Ben McFarlane

Biography

Ben McFarlane is Professor of English Law and a Fellow of St John's College. He was an undergraduate and graduate law student at Oxford, and was a Fellow of Christ Church (1999-2003), St Peter's (2003-2004) and Trinity College (2004-2012) before joining UCL as a Professor of Law in 2012. He rejoined the Oxford Faculty of Law in 2019. He teaches in private law subjects, including Land and Trusts on the FHS course and Advanced Property and Trusts on the BCL/ MJur. He is happy to supervise graduate research students working on topics in property and/or trusts and equity.

His research focusses on the interaction of the law of property and the law of obligations, and he is particularly interested in the extent to which coherent principles can be extracted from the great mass of judicial decisions that make up the common law. He has explored this theme in books such as The Structure of Property Law (2009) and The Law of Proprietary Estoppel (2nd edn, 2020) and is a co-author of books aimed at students as well as practitoners in the area of land law and trusts, such as Land Law: Text Cases and Materials (4th edn, 2018), Land Law: Core Text (2nd edn, 2020), Hayton and Mitchell's Text, Cases and Materials on the Law of Trusts & Equitable Remedies (14th edn, 2015) and is a contributing author of Snell's Equity (34th edn, 2020). He was also co-editor of Modern Studies in Property Law: vol 10 and is an Academic Member of the Chancery Bar Association and the Property Bar Association. He holds visiting appointments at the University of Paris II and the Melbourne Law School, where he is a Senior Fellow, and he is a Member of the International Advisory Panel on the American Law Institute's Restatment (Fourth) of Property.

Publications

Recent additions

B McFarlane, 'Equity and the Justification of Private Rights' in Degeling, Crawford, and Tiverios (eds), Justifying Private Rights (Hart 2021)

Equity seems to make justifying private rights more complicated. The courts' willingness to recognise a distinct set of equitable rules (of eg property rights, assignment, or estoppel) can compromise justifications offered for the common law position. It is not surprising that calls have regularly been made to limit the distinct role of equity in private law and move to a unified system. This chapter argues that, in fact, equity is crucial not only in justifying particular rights but in justifying the very existence of a system of private rights. This is for two reasons. First, equity plays a distinctive role in mitigating the effects on a particular party, B, of a private right held by A. As a result, equitable rules and principles deal with some of the dangers that arise from a system of private law, in which a specific party, A, has the powers and rights that correlate to liabilities and duties of B. Second, equity plays a positive role in extending the options available to a holder of a right and thus enhancing private law's role in providing opportunities for self-determination. The complications brought by equity are therefore far from needless and to have a full picture of the operation of private rights, attention must be paid to the role performed by equitable doctrines.
ISBN: 9781509931958
N Tiverios and B McFarlane, 'Controlling Private Punishment in Three Dimensions: Penalties and Forfeiture in England and Australia ' in E Bant, W Courtney, J Goudkamp, J Paterson (ed), Punishment and Private Law (Hart Publishing 2021)

In Union Eagle Ltd v Golden Achievement Ltd Lord Hoffmann observed that the ‘boundaries of the equitable jurisdiction to relieve against contractual penalties and forfeitures are in some places imprecise’. Since Lord Hoffmann’s observation, a series of final appellate decisions in the United Kingdom and Australia have refined the rules relating to penalties and forfeitures. In this connection, the purpose of this chapter is twofold. First, to explain the relationship between equity’s willingness to grant relief against penalties and relief against forfeitures. The explanations differ between England and Australia. Under English law the position is clear: the two doctrines are analytically distinct. This is because the English penalties doctrine (which is now characterised as being a ‘common law’ rule) involves ascertaining whether or not A has acquired a valid legal right against B to an agreed remedy. Whereas the English law concerning relief against forfeiture involves circumstances under which A has a valid legal right against B but equity subsequently controls, in B’s favour, the assertion of that right. A salient analytical difference between the equitable relief against forfeiture principle and the common law penalties doctrine in English law lies in the fact that the equitable forfeiture rule limits the assertion of a legal right whereas the common law penalties rule concerns the valid acquisition of such a right in the first place. Once the key analytical features of relief against penalties and forfeitures are properly understood, the borders between the two doctrines become easier to map, and the manner in which each doctrine deals with the problem of potentially punitive private agreements becomes clearer. The position under Australian law is, however, distinct. This is because the law in Australia concerning relief against penalties has developed in a manner that has maintained key characteristics from the doctrine’s equitable origins. The Australian penalties rule works in a manner whereby A is disabled from exercising a punitive contractual right (i.e. the Australian penalties doctrine concerns to what extent can A enforce her legal right to an agreed remedy against B). Given the analytical similarities between penalties and forfeitures in Australia, it is argued that it is possible (and desirable) to harmonise the Australian penalties doctrine with certain aspects of relief against forfeiture. The second purpose of this chapter is to consider the analytically distinct ways in which the common law and equity can regulate civil punishment. This can be related to some general formal differences between common law and equity, in particular the sharp contrast between rules which operate as limitations on legal powers to create rights and those which instead operate as disabling rules on otherwise valid legal rights.
B McFarlane and S Agnew, 'The Nature of Trusts and the Conflict of Laws' (2021) Law Quarterly Review 405

