Revolution and Evolution in Private Law

by Sarah Worthington, Andrew Robertson, Graham Virgo

Overview

The development of private law across the common law world is typically portrayed as a series of incremental steps, each one delivered as a result of judges dealing with marginally different factual circumstances presented to them for determination. This is said to be the common law method. According to this process, change might be assumed to be gradual, almost imperceptible. If this were true, however, then even Darwinian-style evolution - which is subject to major change-inducing pressures, such as the death of the dinosaurs - would seem unlikely in the law, and radical and revolutionary paradigms shifts perhaps impossible. And yet the history of the common law is to the contrary. The legal landscape is littered with quite remarkable revolutionary and evolutionary changes in the shape of the common law.

The essays in this volume explore some of the highlights in this fascinating revolutionary and evolutionary development of private law. The contributors expose the nature of the changes undergone and their significance for the future direction of travel. They identify the circumstances and the contexts which might have provided an impetus for these significant changes.

The essays range across all areas of private law, including contract, tort, unjust enrichment and property. No area has been immune from development. That fact itself is unsurprising, but an extended examination of the particular circumstances and contexts which delivered some of private law's most important developments has its own special significance for what it might indicate about the shape, and the shaping, of private law regimes in the future.

Product Details

ISBN-13:	9781509938230
Publisher:	Bloomsbury Academic
Publication date:	05/28/2020
Pages:	376
Product dimensions:	6.69(w) x 9.61(h) x 0.77(d)

About the Author

Sarah Worthington QC (Hon) FBA is the Downing Professor of the Laws of England and Fellow of Trinity College, University of Cambridge, and Director of the Cambridge Private Law Centre.
Andrew Robertson is Professor of Law at the University of Melbourne and Conjoint Professor at Lund University.
Graham Virgo QC (Hon) is Professor of English Private Law in the Faculty of Law, University of Cambridge; Fellow of Downing College, University of Cambridge; and Pro-Vice-Chancellor for Education, University of Cambridge. He is co-director of the Cambridge Private Law Centre.

Table of Contents

Preface v

Table of Cases xiii

Table of Legislation xxv

Notes on Contributors xxix

Foundations

1 Revolution and Evolution in Private Law Sarah Worthington 3

2 Revolutions in Private Law? David Ibbetson 11

I Introduction 11

II The Law of Tort 13

III Contract 19

IV Unjust Enrichment 24

V Concluding Thoughts 29

3 Private Law's Revolutionaries: Authors, Codifiers and Merchants? Hector L MacQueen 31

I Introduction 31

II Berman's Law and Revolutions 32

III Roman Law in the Western Legal Tradition 35

IV Civil Codes and Revolutions 41

V Revolutions in the Law of Obligations: Scotland and Stair 43

VI Mercantile Contracts 47

4 Paradigms Lost or Paradigms Regained? Legal Revolutions and the Path of the Law TT Arvind 51

I Introduction: The Revolutionary Turn in Private Law 51

II The Limits of Legal Revolutions 55

A (Mis)interpreting the Past: A Revolutionary Problem 55

B Normative Choices and Legal Change 58

III Scientific Revolutions and Legal Revolutions 59

A A Matter of Light 59

B A Legal Parallel? 60

IV Paradigms, Theories and Black-Letter Law 62

A Revolutions and Paradigms 62

B Theoretical Revolutions and Black-Letter Law 65

V Conclusion: The Failure of Legal Revolutions 71

Doctrines

5 Risk Revolutions in Private Law Jenny Steele 75

I Introduction 75

II Risk Revolutions and Private Law 77

A Security and Responsibility 77

B Risk Revolutions: A Brief Overview 77

C Risk in Private Law 79

D Risk and Regulatory Change 81

III A Recognised 'Security' Revolution 82

A Security Revolution and the Context of Private Law 85

B After Effects 86

IV Backwards or Forwards with a New Risk Revolution 87

V Tort, Security, Responsibility and Risk 92

VI Conclusions: Revolution upon Revolution? 96

6 The Unacknowledged Revolution in Liability for Negligence Steve Hedley 99

I Introduction 99

II Asocial Theories 100

III Bringing in the Modern World 102

IV Modern Irrelevance of Asocial Theories? 103

V Abolishing Tort? 106

VI Tort from the Government's Point of View 107

VII Modern Theories about Tort 113

A Tort as Compensation or Insurance 113

B Abolition 114

C Symbolic Theories 115

VIII Symbolic Action: Current Debates 117

IX Bureaucratic Action: Prospects for the Future 119

X Conclusion 120

7 A Revolution in Vicarious Liability: Lister, the Catholic Child Welfare Society Case and Beyond Paula Giliker 121

I Introduction 121

II Tracing the Need for Change: Sexual Abuse and Vicarious Liability 123

III The Lister Revolution: Replacing 'Unauthorised Mode' with the 'Close Connection' Test 127

