DPhil Law student
Stefanie Wilkins: DPhil Law student

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Private Law and Fundamental Rights

Courses

The courses we offer in this field are:

Postgraduate

BCL

Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds

Private Law and Fundamental Rights

The enactment of the Human Rights Act 1998 and the adoption of the Charter of Fundamental Rights of the EU as a binding treaty has provoked new questions about the relation between fundamental rights and the legal principles and rules elaborated in fields of private law, principally contract, tort, and property.  Questions that have been raised include: Is private law based on or derived from fundamental rights?  Can fundamental rights provide a source for new private law rights and obligations? Does the enactment of fundamental rights in a legal order collapse the distinction between public and private law, and if so, what are the consequences for theories of law? Do fundamental rights have the same meaning in a horizontal dispute between private parties?  How should the fundamental rights of private parties be balanced against each other?  As well as examining these broad questions, the course critically examines and assesses the case-law concerning the impact of fundamental rights on contract law, tort law, property law and other fields of private law.  Cases and examples are drawn primarily from the common law in the UK and decisions of the Court of Justice of the EU and the European Court of Human Rights, but selective comparisons from other jurisdictions are occasionally introduced.

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Private Law and Fundamental Rights

The enactment of the Human Rights Act 1998 and the adoption of the Charter of Fundamental Rights of the EU as a binding treaty has provoked new questions about the relation between fundamental rights and the legal principles and rules elaborated in fields of private law, principally contract, tort, and property.  Questions that have been raised include: Is private law based on or derived from fundamental rights?  Can fundamental rights provide a source for new private law rights and obligations? Does the enactment of fundamental rights in a legal order collapse the distinction between public and private law, and if so, what are the consequences for theories of law? Do fundamental rights have the same meaning in a horizontal dispute between private parties?  How should the fundamental rights of private parties be balanced against each other?  As well as examining these broad questions, the course critically examines and assesses the case-law concerning the impact of fundamental rights on contract law, tort law, property law and other fields of private law.  Cases and examples are drawn primarily from the common law in the UK and decisions of the Court of Justice of the EU and the European Court of Human Rights, but selective comparisons from other jurisdictions are occasionally introduced.


People

Private Law and Fundamental Rights teaching is organized by:

Hugh Collins: Vinerian Professor

Also working in this field, but not involved in its teaching programme:

Roderick Bagshaw: Associate Professor of Law

Graduate students working in this field:

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Restitution

Publications

Showing all[*] publications sorted by author, then title  [change this]

Showing all 26 Restitution publications currently held in our database
Change to sort them by year | title | type OR
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A S Burrows, 'Absence of Basis: the New Birksian Scheme' in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) [...]

Essay analysing the advantages and disadvantages of Birks' new approach to the unjust question in unjust enrichment.


ISBN: 0-19-920655-4

A S Burrows, Ewan McKendrick and James Edelman, Cases and Materials on the Law of Restitution, 2nd edition (OUP 2007)

A S Burrows and Lord Rodger of Earlsferry (co-editor) (eds), Mapping the Law: Essays in Memory of Peter Birks (OUP 2006) [...]

Essays in memory of Peter Birks


ISBN: 0-19-920655-4

Lord Rodger of Earlsferry and A S Burrows, 'Peter Birks' (2013) Restitution Law Review 54

A S Burrows, 'The English Law of Restitution: A Ten-Year Review' in Neyers, McInnes and Pitel (eds), Understanding Unjust Enrichment ( 2004)

A S Burrows, 'Unravelling Proprietary Restitution: a Response to Professor Lionel Smith' (2005) Canadian Business Law Journal 424

M Chen-Wishart, In Defence of Unjust Factors: A Comparative Study of Duress, Fraud and Exploitation (Oxford U Comparative L Forum 2 at ouclf.iuscomp.org 2000)

M Chen-Wishart, 'In Defence of Unjust Factors: a Study of Rescission for Duress, Fraud and Exploitation' in David Johnston and Reinhard Zimmermann (eds), Unjustified Enrichment: Key Issues in Comparative Perspective (Cambridge University Press 2002)

M Chen-Wishart, 'Undue Influence, Manifest Disadvantage and Loss Apportionment' (1994) 110 Law Quarterly Review 173

M Chen-Wishart, 'Undue Influence: Beyond Impaired Consent and Wrong-Doing, Towards a Relational Analysis' in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Honour of Peter Birks (OUP 2006)

M Chen-Wishart, '“Unjust Factors and the Restitutionary response” ' (2000) 20 Oxford Journal of Legal Studies 557

S Gardner, 'Proprietary Restitution: A Coda to Chapter 8 of Birks? Unjust Enrichment' (2008) Restitution Law Review 107

J S Getzler, 'Unconscionable Conduct and Unjust Enrichment as Grounds for Judicial Intervention' (1990) 16 Monash University Law Review 283

Roy Goode, 'Proprietary Liability for Secret Profits - A Reply' (2011) 127 Law Quarterly Review 493 [...]

A reply to a case note by Justice Hayton on Sinclair Investments (UK) Ltd. v. Versailles Trade Finance Ltd


ISBN: 0023-933X

A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Unjust Enrichment (Hart Publishing 2015)

T Krebs, 'In defence of unjust factors' in Johnston and Zimmermann (eds), Unjustified Enrichment - Key Issues in Comparative Perspective (Cambridge University Press 2002) [...]

Comparative essay rejecting suggestions that English law should adopt the German 'lack of legal cause' approach to enrichment liability.


ISBN: 521808200

T Krebs, 'Stable Claims and Stable Defences - Change of Position and Disenrichment in England and Germany' in E.J.H. Schrage (ed), Unjust Enrichment and the Law of Contract (Kluwer Law 2001) [...]

A comparative essay resisting suggestions that the defence of change of position in England should be restrictively applied.


ISBN: 90-411-1655-9

W J Swadling, 'The Role of Illegality in the English Law of Unjust Enrichment' in D Johnson & R Zimmermann (eds), Unjustified Enrichment - Key Issues in Comparative Perspective (CUP 2002)

R Williams and R Shiers, 'FII GLO (Chancery) and F J Chalke; tax and restitution developing hand-in-hand' [2009] British Tax Review 365   [Case Note] [...]

The authors examine the recent domestic decisions in the FII Group Litigation Order and F J Chalke, and demonstrate the significance of these taxation cases for the future development of the law of unjust enrichment. They consider in particular the impact of European case law in this area.


