Book
xx, 229 pages ; 24 cm.
  • 1 Introduction I Enrichment Liability in the Civilian Tradition II Enrichment Liability in South African Law III A Law of Unjustified Enrichment? IV Unjust Enrichment: the Reanalysis of Enrichment by Transfer V Beyond the Condictiones VI Plan of Action Part I Mistake 2 Mistake: Nineteenth Century I Introduction II Condictio Indebiti III Restitutio in Integrum on Grounds of Iustus Error IV Restitution of Contractual Performance on Grounds of Iustus Error V Conclusion 3. Mistake Continued: Twentieth Century and Beyond I Introduction II Twentieth Century: Excusable Mistake of Fact III Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue IV Twenty-first Century: Excusable Mistake V Analysis: Excusable Mistake in South African Law Part II Compulsion and Incapacity Introduction: Taking Stock 4 Compulsion I Introduction II Historical Background III Restitution of Compelled Transfers: Nineteenth Century IV Restitution of Compelled Transfers: Twentieth Century V Analysis 5 Incapacity: Minority and the Doctrine of Ultra Vires I Introduction II Historical background III Restitution of Minors' Transfers in South African Law IV Restitution of Ultra Vires Transfers V Conclusion Part III Theory 6 Theory: Unjust Factors or Absence of Legal Ground? I Introduction II Unjust Factors Analysis in English Law III Absence of Legal Ground Analysis IV Civilian Critique of the Unjust Factors Analysis V The Case for Unjust Factors VI Unjust Factors and the Common Law Method VII A Mixed Approach 7 Conclusion I Unjust Enrichment in South African Law II In Defence of the Unjust Factors Analysis III Unjust Enrichment: the Future.
  • (source: Nielsen Book Data)9781849462235 20160612
Conventional thinking teaches that the absence of liability - in particular contractual invalidity - is itself the reason for the restitution of transfers in the South African law of unjustified enrichment. However, this book argues that while the absence of a relationship of indebtedness is a necessary condition for restitution in such cases, it is not a sufficient condition. The book takes as its focus those instances in which the invalidity thesis is strongest, namely, those traditionally classified as instances of the condictio indebiti, the claim to recover undue transfers. It seeks to demonstrate that in all such instances it is necessary for the plaintiff to show not only the absence of his liability to transfer but also a specific reason for restitution, such as mistake, compulsion or incapacity. Furthermore, this book explores the reasons for the rise of unjust factors in South African law, attributing this development in part to the influence of the Roman-Dutch restitutio in integrum, an extraordinary, equitable remedy that has historically operated independently of the established enrichment remedies of the civilian tradition, and which even now remains imperfectly integrated into the substantive law of enrichment. Finally, the book seeks to defend in principled terms the mixed approach to enrichment by transfer (an approach based both on unjust factors and on the absence of a legal ground) which appears to characterise modern South African law. It advocates the rationalisation of the causes of action comprised within the condictio indebiti, many of which are subject to additional historically-determined requirements, in light of this mixed analysis.
(source: Nielsen Book Data)9781849462235 20160612
Green Library
Book
xxvi, 248 p. ; 24 cm.
  • 1. Introduction I. Unjust Enrichment II. Restitution III. Methodology and Scope IV. Structure of the Book 2. Value, Rights and Obligations I. The Concept of Value II. The Concepts of Rights and Obligations III. The Concept of Wealth IV. The Relationship between the Concepts V. Conclusion 3. Bifurcating the Enrichment Inquiry I. The Meaning of Enrichment II. Overview of Factual Enrichment III. Overview of Legal Enrichment IV. Conclusion 4. Factual Enrichment I. The Historical Position II. Money III. Services IV. Goods V. Land VI. Release of Obligations VII. Conclusion 5. Legal Enrichment I. Resulting Trusts II. Rescission III. Rectification IV. Enrichment by Release of Obligations V. Conclusion 6. Freedom of Choice I. Rejecting Subjective Devaluation II. Proof of Choice of Benefit III. Incontrovertible Enrichment IV. Conclusion 7. Immediate and Extant Enrichment I. Immediate Enrichment in Factual Enrichment Cases II. Immediate Enrichment in Legal Enrichment Cases III. Conclusion 8. Conclusions and Implications I. Factual and Legal Enrichment II. Consequences III. Further Implications IV. Conclusion Bibliography I. Texts, Digests and Restatements II. Journal Articles and Book Chapters.
