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Law of Obligations — Overview

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


Contract

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 121 Contract publications currently held in our database
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2014

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)

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

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)

2013

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

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

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

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)

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

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.


2012

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)

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

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

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

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

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

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.


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

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

2011

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

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

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

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)

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 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)

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

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

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


2010

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

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

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

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

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

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

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

2009

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

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.


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

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

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

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

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

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 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)

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


2008

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


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

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)

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)

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

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

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

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.


2007

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

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

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

Essays from Norton Rose-Oxford colloquium


ISBN: 978-0-19-922937-6

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)

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, '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

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

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

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

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

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

2006

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

2005

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

2004

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

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

2003

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

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

E Descheemaeker, 'Review of Sir Guenter Treitel, Some Landmarks of Twentieth Century Contract Law' (2003) 55 Revue internationale de droit comparé 492   [Review]

2002

E Descheemaeker, 'Faut-il codifier le droit privé européen des contrats ? [Sense and Non-sense of Codifying European Contract Law ]' (2002) 47 McGill Law Journal 791 [...]

Abstract: Is it necessary to codify the private law of contracts in Europe? The question, the author argues, breaks down into three sub-questions. First, is such a codification conceivable, that is, does it make sense to claim to envision it? Next, is it desirable? And finally, is it realizable? The demand for codification would imply that one should answer these three questions affirmatively. According to the author this is not the case, however, because even if it is conceivable to create a legal instrument common to countries with distinct legal traditions and epistemologies (notably the civil and the common law), the arguments in favour of such a project are outweighed by those against it, notably issues of costs and uselessness. Above all, the idea of "Europeanizing" the law of contracts betrays a certain lack of understanding of the nature of law. In effect, not only is it impossible to set out in a uniform manner the same norm in several different systems, especially if they use different languages, but also the interior dependence of each of these systems of contract law on other branches of law and on national legal science makes the creation of a uniform contract law in Europe radically impossible.

ISBN: 0024-9041

2001

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

2000

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

1998

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

1997

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

1996

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

1995

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)

1993

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

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

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

1991

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

1989

M Chen-Wishart, Unconscionable Bargain (Butterworths 1989)

1987

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

1986

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

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:

Dapo Akande: Professor of Public International Law
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
Dev Gangjee: Associate Professor of Intellectual Property 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
Beatrice Krebs: Lecturer
Ewan McKendrick: Registrar
Andrew McLeod: Research Fellow
Peter Mirfield: 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
Jesse Wall: DPhil Law student

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

Iris Benöhr: British Academy Postdoctoral Fellow
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 Professor of Corporate Law
Francis Reynolds: Emeritus Professor of Law at Worcester College
Guenter Treitel: 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
Jodi Gardner: 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
Aleksi Ollikainen: MPhil Law student
Andelka Phillips: DPhil Law student
Jenifer Varzaly: DPhil Law student
Stefanie Wilkins: DPhil Law student
Zhicheng Wu: 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

Law of Obligations 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 year, then title  [change this]

Showing all 27 Restitution publications currently held in our database
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2014

E Descheemaeker, 'New Directions in Unjustified Enrichment: Learning from South Africa?' (2014) 18 Edinburgh Law Review (forthcoming)

2013

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

E Descheemaeker, 'Quasi-contrats et enrichissement injustifié en droit français' (2013) 112 Revue trimestrielle de droit civil 1 [...]

Of Justinian’s four classes of obligations (ex contractu, quasi ex contractu, ex delicto, quasi ex delicto), the quasi-contractual one has resisted rationalisation the longest. This paper makes the claim that quasi-contracts should disappear, as a category, from French law and be replaced with a general action in unjustified enrichment. It also explores the difficulties that such a switch would entail.


2011

Roy Goode, 'Proprietary Liability for Secret Profits - A Reply' (2011) 127 Sweet & Maxwell 493 [...]

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


ISBN: 0023-933X

2010

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

2009

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.