R Williams, 'Overpaid Taxes: A Hybrid Public and Private Approach' in Birke Haecker, Charles Mitchell, Steven Elliott (eds), Restitution of Overpaid Tax ( 2013) [...]

Continues the argument developed in 'Unjust Enrichment and Public law' in the light of the decision of the Supreme Court in FII. Argues that in Deutsche Morgan Grenfell the House of Lords took a wrong turning on the law of unjust enrichment in a public law context, a decision which has led to unnecessary and avoidable litigation, as evidenced by FII. Suggests that such litigation could in future be avoided by reversing the Deutsche Morgan Grenfell decision and adopting the hybrid public and private approach to cases of unjust enrichment involving public bodies.


ISBN: 9781849461733

R Williams, 'The Beginnings of a Public Law of Unjust Enrichment?' (2005) 16(1) King's College Law Journal 194

R Williams, Unjust Enrichment and Public Law: A comparative study of England, France and the EU (Hart Publishing 2010) [...]

Since the decisions in R v IRC ex p Woolwich Equitable Building Society in 1990 and Hazell v Hammersmith and Fulham LBC in 1991, the courts have had, in a variety of contexts, to grapple with the relationship between unjust enrichment, public law and the law of the European Community. 20 years later, the decision of the European Court of Justice in Metallgesellschaft and Hoecsht v IRC in 2001 has led to a further explosion of such cases, many of which are still making their way through the courts. The central aim of this book is to examine such claims in France, England and the EC. The author argues that so far these cases have been viewed from either a public or private law perspective, whereas in fact both branches of the law are relevant, and the courts ought not to lose sight of the public law issues when a claim is brought under the private law of unjust enrichment. Support for this position is drawn from an examination of French law, which demonstrates that neither adoption of the ‘without cause’ approach to unjust enrichment, nor the longer-standing existence of a separate concept of public law removes the necessity for such a hybrid public and private understanding of the cases. Finally, in order to complete the picture the book examines cases where the limit on the public body’s powers derives, not from domestic public law, but from the law of the EC. Thus a further aspect of the book is that it analyses more specifically what is often referred to as the ECJ’s ‘remedies’ jurisprudence in order to investigate the division of labour between the European courts and the domestic courts in defining such claims.


ISBN: 1841134147 / 9781841

Courses

The courses we offer in this field are:

Postgraduate

BCL

Our taught postgraduate programme, designed to serve outstanding law students from common-law backgrounds

Restitution of Unjust Enrichment

Restitution of Unjust Enrichment is concerned with about how and when a claimant can compel a defendant to surrender an enrichment gained at the claimant’s expense. Long neglected, the subject has in recent years been one of the most exciting in the postgraduate curriculum. It draws its cases from areas of the law which have resisted rational analysis, largely because they have tenaciously preserved the language of an earlier age.

Common lawyers found themselves unable to escape from money had and received, money paid, and quantum meruit, while those on the chancery side became defensively fond of the unsolved mysteries of tracing and trusts arising by operation of law. In the result, down to earth questions about getting back money and value in other forms have been made to seem much more difficult than they need be. The aim of any course on restitution must be to try to understand what has really been going on and to play back that understanding to the courts in accessible modern language. These aims are helped by keeping an eye on the main lines of civilian solutions to the problems with which the common law has to wrestle.

Note that this course is concerned only with restitution of unjust enrichment. Restitution for wrongs is not part of the course and is dealt with in the Commercial remedies course.

Teaching is through twelve seminars. The seminars are supported by two introductory lectures and by the provision of four tutorials. A detailed account of the course is produced every year in and posted on this site. The subject of every seminar is set out, with a list of cases and other materials to be read, together with questions and problems intended to stimulate thought.

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Restitution of Unjust Enrichment

Restitution of Unjust Enrichment is concerned with about how and when a claimant can compel a defendant to surrender an enrichment gained at the claimant’s expense. Long neglected, the subject has in recent years been one of the most exciting in the postgraduate curriculum. It draws its cases from areas of the law which have resisted rational analysis, largely because they have tenaciously preserved the language of an earlier age.

Common lawyers found themselves unable to escape from money had and received, money paid, and quantum meruit, while those on the chancery side became defensively fond of the unsolved mysteries of tracing and trusts arising by operation of law. In the result, down to earth questions about getting back money and value in other forms have been made to seem much more difficult than they need be. The aim of any course on restitution must be to try to understand what has really been going on and to play back that understanding to the courts in accessible modern language. These aims are helped by keeping an eye on the main lines of civilian solutions to the problems with which the common law has to wrestle.

Note that this course is concerned only with restitution of unjust enrichment. Restitution for wrongs is not part of the course and is dealt with in the Commercial remedies course.

Teaching is through twelve seminars. The seminars are supported by two introductory lectures and by the provision of four tutorials. A detailed account of the course is produced every year in and posted on this site. The subject of every seminar is set out, with a list of cases and other materials to be read, together with questions and problems intended to stimulate thought.


People

Restitution teaching is organized by a Subject Group convened by:

William Swadling: Reader in Property Law

in conjunction with:

Andrew Burrows, QC: Professor of the Law of England
Mindy Chen-Wishart: Reader in Contract Law
Paul S Davies: Associate Professor of Law
Ewan McKendrick: Registrar
Edwin Peel: Professor of Law
Robert Stevens: Herbert Smith Freehills Professor of English Private Law
Simon Whittaker: Professor of European Comparative Law

Also working in this field, but not involved in its teaching programme:

Derek Davies: Retired. Formerly Fellow and Tutor in Law at St Catherine's

Graduate students working in this field:

Tatiana Cutts: DPhil Law student
Matthew Kruger: MPhil Law student
Krishnaprasad KV: MPhil Law student
Weeliem Seah: DPhil Law student

[top]


Tort

Publications

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Showing all 109 Tort publications currently held in our database
Change to sort them by year | title | type OR
Show only Recent | Selected publications

R M Bagshaw, 'Balancing Defences' in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds), Defences in Tort (Hart Publishing 2015) [...]

This chapter seeks to illuminate some of the issues that a lawmaker ought to consider when deciding in a particular context whether to design a tort law defence so that it requires the balancing of something on a defendant’s side against something on a claimant’s side, or balancing some public interest against something on the claimant’s side, with that balancing being conducted on the facts of the instant case.


ISBN: 9781849465267

R M Bagshaw, 'Causing the Behaviour of Others and Other Causal Mixtures' in Richard Goldberg (ed), Perspectives on Causation (Hart Publishing 2011) [...]