  • (source: Nielsen Book Data)9781849463294 20160608
Enrichment is key to understanding the law of unjust enrichment and restitution. This book provides a comprehensive analysis of the concept of enrichment and its implications for restitutionary awards. Dr Lodder argues that enrichment may be characterised either factually or legally, and explores the consequences of that distinction. In factual enrichment cases, the measure of enrichment is the objective value received. This is the basis of many awards of money had and received, quantum meruit, quantum valebat and money paid. In legal enrichment cases, the benefit is the acquisition of a specific right or the release of a specific obligation. The remedy is restitution of that right or reinstatement of that obligation. It is demonstrated that specific restitution of the defendant's legal enrichment is often the basis for resulting trusts, rescission, rectification and subrogation. This book has profound implications for understanding restitutionary awards and the relationship between the enrichment inquiry and other aspects of the law of unjust enrichment, including the 'at the expense of' inquiry and the defence of change of position.
(source: Nielsen Book Data)9781849463294 20160608
Law Library (Crown)
Book
xx, 239 pages ; 24 cm.
  • Introduction
  • Theoretical perspectives
  • The tort-crime interface
  • Policy and discretion
  • The connection tests
  • Overview of the coherence rationale
  • Statutory purpose
  • No loss damage : sanction-shifting and related claims
  • No loss or damage : illegal profits and earnings
  • A relational explanation : joint illegal enterprise cases
  • Conclusion.
Law Library (Crown)
Book
xii, 306 pages ; 24 cm
  • Preface
  • Foreword
  • The dynamics of private law and power / Kit Barker
  • Power, history and the law of contract in eighteenth century England / Warren Swain
  • Redressing inequality in personal credit transactions : 1700-1974 / Karen Fairweather
  • Tort law and government liability in the administrative state / Peter Cane
  • Property and power : the judicial redistribution of proprietary rights / Craig Rotherham
  • Trustees' powers and social justice / Matthew Harding
  • Undue influence and the spiritual economy / Simone Degeling
  • A public law tort : understanding misfeasance in public office / Donal Nolan
  • Public power, discretion and the duty of care / Kit Barker
  • The legitimacy of the company as a source of (private) power / Ross Grantham
  • Reshaping responsibility : the emerging private law of institutional wrongs / Mayo Moran
  • Class actions : uses and abuses of the porocess of courts / Justice Philip McMurdo.
"The aim of this edited collection of essays is to examine the relationship between private law and power-both the public power of the state and the 'private' power of institutions and individuals. Its objectives are to describe and critically assess the way that private law doctrines, institutions, processes, and rules express, moderate, facilitate, and control relationships of power. The aim is to scrutinise this subject from the viewpoints of both history and modernity. The various chapters of this work examine the dynamics of the relationship between private law and power from a number of different perspectives-historical, theoretical, doctrinal, and comparative. They have been commissioned from...experts in the field of private law, from several different commonwealth jurisdictions (Australia, the UK, Canada and New Zealand), each with expertise in the particular sphere of their contribution. The contributers aim to illuminate the past and assist in resolving some contemporary, difficult legal issues relating to the shape, scope, and content of private law and its difficult role and relationship with power."-- Provided by publisher.
Law Library (Crown)
Book
xliv, 567 pages ; 25 cm.
