bluuebunny/crossref_metadata_2025 huggingface dataset:
2. Domestic Sources of Law: Parliamentary Material
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter examines the sources of domestic law. There are two sources of law (primary sources and secondary sources). Primary sources are considered to be those ‘authoritative’ sources that are produced by the legal process itself. Secondary sources are sources that are produced by others and are, in essence, a commentary on the law. Primary sources of law include statutory material and this itself is divided into two types of material: primary legislation (Acts of Parliament) and secondary legislation (Statutory Instruments, Orders in Council, etc). Statutes are Acts of Parliament and are either Public Acts (Acts that are of general application) or Private Acts (which are limited to a certain body). An Act will normally have to pass both the House of Commons and House of Lords and then receive Royal Assent before it becomes an Act of Parliament.
4. International Sources of Law
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter discusses international sources of law. Conventions and treaties are the primary sources of international law. International law also relies on custom, that is to say informal rules that have been commonly agreed over a period of time. Resolving disputes in international law is very different to resolving domestic disputes, including the fact that in some instances, there is no court that can hear a challenge. The United Nations, particularly its Security Council, has the primary role in upholding international law, meaning that it is often political rather than judicial resolution. In 1972, the United Kingdom joined the (then) European Economic Community (EEC). As part of that process, it agreed to shared sovereignty, meaning that in some areas, European law would take precedence. The United Kingdom has now left the European Union but, as will be seen, its laws will remain an important source of English law for some time.
6. The Structure of the Courts
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter discusses the organization of the modern court structure and what each court does. The courts in England and Wales (i.e. excluding the Supreme Court which is a UK court) are administered by a single agency, HM Courts and Tribunal Service. The courts of original jurisdiction (i.e. which hear trials of first instance) are ordinarily the magistrates’ court, county court, Crown Court, and High Court although they have now been joined by the Family Court. The Crown Court and High Court have both an original and appellate jurisdiction. The High Court is divided into three divisions (Queen’s Bench Division, Chancery Division, and Family Division) and when two or more judges sit together in the High Court it is known as a Divisional Court. The chapter also briefly describes the Judicial Committee of the Privy Council, Court of Protection, and Coroner’s Courts.
9. Judicial Independence
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter considers the fundamental constitutional principle of judges being independent. Securing the independence of the judiciary is difficult and involves not only separation from the legislature and executive, but also from each other and the media. Issues of judicial ethics and restrictions on practice are also discussed.
15. The Trials
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter examines the trial process and identifies the differences between summary trials and trials on indictment. It details who is in court, what their role should be, and how they reach their various decisions. The discussions cover the prosecution case, the defence case, closing speeches, judicial summing up, reaching the verdict, and youth trials.
16. Criminal Appeals
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter examines under what circumstances someone is entitled to appeal and how that appeal is heard. The discussions cover summary trials or trials on indictment; appeals from a summary trial; appeal from a trial on indictment; appeal following an acquittal; appeal against sentence; appeals to the Supreme Court; and the Criminal Cases Review Commission. The paths of appeals differ depending on the mode of trial of the original criminal hearing. There are two potential criminal appeal avenues from a summary trial: either to the Divisional Court (by way of case stated or (exceptionally) judicial review) or to the Crown Court. An appeal ordinarily requires leave (permission) but appealing to the Crown Court from the magistrates’ court does not require leave.
18. Remedies and Appeals
Authors: Gillespie Alisdair A. , Weare Siobhan
Published: September 2021

