bluuebunny/crossref_metadata_2025 huggingface dataset:
3. Reading the Law
Authors: Holland James , Webb Julian
Published: August 2019

This chapter focuses on an important dimension of legal information literacy: the ability to read critically and with understanding. It provides a set of concepts and tools to help students better understand both primary and secondary legal sources and lays out the three questions that we may ask about a legal text: what kind of law is it; how does it affect existing law; and why was it made? It first explains two kinds of legislation: UK Acts of Parliament; and EU regulations and directives. The chapter then looks at the form of English reports and European Union cases. This is followed by a discussion of how to read legal books and articles.
5. Understanding Legal Reasoning
Authors: Holland James , Webb Julian
Published: August 2019

This chapter focuses on legal reasoning more conceptually. It aims to develop a deeper understanding of what is involved in legal reasoning within the process of adjudication, focusing on how legal arguments seek to provide justification for specific decisions, and to help to predict the form of argument that judges may prefer. Legal reasoning is presented first as a theoretical construction, on which there is much debate, then as a specific process. The chapter explores the philosophical territory of legal theory or jurisprudence, examining the theories that underpin legal reasoning and the way that reasoning techniques are employed in legal contexts.
8. Making Sense of Statutes
Authors: Holland James , Webb Julian
Published: August 2019

This chapter discusses the techniques and problems of analysing the structure of statutes. It describes how statutes are set out, what particular catch phrases mean, and how to make sense of the opaque language often used. It covers drafting styles and practices; the problems of drafting statutes in English law, comprehensibility, and awareness of how the courts are likely to interpret them; examples of drafting practices and how to approach them; techniques for amending earlier statutes, either wholesale or in section; other points on drafting; European legislative drafting; and the style adopted for EU legislation and the problems of ensuring compatibility.
9. Interpreting Statutes
Authors: Holland James , Webb Julian
Published: August 2019

This chapter discusses statutory interpretation: the language used in a statute, the application of the language to the facts, or both. It covers the so-called rules of interpretation: the literal rule, the golden rule, the purposive rule, and the mischief rule, and why we still refer to them; examples of the ‘rules’ in action; secondary aids to construction; the use of Hansard; how judges choose to explain the construction they have placed on the statute; interpretation and the European Union; interpretation and the Human Rights Act 1998; interpreting secondary legislation; and an example of how to analyse a case on statutory interpretation.
10. ‘Bringing Rights Home’: Legal Method and the Convention Rights
Authors: Holland James , Webb Julian
Published: August 2019

In the twenty-first century, two important pan-European forces to which English law has been subject are the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998. This chapter discusses the following: the scope, outline, and enforcement of the ECHR to identify and protect fundamental human rights and freedoms and the balancing of these freedoms against the sovereignty of Parliament; its incorporation into the HRA 1998; incorporation under the devolution Acts; the consequences for legal method; and practical and conceptual issues raised by the HRA 1998 around legal research and argumentation. It closes by looking at the prospects of a ‘British Bill of Rights’.
5. The constitution of trusts
Authors: Watt Gary
Published: August 2019

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 formality requirements of a trust aim to prevent secret fraudulent dealings and to achieve certainty through the recording of transactions. In contrast, no trust exists if the requirements of valid constitution are not complied with. These requirements are designed as a precaution against the casual creation of trusts, a sensible approach given the dramatic consequences of the typical express trust of property. This chapter deals with the constitution of trusts and discusses the distinction between requirements of constitution and formality in relation to the creation of trusts. It also looks at a validly constituted trust, the maxim that equity will not assist a volunteer, how the common law can assist in the constitution of trusts and a valid donatio mortis causa. In addition, the chapter considers constitution by transfer of legal title to trustees as well as assistance from Roman law with respect to constitution of trusts.
6. Public policy limitations on the formation of trusts
Authors: Watt Gary
Published: August 2019

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.
11. The nature of trusteeship
Authors: Watt Gary
Published: August 2019

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. Trusteeship requires the proper discharge of a number of fundamental duties, such as the duty of undivided loyalty (the fiduciary duty), the duty of care for the trust fund (the duty of care) and the duty to exercise a sound discretion. The trustee must act in the interests of the beneficiaries rather than his own interest. More specifically, the trustee must serve the beneficiaries within their larger obligation to serve the trust in accordance with the terms of the trust instrument and the general law. This chapter examines the general nature of trusteeship. It considers how a trustee meets their fiduciary obligations to the trust, the standard of care which trustees must exercise in service of the trust, the discretionary nature of a trustee’s decision-making powers and the requirement that trustees must act unanimously. The chapter also discusses the self-dealing rule and fair-dealing rule, the Trustee Act 2000 and factors influencing the courts’ willingness to review trustee decisions.
16. Resulting and constructive trusts
Authors: Watt Gary
Published: August 2019