  • Part I: Agendas and Predictions 1. Private Law as a Complex System: Agendas for the Twenty-First Century Kit Barker 2. Challenges for Private Law in the Twenty-First Century Andrew Burrows 3. Rationalising Tort Law for the Twenty-First Century Ken Oliphant 4. The Challenges of Private Law: A Research Agenda for an Autonomy-Based Private Law Hanoch Dagan 5. 'The Steaming Lungs of a Pigeon': Predicting the Direction of Australian Contract Law in the Next 25 Years Warren Swain Part II: Legislation, Codification and the Role of the Common Law 6. Codification of Private Law: Scots Law at the Crossroads of Common and Civil law Martin A Hogg 7. Power Failure? The Distracting Effect of Legislation on Common Law Torts Wendy Bonython 8. Constructive Trusteeship: The Perils of Statutory Formulae Darryn Jensen Part III: Complex Systems and Interactions 9. Fusing the Equitable Function in Private Law Henry E Smith 10. Dealing with Complexity: Different Approaches to Explaining Accessory Liability Joachim Dietrich 11. The Challenges Presented by Fundamental Rights to Private Law Hugh Collins 12. The Limits of Technocracy: Private Law's Future in the Regulatory State TT Arvind and Joanna Gray 13. Common Law and the Constraint of Financial Markets: Credit Rating Agencies as a Test Case Joshua Getzler and Alexandra Whelan 14. Apologies as 'Canaries'-Tortious Liability in Negligence and Insurance in the Twenty-First Century Prue Vines 15. When Lump Sums Run Out: Disputes at the Borderlines of Tort Law, Injury Compensation and Social Security Genevieve Grant, Kylie Burns, Rosamund Harrington, Prue Vines, Elizabeth Kendall and Annick Maujean Part IV: New Remedies, Technologies and Intangible Interests 16. 'I'll Perform If and When You Do': Non-Performance and the Suspension of Contractual Duties Andrew Tettenborn 17. Vindicatory Damages James Edelman 18. Persuasive Technologies: From Loss of Privacy to Loss of Autonomy Eliza Mik 19. Snooping: How Should Damages be Assessed for Harmless Breaches of Privacy? Erika Chamberlain 20. Compensating Injury to Autonomy: A Conceptual and Normative Analysis Tsachi Keren-Paz 21. Matter over Mind: Tort Law's Treatment of Emotional Injury Anne Schuurman and Zoe Sinel 22. The Interaction Between Defamation and Privacy David Rolph 23. Making Amends by Apologising for Defamatory Publications: Developments in the Twenty-First Century Robyn Carroll and Jeffrey Berryman Part V: Process Challenges and the Privatisation of Justice 24. Tort and Neo-liberalism Annette Morris 25. Reforming Australian Litigation Lawyers: Educational Impacts of Civil Procedural Laws and Judicial Activism Francesca Bartlett 26. Private Law in the Age of the 'Vanishing Trial' Carlo Vittorio Giabardo.
  • (source: Nielsen Book Data)9781509908585 20170403
This book brings together a wide range of contributors from across the common law world to identify and debate the principal moral and systemic challenges facing private law in the remaining part of the twenty-first century. The various contributions identify serious problems relating to complexity and overload, threats to research and education, the law's unintelligibility, the unsatisfactory nature of the law reform process and a general lack of public engagement. They consider the respective future roles of statutes, codes, and judge-made law (in the form of both common law and equitable rules). They consider how best to organise the private law system internally, and how to co-ordinate it externally with other public and economic systems (human rights, regulation, insurance markets and social security frameworks). They address the challenges for private law presented by new forms of technology, and by modern demands for the protection of new and intangible forms of moral interest, such as interests in privacy, 'vindication' and 'personal choice'. They also engage with the critical contemporary debates about access to, and the privatisation of, civil justice. The work is designed as a source of inspiration and reference for private lawyers, as well as legislators, policy-makers and students.
(source: Nielsen Book Data)9781509908585 20170403
Law Library (Crown)
Book
xxvii, 318 pages ; 24 cm.
  • Tort law and human rights
  • A human rights based approach to tort law
  • The Human Rights Act
  • The European Convention on Human Rights
  • Public authority liability part 1 : the impact of ECHR on the common law
  • Public authority liability part 2 : positive obligations and omissions
  • Defamation and freedom of expression
  • Privacy : from misuse of private information to autonomy
  • Concluding remarks.