This chapter investigates the concept of ‘cause’ which ought to be used by tort lawyers when making claims such as that Derek’s wrongful behaviour ‘caused’ Trevor to act in some way, in particular in circumstances where we regard Trevor’s action as ‘voluntary’ rather than ‘coerced’. The central issue is whether a tort lawyer’s inquiry into whether Derek’s wrongful behaviour ‘caused’ Trevor to act in some way ought to be the same as an inquiry into whether Derek’s wrongful behaviour ‘caused’ the kettle to boil or the toaster to burn the toast.


ISBN: 9781849460866

R M Bagshaw, 'Downloading Torts: An English Introduction to On-Line Torts' in H Snijders and S Weatherill (eds), E-Commerce Law (Kluwer Law International 2003) [...]

Chapter in book


ISBN: 9041199179

R M Bagshaw, 'Private Nuisance and Defence of the Realm' (2004) 120 Law Quarterly Review 37   [Case Note] [...]

Casenote


ISBN: 0023933X

R M Bagshaw, 'Rylands Confined' (2004) 120 Law Quarterly Review 388   [Case Note] [...]

Casenote on Transco v Stockport MBC


ISBN: 0023-933X

R M Bagshaw, 'The Animals Act 1971' in TT Arvind and Jenny Steele (eds), Tort Law and the Legislature (Hart Publishing 2013) [...]

Account of the process that led to the passing of the Animals Act 1971 and its subsequent interpretation.


ISBN: 9781849461405

R M Bagshaw, 'The Edges of Tort Law’s Rights' in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2011) [...]

Most proponents of a ‘rights-focused account’ of the law of torts argue that not only are there currently no general common law rights to pure economic benefits but there are also good reasons why general common law rights to purely economic benefits should not exist whilst general common law rights to property do, or good reasons why legislators or judges should not in future create or recognise general common law rights to purely economic benefits. The main purpose of this chapter is to evaluate these ‘good reasons’ using three perspectives provided by the ‘edges’ of currently recognised legal rights.


ISBN: 9781849461429

R M Bagshaw, 'Tort Design and Human Rights Thinking' in David Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (Cambridge University Press 2011) [...]

The principal theme of this chapter is that in pursuing the goal of making English tort law compatible with Convention rights, and the related goal of developing tort law so as to allow it to assist in protecting these rights, we should not lose sight of what makes a good tort duty. Lord Bingham commended the opinion that ‘where a common law duty covers the same ground as a Convention right, it should, so far as practicable, develop in harmony with it’ (Van Colle v. Chief Constable of the Hertfordshire Police; Smith v. Chief Constable of Sussex Police [2008] UKHL 50; [2009] 1 AC 225 at [58]). But this chapter aims to unsettle any assumption that such harmony requires the development of tort duties which mirror Convention rights, even in situations where the tort duties will be owed by public bodies. It is more important for newly developed duties to be harmonious with the goals of the law of torts than for them to replicate concepts used by the Strasbourg Court.


ISBN: 9781107009325

Nicholas J McBride and R M Bagshaw, Tort Law (Longman 2001) [...]

Tort Textbook


ISBN: 582357012

N J McBride and R M Bagshaw, Tort Law (Fourth edition) (Pearson 2012) [...]

Fourth edition of this textbook


ISBN: 9781408252703

N J McBride and R M Bagshaw, Tort Law (Third edition) (Pearson Longman 2008) [...]

Third edition of McBride and Bagshaw's Textbook on Tort.


ISBN: 978-1-4058-5949-3

R M Bagshaw, 'Tort Law, Concepts and What Really Matters' in Andrew Robertson and Tang Hang Wu (eds), The Goals of Private Law (Hart Publishing 2009) [...]

This chapter explores the relationship between the capacity of tort law to achieve its goals and the nature of the concepts that are incorporated in the law.


ISBN: 9781841139098

NJ McBride and R M Bagshaw, Tort Law, Second Edition (Pearson Education 2005)

R M Bagshaw, 'Unauthorized Wedding Photographs' (2005) 121 Law Quarterly Review 550   [Case Note] [...]

Casenote discussing Douglas v Hello! (no 3)


ISBN: 0023-933X

A S Burrows, 'Chapters 29-33' in Clerk and Lindsell on Torts (19th edn) (Sweet and Maxwell 2006) [...]

Leading practitioners' work on Torts


ISBN: 0-421-88890-3

A S Burrows, 'Some Recurring Issues in Relation to Limitation of Actions' in Andrew Dyson, James Goudkamp, Frederick Wilmot-Smith (eds), Defences in Tort (Hart 2015)

A S Burrows, 'Some Reflections on Law Reform in England and Canada' (2004) 39 Canadian Business Law Journal 320

A Dyson, Wilmot-Smith and Goudkamp (eds), The Limits of Liability: Defences in Tort Law (Hart Publishing 2014) (forthcoming)

J Goudkamp, 'A Long, Hard Look at Gray v Thames Trains Ltd' in P Davies and J Pila (eds), The Jurisprudence of Lord Hoffmann (Hart Publishing 2015) [...]

This chapter addresses the landmark decision in Gray v Thames Trains Ltd. Although it was decided in the twilight years of the House of Lords, it was the first occasion on which the House had considered at any length the doctrine of illegality in the tort setting. The precise scope of the rules laid down in Gray is somewhat uncertain, but it is clear that they are the starting point for thinking about how the doctrine applies in negligence cases. Considering the growing significance of the doctrine in this area, Gray is, therefore, an important case. The goal of this chapter is to explore it generally, focusing on Lord Hoffman’s speech, which is the principal opinion. It takes account of how Gray has been understood by subsequent decisions. It will be argued that the Gray, owing to Lord Hoffmann’s speech, brought about a significant improvement in the law (for which there was much scope). However, it will also be contended that the reasons given by Lord Hoffmann for embracing the rules that he laid down are suspect in certain respects, and that there are grounds for thinking that those rules can be improved. Finally, it will be contended that Gray has been marginalised somewhat by two subsequent decisions at the highest level, namely, Stone & Rolls Ltd v Moore Stephens and Hounga v Allen, and that its status is therefore open to some doubt.


J Goudkamp, 'A Revolution in Duty of Care?' (2015) Law Quarterly Review   [Case Note]

J Goudkamp, 'Apportionment of Damages for Contributory Negligence: A Fixed or Discretionary Approach?' (2015) Legal Studies (forthcoming) [...]

