bluuebunny/crossref_metadata_2025 huggingface dataset:
2. Natural law and morality
Authors: Wacks Raymond
Published: August 2018

This chapter discusses a number of issues, including the following: classical natural law theory; natural law in political philosophy, including the approaches of Hobbes, Locke, and Rousseau; the decline of natural law theory and the influence of Hume; the revival of natural law theory especially in the period after the Second World War; John Finnis’s classical natural law theory; hard and soft natural law; moral realism; law and morality and the Hart–Fuller, and Hart–Devlin debates. Controversial issues are addressed in the consideration of questions relating to abortion and euthanasia, and the chapter ends with a case study on judicial morality.
4. Modern legal positivism
Authors: Wacks Raymond
Published: August 2018

This chapter explores the works of some of the leading exponents of contemporary legal positivism: HLA Hart, Hans Kelsen, Joseph Raz, Jules Coleman, Scott Shapiro, and others. Hart staked out the borders of modern legal theory by applying the techniques of analytical (and especially linguistic) philosophy to the study of law. Kelsen may be the least understood and most misrepresented of all legal theorists. To the extent that he insisted on the separation of law and morals, what ‘is’ (sein) and what ‘ought to be’ (sollen), Kelsen may legitimately be characterized as a legal positivist, but he is a good deal more. Raz argues that the identity and existence of a legal system may be tested by reference to three elements: efficacy, institutional character, and sources. Thus, law is autonomous: we can identify its content without recourse to morality.
5. Law and moral legitimacy
Authors: Wacks Raymond
Published: August 2018

This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism. Dworkin denies the positivist separation between law and morals; rejects the proposition that judges either do or should make law; argues that judges must seek ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. A central aspect of his theory is the importance of individual rights based on the idea that everyone is entitled to equal concern and respect. This leads him to analyse closely the concept of equality and its relation to liberty.
9. Theories of justice
Authors: Wacks Raymond
Published: August 2018

There is considerable injustice in our world: economic, social, and political inequality renders the need for clarity in the formulation of specific theories of justice. The subject is always both contentious and complex. Theories of justice have, since the time of the Greeks been an important element in moral, political, and legal theory which has generated a vast literature. This chapter focuses on four main theories of justice: utilitarianism; the economic analysis of law; John Rawls’s influential theory of ‘justice as fairness’; and Robert Nozick’s ‘entitlement theory’ of justice, equality, and the ‘capability’ approach advanced by Amartya Sen and Martha Nussbaum.
11. Why obey the law?
Authors: Wacks Raymond
Published: August 2018

Is there a moral duty to obey the law? Do we, in other words, have a moral obligation to comply with legal rules solely because they are legal rules? This question is particularly demanding when we are faced with laws that are obviously unjust or unfair, or those laws that make irrational or unreasonable demands on us. This subject has long vexed legal and moral philosophers; this chapter examines what possible reasons there are for obeying the law. The moral basis of obedience may spring from one or more of the following four principal sources: fair play, consent, the common good, and gratitude. Each is briefly discussed.
12. Why punish?
Authors: Wacks Raymond
Published: August 2018