This is a completely revised and expanded second edition, building on the first edition with two principal aims: to elucidate the role that domestic tort principles play in securing to citizens the human rights standards laid down in the European Convention on Human Rights, including the new 'remedy' under the Human Rights Act 1998; and to evaluate tort principles for compliance with those standards. The first edition was written when the Human Rights Act 1998 was newly enacted and many questions existed as to its potential impact on tort law. Answers to many of the questions, which were raised at that time, are only now emerging. Therefore, the text has been updated to reflect these developments. Whether it is appropriate to attribute particular goals and functions to tort law is highly contested and the analysis begins by locating the discussion within these contemporary debates. The author goes on to examine the extent to which the action against public authorities under section 7 of the Act has impacted on the development of common law principles, as well as the issue of horizontal effect of the Act between non-state actors. New chapters include: 'A Human Rights Based Approach to Tort Law' and 'Public Authority Liability and Privacy - From Misuse of Private Information to Autonomy.'.
(source: Nielsen Book Data)9781841139074 20170508
Law Library (Crown)
Book
x, 194 pages ; 24 cm.
  • Introduction
  • A mid-channel jurisdiction : Jersey as a mixed legal system
  • Basic principles of contract law from a comparative perspective
  • The formation of a contract
  • Undermining a contract : vices de consentement
  • Effects of contracts
  • Comparing remedies
  • Comparative law lessons and reform issues.
This book provides a comparative study of contract law, examining the interaction of common law and civil law approaches to contract law. Drawing extensively upon English, French and European law, the book explores how the law of contract of Jersey, Channel Islands, has been influenced by both civil law and common law sources. It is argued that this jurisdiction is a striking example of comparative law in action, given that Jersey contract law is made up of a blend of common law and civil law approaches. Jersey law is premised upon a subjective approach to contracts, in which civil law concepts such as cause (rather than consideration) and vices de consentement are the foundational aspects, but is nonetheless highly influenced by the common law in areas such as remedies (damages, termination, etc). The book analyses a series of key issues from a comparative and European perspective, including the principles underlying contract law (comparing and contrasting civil and common law approaches), the formation of contract, requirements of reciprocity (cause vs consideration), the structure and approach of precontractual liability, the role of good faith in a mixed system, the architecture of remedies, and more.
(source: Nielsen Book Data)9781782257219 20161228
Law Library (Crown)
Book
xxii, 228 pages ; 25 cm.
  • Introduction
  • The exchange capacity
  • Enrichment
  • Loss
  • Connections
  • Generalisations
  • Transactions
  • Qualification
  • Conclusion.
This book presents an account of attribution in unjust enrichment. Attribution refers to how and when two parties - a claimant and a defendant - are relevantly connected to each other for unjust enrichment purposes. It is reflected in the familiar expression that a defendant be 'enriched at the claimant's expense'. This book presents a structured account of attribution, consisting of two requirements: first, the identification of an enrichment to the defendant and a loss to the claimant; and, secondly, the identification of a connection between that enrichment and that loss. These two requirements must be kept separate from other considerations often subsumed within the expression 'enrichment at the claimant's expense' which in truth have nothing to do with attribution, and which instead qualify unjust enrichment liability for reasons that should be analysed in their own terms. The structure of attribution so presented fits a normative account of unjust enrichment based upon each party's exchange capacities. A defendant is enriched when he receives something that he has not paid for under prevailing market conditions, while a claimant suffers a loss when he loses the opportunity to charge for something under the same conditions. A counterfactual test - asking whether enrichment and loss arise 'but for' each other - provides the best generalisation for testing whether enrichment and loss are connected, thereby satisfying the requirements of attribution in unjust enrichment.
(source: Nielsen Book Data)9781782258391 20170717
Law Library (Crown)
Book
xi, 245 pages ; 24 cm.
  • Introduction
  • Theoretical and doctrinal framework
  • Identifying the proper function of causation
  • Proof of causation
  • Loss of a chance
  • The evidentiary gap
  • Conclusion.