In most of the common law world, legislation provides for damages to be apportioned where the claimant is guilty of contributory negligence. This legislation gives judges considerable latitude to determine the extent to which damages should be diminished for contributory negligence. It imposes what will be called a system of ‘discretionary apportionment’. This article draws attention to the fact that, although most common law jurisdictions are, by virtue of their apportionment legislation, in the thrall of the paradigm of discretionary apportionment, there are many, varied departures from this paradigm. This article classifies these departures (which will be called ‘fixed apportionment rules’), emphasises that they conflict with the apportionment legislation, and considers how the conflicts ought to be resolved. An important conclusion reached is that it can plausibly be argued that the landmark decision in Froom v Butcher, at least as it has been understood in subsequent cases, was decided per incuriam. Froom sits uncomfortably with the apportionment legislation. Attention is then turned to the arguments for and against a discretionary system of apportionment as opposed to a system that incorporates more fixed apportionment rules. It is contended that much stands to be gained from introducing more fixed apportionment rules.


J Goudkamp, 'Apportionment of Damages for Contributory Negligence: Appellate Review, Relative Blameworthiness and Causal Potency' (2015) Edinburgh Law Review   [Case Note]

A Dyson, J Goudkamp and F Wilmot-Smith, 'Central Issues in the Law of Tort Defences' in A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Tort (Hart Publishing 2015) [...]

This chapter is an introduction to an edited collection on “Defences in Tort”, which is the first in a series of collections investigating defences in private law. This chapter is in three principal sections, though the sections are neither exhaustive nor hermetically sealed. We first examine what a defence actually is. We begin this section by considering a conundrum that pervades this field, namely whether it is possible to separate the definition of a defence from the consequences of something being a defence. We then consider the two main ways in which scholars have tried to understand the concept of a defence. In the second principal section of the chapter we turn to some general questions that the study of defences throws up across private law. Themes addressed here include the interplay between causes of action and defences, the tendency for the law to evolve defences that apply in tightly-confined situations rather than defences that are potentially generally applicable, the implications of defences for major theoretical accounts of tort law and the connection between statutes and defences. Finally, we draw out some themes and defences that are most commonly associated with the criminal law, such as the distinction between justifications and excuses, which may also be of relevance to private law theorists.


J Goudkamp, 'Defences in Tort and Crime' in M Dyson (ed), Unravelling Tort and Crime (Cambridge University Press 2014) [...]

Tort law and the criminal law are often considered to be profoundly distinct branches of the law. For example, Jules Coleman contends that ‘[t]he differences between torts and the criminal law are so fundamental that the net result of applying one’s understanding of the criminal law to torts is bad philosophy and total confusion’. While this may be something of an exaggeration, there is no doubt that there are many significant differences between tort and crime. Some of these differences have been explored in detail. For example, careful thought has been given to the fact that the criminal law pays far greater attention to mental states than tort law, to the fact that only the criminal law provides for liability for attempts and to the fact that tort law and the criminal law place different emphasis on the importance of retribution and compensation. However, one respect in which tort law and the criminal law part company that has received virtually no scholarly attention concerns defences. Hence, the goal of this chapter is to explore several ways in which the defence regimes of tort law and the criminal law are distinct from each other.


J Goudkamp, 'General Defences' in K Oliphant (ed), The Law of Torts (LexisNexis 2015)

J Goudkamp, 'Reforming English Tort Law: Lessons from Australia' in Eoin Quill and Raymond J Friel (eds), Damages and Compensation Culture: Comparative Perspectives (Hart Publishing 2015)

J Goudkamp and Mimi Zou, 'The Defence of Illegality in Tort: Beyond Judicial Redemption?' (2015) 74 Cambridge Law Journal 13   [Case Note]

J Goudkamp, 'The Defence of Joint Illegal Enterprise' (2010) 34 Melbourne University Law Review 425 [...]

The High Court has reserved judgment in an appeal against the decision of the Western Australian Court of Appeal in Miller v Miller (2009) 54 MVR 367. This appeal calls into question the defence of joint illegal enterprise, which is an answer to liability in the tort of negligence. It is with this appeal that this article is concerned. Two main arguments are presented. The first is that the defence is framed in a highly unsatisfactory way. It is governed by nonsensical rules, many of which are inconsistent with fundamental principles of tort law. Accordingly, should the High Court retain the defence, it is submitted that it should reformulate it so that it blends in with the legal environment in which it resides. The second and more fundamental argument is that the defence should be abolished. It is a stain on the law of torts. Not only are there no convincing arguments in support of it, but there are powerful reasons against its existence.


ISBN: 0025-8938

J Goudkamp and Lorenz Mayr, 'The Doctrine of Illegality and Interference with Chattels' in A Dyson, J Goudkamp and F Wilmot-Smith (eds), Defences in Tort (Hart Publishing 2015) [...]

The doctrine of illegality is now in vogue as an answer to liability in tort. It is also very regularly discussed by scholars. It has generated a literature that is large enough to justify the publication of a bibliography. However, the attention that has been lavished on the doctrine as it operates within tort law has largely been confined to the context of actions for negligently inflicted personal injury. The doctrine’s role in other situations within tort law has been neglected. This chapter begins the process of redressing this situation. It does so by analysing the doctrine in relation to actions for interference with chattels. We postulate a wide range of hypothetical cases and consider how these cases would be decided if they arise. This discussion reveals the existence of significant lacunae in this area of the law, with no authority that provides definitive guidance as to whether the doctrine applies in particular situations. We also ask, in the in relation to those cases that would fail on the ground of illegality, what the precise legal route is by which that result is achieved. Finally, we investigate how the hypothetical cases ought to be decided. We contend that what little law there is on the doctrine of illegality in the chattels context sometimes produces the wrong outcome and, where it delivers the right outcome, it frequently does so for the wrong reasons.


J Goudkamp and J Murphy, 'Tort Statutes and Tort Theories' (2015) 131 Law Quarterly Review 133 [...]

Although the legislature has made significant inroads into tort law, tort theorists have focused their attention overwhelmingly on the common law. Serious consideration has never been given to the challenges that statutory tort law poses for theories of tort law. In this article we begin to redress this omission by examining the implications of statutes for corrective justice and rights-based theories of tort law. Our central task is to determine whether these leading theories accurately explain tort law once statutory tort law is taken into account. As a precursor to this analysis, we consider whether statutes form part of tort law (some influential theorists believe or arguably believe that they do not). We contend that statutes are part of tort law and that the theories under examination fail to explain important aspects of statutory tort law. Partly because of this failure, they are not satisfactory accounts of the whole of tort law, which is often how they are presented by their proponents.