This chapter discusses the remedies that can be sought from the civil courts and how an appeal is made against a decision. It covers interim and final remedies; route of appeals; leave; the hearing; appeals to the Supreme Court; and examples of appeals. There are many different types of remedies that a court can award to a successful litigant. The most common form of remedy is that which is known as ‘damages’. Appeals in the civil courts follow a slightly more complicated structure than in criminal cases. In order to appeal in the civil cases it is usually necessary to seek permission before proceeding with a civil appeal. Save where it is a final decision in a multi-track case, the usual rule is that the appeal will be heard by the next most senior judge.
3. Capacity and formality requirements
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Expressly created trusts are a special form of gift that do not require any formality. However, formality is extremely important with regard to the subsequent transfer of beneficial interests after the creation of a trust and with regard to trusts made by will (so-called testamentary trusts). Not everybody has the capacity to create a binding trust; where there is no capacity it is mainly due to poor mental health or minority (infancy). This chapter deals with capacity and formality requirements in relation to the creation of trusts and considers inter vivos transactions, the relevant provisions of the Law of Property Act 1925, lack of formality as a defence to disguise a fraud and testamentary trusts. It also examines whether a would-be settlor is legally capable of setting up a trust and discusses the equitable interest under a trust in compliance with the proper formalities, trusts for which there are no formality requirements and valid ‘mutual wills’ and ‘secret trusts’.
4. Certainty requirements
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Three certainties must be satisfied for the creation of an express trust to protect the trustees and also for the benefit of the court: certainty of intention (a certain intention to create a trust), certainty of subject (certainty with regard to the assets subject to the trust and the shares in which it is to be held by the beneficiaries) and certainty of object (certainty with regard to beneficiaries or purposes of the trust). This chapter deals with the certainty requirements in relation to the creation of trusts, the distinction between conceptual and evidential uncertainty, the consequences where a trust fails for lack of certainty and how a settlor can draw up a trust with sufficient certainty. It also examines the construction of a trust, creation of express trusts in commercial contexts, fixed trusts, the class ascertainability test, discretionary trusts and gifts subject to conditions.
6. Public policy limitations on the formation of trusts
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. If a person sets up a trust to protect himself from creditors in case of insolvency, the trust will be void. Public policy does not permit private trusts to defeat public interests. In addition to a trust prejudicing one’s creditors, other examples of trusts that are void on grounds of public policy are trusts that promote racial or sexual prejudice, trusts which tie up wealth for too long, trusts that restrain marriage and ‘sham’ trusts. This chapter, which focuses on public policy limitations on the formation of trusts, first outlines the rules against perpetuities, the rule against remoteness of vesting, the rule against inalienability of capital and the rules against perpetuity and charities. It then considers private trusts, a breach of the rules against perpetuity and excessive accumulation of income, situations in which a trust designed to shield assets from creditors will and will not be void, the Perpetuities and Accumulations Act 1964, proposals for reform of the rules against perpetuities and gifts subject to conditions.
7. Purpose trusts
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. The object of a trust can be a legal person (human or corporate), a public (charitable) purpose or a private purpose. This chapter shows that trusts for private purposes are generally void, although there are a number of important exceptions to this general rule, that is, where trusts for private purposes are valid. A trust for private purposes usually takes the form of a permanent endowment, which potentially renders the capital inalienable in perpetuity. The chapter explains why trusts for private purposes are generally void and discusses the anomalous exceptions to the general rule, trusts of imperfect obligation, purpose trusts with indirect human beneficiaries and distribution of surplus donations. It also looks at various devices for avoiding the prohibition against trusts for private purposes, outlines the special problems raised by gifts to unincorporated nonprofit associations and considers how a donor can achieve their intentions in making a gift to an unincorporated association.
10. Trustee appointments
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. No more than four trustees can be appointed in a private trust of land. The trustees will hold the legal title as joint tenants; if any of them dies, the legal title remains vested in the surviving trustees by ‘right of survivorship’. This chapter examines trustee appointments, focusing on cases where a trustee dies or for some other reason ceases to act, and also considers the persons able to appoint trustees and the persons able to act as trustees. The chapter provides an overview of the Trustee Act 1925, and the Trusts of Land and Appointment of Trustees Act 1996. It also considers the principle that a trust does not fail for want of a trustee, how a trustee may disclaim the trust and the modes by which a trustee might retire, or be removed, from the trust. In addition, the chapter looks at the actions of the trustee upon appointment, liability after retirement from the trust, removal under ss 36(1) and 41 of the Trustee Act 1925 and removal of the trustee under the court’s inherent jurisdiction.
13. Maintenance and advancement
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Under the Trustee Act 1925, trustees have the power to make payments out of the trust income for the maintenance of infant beneficiaries, as well as the power to make payments out of trust capital for the advancement and benefit of both infant and adult beneficiaries. However, the express terms of the trust instrument can exclude or modify these provisions. This chapter deals with maintenance and advancement of trust beneficiaries. It examines the extent of the statutory powers of maintenance and advancement, how the statutory powers are excluded or modified by the express terms of the settlement and a valid exercise of the powers of maintenance and advancement. The chapter also considers maintenance with respect to gifts carrying intermediate income, class gifts, tax considerations, perpetuities, and maintenance out of capital money, along with the meaning of ‘benefit’, exercise of discretion to make an advancement and contrary intention in the trust instrument.
15. Breach of trust: defences and relief
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. A trust must be duly administered in accordance with the provisions of the trust instrument, if any, and the general law. Similarly, a trustee should be liable for a dishonest breach of trust. Not every breach of trust is deliberate or dishonest. Liability may arise due to lack of care and other inadvertent breaches of trust, and even due to an essentially ‘technical’ or ‘formal’ breach of fiduciary duty. This chapter examines the extent of trustees’ civil liability for breach of trust, whether there might be a valid defence to a breach of trust and whether a trustee’s liability should be reduced by some form of relief. It looks at the remedies available against trustees for a breach of trust, a claimant’s election between inconsistent remedies, comparison with common law remedies, capital repayment, interest on the judgment, the Limitation Act 1980, the doctrine of laches, the beneficiary’s instigation of or consent to the breach and the beneficiary’s acquiescence in breach.
16. Resulting and constructive trusts
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. A resulting trust refers to a trust under which, in certain circumstances, the beneficial interest jumps back to the settlor. Resulting trusts are created in accordance with the presumed intention of the settlor or donor and are enforced against the personal wishes of the constructive trustee. Under s 53(2) of the Law of Property Act 1925, the creation or operation of resulting, implied or constructive trusts is not subject to any written formality. This chapter deals with resulting and constructive trusts, and how they differ from each other. It examines how the law of resulting trusts applies to the many contexts in which they occur, the nature of constructive trusts, presumed resulting trusts on a voluntary transfer, constructive trusts in comparison with fiduciary liability to account, illegality and the presumption of a resulting trust, the presumption of advancement and the range of situations in which constructive trusts are to be found. The chapter also discusses presumed resulting trusts where express trusts do not exhaust the whole of the beneficial interest.
18. Tracing
Authors: Watt Gary
Published: September 2021