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.
2. The network of networks
Authors: Murray Andrew
Published: August 2019

This chapter traces the history of the internet, sometimes called the network of networks. It first looks at the origins of computer networks, beginning with the introduction of the Advanced Research Projects Agency Network or ARPANET, followed by the ALOHANET and the SATNET. The chapter then outlines the development of the internet that began when Bob Kahn built an Internetwork Protocol and also explains how the modern internet functions, along with net neutrality. Finally, it considers the third network layer, the applications layer where higher-level protocols such as Hypertext Transfer Protocol make it possible to carry out operations such as web surfing.
13. Databases
Authors: Murray Andrew
Published: August 2019

This chapter examines database right, a sui generis form of intellectual property protection, the roots of which are to be found in copyright law. It first compares copyright and database rights before turning to cases in which the UK’s Copyright, Designs and Patents Act 1988 was applied to listings of information in the form of a simple database. The chapter then considers the European Union’s Database Directive and analyses the Fixtures Marketing, British Horseracing Board Ltd v William Hill, and Football Dataco v Yahoo! cases. Finally, it looks at databases, along with the intellectual property issues that they generate, within the framework of the information society.
18. Consumer protection
Authors: Murray Andrew
Published: August 2019

This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and, in particular, the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam, including a discussion of the Directive on Privacy and Electronic Communications, GDPr, and the proposed ePrivacy Regulation. The chapter concludes with a discussion of the proposed online sales and Digital Content Directives.
1. The Rule of Law
Authors: Jowell Jeffrey
Published: August 2019

Dicey believed that discretionary power offended the Rule of Law as it would inevitably lead to arbitrary decisions. His critics pointed out that in the modern state discretion is necessary to carry out a variety of welfare and regulatory tasks. The Rule of Law contains four central features which cohere and overlap: legality, certainty, equality and access to justice and rights. These are not only formal values but also substantive. The Rule of Law is a principle of institutional morality inherent in any constitutional democracy. In a country without a written constitution it constrains the way power is exercised. It is enforced and elaborated through judicial review but also serves as a critical focus for public debate. Although the Rule of Law is not the only requirement of a constitutional democracy, it is of great practical significance in promoting fair decisions, restraining the abuse of power, encouraging investment, and in furthering empowerment and respect for equal human dignity.
4. Brexit and the UK Constitution
Authors: Craig Paul
Published: August 2019

This chapter is, for obvious reasons, not a modification of the chapter from the previous edition. It is a completely new chapter, which considers the effect of Brexit on the UK constitution. There is discussion of the constitutional implications of triggering exit from the EU, and whether this could be done by the executive via the prerogative, or whether this was conditional on prior legislative approval through a statute. The discussion thereafter considers the constitutional implications of Brexit in terms of supremacy, rights, executive accountability to the legislature and devolution. The chapter concludes with discussion as to the paradox of sovereignty in the context of Brexit.
12. The Relationship between Parliament, the Executive and the Judiciary
Authors: Young Alison L.
Published: August 2019

When examining the recent evolution of the Constitution, it is argued that the UK has become more ‘legal’ as opposed to ‘political’. The last twenty years has seen a growth in legislation and case law, particularly that of the Supreme Court, regulating aspects of the UK constitution. This chapter investigates this claim. It argues that, whilst we can point to a growth in both legislation and case law, when we look at the case law more closely we can see that the courts balance an array of factors when determining how far to control executive actions. These factors include an analysis of the relative institutional features and constitutional role of the legislature, the executive and the courts. This evidence, in turn, questions the traditional understanding of the separation of powers as a hidden component of the UK constitution. It is not the case that courts merely balance the rule of law and parliamentary sovereignty in order to determine how far to control executive actions. Rather, the courts determine how to make this balance through the lens of the separation of powers, evaluating institutional and constitutional features. In doing so, they are upholding necessary checks and balances in the UK constitution.
13. Information: Public Access, Protecting Privacy and Surveillance
Authors: Birkinshaw Patrick
Published: August 2019