E Peel and J Goudkamp, Winfield & Jolowicz on Tort (Sweet & Maxwell 2014)

S Green, 'But For Lord Hoffmann, How Would the Causal Inquiry Look?' in P S Davies and J Pila (eds), The Jurisprudence of Lord Hoffmann: A Festschrift for Leonard H Hoffmann (Hart Publishing 2015) (forthcoming)

S Green, Causation in Negligence (Hart 2014)

S Green, 'Rights and Wrongs: An Introduction to the Wrongful Interference Actions' in Donal Nolan and Andrew Robertson (eds), Rights and Private Law (Hart Publishing 2011)

S Green and A Bogg, 'Rights are not just for the virtuous: what Hounga means for the illegality defence in the discrimination torts.' (2015) Industrial Law Journal (forthcoming)

S Green, 'Risk Exposure and Negligence' (2006) 122 Law Quarterly Review 386   [Case Note]

S Green and P S Davies, 'The Problem of Pure Economic Loss in Negligence' in A Robertson and M Tilbury (eds), Convergence and Divergence in the Common Law ( 2015) (forthcoming)

S Green, 'Understanding the Wrongful Interference Actions' (2010) 74 Conveyancer and Property Lawyer 15

S Green, 'Winner Takes All' (2004) 120 Law Quarterly Review 566   [Case Note]

Laura Hoyano and C Keenan, Child Abuse: Law and Policy Across Boundaries (OUP 2010) [...]

This book examines the whole process of child protection from complaint investigation to prosecution in the criminal and civil courts. It provides a coherent analysis of current law and procedure across the legal and geographical boundaries within which legal discussion of child abuse is usually confined, analysing criminal, family, tort, human rights and evidence law as they bear on child abuse cases. Comparative material is drawn from over 75 jurisdictionsusing the adversarial trial model. The book was awarded the first Inner Temple Book Prize (2008). The paperback edition is updated in English law, including the Coroners and Justice Act 2009 enacted on 12 November 2009.


ISBN: 978-0-19-957156-7

Laura Hoyano, 'Dangerous Defects Revisited by Bold Spirits' (1995) 58 Modern Law Review 887 [...]

Discusses the decision of the Supreme Court of Canada holding builders liable in negligence to subsequent purchasers for the cost of repairing dangerous defects in Winnipeg Condominium No 36 v Bird Construction [1995] 1 SCR 85, and argues that the House of Lords should abandon the immunity from such liability it accorded builders in D&F Estates and in Murphy v Brentwood.


Laura Hoyano, 'Lies Recklessness and Deception: Disentangling Dishonesty in Civil Fraud' (1996) 75 Canadian Bar Review 474 [...]

Despite expressions of judicial distaste for the "current fashion" of alleging civil fraud, there continue to be significant of damages to pleading the tort of deceit as alternate or concurrent liability to negligent mistatement. This article explores the evidentiary difficulties in proving the requisite mental intent in the tort of deceit, with particular focus on pronouncements from the British Columbia Court of Appeal and the Supreme Court of Canada requiring that a plaintiff prove that the defendant intended to deceive the plaintiff in making the false statement. The author contends that this view was mistaken, and that both precedent and policy dictate that the requisite mental intent be merely that of inducing reliance upon the mistatement. To impose an additional requirement of proof of intent to deceive would extinguish recklessness as a separate avenue to establishing the dishonesty which is the essence of the tort, and might well result in making the tort of fraud more difficult to prove than the criminal offence of fraud.


Laura Hoyano, 'No Constitutional Licence for Defamation in Canada' (1996) 4 Tort Law Review 172 [...]

Critically evaluates the decision of the Supreme Court of Canada in Hill v Church of Scientology [1995] 2 S.C.R. 1130 holding that the common law tort of defamation generally complies with the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms.


Laura Hoyano, 'Policing Flawed Police Investigations: Unravelling the Blanket' (1999) 62 Modern Law Review 912 [...]

This article critically evaluates judicial arguments against the imposition of tort liability on police forces for negligent investigations of crime. The article analyses and defends the much-criticised decision of the European Court of Human Rights in Osman v UK.


Laura Hoyano, 'The Dutiful Tortfeasor in the House of Lords' (1995) 3 Tort Law Journal 63 [...]

critically evaluates the decision of the House of Lords in Hunt v Severs [1994] 2 AC 350 holding that a catastrophically injured claimant could not recover for her past and future cost of care, where that care had been provided by the tortfeasor.


Laura Hoyano, 'The Flight to the Fiduciary Haven' in Peter Birks (ed), Privacy and Loyalty (OUP 1997) [...]

This chapter explores the invasion of part of the territory of common law obligations by the fiduciary phenomenon, considering in particular Canadian and Australian jurisprudence. The encroachment of fiduciary concepts into Hedley Byrne advisory relationships and fiduciary liability for sexual exploitation is considered in some depth.


ISBN: 0-19-876488-X

Laura Hoyano, 'The Profit Paradox: Protecting Legitimate Expectations in Tort' (1999) 78 Canadian Bar Review 363 [...]

In the new era of concurrent liability, Commonwealth appellate courts have called for the rationalisation of the law of remedies across causes of action. Yet the formalistic logic of the current remedial rules applicable to misrepresentations actionable in tort and contract can yield widely discrepant results on the same matrix of facts. Anomalies are exposed where the contract was induced by fraudulent or negligent misrepresentation, but the victim discovered the truth only after fully performing the contract. The tort damages will usually equal the contract award where the misrepresentation was relatively minor, such that the court concludes that had the plaintiff known the truth, it would have been negotiated the contract price to reflect the actual circumstances, increasing the profit margin. However, where the misrepresentation was so serious that the fully informed victim would have refused to contract with the defendant under any terms, the award is calculated on the basis of the plaintiff's cost of performance, without any compensation for loss of profit. To circumvent this paradox, the courts have devised several stratagems to award the plaintiff damages for lost profit. This article shows these devices to be flawed, and that under the current orthodoxy, the law still leaves the defendant to enjoy the fruits of its tort. The author proposes an alternate rule which redefines loss of profits in this context as reliance loss, submitting that this measure best achieves tort's remedial objectives of full compensation and deterrence.