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. Trustees have personal liability in an action for compensation or account. If the action proves worthless in practice because the trustees are impecunious or have been declared bankrupt, and hence cannot repay trust monies to the fund, the beneficiaries may be able to trace the value of their trust property into bank accounts and into assets that have been bought with the trust property. It is the value of the trust property, not the precise item of the property itself, which is sought or traced in most cases. Tracing is a process that gives rise to the ultimate remedy of recovering misapplied money or property. This chapter examines tracing and the limits to common law tracing, the distinction between proprietary remedies and personal remedies, and how the rules for tracing in equity may be applied to unmixed funds, mixed funds and assets purchased with such funds. It also discusses the artificiality of the distinction between common law and equitable tracing rules, defences to the common law restitutionary claim and advantages of proprietary rights.
1. Foundations and structure of international law
Authors: Henriksen Anders
Published: September 2021

This chapter introduces the subject of public international law and provides an overview of its most important elements. It begins with a brief historical overview of international law. It then presents the international legal system consisting of different structures of legal rules and principles; discusses the basis of international legal obligation; offers a brief overview of the relationship between international law and national law; and deals with the issue of enforcement. The chapter concludes with some remarks about the alleged inadequacies of international law and the tension between notions of justice and order that is so prevalent within the international legal system.
2. Sources of international law
Authors: Henriksen Anders
Published: September 2021

This chapter provides an overview of the legal sources in international law. Sources of law determine the rules of legal society and, like national legal societies, the international legal society has its own set of rules. The discussion begins in Section 2.2 with article 38 of the International Court of Justice Statute. Section 2.3 discusses treaties, Section 2.4 covers customary international law, and Section 2.5 turns to general principles of international law. Attention then turns to the two additional sources listed in article 38. Section 2.6 discusses judicial decisions and Section 2.7 examines academic contributions. Section 2.8 discusses the role played by unilateral statements. The chapter then turns to the issue of a hierarchy of sources in Section 2.9 and concludes in Section 2.10 with a discussion of non-binding instruments and so-called ‘soft law’.
4. The actors in the international legal system
Authors: Henriksen Anders
Published: September 2021