The Freedom of Information Act is a statute of great constitutional significance. The Act heralded a right to publicly held information which government had attempted to keep private. FOIA laws have their origins in the pre-digital age and any discussion of information rights must take on board the contemporary reality of the global digitization of communications via social media networks and the enhanced capabilities of state intelligence agencies to conduct surveillance over electronic communications. The General Data Protection Regulation seeks to give greater security to personal data. However, private information is harvested by private tech companies which they have obtained often ‘voluntarily’ and used by intermediaries to influence public events, public power and elections—as illustrated by recent scandals involving the practice of ‘data farming’ by social media networks and the sale of personal data to political campaign consultants seeking to pinpoint electors and thereby affect the outcomes of national elections and referenda. Government surveillance is age-old, but the emergence of digital power has enabled public authority to invade our private lives far more intrusively and effectively. The most recent example is the Investigatory Powers Act 2016. All this poses substantial challenges for the public regulation of information access in a growing confusion of public and private in the constitution. Courts, meanwhile, have to balance demands for privacy protection, open justice and secrecy.
15. The Democratic Case for a Written Constitution
Authors: King Jeff
Published: August 2019

Written constitutions have often been viewed as the bridle for unchecked political majoritarianism, as a restraint on government, and hence as a limiting device rather than a form of democratic political expression. Breaking with that tradition, this article sets out a democratic case for a written constitution and contrasts it with the rights-based and clarity-based cases. It then proceeds to show why the case against written constitutions—which are broadly located in a conservative critique, an anti-rationalist critique and an anti-judicialization critique—are misguided. Nevertheless, a democratic case for a written constitution necessarily raises challenging questions about how the constitution will be enacted, and how rigidly entrenched it should be. Answers to these questions are presented in Parts III and IV of the article. In the former, it is argued for a constituent assembly consisting of party and direct citizen representation. In the latter, defence of a model of entrenchment is discussed that permits amendment through a simple majoritarian parliamentary procedure in conjunction with a referendum, and, most controversially, a provision requiring a new constitutional convention about once in a generation. This is the type of democratic constitution, in the author’s view, that accommodates the need for a liberal egalitarian constitutional order that takes both rights and democracy seriously.
5. Unfair dismissal—Reasonableness
Authors: Taylor Stephen , Emir Astra
Published: August 2019

This chapter continues the discussion begun in Chapter 4 by considering the third of the three questions employment tribunals must address when faced with an unfair dismissal claim: Did the employer act reasonably in carrying out the dismissal? If the answer is ‘yes’, then the dismissal is fair, if it is ‘no’, then it is unfair and the issue of an appropriate remedy is considered by the tribunal. The chapter explores this concept of ‘reasonableness’ in detail. It explains how it has evolved over the decades and why its interpretation by the courts remains highly controversial. In particular, it focuses on how the courts have determined what does and what does not constitute a fair dismissal on grounds of misconduct, poor performance and ill health.
12. Age discrimination
Authors: Taylor Stephen , Emir Astra
Published: August 2019

This chapter deals with age discrimination law under the Equality Act. It discusses the history and background of age discrimination law, protected characteristics, prohibited conduct on grounds of age discrimination, and key debates about how the law operates and how it might be improved in the future. There is no longer a default retirement age in the UK. If an employer wishes to retire an employee at a particular age, he has to have objective reasons for choosing that age. Unlike other protected characteristics, direct age discrimination can be justified, and there are a number of exceptions, such as length of service benefits, which have been kept from the Age Regulations of 2006.
17. Sex-related characteristics (gender reassignment, marital status, pregnancy, sexual orientation)
Authors: Taylor Stephen , Emir Astra
Published: August 2019

This chapter discusses the law on discrimination due to the protected characteristics of gender reassignment, marital status and civil partnership, and pregnancy and maternity. The Sex Discrimination Act as originally drafted only prohibited discrimination on grounds of sex and marital status. However, civil partners are now treated in the same way as married people. Transgender people, who live as someone of the opposite gender, are protected from discrimination. They can also change their birth certificates so that their new gender is reflected there. Pregnant women have a right not to be discriminated against, and this is a free-standing right. People are entitled not to be discriminated against because of their sexual orientation. The prohibition against sex discrimination covers heterosexuals as well as homosexual people.
29. Industrial action
Authors: Taylor Stephen , Emir Astra
Published: August 2019

The law on the organisation of industrial action is mainly contained in the Trade Union and Labour Relations (Consolidation) Act 1992. This chapter sketches out the broad principles and their practical implications. It looks separately at three distinct topics: firstly, the law relating to trade unions and trade union officials organising industrial action; secondly, the law relating to individual workers taking industrial action; and, thirdly, the law relating to picketing (ie, demonstrating support for a strike outside an employer’s premises). This is an area of employment law which is both complex (some would say unnecessarily so) as well as controversial in a number of respects.
3. The features and sources of the UK constitution
Authors: Dennett Anne
Published: August 2019