The subject of the punishment of offenders always excites controversy. Some will argue that the law is too soft. Others believe that it is excessively harsh. This chapter examines how the exercise of punishment (in pursuit of the enforcement of the criminal law) might be validated. Futher it examines the various theories that have been advanced by penologists, law reformers, and philosophers to justify or explain its rationale. These theories include the idea of retributivism, consequentialism, restorative justice, and denunciation. Each of these theories makes an attempt to defend the use of state coercion in order to achieve certain objectives.
2. What is Land?
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter explores in detail the legal meaning of land and the nature of its protection. It considers the usefulness of the cujus est solum, ejus est usque ad coelum et ad infernos brocard to proving the reach of a land owner’s rights above and below the surface of the land. It also considers how the courts decide on whether particular objects count as part of land, or instead as independent chattels.
4. Human Rights and Land
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter examines the mechanics of how the Human Rights Act 1998 (HRA 1998) brings human rights home. It then explores Art 1 of the First Protocol (protection of possessions) and Art 8 (respect for the home). Article 14 (protection from discrimination) and Art 6 (right to a fair trial) are also outlined. Whilst compliance with Art 1 of the First Protocol has required little change in domestic law, a recent string of cases concerning compliance with Art 8 and repossession of the home has demonstrated that a new approach is necessary to comply with human rights norms.
5. Legal Estates and Legal Interests
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter investigates legal property rights in land. The numerus clausus (or ‘closed list’) principle is of crucial importance when addressing the content question of legal property rights in land. The Law of Property Act 1925 (LPA 1925) creates a distinction between legal estates and legal interests. As a result of s 1 of LPA 1925, there are now only two permissible legal estates in land. The chapter then explores the content of a freehold and of a lease, and covers the vital question of why the LPA 1925 imposed this limit on the types of permissible legal estate in land. The facts of Hill v Tupper and Keppell v Bailey offer particular examples of a more general question that land law has to tackle when deciding on the content of legal interests in land.
7. Personal Rights: Licences
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter presents a discussion on licences. Licences can be grouped into a number of categories, including bare licences, contractual licences, estoppel licences, statutory licences, and licences coupled with an interest. The key feature of a bare licence is that A is under no duty to B not to revoke the licence. The distinction between a bare licence and a contractual licence turns on the question of whether A is under a contractual duty to B. An estoppel licence, as well as a statutory licence, is similar to a contractual licence: the key difference is the source of A’s duty to B. The concept of a ‘licence coupled with an interest’ has been applied by the courts as a way in which to develop the remedies available to B when B has a contractual licence, whilst at the same time technically respecting past decisions that limited those remedies. The chapter considers whether particular forms of licence ought to count as equitable interests in land, and also examines the means by which a licensee may be protected against a third party, even if the licence itself is only a personal right.
9. Adverse Possession
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter investigates in detail adverse possession. The acquisition of title by adverse possession consists of two distinct stages: firstly, the inception of adverse possession; and, secondly, the operation of limitation rules at the end of the requisite period of adverse possession. The operation of adverse possession reflects the ideas underlying unregistered titles. The operation of adverse possession is generally incompatible with the ideas underpinning registration of title, and this led to significant reforms in the Land Registration Act 2002 (LRA 2002). The LRA 2002 provides a new scheme of adverse possession through which title is obtained by registration rather than by possession. A criminal offence of squatting in a residential building was introduced in 2012, but it has been held that the commission of the offence does not preclude a claim to title by adverse possession under the LRA 2002. Adverse possession rules have been held to be human rights compliant.
10. Proprietary Estoppel
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter is concerned with proprietary estoppel. Proprietary estoppel is a means by which a party (B) can gain some protection against an owner of land (A), even if B has no contract with A and even if A has not formally given B a property right in relation to A’s land. That protection consists of A coming under a duty to B. Proprietary estoppel is therefore also a means by which B can obtain an equitable interest in A’s land. It is noted that proprietary estoppel is very different from other forms of estoppel; so different that the term ‘estoppel’ is positively misleading. The chapter considers how the courts determine the extent of any right arising through proprietary estoppel, and it also examines the impact of such rights on third parties.
11. Trusts
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter describes how equitable interests in land are acquired by the creation of a trust. It addresses the acquisition of resulting and constructive trusts of land. A resulting trust arises in favour of A when A purchases or contributes to the purchase of land held by B, or in some cases where A transfers land to B without receiving anything in return. Constructive trusts arise in a number of circumstances in which it is considered unconscionable for the legal owner to assert his or her own beneficial ownership, and to deny the beneficial interest of another. They arise under the doctrine in Rochefoucauld v Boustead, and the Pallant v Morgan equity. The doctrine in Rochefoucauld v Boustead imposes a constructive trust to prevent a transferee of land from fraudulently relying on the absence of compliance with formalities to deny a trust pursuant to which the land was transferred. The Pallant v Morgan constructive trust arises where one party acquires land pursuant to an informal commercial joint venture and reneges on an agreement that another party will have an interest in the land. The trust has been categorized as a form of ‘common intention constructive trust’ but this categorization is contentious.