2008

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

2007

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

2006

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 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

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)

2005

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

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

2004

E Descheemaeker, 'Review of Peter Birks, Unjust Enrichment' (2004) 56 Revue internationale de droit comparé 715   [Review]

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

2002

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

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)

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)

2001

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

2000

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

1994

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

1990

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

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
Ka Cheung Ng: BCL student
Weeliem Seah: DPhil Law student
Zhicheng Wu: DPhil Law student

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Tort

Publications

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Showing all 101 Tort publications currently held in our database
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Show only Recent | Selected publications

2015

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

J Goudkamp and J Murphy, 'Tort Statutes and Tort Theories' (2015) 131 Law Quarterly Review (forthcoming)

2014

S Green, Causation in Negligence (Hart 2014) (forthcoming)

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

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

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

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

E Descheemaeker, 'Tort Law Defences: A Defence of Conventionalism' (2014) 77 Modern Law Review 493 [...]

This article is a critical review of an important recent book by James Goudkamp: Tort Law Defences (Oxford: Hart Publishing, 2013). In this work, the author seeks to reconceptualise defences – and while the ambit of the project is confined to the law of tort, it has implication for large swathes of private law. Goudkamp’s book makes a number of important points. Some, like the need to distinguish sharply between defences properly so called and denials, ought not to be controversial. Others will be. The present article focuses on two interrelated claims made by Goudkamp, which are foundational to the book yet ought not in my mind to be accepted. First comes the idea that a defence is defined as ‘a rule that relieves the defendant of liability even though all the elements of the tort in which the claimant sues are present’: in other words, for the author, the definition of a defence is substantive (a plea in confession and avoidance) not procedural (based on the empirical observation of who bears the onus of proving what). Second is the idea that defences are distinct from torts, rather than part of the definition of the causes of action, a view which can be described as ‘dualism’. Contra Goudkamp, the present article seeks to defend unitarianism and also – at least when it comes to what the author calls ‘justification defences’ – the view that defences do in fact prevent the tort from arising in the first place. Adopting a different perspective, the final section seeks to highlight the importance of Dr Goudkamp’s attempt to consider defences as a whole: the main reason – on which the author does not himself rely – is that, despite the above criticisms, it paves the way for a reclassification of defences which would be highly beneficial for the rationality and accountability of the law of torts.


E Descheemaeker, 'Truth and Truthfulness in the Law of Defamation' in Lionel Smith (ed), Les apparences en droit civil ( 2014) (forthcoming) [...]

This paper provides a comparative overview of two related, but analytically distinct, issues in the law of defamation. The first is whether the true character of a defamatory statement relieves the defendant from liability. On this issue, the civilian and common-law traditions have historically settled on two markedly different stances, the latter accepting the sufficiency of truth simpliciter while the former never did. Some of the reasons for this distinction are explored. Different is the issue of truthfulness, in the sense of belief in truth. Does it, and should it matter, that a defendant believed that what they said was true albeit (prima facie) defamatory? Should we distinguish on the basis of the ‘quality’ of the belief? This paper argues that reasonable truthfulness ought to be recognised as a defence in the law of defamation. De lege lata, the law has never come up with such a general principle, but observation suggests that it has in fact been beating about the bush for a long time, using other analytical tools. Besides, a number of recent developments internationally can be understood as attempts to get closer to the above position.


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

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

2013

E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law (Hart Publishing 2013) [...]

The delict of iniuria is among the most sophisticated products of the Roman legal tradition. The original focus of the delict was assault, although iniuria - literally a wrong or unlawful act - indicated a very wide potential scope. Yet it quickly grew to include sexual harassment and defamation, and by the first century CE it had been re-oriented around the concept of contumelia so as to incorporate a range of new wrongs, including insult and invasion of privacy. In truth, it now comprised all attacks on personality.