This book undertakes an analysis of academic and judicial responses to the problem of evidential uncertainty in causation in negligence. It seeks to bring clarity to what has become a notoriously complex area by adopting a clear approach to the function of the doctrine of causation within a corrective justice-based account of negligence liability. It first explores basic causal models and issues of proof, including the role of statistical and epidemiological evidence, in order to isolate the problem of evidential uncertainty more precisely. Application of Richard Wright's NESS test to a range of English case law shows it to be more comprehensive than the 'but for' test that currently dominates, thereby reducing the need to resort to additional tests, such as the Wardlaw test of material contribution to harm, the scope and meaning of which are uncertain. The book builds on this foundation to explore the solution to a range of problems of evidential uncertainty, focusing on the Fairchild principle and the idea of risk as damage, as well as the notion of loss of a chance in medical negligence which is often seen as analogous with 'increase in risk', in an attempt to bring coherence to this area of the law.
(source: Nielsen Book Data)9781849467049 20161219
Law Library (Crown)
Book
260 pages ; 24 cm.
  • Introduction
  • Moral foundations
  • The general theory of liability
  • The form of liability in tort law
  • Battery and trespass to property
  • Trespass in general
  • Defences to trespass
  • Deceit
  • The economic torts in the commonwealth : the conventional view
  • Reconceptualising the economic torts
  • Interference with contract in the US
  • Injurious falsehood and malicious prosecution
  • The law of negligence
  • The law of defamation
  • The mind
  • Patient consent and the right to self-determination
  • Conclusion.
This book provides a comprehensive theory of the rights upon which tort law is based and the liability that flows from violating those rights. Inspired by the account of private law contained in Immanuel Kant's Metaphysics of Morals, the book shows that Kant's theory elucidates a conception of interpersonal wrongdoing that illuminates the operation of tort law. The book then utilises this conception, applying it to the various areas of tort law, in order to develop an understanding of the particular areas in question and, just as importantly, their relationship to each other. It argues that there are three general kinds of liability found in the law of tort: liability for putting another or another's property to one's purposes directly, liability for doing something to a third party that puts another or another's property to one's purposes, and liability for pursuing purposes in a way that improperly interferes with the ability of another to pursue her legitimate purposes. It terms these forms liability for direct control, liability for indirect control and liability for injury respectively. The result is a coherent, philosophical understanding of the structure of tort liability as an entire system. In developing its position, the book considers the laws of Australia, Canada, England and Wales, New Zealand and the United States.
(source: Nielsen Book Data)9781509903184 20161124
Law Library (Crown)

11. Accessory liability [2015]

Book
xxxiii, 294 pages ; 24 cm.
  • Introduction
  • Fundamentals
  • Crime
  • Equity
  • Contract
  • Tort
  • Defences
  • Remedies
  • Conclusions.
Accessory liability in the private law is of great importance. Claimants often bring claims against third parties who participate in wrongs. For example, the 'direct wrongdoer' may be insolvent, so a claimant might prefer a remedy against an accessory in order to obtain satisfactory redress. However, the law in this area has not received the attention it deserves. The criminal law recognises that any person who 'aids, abets, counsels or procures' any offence can be punished as an accessory, but the private law is more fragmented. One reason for this is a tendency to compartmentalise the law of obligations into discrete subjects, such as contract, trusts, tort and intellectual property. This book suggests that by looking across such boundaries in the private law, the nature and principles of accessory liability can be better understood and doctrinal confusion regarding the elements of liability, defences and remedies resolved.
(source: Nielsen Book Data)9781849462877 20160618
Law Library (Crown)
Book
xxxvii, 369 pages ; 25 cm.