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.
6. Immunity from national jurisdiction and diplomatic protection
Authors: Henriksen Anders
Published: September 2021

This chapter discusses the different forms of immunity from national jurisdiction enjoyed by a state and its representatives. It presents state immunity and the complicated distinction between sovereign (jure imperii) and commercial (jure gestionis) acts. It discusses the exception to state immunity for commercial acts; provides an overview of some of the additional exceptions to state immunity; and discusses the immunities of state representatives. It distinguishes between immunity ratione personae and immunity ratione materiae and discusses how the distinction is applied to different state representatives. It also discusses the immunities of diplomatic representatives and diplomatic missions as well as the issue of consular protection and the immunities enjoyed by so-called special missions.
7. State responsibility
Authors: Henriksen Anders
Published: September 2021

This chapter discusses the international law of responsibility as primarily reflected in the 2001 International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. It opens in Section 7.2 with an overview of some of the core principles and elements of state responsibility for wrongful acts. Section 7.3 discusses the issue of state attribution before Section 7.4 examines joint and collective responsibility. Section 7.5 discusses the various circumstances that may preclude the wrongfulness of conduct otherwise in violation of a (primary) legal obligation. Section 7.6 looks into the consequences of state responsibility while Section 7.7 discusses who may be entitled to invoke state responsibility. Section 7.8 examines the rules on diplomatic protection and Section 7.9 provides a brief overview of the responsibility of international organizations.
9. International human rights law
Authors: Henriksen Anders
Published: September 2021

This chapter discusses the system of human rights protection that has emerged since the end of the Second World War. It begins in Section 9.2 with the primary sources of human rights law before Section 9.3 discusses the different categories of human rights. Section 9.4 discusses the obligation on states to offer protection from acts of private actors. Section 9.5 provides an overview of the enforcement mechanisms in the UN and Section 9.6 focuses on the regional protection of human rights. Section 9.7 discusses the territorial scope of human rights treaties and Section 9.8 concerns the application of human rights in times of public emergency. Section 9.8 provides an overview of the international legal protection of refugees.
15. International criminal law
Authors: Henriksen Anders
Published: September 2021

This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.
2. Actus reus
Authors: Allen Michael J. , Edwards Ian
Published: September 2021

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter explains the concept of actus reus. It discusses the elements of crime, defining an actus reus, proving an actus reus, that conduct must be voluntary, state of affairs offences, omissions liability (situations in which a person will be liable for failing to act), causation (including the principles of factual and legal causation), and coincidence in time of actus reus and mens rea. ‘The law in context’ feature analyses critically English law’s approach to liability for causing another person’s suicide.
3. Mens rea
Authors: Allen Michael J. , Edwards Ian
Published: September 2021

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. Mens rea refers to the mental element necessary for a particular crime. This may differ from one crime to another and the definition of each crime must be examined to determine what state of mind is required. This chapter discusses the meaning of intention, knowledge, recklessness, wilfulness, direct intent, oblique intent, ulterior intent, transferred malice, and mistake. These mens rea topics raise important questions about the extent to which a person is responsible and therefore deserving of blame and punishment. A revised and updated ‘The law in context’ feature examines critically the debates between those who favour subjectivist and objectivist approaches to mens rea, with particular reference to reform of the offence of unlawful act manslaughter.
6. General defences
Authors: Allen Michael J. , Edwards Ian
Published: September 2021

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses general defences of duress, necessity, and private defence and prevention of crime. Duress relates to the situation where a person commits an offence to avoid the greater evil of death or serious injury to himself or another threatened by a third party. Necessity relates to the situation where a person commits an offence to avoid the greater evil to himself or another, which would ensue from objective dangers arising from the circumstances in which he or that other are placed. An accused charged with a violent offence may seek to plead that he acted as he did to protect himself, or his property, or others from attack; or to prevent crime; or to effect a lawful arrest.
7. Parties to crime
Authors: Allen Michael J. , Edwards Ian
Published: September 2021