14. Co-ownership and Third Parties: Applications for Sale
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter considers applications for sale of land held on trust, which are brought by third parties; typically creditors and trustees in bankruptcy of a beneficiary. The chapter explores the different legislation and rules that apply depending on whether the application is made by a creditor or a trustee in bankruptcy.
16. Priorities in Registered Land
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the defences against pre-existing property rights that are available to a purchaser of registered land. It is concerned with priority rules in registered land. The LRA 2002 offers a distinct set of priority rules for one category of transaction: a registrable disposition of a registered estate for valuable consideration. The chapter analyses the priority rules applicable to such transactions, including the effect of the entry of a land registry notice, the category of ‘overriding interests’ (property rights immune to a lack of registration defence), and limitations on the powers of a registered owner. The chapter concludes by examining the policy of the LRA 2002 to transactions that are tainted by fraud or wrongdoing that is not such as to invalidate the transaction. Such transactions may result, under the general law, in the imposition of personal liability on the registered proprietor, or the creation of new direct rights in favour of a third party.
20. Regulating Leases and Protecting Occupiers
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the statutory protection potentially available to B if he or she has a lease. It is shown that, in some cases, B can be seen as having a lease (at least, in the sense used by a particular statute) even if B has no property right. A lease can give B status: the status of a party qualifying for statutory protection. As the Law Commission has noted, however, it is questionable whether the availability of such protection should continue to turn on whether B has a lease rather than a licence, and a new approach has been taken in recent reforms introduced in Wales.
21. Leasehold Covenants
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter explores the concept of a leasehold covenant. It investigates the mechanisms by which both negative and positive leasehold covenants bind subsequent purchasers of the lease from the original tenant and subsequent purchasers of the freehold reversion from the landlord. It also considers the law governing the enforcement of leasehold covenants and the process of forfeiture by which a landlord can bring the lease to an end for a failure by the tenant to perform the tenant’s covenants. In addition, it focusses on forfeiture, as the most common measure with which to compel the performance of the tenant’s covenants. Forfeiture is the process by which a landlord can extinguish a lease by exercising a right to re-enter the premises. It provides ‘an essential management tool, particularly in relation to commercial and long residential leases’, but it can also be a heavy-handed response.
24. Flat Ownership: Long Leases and Commonhold
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter addresses the far-reaching issues of ensuring the effective and efficient management of flats. Flat ownership is obtained by granting the flat owner a long lease of his or her flat, with the freehold reversion being held either by an independent landlord or by a company owned collectively by the flat owners. The Commonhold and Leasehold Reform Act 2002 has introduced commonhold to offer a new framework for flat ownership but in many cases it holds few advantages over the long lease where the reversion is collectively owned by the flat lessees through a corporate vehicle.
25. Security Interests in Land
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the use of land (or legal and equitable property rights relating to land) as security for the repayment of money by a borrower to a lender. It also describes charging orders, the use of which increases in the context of the recession. There are four types of security interest: the pledge; the lien; the mortgage; and the charge. The borrower holds the equity of redemption under a classic mortgage by conveyance or sub-demise, but its continued relevance under the predominant legal charge by way of mortgage is questionable. It is observed that the domestic lending market has seen the development of Islamic mortgages, the emergence of shared-ownership schemes, and equity release schemes.
26. Lender’s Rights and Remedies
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter concentrates on the rights and powers conferred upon the lender to enforce its security over land. A lender’s rights and remedies arise from the nature of its security, the powers implied by the Law of Property Act 1925, and any express powers. The lender’s right to take possession originated at common law but is now conferred by s 87(1) of the 1925 Act. The lender’s power of sale and to appoint a receiver are implied by s 101(1)(i) and (iii) of the 1925 Act respectively and can only be exercised if the borrower has defaulted. The duties that a lender or receiver owes when selling the mortgaged property are explained, as well as the position of a purchaser from a lender or receiver where there has been a breach of duty.
27. Protection of the Borrower
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter reviews the loan contract and the controls that the law has imposed to protect the borrower. The level of protection differs according to the nature of the borrower and the type of security transaction. Market regulation of the residential mortgage market has increased protection for domestic borrowers. Vitiating factors, particularly undue influence, have impacted upon the creation of collateral mortgages of the family home to secure commercial borrowing. Equitable protection has been provided by controls against penalties, and oppressive and unconscionable terms, as well as by protection of the borrower’s equity of redemption. Statutory consumer protection now offers more effective protection to domestic borrowers. The common law, equitable, and statutory control mechanisms are then described and applied to demonstrate the protection they afford against particular mortgage term, for instance to control rates of interest and other costs associated with borrowing.
3. Enforceability: consideration, promissory estoppel, formalities
Authors: Chen-Wishart Mindy
Published: August 2018