A Johnston, S.F. Deakin and B.S. Markesinis, Markesinis and Deakin’s Tort Law (5th edn, Oxford University Press 2003) [...]

The fifth edition of Markesinis and Deakin's Tort Law has been fully revised and updated to cover all important developments which have occurred in this field since the previous edition appeared in 1999. The structure of the book remains the same as in previous editions, as has its underlying philosophy - to provide a good general overview of the law of tort for students and their lecturers which will also be of interest to practitioners and judges in the field. The book includes discussion of much new material, including important appellate court decisions on wrongful birth, defamation, privacy, nuisance, the liability of public authorities, causation and many others; the growing impact of the Human Rights Act upon tort law, including discussion of many important cases decided since the Act came into force; important recent legislative developments, including the Contracts (Rights of Third Parties) Act 1999. Throughout the book the relationship between the common law and legislative policy is a key theme, while economic and comparative analysis of the cases and issues are used where appropriate.


ISBN: 9780199257126

A Johnston, S.F. Deakin and B.S. Markesinis, Markesinis and Deakin’s Tort Law (Oxford University Press 2007) [...]

Markesinis and Deakin's Tort Law is an authoritative, analytical, and well-established textbook, reaching its sixth edition in the space of twenty years. It provides a general overview of the law and full discussion of the academic debates on all major topics, highlighting the relationship between the common law, legislation, and judicial policy as well as the new European influences emanating from Luxembourg and Strasbourg. In addition, the authors provide a variety of comparative and economic perspectives on the law of tort and its likely development, always placing the subject in its socio-economic context thus giving students a deeper and richer understanding of tort law. Written by leading authorities on tort law, this detailed book offers teachers a wide range of topics to cover while offering students a text which is both descriptive and reflective of this branch of law. A bibliography and rich footnotes provide interested readers with further references.


ISBN: 9780199282463

Simon Deakin, A Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law (Oxford University Press 2012)

Tamsyn Clark and D P Nolan, 'A Critique of Chester v Afshar' (2014) 34 Oxford Journal of Legal Studies 659 [...]

DOI: 10.1093/ojls/gqu019

Our aim in this article is to provide a counterbalance to the substantial body of academic opinion supportive of the decision in the medical non-disclosure case of Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134, while at the same time identifying some misconceptions that have arisen about the case. Our critique is consistent with the reasoning of the High Court of Australia in its recent decision in Wallace v Kam [2013] HCA 19, (2013) 87 ALJR 648. The article is divided into three sections. In the first section, we argue that the decision in Chester was a departure from orthodox negligence principles. In the second section, we critically examine the autonomy-based justification the majority in Chester gave for departing from those principles. And in the third section we consider a number of alternative ways in which protection could be given to the autonomy interests at stake in medical non-disclosure cases. Several more general points relating to the autonomy concept and the scope of liability doctrine in negligence law emerge from our critique. Our analysis also suggests that negligence law is ill-suited to the task of providing an appropriate legal solution to the problem of medical non-disclosure.


ISBN: 0143-6503

D P Nolan, 'Alcock v Chief Constable of South Yorkshire Police (1991)' in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in the Law of Tort (Hart Publishing 2010)

D P Nolan, 'Causation and the Goals of Tort Law' in Andrew Robertson and Tang Hang Wu (eds), The Goals of Private Law (Hart Publishing 2009)

D P Nolan, 'Chapters on Government Liability, Product Liability, Nuisance and Rylands v Fletcher and Fire' in Andrew Grubb (ed), The Law of Tort (Butterworths 2002) [...]

in-depth analysis of public authority tort liability for new practitioners' work


ISBN: 406896720

D P Nolan, 'Chapters on Government Liability, Product Liability, Nuisance and Rylands v Fletcher and Fire' in Ken Oliphant (ed), The Law of Tort (2nd edn) (LexisNexis Butterworths 2007)

D P Nolan, 'Chapters on Government Liability, Product Liability, Nuisance and Rylands v Fletcher and Fire' in Ken Oliphant (ed), The Law of Tort (3rd edn) (Reed Elsevier (UK) 2015)

D P Nolan, 'Chapters on Strict Liability and The Principle of Rylands v Fletcher' in Carolyn Sappideen and Prue Vines (eds), Fleming's The Law of Torts (Thomson Reuters (Professional) Australia 2011)

D P Nolan, 'Damage in the English Law of Negligence' (2013) 4 Journal of European Tort Law 259 [...]

DOI: 10.1515/jetl-2013-0018

Although foundational to the tort law of both common law and civil law countries, the concept of damage has been the object of surprisingly little analysis by academics in the common law world. The aim of this article is to redress the balance somewhat by looking more closely at the meaning of damage in the English law of negligence. The first part of the article consists of general observations on the damage concept. It is argued that it is impossible to devise a meaningful general definition of damage, that damage is not the same thing as loss, and that the damage concept is compatible with rights-based analysis of negligence law. The remainder of the article is devoted to consideration of the two most common forms of damage, personal injury and physical damage to property. It is argued that a central idea underpinning both these routine forms of damage is that of ‘impairment’, and that both forms of damage are subject to de minimis principles. As regards personal injury, particular attention is paid to the forms of psychiatric injury which ground a negligence claim. Finally, it is argued that for property to be damaged there must be a physical change in the property which impairs its utility or value, and that merely to incapacitate property is not to damage it. Although the primary focus is on English law (and the common law more generally), some comparative observations are made.


ISBN: 1868-9620

D P Nolan, 'Deconstructing the Duty of Care' (2013) 129 Law Quarterly Review 559

D P Nolan, 'Enterprise Liability and the Common Law' (2012) 41 Industrial Law Journal 370   [Review]

D P Nolan, 'Horrifying Events and Their Consequences: Clarifying the Operation of the Alcock Criteria' (2014) 30 Journal of Professional Negligence 176   [Case Note]

D P Nolan, 'Negligence and Human Rights Law: The Case for Separate Development' (2013) 76 Modern Law Review 286 [...]

DOI: 10.1111/1468-2230.12013

A number of judges and academics have argued in favour of the convergence of negligence law with human rights law. By contrast, the thesis of this article is that the two legal orders should develop independently, so that for the most part the law of negligence ought not to be affected by human rights considerations. It is argued that the case for convergence is based on two false assumptions, namely that human rights law and negligence law perform similar functions within our legal order and that the norms of human rights law are more fundamental than the norms encapsulated in negligence law. It is also argued that convergence would undermine the coherence of negligence law. Ultimately, the case for separate development rests on the desirability of recognising public law and private law as autonomous normative systems with their own distinctive rationales, concepts and core principles.