Examines the nature of beneficial interests under trusts, drawing on the courts' analysis in conflict of laws cases, such as the decisions in Akers v Samba and Byers v Samba.

Chapter (7)

N Tiverios and B McFarlane, 'Controlling Private Punishment in Three Dimensions: Penalties and Forfeiture in England and Australia ' in E Bant, W Courtney, J Goudkamp, J Paterson (ed), Punishment and Private Law (Hart Publishing 2021)

In Union Eagle Ltd v Golden Achievement Ltd Lord Hoffmann observed that the ‘boundaries of the equitable jurisdiction to relieve against contractual penalties and forfeitures are in some places imprecise’. Since Lord Hoffmann’s observation, a series of final appellate decisions in the United Kingdom and Australia have refined the rules relating to penalties and forfeitures. In this connection, the purpose of this chapter is twofold. First, to explain the relationship between equity’s willingness to grant relief against penalties and relief against forfeitures. The explanations differ between England and Australia. Under English law the position is clear: the two doctrines are analytically distinct. This is because the English penalties doctrine (which is now characterised as being a ‘common law’ rule) involves ascertaining whether or not A has acquired a valid legal right against B to an agreed remedy. Whereas the English law concerning relief against forfeiture involves circumstances under which A has a valid legal right against B but equity subsequently controls, in B’s favour, the assertion of that right. A salient analytical difference between the equitable relief against forfeiture principle and the common law penalties doctrine in English law lies in the fact that the equitable forfeiture rule limits the assertion of a legal right whereas the common law penalties rule concerns the valid acquisition of such a right in the first place. Once the key analytical features of relief against penalties and forfeitures are properly understood, the borders between the two doctrines become easier to map, and the manner in which each doctrine deals with the problem of potentially punitive private agreements becomes clearer. The position under Australian law is, however, distinct. This is because the law in Australia concerning relief against penalties has developed in a manner that has maintained key characteristics from the doctrine’s equitable origins. The Australian penalties rule works in a manner whereby A is disabled from exercising a punitive contractual right (i.e. the Australian penalties doctrine concerns to what extent can A enforce her legal right to an agreed remedy against B). Given the analytical similarities between penalties and forfeitures in Australia, it is argued that it is possible (and desirable) to harmonise the Australian penalties doctrine with certain aspects of relief against forfeiture. The second purpose of this chapter is to consider the analytically distinct ways in which the common law and equity can regulate civil punishment. This can be related to some general formal differences between common law and equity, in particular the sharp contrast between rules which operate as limitations on legal powers to create rights and those which instead operate as disabling rules on otherwise valid legal rights.

B McFarlane, 'Equity and the Justification of Private Rights' in Degeling, Crawford, and Tiverios (eds), Justifying Private Rights (Hart 2021)

Equity seems to make justifying private rights more complicated. The courts' willingness to recognise a distinct set of equitable rules (of eg property rights, assignment, or estoppel) can compromise justifications offered for the common law position. It is not surprising that calls have regularly been made to limit the distinct role of equity in private law and move to a unified system. This chapter argues that, in fact, equity is crucial not only in justifying particular rights but in justifying the very existence of a system of private rights. This is for two reasons. First, equity plays a distinctive role in mitigating the effects on a particular party, B, of a private right held by A. As a result, equitable rules and principles deal with some of the dangers that arise from a system of private law, in which a specific party, A, has the powers and rights that correlate to liabilities and duties of B. Second, equity plays a positive role in extending the options available to a holder of a right and thus enhancing private law's role in providing opportunities for self-determination. The complications brought by equity are therefore far from needless and to have a full picture of the operation of private rights, attention must be paid to the role performed by equitable doctrines.