English law does not enforce all promises; it will not even enforce all agreements. To trigger legal recognition and thus enforcement, an informal agreement must comprise an exchange in which each party treats his performance (or promise of performance) as the price of the other’s performance (or promise of performance). Consideration is the ‘agreed equivalent and inducing cause of the promise’. If consideration is lacking, English law permits some enforcement, in qualifying circumstances, of promises that induce the promisee’s reliance via the doctrine of promissory estoppels. It also enforces formal promises or agreements. This chapter discusses: (1) the requirements of consideration, promissory estoppel, and formalities; (2) the justification for each test of enforceability; (3) whether the rules and scope of each doctrine are satisfactory, and, if not, how each should each be developed.
5. Misrepresentation and non-disclosure
Authors: Chen-Wishart Mindy
Published: August 2018

Since English law recognises no general duty of good faith, the parties need not disclose important matters about the transaction to each other, nor make reasonable efforts to reach agreement. But, while there is no liability for such omissions, contract parties who make false statements to induce the other party’s consent to the contract may find their contracts set aside and that they are liable for damages for misrepresentation. This chapter addresses the following questions: (1) What must the claimant prove in an action for misrepresentation? (2) What liability is there, if any, for non-disclosure? (3) When can the claimant set aside (rescind) the contract? (4) What money awards are made for misrepresentation? (5) To what extent can a party exclude or limit his liability for making a misrepresentation? (6) What recourse do consumers have against misleading and aggressive practices? (7) What justifications underlie the remedies for misrepresentation?
6. Mistake
Authors: Chen-Wishart Mindy
Published: August 2018

A party who enters a contract on the basis of a mistaken assumption as to background fact can realistically complain that he or she should not have to take the normal responsibility for his or her apparent consent. On the other hand, the objective test of intentions renders mistakes irrelevant to the validity of contracts except in certain exceptional circumstances. The chapter explores how contract law balances these competing norms. It addresses the following questions: (1) When can a claimant escape a contract on the ground of a unilateral mistake as to terms, the nature of the document, or the other party’s identity? (2) When can a contract be rectified to correct a common mistake in recording it? (3) When can a claimant escape a contract on the ground of his or her mistaken assumption about the relevant facts? (4) What is the justification for any relief? (5) Is the current law satisfactory, and if not, how might it be developed?
7. Frustration
Authors: Chen-Wishart Mindy
Published: August 2018

The doctrine of frustration excuses parties from further contractual performance when unforeseen events, subsequent to contract formation, make performance illegal, impossible or radically different from the obligations the parties undertook at formation. Any obligations accruing before the frustrating event remain binding, but neither party can be sued for failure to perform outstanding obligations (they are extinguished). This chapter addresses the following questions: (1) What is the relationship between the doctrines of frustration and of mistake? (2) What is the justification for the frustration doctrine? (3) What must be proved to frustrate a contract? (4) What is the effect of frustration? (5) Is the current law on frustration satisfactory? If not, how might it be developed?
12. Breach of contract and termination
Authors: Chen-Wishart Mindy
Published: August 2018

This chapter examines breach of contract and the remedy of termination. It addresses the following questions: (1) What is breach of contract and when does it occur? (2) What sorts of breach will entitle a claimant to elect whether to end (terminate) the contract? (3) What is the effect of terminating a contract? (4) When can the claimant insist on continuing with performance (affirmation) when the defendant no longer wants it? (4) What additional special remedies do consumers have in certain cases?
14. Specific and agreed remedies
Authors: Chen-Wishart Mindy
Published: August 2018

While courts are very willing to award orders compelling the defendant to pay the agreed price, orders compelling non-monetary performance (for specific performance or injunctions) are rarely given because of the many ‘bars’ to such awards. The law also controls the parties’ agreed remedies. This chapter addresses the following questions: (1) To what extent does (and should) the law grant specific enforcement of contract? (2) How can parties control the consequences of breach and prevent under-compensation? (3) To what extent does (and should) the law permit the parties to agree on the remedies for breach? (4) What considerations influence the answers to questions 1–3?
2. Burden and Standard of Proof
Authors: Choo Andrew L-T
Published: August 2018