It is the Roman delict of iniuria which forms the foundation of both the South African and - more controversially - Scots laws of injuries to personality. On the other hand, iniuria is a concept formally alien to English law. But as its title suggests, this book of essays is representative of a species of legal scholarship perhaps best described as 'oxymoronic comparative law', employing a concept peculiar to one legal tradition in order to interrogate another where, apparently, it does not belong. Addressing a series of doctrinal puzzles within the law of assault, defamation and breach of privacy, it considers in what respects the Roman delict of iniuria overlaps with its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and the degree to which the Roman proto-delict points the way to future developments in each of these three legal systems.


ISBN: 9781849465038

E Descheemaeker, 'Iniuria and the Common Law' in E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law (Hart Publishing 2013) [...]

This article is the introductory chapter of Eric Descheemaeker and Helen Scott (eds), Iniuria and the Common Law (Oxford: Hart Publishing, 2013), a book which comprises the papers that were presented at a namesake seminar at All Souls College, Oxford, in 2011 by the following scholars: John Blackie, Jonathan Burchell, François du Bois, Paul du Plessis, Anton Fagan, David Ibbetson, Paul Mitchell, Kenneth Norrie and the two editors.

The book is a form of ‘oxymoronic comparative law’: that is to say, it employs a concept from one legal tradition (the Roman delict of iniuria, ie insult or contempt) to interrogate another where, on the face of it, it does not belong (the common law, including the mixed legal systems of South Africa and Scotland). Its overall theme and purpose is to consider in what respects the delict of iniuria overlaps with, fall short of or exceeds its modern counterparts in England, Scotland and South Africa; the differences and similarities between the analytical frameworks employed in the ancient and modern law; and, finally, the degree to which the Roman proto-delict points the way to future development or rationalisation in each of these three legal systems.

The introductory chapter seeks, first, to provide a concise account of the Roman law of iniuria and, second, to explore some of the conceptual issues arising from our attempt to examine iniuria from the outside perspective of the common law: these pertain, in particular, to the internal structure of the delict, the place of the actio iniuriarum within the broader context of the punitive and reipersecutory functions of the law, and the relationship of iniuria with the modern common law in the three jurisdictions under examination.


E Descheemaeker, 'Solatium and Injury to Feelings: Roman Law, English Law and Modern Tort Theory' in E Descheemaeker and HJ Scott (eds), Iniuria and the Common Law ( 2013) [...]

Injuries to feelings have been a perennially difficult issue for the law of civil wrongs. The Romanist tradition pressed into service the word ‘solatium’ (solace) to designate the box in which such injuries would commonly be placed and addressed. While the concept is not formally part of the common lawyer’s toolbox, English law has also resorted to it in a number of circumstances, typically related to wounded feelings. After having examined the use of the word in Roman law, the later civilian tradition and English law, this paper argues that the word solatium should be done away with, because it is intrinsically ambiguous and allows by its very existence the perpetuation of these ambiguities. More fundamentally, the underlying idea of injuries to feelings should be discarded as an organizational category in the law of tort. Feelings, it is argued, are not another interest in need of protection alongside property and personality rights; rather they constitutes a separate level of analysis (internal, as opposed to external), from which the entirety of the law of wrongs can be examined. When the law aligns the two levels of enquiry, it commits a category mistake which will inevitably result in inconsistency or double-counting.


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

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

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

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

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

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

E Descheemaeker, 'Three Keys to Defamation: Media 24 in a Comparative Perspective' (2013) 130 South African Law Journal 435 [...]

A note on the case of Media 24 v SA Taxi Securitisation (437/2010) [2011] ZASCA 117 in the South African Supreme Court of Appeal. Are considered the following issues that pertain to actions on defamation or iniuria: the nature of the injury suffered by the claimant, the problem of consequential loss, a juridical person’s title to sue, and ‘declaration of falsity’ as a possible remedy. The law of South Africa in relation to these issues is examined against the background of Roman and English law.


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

2012

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

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

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

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, '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)

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

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

Fourth edition of this textbook


ISBN: 9781408252703

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)

2011

E Descheemaeker, ''Veritas non est defamatio'? Truth as a Defence in the Law of Defamation' (2011) Legal Studies 1 [...]