  • Hedley Byrne v Heller : issues at the beginning of the twenty-first century / Kit Barker
  • Hedley Byrne v Heller in Australia : "never has there been such a judicial jamboree" / Warren Swain
  • The assumption of responsibility / Andrew Robertson and Julia Wang
  • Basis of the Hedley Byrne action / Allan Beever
  • The curious incident of the dog that did bark in the night-time : what mischief does Hedley Byrne v Heller correct? / David Campbell
  • Equity as tort? / Paul Finn
  • Limitations on defendant liability for misleading or deceptive conduct under statute : some insights from negligent misstatement / Elise Bant and Jeannie Paterson
  • Advisor liability : claims for contribution or reimbursement between an advisor and the advisee's contract-partner / Sirko Harder
  • What are we doing here? : the relationship between negligence in general and misstatements in English law / Christian Witting
  • Negligent misstatement in the United States / Jay M. Feinman
  • Hedley Byrne : misused, then exiled by the Supreme Court of Canada / Bruce Feldthusen
  • Liability under Hedley Byrne for "pre-contract" negligent misrepresentation : a New Zealand perspective / David McLauchlan
  • Negligent misstatement in Australia : resolving the uncertain legacy of Esanda / Kit Barker.
2013 was the 50th anniversary of the House of Lords' landmark decision in Hedley Byrne v Heller. This international collection of essays brings together leading experts from five of the most important jurisdictions in which the case has been received (the United Kingdom, the United States, New Zealand, Canada and Australia) to reappraise its implications from a number of complementary perspectives-historical, theoretical, conceptual, doctrinal and comparative. It explores modern developments in the law of misstatement in each of the jurisdictions; examines the case's profound effects on the conceptual apparatus of the law of negligence more generally; explores the intersections between misstatement liabilities in contract, tort, equity and under statutory consumer protection provisions; and critically assesses the ways in which advisor liabilities have come to be limited and distributed under systems of 'joint and several' and 'proportionate' liability respectively. Inspired by Hedley Byrne, the purpose of the collection is to reflect on the case's echoes, effects and analogues throughout the private law and to provide a platform for thinking about the ways in which liabilities for misstatement and pure economic loss should be modelled in the modern day.
(source: Nielsen Book Data)9781849468633 20160619
Law Library (Crown)
Book
xxix, 335 pages ; 25 cm.
  • An overview of the orthodox account
  • The doctrinal inaccuracy of the orthodox account
  • Conceptual and terminological difficulties with the orthodox account
  • Foundations of the new account
  • Money awards that substitute for performance
  • Money awards that compensate for loss
  • Explaining some important decisions in tension with the orthodox account
  • Defusing some potential doctrinal objections.
The quantification of contractual money awards is a topic of both significant theoretical interest and immense practical importance. Recent debates have ranged from the availability of gain-based relief to the basis for principles of remoteness and mitigation. While these and other important issues, such as the recovery of damages for non-pecuniary loss, are touched upon, the book's principal objective is to challenge the conventional interpretation of the principle generally acknowledged to govern this area of the law, which Parke B famously laid down in Robinson v Harman. According to this conventional interpretation, the objective of all money awards given in accordance with the Robinson v Harman principle is simply to 'compensate' the promisee for the 'loss' that can be attributed to the promisor's failure to perform as promised. After challenging this orthodoxy, Dr Winterton proposes a new understanding of the Robinson v Harman principle, which draws an important distinction between money awards that substitute for the performance promised and money awards that aim to make good certain detrimental factual consequences that can be attributed to a promisor's breach. In exploring the significance of this distinction, the different principles underpinning the quantification and restriction of each kind of award are explored in addition to some important theoretical issues such as the effect that the occurrence of a breach has on the rights generated by contract formation. The book's unifying objective is to outline a coherent picture of the law of contractual money awards. It will be of interest to judges, practitioners and academics alike.
(source: Nielsen Book Data)9781849464574 20160618
Law Library (Crown)
Book
liii, 308 pages ; 24 cm.
  • Introduction
  • The nature of the promise of indemnity
  • Construction
  • The scope of the indemnity
  • Enforcement
  • Claims by or liabilities to third parties : classification and establishing loss
  • Claims by or liabilities to third parties : performance and enforcement
  • Claims by or liabilities to the indemnifier
  • Non-performance by a third party
  • Breach of contract by the indemnifier.