Chapter 2 is divided into two parts. The first part is concerned with the manner in which a dispute as to which party bears the burden of proving a particular issue in a trial should be resolved. The question may arise in a criminal trial as to whether it is the prosecution or defence which bears the burden of proving a certain issue, and in a civil trial as to whether it is the claimant or defendant who bears the burden of proving a certain issue. The second part focuses on the standard to which the burden of proving a particular issue requires to be discharged.
4. Confessions
Authors: Choo Andrew L-T
Published: August 2018

Chapter 4 examines the extent to which evidence of a confession by an accused person may be utilized by the prosecution at trial. It discusses confessions and miscarriages of justice; mandatory and discretionary exclusions; ‘tainting’ of subsequent confessions; warnings on account of ‘mental handicap’; withdrawal of the case from the jury; partly adverse statements; the use of confessions contravening section 76(2) of the Police and Criminal Evidence Act 1984; confessions admissible in evidence only against maker; use of a co-defendant’s confession by a defendant; the voir dire hearing; and reform of the law of confessions.
6. Identification Evidence
Authors: Choo Andrew L-T
Published: August 2018

Chapter 6 first considers the three categories of factors which may contribute to the mistaken identification of the defendant as the perpetrator of the offence: witness factors, event factors, and post-event factors. It then turns to R v Turnbull in 1976, where the Court of Appeal laid down the famous ‘Turnbull guidelines’ on judicial warnings to the jury about visual identification evidence. This is followed by discussions of discretionary exclusion of identification evidence and the use of photographs and video recordings.
10. Character Evidence
Authors: Choo Andrew L-T
Published: August 2018

Chapter 10 begins with a discussion of the relevance of evidence of character. It then deals with the admissibility of character evidence in civil and criminal proceedings. In civil cases, the admissibility of evidence of a party’s bad character is governed simply by the test of relevance. In criminal proceedings, the entitlement of a defendant to a direction on the significance of his or her good character is taken seriously. The Criminal Justice Act 2003 now provides a comprehensive statement of the law on evidence of bad character in criminal proceedings.
4. Crimes of negligence
Authors: Ormerod David , Laird Karl
Published: August 2018

Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.
9. Mental conditions, intoxication and mistake
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter considers the most commonly occurring ‘mental condition defences’, focusing on the pleas of insanity, intoxication, and mistake. The common law historically made a distinction between justification and excuse, at least in relation to homicide. It is said that justification relates to the rightness of the act but excuse to the circumstances of the individual actor. The chapter examines the relationship between mental condition defences, insanity, and unfitness to be tried, and explains the Law Commission’s most recent recommendations for reforming unfitness and other mental condition defences. It explores the test of insanity, disease of the mind (insanity) versus external factor (sane automatism), insane delusions and insanity, burden of proof, function of the jury, self-induced automatism, intoxication as a denial of criminal responsibility, voluntary and involuntary intoxication, dangerous or non-dangerous drugs in basic intent crime, and intoxication induced with the intention of committing crime.
11. Inchoate crime
Authors: Ormerod David , Laird Karl
Published: August 2018

Inchoate offences include attempts, conspiracies, and assisting and encouraging under the Serious Crime Act 2007. Creating inchoate offences is difficult because the conduct involved will tend to be far removed from the type of harm necessary to charge a person under the relevant substantive offence. The actus reus of inchoate offences can encompass a wide range of behaviour, such as ‘an agreement’ in conspiracy or mere words of encouragement in assisting and encouraging. Given the broad nature of the actus reus, inchoates must be kept within reasonable limits by requirements of serious mens rea. This chapter deals with inchoate offences and considers the limits on liability for attempts of conspiracy and other secondary liability. It also discusses jurisdictional issues, common law conspiracies, procedural issues relating to conspiracies, encouragement and assistance under the Serious Crime Act 2007, and the impossibility of committing an inchoate crime.
13. Voluntary Manslaughter
Authors: Ormerod David , Laird Karl
Published: August 2018