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the meaning of accomplices, vicarious liability, joint enterprise liability, and corporate liability. All the parties to a crime are accomplices. The person who perpetrates the crime is the principal. Others, not being principals, who participate in the commission of an offence are referred to as accessories or secondary parties and will be liable to conviction if it is proved that they aided, abetted, counselled, or procured the commission of the crime by the principal. Vicarious liability is a form of strict liability arising from the employer–employee relationship, without reference to any fault of the employer. A corporation is a legal person and therefore may be criminally liable, even though it has no physical existence and cannot act or think except through its directors or employees.
11. Sexual offences
Authors: Allen Michael J. , Edwards Ian
Published: September 2021

Course-focused and contextual, Criminal Law provides a succinct overview of the key areas on the law curriculum balanced with thought-provoking contextual discussion. This chapter discusses the main sexual offences including rape, assault by penetration, sexual assault, causing a person to engage in sexual activity without consent, offences against children, familial sex offences, offences against persons with a mental disorder, and preparatory offences. The chapter situates the offence of rape in particular in the context of broader discussions about consent and trial by jury. Two of ‘The law in context’ features examine the prevalence of ‘rape myths’ that may affect how jurors decide whether a man has committed rape and the procedural issues that affect the success of rape prosecutions.
1. Introduction
Authors: Child John , Ormerod David
Published: September 2021

This book focuses on substantive criminal law, that is, how offences such as theft and murder are defined. This introductory chapter sets in context criminal offences and defences, first by considering the basis upon which certain conduct is criminalised and other conduct is not. In continuing to set the context, the chapter goes on to consider criminal justice and criminology; criminal evidence; criminal process (including the court structure and central actors); sentencing; civil law protections; and so on. Narrowing to our focus on substantive criminal law—how offences and defences are defined—the chapter moves on to discuss the sources of criminal law; the internal structure of offences and defences; principles of the substantive criminal law; and the subjects to which it applies. Finally, the chapter introduces features on reform and legal application.
5. Murder
Authors: Child John , Ormerod David
Published: September 2021

This chapter focuses on the offence of murder within the context of criminal law, with particular emphasis on its problematic and controversial nature. It first considers the definition of murder in terms of actus reus and mens rea. It then discusses the defences to murder, including general defences, specific complete defences, and partial defences (eg loss of self-control, diminished responsibility, and suicide pact). It also outlines potential options for legal reform concerning the mandatory life sentence and the mens rea of murder, and concludes by presenting a structure for applying the actus reus and mens rea for murder to problem facts. Relevant cases are highlighted throughout the chapter, and there are also boxes that highlight common pitfalls to avoid and other areas of confusion for those new to the law.
6. Manslaughter
Authors: Child John , Ormerod David
Published: September 2021

This chapter focuses on manslaughter, a common law homicide offence with an actus reus of unlawful conduct causing death. The chapter considers two categories of manslaughter: voluntary manslaughter and involuntary manslaughter. Voluntary manslaughter arises where D commits murder, but meets the criteria for one of the partial defences: loss of self-control, diminished responsibility, or suicide pact. Involuntary manslaughter arises where D does not commit murder, but commits a relevant manslaughter offence: unlawful act manslaughter, gross negligence manslaughter, or reckless manslaughter. The chapter explains statutory offences of unlawful killing (corporate manslaughter, driving causing death, infanticide, killing of a foetus) and concludes by outlining options for legal reform concerning voluntary manslaughter, involuntary manslaughter, and the structure of manslaughter offences. Relevant cases are highlighted with a summary of the main facts and judgment.
8. Rape and other sexual offences
Authors: Child John , Ormerod David
Published: September 2021