DOI: 10.1111/j.1748-121X.2010.00191.x

Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This article, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.


ISBN: 1748121X

E Descheemaeker, ''A man of bad character has not so much to lose’: Truth as a Defence in the South African Law of Defamation' (2011) 128 South African Law Journal 452 [...]

This paper examines, from a historical and comparative perspective, the role of truth in the South African law of defamation. In order to understand to what extent the law of South Africa might represent a mixture of civilian and common-law thinking, it first sets out the viewpoint of, on the one hand, Roman and Roman-Dutch law and, on the other hand, English law. Against this background, the dominant position of South African law appears avowedly civilian, a stand explained by the fact that the South African law of defamation really is a law of verbal insults, as in Rome, rather than a law of injuries to deserved reputation, as in England. However, an interesting dissident strand in favour of the sufficiency of truth can be seen to exist in the background, which is explored. This dissenting strand is certainly English in substance, but this does not entail that it has English roots.


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

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)

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

E Descheemaeker, 'Fusionner droit strict et équité : aperçus sur le droit anglais de la responsabilité civile [Merging Common Law and Equity: Perspectives on the English Law of Civil Wrongs]' in D. Baranger (ed), L'équité et ses métamorphoses ( 2011)

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

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)

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

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

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

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

2010

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)

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

E Descheemaeker, 'Defamation Outside Reputation: Proposals for the Reform of English Law' (2010) 18 Tort Law Review 133 [...]

The view that the wrong of defamation protects the interest in reputation, and nothing but that interest, is ordinarily taken for granted in modern English law. It is, however, incorrect. This paper gives four examples of ways in which the English law of defamation has strayed into the protection of other interests, in particular privacy, self-worth and wealth. They are: the supplementary tests of defamatoriness (the ridicule test and the ‘shun and avoid’ test); s. 8(5) of the Rehabilitation of Offenders Act 1974; the rule that slanders are not ordinarily actionable without proof of ‘special damage’; and, finally, the compensation of losses consequential upon the injury to reputation. It is argued that these are all unwarranted and ought to be reformed.


ISBN: 10393285

E Descheemaeker, 'Review of Lawrence McNamara, Reputation and Defamation' (2010) Law Quarterly Review 642   [Review]

E Descheemaeker, 'Review of N. Whitty and R. Zimmermann (eds.), Rights of Personality in Scots Law: A Comparative Perspective ' (2010) 73 Modern Law Review 898   [Review]

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 2009 (LexisNexis Butterworths 2010)

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

2009

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)

E Descheemaeker, 'Protecting Reputation: Defamation and Negligence' (2009) 29 Oxford Journal of Legal Studies 603 [...]

The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.


ISBN: 0143-6503

E Descheemaeker, The Division of Wrongs: A Historical Comparative Study (Oxford University Press 2009) [...]

The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line.

This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores.

The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.


ISBN: 9780199562794

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

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

2008

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

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

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 (2nd edn) (LexisNexis Butterworths 2007)

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

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

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

2006

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

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

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

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

2005

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

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

A paper in the Reports section of the MLR on the Scottish Law Commission's Report on Liability for Psychiatric Injury. In the paper, I summarise the Report and subject it to a detailed critique.


ISBN: 0026-7961

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

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

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

2004

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

Casenote


ISBN: 0023933X

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

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

Casenote on Transco v Stockport MBC


ISBN: 0023-933X

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

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

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 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

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

2003

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

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

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

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

2002

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

summary of the year's tort cases


ISBN: 406950423

2001

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

summary of the year's tort cases


ISBN: 406940967

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

Tort Textbook


ISBN: 582357012

1999

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 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.


1997

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

1996

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.


1995

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, '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.


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
Professor of Law
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
Beatrice Krebs: Lecturer
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
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
Luke Rostill: DPhil Law student
Marina Sharpe: DPhil Law student
Wing Winky So: DPhil Law student
Zhicheng Wu: DPhil Law student

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