Manslaughter is defined by common law as any unlawful homicide that is not murder. The offence is limited by murder at one extreme and accidental killing at the other. Manslaughter can be either ‘voluntary’ or ‘involuntary’. This chapter deals with voluntary manslaughter: this occurs when someone had the intention to kill or do grievous bodily harm, but relies on partial defence to murder. The two partial defences considered in this chapter are loss of self- control and diminished responsibility (suicide pact is dealt with in Ch 15). This chapter scrutinizes the defences available to the accused and in particular the developing case law under the Coroners and Justice Act 2009 on loss of control and diminished responsibility, including the Supreme Court’s decision in Golds and the series of Court of Appeal cases since that decision.
14. Involuntary manslaughter
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter explores involuntary manslaughter in its three forms: unlawful act manslaughter, gross negligence manslaughter, and reckless manslaughter. Given the breadth of cases that involuntary manslaughter must cover, it is not surprising that more than one form of the offence has evolved, and that the elements of each form of involuntary manslaughter are distinct, particularly as to the fault required. The chapter examines recent developments, in particular those relating to gross negligence manslaughter in the medical profession and whether the offence is contrary to Article 7 of the European Convention on Human Rights. It concludes with a detailed assessment of the Corporate Manslaughter and Corporate Homicide Act 2007.
20. Offences of temporary deprivation
Authors: Ormerod David , Laird Karl
Published: August 2018

Theft involves an intention to deprive another permanently of their property. The criminal law has also devised offences involving temporary deprivation of property including the taking of vehicles and the taking of vessels, both of which are currently dealt with in s 12 of the Theft Act 1968. The Theft Act 1968 also includes another offence of temporary deprivation: removal of articles from places open to the public. In this case, the article must be removed from the building or from its grounds before the actus reus and mens rea of the offence can be completed. In other words, removal from the building to the grounds or vice versa will suffice.
26. Handling and related offences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter deals with handling of stolen goods and related offences. Under s 22 of the Theft Act 1968, a person who dishonestly receives goods, or dishonestly undertakes or assists in their retention, removal, disposal or realization by or for the benefit of another person, or if he arranges to do so knowing or believing that they are stolen goods, is guilty of the offence of handling stolen goods. English law treats this offence as an independent crime rather than one of being an ‘accessory after the fact’ to theft. The chapter considers the actus reus and mens rea of handling stolen goods, when goods cease to be stolen, handling by omission, the ‘doctrine’ of recent possession, dishonest retention of a wrongful credit, advertising for the return of stolen goods and money laundering. It concludes with an overview of the Proceeds of Crime Act 2002.
30. Obscene communication and publication offences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter deals with the offences addressed in the Obscene Publications Acts 1959 and 1964, and related offences. These offences not only have implications for the freedom of speech but also raise important issues about the appropriate boundaries of criminalization. Obscene publications are governed by s 2(1) of the Obscene Publications Act 1959. This chapter also considers extreme pornography and other offensive communications offences such as malicious communications, obscenity in the theatre, possession of prohibited images of children, posting indecent or obscene matter, indecent displays, outraging public decency, revenge porn, and the common law offences of blasphemy, libel and sedition.
31. Offences against public order
Authors: Ormerod David , Laird Karl
Published: August 2018

The Public Order Act 1986 is the principal source of public order offences. These are riot, violent disorder and affray, along with inducing fear of violence and behaviour likely to cause harassment, alarm or distress. Some of the offences in the 1986 Act may be committed in private, but their public order foundations are paramount and these offences should not be treated as merely additional offences against the person. This chapter deals with offences against public order. It also considers harassment, alarm or distress, racially aggravated public order offences and acts intended or likely to incite racial or religious hatred and hatred on the grounds of sexual orientation. The chapter concludes by looking at public nuisance and vicarious liability.
3. Formation of bilateral contracts
Authors: Davies Paul S.
Published: August 2018

This chapter analyses the key elements traditionally required for the formation of a bilateral contract. Contracts are bargains. The natural way to make a bargain is for one side to propose the terms and the other to agree to them. So contracts are almost invariably made by a process of offer and acceptance. However, the lack of offer and acceptance does not necessarily preclude the existence of a contract, if a bargain can be discerned from the facts in some other way. The chapter begins by explaining what constitutes an offer, and discusses various common scenarios. It then examines the requirements of acceptance, since this is what is required for a contract to be concluded. It considers the possibilities that an offer might be revoked by the offeror; or rejected by the offeree; or the offeree might ask for further information; or the offer might lapse.
4. Formation of unilateral contracts
Authors: Davies Paul S.
Published: August 2018