ISBN: 0026-7961

D P Nolan, 'New Forms of Damage in Negligence' (2007) 70 Modern Law Review 59 [...]

DOI: 10.1111/j.1468-2230.2006.00626.x

Although damage is an essential component of negligence liability, important extensions of the categories of actionable damage occur with little or no analysis or even acknowledgement of the fact. In this article, consideration is given to a number of new forms of actionable damage which appear either to have received recognition by the courts in recent years, or to be close to receiving such recognition. The article is divided into three core sections, dealing with negligent imprisonment, wrongful conception and educational negligence. The principal conclusions are that redress for negligent imprisonment is best achieved through recognition of imprisonment as actionable damage in negligence; that an unwanted pregnancy is a form of personal injury, albeit an unusual one; that the conventional sum award in wrongful conception cases is best analysed as compensation for a diminution in the parents' autonomy; and that while untreated learning disorders are now treated by the courts as a form of personal injury, in the absence of such a disorder educational under-development ought not to be recognised as actionable damage in its own right.


ISBN: 1468-2230

D P Nolan, 'Nuisance' in D Hoffman (ed), The Impact of the UK Human Rights Act on Private Law (CUP 2011)

D P Nolan, 'Nuisance, Planning and Regulation: The Limits of Statutory Authority' in A Dyson, J Goudkamp and F Wilmot-Smith (eds), The Limits of Liability: Defences in Tort Law (Hart Publishing 2015)

D P Nolan, 'Psychiatric Injury at the Crossroads' (2004) Journal of Personal Injury Law 1 [...]

An overview of the law governing psychiatric injury and an assessment of the options for reform. Commissioned by the journal, which is practitioner-oriented.


ISBN: 1352 7533

D P Nolan, 'Reforming Liability for Psychiatric Injury in Scotland: a Recipe for Uncertainty?' (2005) 68 Modern Law Review 983 [...]

It is widely acknowledged that the common law rules governing liability for psychiatric injury in the United Kingdom are in an unsatisfactory state. The Scottish Law Commission has now published a report, Damages for Psychiatric Injury (Scot Law Com No 196, 2004), which recommends wholesale statutory reform of this area of the law. In this paper, the report is summarised, and its recommendations subjected to detailed critical analysis. It is concluded that, while the proposed statutory scheme is both coherent and imaginative, the Commission's consistent preference for flexible, fact-oriented rules means that implementation of the report's recommendations could give rise to an unacceptable degree of uncertainty.


ISBN: 0026-7961

D P Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2012)

D P Nolan and A Robertson, 'Rights and Private Law' in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2012)

D P Nolan, 'Risks and Wrongs: Remoteness of Damage in the House of Lords' (2001) 9 Tort Law Review 101   [Case Note]

D P Nolan, 'Suing the State: Governmental Liability in Comparative Perspective' (2004) 67 Modern Law Review 843 [...]

DOI: 10.1111/j.1468-2230.2004.00515.x

A review article of Duncan Fairgrieve, State Liability in Tort: A Comparative Law Study. The article considers the current state of governmental liability in English law from three different perspectives (public law, private law, and legal politics), and focuses in particular on the lessons that can be learned from the French law of state liability.


ISBN: 0026 7961

D P Nolan, 'The Distinctiveness of Rylands v Fletcher' (2005) 121 Law Quarterly Review 421

D P Nolan, 'The Fatal Accidents Act 1846' in TT Arvind and J Steele (eds), Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing 2012)

D P Nolan, 'The Liability of Financial Supervisory Authorities' (2013) 4 Journal of European Tort Law 190 [...]

DOI: 10.1515/jetl-2013-0014

In the wake of the global financial crisis, this article considers the tort liability of financial supervisory authorities to depositors and other investors following the failure of a bank or other financial institution. The analysis is comparative, with the primary focus being on the member states of the European Union. Consideration is given to the five liability categories or standards which are employed by EU member states in such cases. These are (1) a public law illegality standard; (2) a standard of ordinary fault/negligence; (3) a standard of gross fault/negligence; (4) a requirement of bad faith; and (5) complete immunity from liability. It is also shown that on the application of general tort principles claims by depositors against financial supervisors face a range of obstacles, including difficulties in establishing fault and causation, and conceptual difficulties based on the nature of the damage (the pure economic loss issue), liability for omissions and for the deliberate acts of third parties, liability for the exercise of judicial or ‘quasi-judicial’ functions, and the ‘protective purpose of the norm’ principle. Finally, consideration is given to alternative means of redress which may be available to depositors in such cases.


ISBN: 1868-9612

D P Nolan, 'The Liability of Public Authorities for Failing to Confer Benefits' (2011) 127 Law Quarterly Review 260

D P Nolan, 'The Liability of Public Authorities for Omissions Revisited' (2014) 130 Law Quarterly Review 21   [Case Note]

D P Nolan and S Bailey, 'The Page v Smith Saga: A Tale of Inauspicious Origins and Unintended Consequences' (2010) 69 Cambridge Law Journal 495

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2002 (Butterworths 2003) [...]

summary of the year's tort cases


ISBN: 406965439

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2000 (Butterworths 2001) [...]

summary of the year's tort cases


ISBN: 406940967

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2001 (Butterworths 2002) [...]

summary of the year's tort cases


ISBN: 406950423

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2004 (Butterworths 2005) [...]

A summary of, and critical commentary on, the tort cases published in the All England Law Reports in 2004.


ISBN: 1-405-70360-1

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2003 (Butterworths 2004) [...]

A summary of English case law developments in the law of tort in 2003.


ISBN: 406965439

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2006 (LexisNexis Butterworths 2007)

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2005 (LexisNexis Butterworths 2006)

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2007 (LexisNexis Butterworths 2008)

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2008 (LexisNexis Butterworths 2009)

D P Nolan and Alastair Mullis, 'Tort' in All England Law Reports Annual Review 2009 (LexisNexis Butterworths 2010)

D P Nolan and A Mullis, 'Tort' in All England Law Reports Annual Review 2010 (LexisNexis Butterworths 2011)

A Mullis and D P Nolan, 'Tort' in All England Law Reports Annual Review 2011 (Butterworths LexisNexis 2012)

A Mullis and D P Nolan, 'Tort' in All England Law Reports Annual Review 2012 (Butterworths LexisNexis 2013)

D P Nolan, 'Varying the Standard of Care in Negligence' (2013) 72 Cambridge Law Journal 651 [...]