Promises of indemnity are found in many kinds of commercial contracts, not just contracts of insurance. This book examines the nature and effect of contractual indemnities outside the insurance context. It is the first work to provide a detailed account of the subject in English law. The book presents a coherent theory of the promise of indemnity while also addressing important practical issues, such as the construction of contractual indemnities. The subject is approached from two perspectives. The foundations are laid by examining general principles applicable to indemnities in various forms. This covers the nature of indemnity promises; general principles of construction; the determination of scope; and the enforcement of indemnities. The approach then moves from the general to the specific, by examining separately particular forms of indemnity. Included among these are indemnities against liability to third parties, and indemnities against default or non-performance by third parties. The book states English law but it draws upon a considerable amount of material from other common law jurisdictions, including Australia, Canada, New Zealand and Singapore. It will appeal to readers from those countries.
(source: Nielsen Book Data)9781849462907 20160616
Law Library (Crown)
Book
xxxv, 226 pages ; 24 cm.
  • Understanding "Europeanisation" : transplanting European Union and human rights law into domestic law
  • Breaking down the frontiers : EU law in the English law of torts
  • The European tort : state liability for breach of European Union law
  • Tort law and human rights : a European culture of rights?
  • A right to personal privacy in the English law of torts?
  • Europeanisation and English tort law : the way forward.
Law Library (Crown)
Book
xxxii, 244 pages : illustration ; 24 cm.
  • Iniuria and the common law / Eric Descheemaeker and Helen Scott
  • Iniuria, Roman and English / David Ibbetson
  • The actio iniuriarum in Scots law : romantic Romanism or tool for today? / Kenneth McKenzie Norrie
  • Solatium and injury to feelings : Roman law, English law and modern tort theory / Eric Descheemaeker
  • Dissimulation / Paul Mitchell
  • Contumelia and the South African law of defamation / Helen Scott
  • An infringement of the corpus as a form of iniuria : Roman and medieval reflections / Paul J. du Plessis
  • The protection of corpus in modern and early modern Scots law / John Blackie
  • The gist of defamation in South African law / Anton Fagan
  • Retraction, apology and reply as responses to iniuriae / Jonathan Burchell
  • Harassment : a wrong without a right? / François du Bois.
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 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.
(source: Nielsen Book Data)9781849465038 20160612
Law Library (Crown)
Book
xvi, 163 pages ; 24 cm.
  • Introduction
  • The conventional view
  • The grounds of liability
  • Illustrations of the general principle
  • The activity
  • Coming to a nuisance
  • A nuisance coming to you
  • Fault and foreseeability
  • The rule in Rylands v Fletcher
  • The parties
  • Statutory authority
  • Remedies
  • Conclusion.
It is said that a nuisance is an interference with the use and enjoyment of land. This definition is typically unhelpful. While a nuisance must fit this account, it is plain that not all such interferences are legal nuisances. Thus, analysis of this area of the law begins with a definition far too broad for its subject matter, forcing the analyst to find more or less arbitrary ways of cutting back on potential liability. Tort law is plagued by this kind of approach. In the law of nuisance, today's preferred method of cutting back is to employ the notion of reasonableness. No one seems to know quite what 'reasonableness' means in this context, however. This is because, in fact, it does not mean anything. The notion is no more than the immediately recognisable symptom of our inadequate comprehension of the law. This book expounds a new understanding of the law of nuisance, an understanding that presents the law in a coherent and systematic fashion. It advances a single, central suggestion: that the law of nuisance is the method that the common law utilises for prioritising property rights so that conflicts between uses of property can be resolved.
(source: Nielsen Book Data)9781849465069 20160612
Law Library (Crown)
Book
xxvii, 309 pages ; 24 cm.
  • Rights and value; means and ends / Ben McFarlane
  • Direct and indirect enrichment at the claimant's expense in three-party cases / Birke Hacker
  • [Section] 38 and the lost doctrine of failure of consideration / Frederick Wilmot-Smith
  • Duress and related forms of pressure : a comparative perspective / Jacques du Plessis
  • Undue influence : lessons from America? / William Swadling
  • Denials and defences in the law of unjust enrichment / James Goudkamp and Charles Mitchell
  • Is there a defence of good consideration? / Andrew Burrows
  • The distinctiveness of law and equity and the taxonomy of the constructive trust / Keith Mason
  • Proprietary remedies for unjust enrichment : demystifying the constructive trust and analysing intentions / Lusina Ho
  • The restatement of liabilities in restitution / Stephen Smith
  • Restitution for wrongs / Nicholas McBride
  • Comparisons with Book VII of the Draft common frame of reference / Gerhard Danneman.