This chapter analyses the formation of unilateral contracts. A unilateral contract arises where O promises A something if A does a particular act which is not the making of a promise to O. A unilateral contract only imposes obligations on O. A is not obliged to do anything. A unilateral offer can be accepted by A regardless of A’s motive for doing the required act. However, A must know of the offer in order for a contract to be formed. O may not be able to revoke the offer if A has embarked upon performance. This will depend upon whether or not O has made an implied promise not to revoke the offer.
5. Contract as an agreement
Authors: Davies Paul S.
Published: August 2018

This chapter discusses the key elements of a contract as an agreement. No contract exists unless the parties have agreed on everything which they consider requires agreement. However, a failure explicitly to set out all the terms of the agreement is not necessarily fatal to there being a contract, since a court might be able to imply terms to fill in any gaps. But a court will be unable to do this if it would contradict the intentions of the parties. Parties may agree not to negotiate with anyone else for a specified period of time. But an agreement to negotiate with one another is not binding because it is insufficiently certain. An agreement may be made ‘subject’ to something or other. If so, the contract is not binding until that particular event occurs.
7. Consideration and promissory estoppel
Authors: Davies Paul S.
Published: August 2018

This chapter analyses the issue of consideration in contract law. Contracts are generally binding only if supported by consideration. Consideration can be viewed as ‘the price tag on the promise’: a party must provide something in exchange for the promise in order to be able to enforce that promise. That ‘something’ is called ‘consideration’, and might itself be a promise. The requirement of consideration is demanded by the common law. But, in some situations, equity will allow a promisee to enforce a promise, despite a lack of consideration, through the doctrine of promissory estoppel. Where the promisor makes a clear promise, intended to be binding, intended to be acted upon, and in fact acted upon, the courts will not allow the promisor to act inconsistently with that promise if to do so would be unconscionable.
9. Contracts requiring writing
Authors: Davies Paul S.
Published: August 2018

This chapter examines two contract types: (a) particular categories of contract which must be in writing as a result of legislation; (b) certain types of contract which are not enforceable unless evidenced in writing. Section 4 of the Statute of Frauds 1677 provides that contracts of guarantee are unenforceable if not evidenced in writing. This situation typically arises where A is, or may become, under a liability (in contract or in tort) to B. C then promises B (for consideration) that, if A does not discharge his liability, C will do so. C’s promise to B is not enforceable unless evidenced in writing. Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 provides that contracts for the sale, or other disposition, of an interest in land must be made in writing. If such a ‘contract’ is not made in writing then it is void (and not merely unenforceable).
13. Implication
Authors: Davies Paul S.
Published: August 2018

This chapter examines whether a term should be imported into the contract, although it was never expressed in words; should the term be implied? A term can be implied into a particular contract because it’s necessary to give effect to the parties’ intentions. This is known as ‘implication in fact’. Whether a term should be implied ‘in fact’ has traditionally depended upon whether the term was so obvious to both parties that it went without saying, or whether the term was necessary to give ‘business efficacy’ to the contract. A term might be implied ‘in law’ into all contracts of a particular type. Such terms might be implied as a result of statute or judicial decisions. Where a judge decides that a term should be implied ‘in law’, courts can take into account policy reasons when deciding whether an implied term is necessary for the type of contract at issue.
14. Rectification
Authors: Davies Paul S.
Published: August 2018

Rectification is an equitable remedy through which the court can rectify, or correct a mistake in a written contract. This chapter examines two principal forms of rectification: common mistake rectification and unilateral mistake rectification. Rectification for common mistake arises where both parties make the same mistake. This is the better-established form of rectification. However, in some circumstances rectification for unilateral mistake will be granted in situations where only one party is mistaken but the other party has acted unconscionably or dishonestly. A party seeking rectification will need convincing proof that a mistake has been made before the court will contemplate altering the language chosen in a formal, written document.
16. Misrepresentation
Authors: Davies Paul S.
Published: August 2018

