Divergences in Private Law

by Andrew Robertson, Michael Tilbury

Overview

This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream and the causes and effects of those departures. Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances. In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path.

The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A separate collection, entitled The Common Law of Obligations: Divergence and Unity (ISBN: 9781782256564), is also being published.

Product Details

ISBN-13:	9781782256601
Publisher:	Bloomsbury Academic
Publication date:	01/28/2016
Pages:	392
Product dimensions:	6.69(w) x 9.61(h) x 0.88(d)

About the Author

Andrew Robertson is Professor of Law and Director of Studies for Private Law at Melbourne Law School in the University of Melbourne.
Michael Tilbury is a Professorial Fellow at Melbourne Law School, formerly Kerry Holdings Professor in Private Law at the Faculty of Law in the University of Hong Kong.

Table of Contents

Preface v

List of Contributors ix

Table of Cases xi

Table of Legislation xxxv

Table of International Instruments xxxix

1 Why Diverge? Andrew Robertson Michael Tilbury 1

2 Proximity: Divergence and Unity Andrew Robertson 9

3 Canada's Common Law, Quebec's Civil Law and the Threshold of Actionable: Mental Harm Following Tortious Conduct Louise Belanger-Hardy 37

4 'Pure Economic Loss' and Defective Buildings Sarah Green Paul S Davies 51

5 Divergence and Convergence in the Tort of Public Nuisance JW Neyers 69

6 Defamation on the Internet Robert Ribeiro 95

7 Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom Neil Foster 109

8 The Scope of the Rule Against Contractual Penalties: A New Divergence Sirko Harder 135

9 Rights Restricting Remedies Robert Stevens 159

10 The Methods and Madness of Unjust Enrichment Zoë Sinel 179

11 Recovery of Non-Gratuitously Conferred Benefit Under Section 70 of the Indian Contract Act 1872 Alvin W-L See 201

12 Revisiting Canada's Approach to Fiduciary Relationships Erika Chamberlain 225

13 The Presumptions of Resulting Trust and Advancement Under Singapore Law; Localisation, Nationalism and Beyond Man Yip 245

14 Divergence in the Australian and English Law of Undue Influence: Vacillation or Variance? Robyn Honey 271

15 Whose Conscience? Unconscionability in the Common Law of Obligations Graham Virgo 293

16 Form and Substance in Equitable Remedies Stephen A Smith 321

Index 343

Editorial Reviews

"Overall, the volume is of the same high quality of its predecessors in the Obligation series." --The Cambridge Law Journal

From the Publisher