This chapter deals with sexual offences which criminalise the accused’s invasion of the victim’s sexual—as opposed to simply physical—autonomy. Sexual offences are almost entirely codified within a single statute, the Sexual Offences Act 2003 (SOA 2003). The chapter first considers the relevant provisions of the SOA 2003 with respect to rape, assault by penetration, sexual assault, and causing a person to engage in sexual activity without consent. It then turns to sexual offences against children under 13 and children under 16, as well as status-based and relationship-based sexual offences. The final sections of the chapter outline potential options for legal reform and the application of the offences within the SOA 2003 to problem facts. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
9. Theft and other property offences
Authors: Child John , Ormerod David
Published: September 2021

This chapter deals with offences against property, a category of offences that criminalise conduct such as the dishonest taking of another’s property (eg theft, robbery), possessing stolen or criminal property (eg handling stolen goods, money laundering), and damaging another’s property (eg criminal damage, arson). Beyond such crimes, there are also a number of specific technical offences designed to protect particular property rights, such as those relating to vehicle misuse and intellectual and/or digital property. The final sections of the chapter outline potential options for legal reform and the application of property offences within problem questions. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
10. Fraud
Authors: Child John , Ormerod David
Published: September 2021

This chapter deals with fraud, an offence under section 1 of the Fraud Act 2006 (FA 2006). It first discusses the central fraud offence, which can be committed by false representation, failure to disclose information, and/or abuse of position. The chapter then moves to consider related offences of obtaining services dishonestly and possession of articles for use in frauds, along with other fraud and deception offences. Finally, the chapter outlines potential options for legal reform concerning the drafting of FA 2006, fraud and the irrelevance of results, and distinguishing theft and fraud; as well as the potential application of fraud offences within a problem question. Relevant cases are highlighted throughout, with brief summaries of the main facts and judgments.
11. General inchoate offences
Authors: Child John , Ormerod David
Published: September 2021