This chapter discusses misrepresentation in contract law. Misrepresentation is a statement of fact or law which is false, that induces a party to enter into the contract. A misrepresentation may be made by words or by conduct. All misrepresentations entitle the misrepresentee to rescind the contract. However, rescission will be barred where it is impossible to put the parties back into their original position; or where the misrepresentee has affirmed the contract; or where a long period of time has elapsed; or where a third party who has acquired rights for value in good faith would be disadvantaged by rescission. Damages are available at common law for the tort of deceit or for negligent misrepresentation. Most claims for damages are now made under section 2(1) of the Misrepresentation Act 1967.
17. Duress
Authors: Davies Paul S.
Published: August 2018

Duress occurs when B exerts illegitimate pressure upon A to enter into a contract, leaving A with no reasonable practical alternative but to enter into that contract. Duress is founded upon a threat made by B to A, but there is no tort of duress. However, duress will render a contract voidable. This chapter considers the two principal forms of duress. The first is physical act duress, where A’s physical integrity is threatened. The second is economic duress, where A’s economic interests are threatened. Particularly in the context of economic duress, it is important that the threats caused A to enter into the agreement, and that A had no reasonable alternative but to succumb to the threat. As a general rule, any threatened breach of contract can constitute illegitimate pressure. In some instances, even a threat to carry out a lawful act may ground a claim in duress.
18. Undue influence
Authors: Davies Paul S.
Published: August 2018

This chapter examines ‘undue influence’. In a typical case, C claims that a transaction should be set aside because he reposed trust and confidence in D, and the influence that D had upon C was exerted in a way which was ‘undue’. The effect is to render a contract voidable such that it can be rescinded. The basis of undue influence is controversial: it has been argued both that undue influence is based upon D’s exploitation of the relationship, and that the focus is solely upon C’s impaired consent. There are two ways of proving undue influence, which explains actual undue influence and presumed undue influence. Actual undue influence is distinct, though there are overlapping areas, from duress since there is no need to prove a threat or illegitimate pressure. Presumed undue influence requires C to prove that C placed trust in D and that the transaction calls for explanation.
19. Unconscionable bargains and inequality of bargaining power
Authors: Davies Paul S.
Published: August 2018

This chapter considers the law on unconscionability and inequality of bargaining power. English law has traditionally been cautious about wholeheartedly adopting such sweeping principles as ‘unconscionability’, preferring instead to avoid unfair outcomes through particular doctrines (for example, misrepresentation, duress, and undue influence). Some contracts may be set aside if they are considered to be an ‘unconscionable bargain’, i.e. if the claimant is ‘poor and ignorant’, the terms of the contract are substantially disadvantageous to the claimant, and the claimant had no independent advice. There is no general principle in English law that a contract can be set aside due to inequality of bargaining power.
22. Illegality and restraint of trade
Authors: Davies Paul S.
Published: August 2018

This chapter analyses the law on illegality and restraint of trade. The law on illegality is very complicated. Illegal acts vary greatly in range and severity. The Supreme Court has recently held that a ‘range of factors’ need to be considered when deciding whether the claimant’s illegality should defeat a claim, and it is likely that the law will become increasingly flexible in this area. Restraint of trade is concerned with balancing the competing rights of private parties, notably the employer’s right to expect a certain degree of loyalty as regards his business against the employee’s freedom to leave his employment and to undertake new business activities. The key consideration tends to be whether restraint of trade clauses are reasonable.
24. Frustration: contracts discharged for failure of a basic contractual assumption
Authors: Davies Paul S.
Published: August 2018

This chapter examines contracts which were avoided because of the failure of a basic contractual assumption after the contract has been concluded. If the failure of a basic contractual assumption occurs after the contract has been concluded, the contract may be frustrated. A frustrating event kills off the contract automatically. However, everything that was done from the making of the contract up to its frustration was, and remains, validly done in pursuance of that contract. A contract cannot be frustrated where the risk of an assumption failing has been allocated to one of the parties under the contract (for example by a force majeure clause), or where the failure is attributable to the fault of one of the parties. The Law Reform (Frustrated Contracts) Act 1943 will determine the consequences of frustration. This legislation provides a statutory mechanism for adjusting the rights of parties after a contract has been frustrated.