DOI: 10.1017/S0008197313000731

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?


ISBN: 0008-1973

D P Nolan, '\"A Tort Against Land\": Private Nuisance as a Property Tort' in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2012)

W E Peel, 'Loss of a chance in medical negligence' (2005) 121 Sweet & Maxwell Ltd/Law Quarterly Review 364   [Case Note] [...]

A note of the House of Lords' decision in Gregg v Scott


ISBN: 0023-933X

W E Peel, 'Lost Chances and Proportionate Recovery' (2006) [2006] LMCLQ 289 289   [Case Note] [...]

a casenote on the HL decision in Barker v Corus


ISBN: 0306 2945

W E Peel, 'SAAMCO Revisited' in Andrew Burrows and Edwin Peel (eds), Commercial RemediesCurrent Issues and Problems (OUP 2003)

W E Peel and J. Goudkamp, Winfield & Jolowicz on Tort (Sweey & Maxwell 2014)

A J B Sirks, 'The parallel universes of Baker, Joblin and Julian: causation and law' (2013) 17 Edinburgh Law Review 22–36

S Steel and M Lunney, 'Capacity' in K Oliphant (ed), The Law of Torts (Lexis Nexis 2014)

S Steel, 'Causation and Scope of Responsibility in Negligence' in K Oliphant (ed), The Law of Torts (Lexis Nexis 2014)

S Steel, 'Causation in English Tort Law: Still Wrong After All These Years' (2012) 31 University of Queensland Law Journal 243

S Steel, 'Causation in Tort and Crime: Unity or Divergence?' in MN Dyson (ed), Unravelling Tort and Crime (CUP 2014)

S Steel, 'Defining Causal Counterfactuals in Negligence' (2014) 130 LQR 564   [Case Note]

S Steel, 'Exceptional Doctrines of Natural Causation: Sienkiewicz v Greif ' (2011) 2 Journal of European Tort Law 294

S Steel, 'Malicious Prosecution' in K Oliphant (ed), The Law of Torts (Lexis Nexis 2014)

S Steel, Proof of Causation in Tort Law (CUP 2015) (forthcoming)

Courses

The courses we offer in this field are:

Undergraduate

FHS (Phase II)

The degree is awarded on the basis of nine final examinations at the end of the three-year course (or four years in the case of Law with Law Studies in Europe) and (for students who began the course in October 2011 or later) an essay in Jurisprudence written over the summer vacation at the end of the second year. Note: the Jurisprudence exam at the end of the third year is correspondingly shorter. This phase of the Final Honour School includes the third term of the first year, and all three terms of the second year.

Tort

Tort is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. The law of tort is mainly concerned with providing compensation for personal injury and damage to property, but also protects other interests, such as reputation, personal freedom, title to property, enjoyment of property, and commercial interests.

 

The subject is taught in tutorials arranged by your college tutor. Lectures in Michaelmas and Trinity terms cover most, but not all, of the topics on the agreed reading list. Revision lectures on contract and tort take place in Hilary term.

Diploma in Legal Studies

Tort

Tort is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. The law of tort is mainly concerned with providing compensation for personal injury and damage to property, but also protects other interests, such as reputation, personal freedom, title to property, enjoyment of property, and commercial interests.

 

The subject is taught in tutorials arranged by your college tutor. Lectures in Michaelmas and Trinity terms cover most, but not all, of the topics on the agreed reading list. Revision lectures on contract and tort take place in Hilary term.

Postgraduate

MJur

Our taught postgraduate programme, designed to serve outstanding law students from civil law backgrounds.

Tort (also part of the BA course)

Tort is one of the compulsory standard subjects within the Final Honour School syllabus. It also covers material in the “foundations of legal knowledge” and so must be taken by those seeking a professional qualification in England and Wales. The law of tort is mainly concerned with providing compensation for personal injury and damage to property, but also protects other interests, such as reputation, personal freedom, title to property, enjoyment of property, and commercial interests.

 

The subject is taught in tutorials arranged by your college tutor. Lectures in Michaelmas and Trinity terms cover most, but not all, of the topics on the agreed reading list. Revision lectures on contract and tort take place in Hilary term.


People

Tort teaching is organized by a Subject Group convened by:

James Goudkamp: Associate Professor of Law

in conjunction with:

Roderick Bagshaw: Associate Professor of Law
Andrew Burrows, QC: Professor of the Law of England
John Cartwright: Professor of the Law of Contract
Andrew Dickinson: Fellow and Tutor, St Catherine's College
Andrew Dyson: College Lecturer and Tutor in Law
Lucinda Ferguson: Associate Professor of Family Law
Dev Gangjee: Associate Professor of Intellectual Property Law
Imogen Goold: Associate Professor of Law
Sarah Green: Associate Professor of Law
Noam Gur:
Andrew Higgins: Associate Professor of Civil Procedure
Laura Hoyano: Associate Professor of Law, Faculty of Law, and Senior Research Fellow in Law at Wadham College
Thomas Krebs: Associate Professor of Commercial Law
Mike Macnair: Associate Professor of Law
Donal Nolan: Associate Professor of Law
Edwin Peel: Professor of Law
Denise Réaume: Visiting Professor
Natasha Simonsen: Lecturer in Law, New College
Roger Smith: Associate Professor of Law
Sandy Steel: Associate Professor of Law
Rachel Taylor: Associate Professor of Law
Simon Whittaker: Professor of European Comparative Law

Also working in this field, but not involved in its teaching programme:

Paul Craig: Professor of English Law
John Davies: Retired. Formerly Fellow and Tutor in Law at Brasenose
Simon Douglas: Associate Professor of Law
Donald Harris: Retired. Formerly Director of the Centre for Socio-Legal Studies at Balliol
Angus Johnston: Professor of Law
Martin Matthews: Retired. Formerly CUF Lecturer
Peter North: Retired. Formerly Principal of Jesus
Luke Rostill: Supernumerary Teaching Fellow in Law
Niranjan V: Stipendiary Lecturer in Law

Graduate students working in this field:

Olumide Famuyiwa: DPhil Law student
Jodi Gardner: DPhil Law student
David Heaton: MPhil Law student
Arturo Ibanez Leon: DPhil Law student
Matthew Kruger: MPhil Law student
Krishnaprasad KV: MPhil Law student
James Plunkett: DPhil Law student
Marina Sharpe: DPhil Law student
Wing Winky So: DPhil Law student

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