This chapter deals with general inchoate offences. A person’s conduct may be inchoate (‘just begun’, ‘undeveloped’), but also deserving of criminalisation. The chapter is structured around the three general inchoate offences, namely: attempt, conspiracy, and assisting or encouraging. It explains the actus reus and mens rea of each of these offences, along with specific defences. It also looks at double inchoate liability, substantive offences in an inchoate form, and potential options for legal reform concerning the actus reus of attempts, the mens rea of attempts and conspiracy, and assisting and encouraging. Finally, the chapter discusses the application of general inchoate offences within problem questions. Relevant cases are highlighted throughout the chapter, with brief summaries of the main facts and judgments.
4. Intention to be legally bound and capacity to contract
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with intention to be legally bound and capacity to contract. In order to enforce any promise not contained in a deed, there must be an intention to create legal relations. This intention is traditionally determined using different presumptions for domestic and commercial agreements. In the case of domestic and social agreements, there is a presumption that there is no intention to create legal relations. In contrast, there is a presumption of an intention to create legal relations in commercial agreements. Both presumptions are capable of being rebutted on the facts, e.g. an honour clause in a commercial contract. The second part of this chapter examines capacity to contract and particularly the enforceability of contracts made by minors.
5. Content of the contract and principles of interpretation
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines what the parties to a contract have undertaken to do; that is, the terms of the contract, and the principles determining how the courts interpret the meaning of those contractual terms. It considers whether pre-contractual statements are terms or mere representations. The chapter then turns to written contracts, focusing on the parol evidence rule, entire agreement clauses, and the effect of signature on the contractual document. It also discusses oral contracts and incorporation of written terms in such contracts by means of signature, reasonable notice, consistent course of dealing, and common knowledge of the parties. In addition to express terms, this chapter looks at how terms are implied, particularly terms implied by the courts—terms implied in law and terms implied in fact. There is discussion of the typical implied terms in sale and supply contracts in the B2B and B2C context. Finally, this chapter focuses on the principles governing the interpretation of contractual terms.
6. Exemption clauses and unfair contract terms
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with exemption clauses and unfair contract terms. An exemption clause is a term in a contract or notice that can be either an exclusion clause (excluding liability or remedies) or a limitation clause (limiting liability to a specified sum). The chapter primarily focuses on the requirements that must be satisfied before an exemption clause can be relied upon, the question of construction and the natural and ordinary meaning of the clause, contra proferentem, liability for negligence, limitation clauses, inconsistent terms, and fundamental breach. It then examines the legislative regulation of exemption clauses, emphasizing the growing distinction between commercial and consumer contracts in this context. It considers in some depth the enforceability of exemption clauses in a B2B context in accordance with the Unfair Contract Terms Act 1977 and its interpretation in case law. In the B2C context, it discusses control of unfair terms in accordance with Part 2 of the Consumer Rights Act 2015 and the case law interpreting the previous legislative regulation of unfair terms.
7. Privity of contract and third party rights
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally, it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.
9. Misrepresentation
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may include a statement that is a mere puff, a representation, or a contractual term. In the case of a representation, the maker asserts the truth of certain facts and thus induces the contract. In case of an actionable misrepresentation (an unambiguous false statement of fact which induces the other party to enter into the contract), the contract may be rendered voidable; that is, liable to be set aside or rescinded. In some instances, the injured party may claim for damages designed to restore him to his original position. This chapter examines the identification of actionable misrepresentation, duties of disclosure, types of misrepresentations, rescission as a remedy, damages for misrepresentation, including the damages available in s. 2 of the Misrepresentation Act 1967, and the effect of contributory negligence in any damages award. Finally, the chapter examines exclusion of liability for non-fraudulent misrepresentation and the effect of ‘non-reliance’ clauses in contracts. In the consumer context, it also notes the criminal offences in certain instances of misrepresentation under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) and the extension to include civil remedies for misleading actions.
10. Duress, undue influence, and unconscionable bargains
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines further vitiating factors which relate to the way in which the contract was entered into and render it voidable. It discusses the doctrines of duress and undue influence and whether contracts are affected by a general doctrine of unconscionability relating to the manner of formation and content relative to the nature and position of the contracting parties. The doctrine of economic duress allows for any contract to be set aside where unlawful threats to financial position were made in order to secure agreement. This doctrine is still evolving but represents a mechanism to prevent the enforceability of promises not freely given. Under the doctrine of undue influence, a contract may be set aside if one party has put unfair and improper pressure on the other in the negotiations leading up to the contract. The courts of equity have developed undue influence as one of the grounds of relief to prevent abuse of the influence of one person over another, particularly where the influence results from the nature of the relationship between the parties. The chapter examines types of undue influence, actual undue influence, presumed (or evidential) undue influence, undue influence exercised by a third party, the legal effect of undue influence, and the relationship between undue influence and unconscionability.
11. Illegality
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may be deemed illegal or void on grounds of public policy. This chapter examines the illegality of contracts under English law, contracts prohibited by statute (express prohibition), and contracts that are illegal in their performance. It considers contracts that are void on grounds of public policy, focusing on contracts in restraint of trade, covenants between employer and employee, exclusive dealing agreements, exclusive service agreements, and severance of the objectionable parts of covenants. The chapter also discusses the recovery of money or property transferred under an illegal contract, along with the UK Law Commission’s proposed reform of the law governing illegal contracts and the Supreme Court decision of Patel v Mirza over controversy concerning the nature of illegality, the basis for intervention in illegal contracts, and the ability to recover under an illegal contract.
12. Discharge by frustration: subsequent impossibility
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.
14. Damages for breach of contract
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Contractual damages aim to compensate the injured party for the loss suffered due to breach of contract. Damages for breach are compensatory and not punitive so that it is possible to recover only for the actual loss suffered by the injured party. This chapter considers the different measures to achieve compensation for loss suffered as a result of the breach and the limitations on the ability to be fully compensated in a breach of contract claim. It also discusses agreed damages provisions and their enforceability.
15. Remedies providing for specific relief and restitutionary remedies
Authors: Merkin Robert , Saintier Séverine
Published: September 2021

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with remedies providing for specific relief and so-called ‘restitutionary’ remedies. It first considers debt claims (agreed sums), before turning to specific performance and injunctions. It concludes by discussing restitution—recovery where there has been a total failure of consideration, and recovery on a quantum meruit (as where a contract fails to materialize)—following the Supreme Court decision of Morris-Garner and another v One Step (Support Ltd) and its impact on Wrotham Park damages and the availability and nature of the account of profits in Attorney-General v Blake.