The publication of the Restatement Third: Unjust Enrichment and Restitution by the American Law Institute in July 2010 was an event of major importance, not only for the development of the law of unjust enrichment in the US, but also for global scholarship relating to this area of private law. The Restatement First appeared in 1937, and the Restatement Second was abandoned; hence the Restatement Third is the most significant survey of the American law on this topic for over 70 years. Private law has been a comparatively neglected area of study in US law schools for several decades, and this is particularly true of the law of unjust enrichment. However, the appearance of the Restatement Third has prompted a renewal of interest in the subject among US scholars, and it is hoped that the present volume of essays will contribute to this revival, while reflecting on the lessons to be learned from the Restatement by other legal systems. Featuring the work of leading scholars from the UK, Germany, South Africa, Canada, Hong Kong and Australia, the essays undertake critical and comparative analysis of the Restatement, and offer fresh insights into the rules that it articulates.
(source: Nielsen Book Data)9781849464086 20160612
Law Library (Crown)

19. Tort law defences [2013]

Book
xlvi, 223 p. ; 25 cm.
  • Torts and defences
  • A taxonomy of tort law defences
  • Applying the taxonomy
  • Implications
  • Rival taxonomies
  • Denials of responsibility
  • Future directions.
The law of torts recognises many defences to liability. While some of these defences have been explored in detail, scant attention has been given to the theoretical foundations of defences generally. In particular, no serious attempt has been made to explain how defences relate to each other or to the torts to which they pertain. The goal of this book is to reduce the size of this substantial gap in our understanding of tort law. The principal way in which it attempts to do so is by developing a taxonomy of defences. The book shows that much can be learned about a given defence from the way in which it is classified. This book has been awarded Joint Second Prize for the 2014 Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship.
(source: Nielsen Book Data)9781849462914 20160612
Law Library (Crown)
Book
xxxii, 267 pages ; 24 cm.
  • Unjust enrichment versus equitable principles in England and Australia / Joachim Dietrich
  • Subrogation, equity and unjust enrichment / Mark Leeming
  • Clogs on the equity of redemption : a story of changing equitable intervention / Fiona Burns
  • Assignment of future property and preferences / Joshua Getzler
  • The fiduciary 'self dealing' rule / James Edelman
  • Participatory liability for breach of trust or fiduciary duty / Pauline Ridge
  • Equitable compensation / Jamie Glister
  • Trusts and knowledge : lessons from Australia / Ben McFarlane
  • The limits of equity in disputes over family assets / Matthew Harding
  • Constructive trusts : understanding remedialism / Michael Bryan
  • Thoughts on equity in New Zealand and New South Wales / Andrew Butler and Tim Miller.
Equity, the body of law developed in the English Court of Chancery, has a long and distinguished history. In the twenty-first century it continues to be an important regulator of both commercial and personal dealings, as well as informing statutory regulation. Although much equitable doctrine is settled, there remain some intractable problems that bedevil lawyers across jurisdictions. The essays in this collection employ new historical, comparative and theoretical perspectives to cast light on these fault lines in equitable doctrine and methodology. Leading scholars and practitioners from England, Australia and New Zealand examine such contentious topics as personal and proprietary liability for breaches of equitable duties (including fiduciary duties), the creation of non-express trusts, equitable rights in insolvency, the fiduciary 'self dealing' rule, clogs on the equity of redemption, the distribution of assets on family breakdown, and the suitability of unjust enrichment analysis. The authors address specific doctrinal questions as well as the 'meta' issues of organisation and methodology, and their findings will be of value to academics and practitioners alike.
(source: Nielsen Book Data)9781849462198 20160618
Law Library (Crown)

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