ISBN: 9781509931958

B McFarlane, 'Equity' in A Gold et al (ed), Oxford Handbook of the New Private Law (OUP 2020)

DOI: 10.1093/oxfordhb/9780190919665.013.33

This chapter assesses the relationship between Equity and the New Private Law, arguing that Equity plays a crucial role in providing mechanisms that can mitigate the risk created by a system of correlative legal relations, and thus in justifying the operation of key private law rules.

ISBN: 9780190919665

B McFarlane, 'The Maxims of Equity; Fraud, Undue Influence and Unconscionable Transactions; Estoppel; Penalties and Forfeiture' in J McGhee and S Elliott (eds), Snell's Equity (34th edn) (Sweet and Maxwell 2020)

Contributor responsible for Chapters 5, 8, 9, 12 and 13

ISBN: 9780414071506

B McFarlane and A Televantos, 'Third Party Effects in Private Law: Form and Function' in P Miller and J Oberdiek (eds), Oxford Studies in Private Law Theory: Volume I (OUP 2020)

A core task of private law is to determine the degree to which the terms of a transaction between A and B, whereby a right arises in favour of B, can affect strangers to that transaction. Private law rules therefore govern what we will term the ‘third party effect’ of the A-B transaction. This paper examines a particular aspect of third party effect: the circumstances in which the A-B transaction may affect C, who has no pre-existing right, but who rather enters into a subsequent transaction with A, or otherwise interferes with the right claimed by B. Our goal is to show the range of means by which private law controls and determines this aspect of third party effect. We make three key points. First, such effects are controlled not only by rules relating to legal property rights and equitable interests, as is often supposed, but also by parts of the law of agency, partnership, and tort, for example. This means that insights into the operation of legal property rights and equitable interests may also be relevant when considering these other areas. Secondly, whilst a range of doctrines share this function of controlling third party effects, it is important to distinguish between the precise legal form used by each doctrine. We argue, for example, that the form of a legal property right differs in significant ways from that of an equitable interest and that these differences are not mere technicalities, or jurisdictional hangovers, but are rather based on the different nature of each type of right, and that those differences in turn reflect different ways in which A and B might choose to transact. Thirdly, even when considering one particular form, such as that of a legal property right, third party effect is determined by the interaction of different types of rules, with the practical operation of one type of rule modified by the application of a different type. So the third party effect of rules as to B’s acquisition of a legal property right from A, for example, are modified by rules which instead determine when C might have a defence to B’s right.

ISBN: 9780198851356

B McFarlane and R Stevens, 'What's Special about Equity? Rights about Rights' in Dennis Klimchuk, Irit Samet and Henry E Smith (eds), Philosophical Foundations of the Law of Equity (OUP 2020)

ISBN: 9780198817659

B McFarlane, 'Form and Substance in Equity' in Andrew Robertson and James Goudkamp (eds), Form and Substance in the Law of Obligations (Hart Publishing 2019)

ISBN: 9781509929450

Journal Article (2)

B McFarlane and S Douglas, 'Property, Analogy, and Variety' (2021) Oxford Journal of Legal Studies

DOI: https://doi.org/10.1093/ojls/gqaa043

How should a court respond if a party argues that, because her right to an intangible asset is a property right, the defendant is under a strict duty not to interfere with that intangible asset? Our view is that such a conclusion does not follow from the premise, and the argument is really one that the party’s right deserves protection as it is sufficiently analogous to a right to a tangible asset.

B McFarlane and S Agnew, 'The Nature of Trusts and the Conflict of Laws' (2021) Law Quarterly Review 405

Examines the nature of beneficial interests under trusts, drawing on the courts' analysis in conflict of laws cases, such as the decisions in Akers v Samba and Byers v Samba.