IV Lister Revisited: A Modern Theory of Vicarious Liability 131

V Back to the Supreme Court: Cox, Mohamud and the Two-Stage Test 134

VI Conclusion 138

8 Revolutions in Contractual Interpretation: A Historical Perspective Joanna McCunn 141

I Introduction 141

II Some Background 142

III Contractual Interpretation in the Sixteenth Century 145

A Throckmerton v Tracy 145

B The Identification of Intentions 147

C Intentions and Reason 148

D Conceptions of Contractual Intention 150

E Interpretation and Equity 152

IV Two Approaches to Interpretation 154

V The Seventeenth Century and Beyond 157

VI Conclusion 159

9 Revolutions and Counterrevolutions in Equitable Estoppel Andrew Robertson 161

I Introduction 161

II Early Expansionism: Making Representations Good 163

III The Nineteenth-Century Contraction 166

IV Re-expansion: Proprietary and Promissory Estoppel 169

A Proprietary Estoppel 169

B Promissory Estoppel 171

V Contemporary Contractionary Turns 172

VI Conclusion 175

10 Reflections on the Restitution Revolution 177

1 England and Wales Amy Goymour 177

I Introduction 177

II The First Edition of G off and Jones 178

A The Pre-existing Legal Landscape 178

B Ambitions of the First Edition 179

C Contemporary Critical Reception 180

III The Development of the Subject Since 1966 181

A Evolution 182

(i) Tracking Evolution via Statistics 182

(ii) Tracking Evolution via Substantive Developments 183

B Attempts at Revolution 184

IV The Place of Goff and Jones in the Subject's Intellectual Evolution 187

A 'But for' the Publication of Goff and Jones in 1966 187

B Viewing the Precise Contribution of Goff and Jones, with the Benefit of Hindsight 188

(i) Stages in the Subject's Intellectual Evolution 188

(ii) The Place of Goff and Jones in the Evolutionary Process 189

(iii) Evaluating this Mode of Intellectual Evolution 189

V The Future (R)evolution of the Subject 190

A Some Micro-level Concerns 190

B Some Macro-level Concerns 191

C Goff and Jones at 100? 192

2 Australia Elise Bant 193

I A Potted History of Unjust Enrichment in Australia pre-AFSL v Hills Industries 193

II AFSL v Hills Industries 194

III The Future of Unjust Enrichment and Restitution Law in Australia 196

A Evolution and Refinement of the Fourfold Inquiry 196

B Unjust Enrichment and Restitution 197

C Equity and Unjust Enrichment 199

IV Conclusion 201

3 Canada Mitchell McInnes 202

I Introduction 202

II History 202

III A False Start 204

IV A New Direction 205

V Positive Developments 205

VI A Very Bad Idea 207

VII Conclusion 210

4 South Africa Helen Scott 210

I The Idea of Unjustified Enrichment 210

II The Rationalisation of Unjustified Enrichment 213

III Farewell to Unjustified Enrichment? 216

5 A Judicial Perspective Sir Terence Etherton MR 219

11 Revolutions in Personal Property: Redrawing the Common Law's Conceptual Map Sarah Worthington 227

I Introduction 227

II What Has English Law Done with the Numerus Clausus Principle? 229

III Which 'Things' Count as Property? 230

IV Which 'Types of Interests' Count as Property? 235

V Consequences 243

VI Conclusion 247

General Issues

12 Modern Equity: Revolution or Renewal from Within? Pauline Ridge 251

I Introduction 251

II A Revolutionary Narrative of Modern Equity 252

III A Counter Narrative of Modern Equity 253

IV The Integration of Common Law and Equity 254

A The Revolutionary Narrative: Undue Influence 254

B The Counter Narrative: The Claim for Money Had and Received 257

C Ancillary Liabilities for Receipt of Trust Property 258

(i) Background: The Knowing Receipt and Persisting Property Claims 258

(ii) The Revolutionary Narrative and Knowing Receipt 259

(iii) The Counter Narrative: The Heperu Claim 259

(iv) The Revolutionary Narrative: Great Investments Ltd v Warner 260

(v) Has Either Narrative Prevailed? 263

V Conscience 264

A Introduction 264

B The Two Roles of Conscience 265

(i) Conscience as a Doctrinal Rationale: The Heperu Claim 265

(ii) Conscience as a Determinant of Liability 267

VI Judicial Method 267

VII Conclusion 270

13 Concurrent Liability: A Spluttering Revolution Paul S Davies 273

I Introduction 273

II Contract versus Tort 275

A First Steps: Contract Trumps Tort 275

B Asserting Concurrent Liability 277

C The Beginnings of a Counter Revolution? 281

(i) Remoteness 281

(ii) Type of Loss 285

(iii) Contributory Negligence 286

(iv) Choice of Law 287

(v) Limitation 287

D Conclusions 288

III Contract versus Trusts 288

IV Conclusions 293

14 The Illegality Revolution Graham Virgo 295

I Introduction 295

II The Central Controversy: Rule versus Discretion 296

A No Reliance on Illegality 299

B Withdrawal from an Illegal Transaction 300

C The Parties are not In Pari Delicto 301

D The Policy Behind the Illegality 302

E Close Connection or Inextricable Link 302

III Patel v Mirza 303

IV Patel v Mirza: Revolution or Evolution? 309

A Impact on Legal Doctrine 309

B Judicial Reception of the Decision 310

V Synthesis 311

15 The Revolutionary Trajectory of EU Contract Law towards Post-national Law Hugh Collins 315

I A Revolutionary Cocktail for the Ancien Régime 315

II Techno-law 317

A Instrumentalism 318

B Functions 321

C Incompleteness 322

III The Impact of Techno-law 323

IV From Rule-Book to Rights-Based Conception of the Rule of Law 326

A Legitimation 328

B Enhanced Functionalism 330

C The Implications of a Rights-Based Conception of the Rule of Law 331

V Real Transnational Law 332

VI Post-national Law 335

Index 337

Editorial Reviews

"Taking the individual contributions, all are interesting, and many are novel or challenging." --Edinburgh Law Review

From the Publisher