This chapter examines the characteristics of the UK constitution. The main features of the UK constitution is that it is uncodified; flexible; traditionally unitary but now debatably a union state; monarchical; parliamentary; and based on a bedrock of important constitutional doctrines and principles: parliamentary sovereignty, the rule of law, separation of powers; the courts are also basing some decisions on bedrock principles of the common law. Meanwhile, the laws, rules, and practices of the UK constitution can be found in constitutional statutes; judicial decisions; constitutional conventions; European Union law and international treaties; the royal prerogative; the law and custom of Parliament; and works of authoritative writers. The chapter then looks at the arguments for and against codifying the UK constitution.
6. Separation of Powers
Authors: Dennett Anne
Published: August 2019

This chapter looks at the separation of powers. The separation of powers is a doctrine requiring that executive, legislative, and judicial powers within a state should be clearly divided and allocated to separate institutions; the aim is to prevent the concentration of power in any one branch and reduce the potential for arbitrary or oppressive exercise of power. Although the degree of separation between the three branches varies between states, codified constitutions will regulate those spheres of power by allocating specific roles and functions to each branch and will allow checks or controls to operate between them to ensure accountability. The separation of powers in the UK is weakest between the legislative and executive, and strongest and most distinct between the judiciary and the other two branches. Indeed, the Constitutional Reform Act 2005 has brought stronger separation between the judiciary and the executive, making the judiciary more autonomous.
7. Rule of law
Authors: Dennett Anne
Published: August 2019

This chapter assesses the rule of law. The rule of law is a constitutional value or principle which measures good governance, fair law-making, and applying law in a just way. It acts as a protecting mechanism by preventing state officials from acting unfairly, unlawfully, arbitrarily, or oppressively. These are also key terms in judicial review. The rule of law is also regarded as an external measure for what a state does; if the rule of law breaks down in a state, it will fail to function in an internationally acceptable way. Ultimately, the core meaning of the rule of law is that the law binds everyone. This includes those in government, who must obey the law. Moreover, any action taken by the government must be authorised by law, that is, government needs lawful authority to act.
9. The House of Commons
Authors: Dennett Anne
Published: August 2019

This chapter explores the membership and functions of the House of Commons. The Commons' membership consists of Members of Parliament (MPs) who are democratically elected by the public to represent their interests in Parliament. The key functions of the House of Commons include sustaining the government; legislating and scrutinising government actions; authorising taxes and voting for supply to provide the government with the finances it needs to run the UK; facilitating a credible opposition; and ensuring that the voices of citizens are heard. The chapter then considers the operation of Parliamentary privilege. Parliament needs parliamentary privilege to conduct its core business effectively, independently, and without fear of outside interference, and to protect everything said or done in the transaction of parliamentary business. Indeed, Parliament is self-regulating and, as a sovereign body, operates outside the jurisdiction of the courts except for the criminal law.
11. The key functions of Parliament
Authors: Dennett Anne
Published: August 2019

This chapter identifies Parliament's primary functions of making law and scrutinising government action. Parliament's scrutiny of government has been defined as ‘the process of examining expenditure, administration, and policy in detail, on the public record, requiring the government of the day to explain itself to parliamentarians as representatives of the citizen and the taxpayer, and to justify its actions’. In the absence of a codified constitution and entrenched limits on executive power, the requirement for the government to answer to Parliament for its actions acts as a check and control. The chapter also considers the legislative process, particularly legislative scrutiny. Secondary legislation made by the government can often be subject to much less scrutiny and debate than primary legislation, and sometimes none at all. These scrutiny gaps increase the risk of arbitrary law-making and ‘governing from the shadows’, again raising rule of law concerns.
13. The judiciary
Authors: Dennett Anne
Published: August 2019

This chapter examines the role of the judiciary in the UK constitution, the critically important concepts of judicial independence and neutrality, accountability of judges, and judicial power. The UK courts administer justice; uphold the rule of law; and act as a check on executive power. Judicial independence requires that judges should be free from external influences in their decision-making, and make decisions without political interference or fear of reprisal. Meanwhile, judicial neutrality means that judges should determine legal disputes impartially, objectively, and solely by applying the law. At first sight, judicial accountability seems inconsistent with being independent, but it is essential that the judiciary adheres to the highest standards in carrying out its functions. In the absence of a codified constitution, the boundaries of judicial power operate within a framework of constitutional principles and conventions, but there is debate over the limits of that power.
18. Human rights in action
Authors: Dennett Anne
Published: August 2019

This chapter explores how three Convention rights operate in practice: the right to life (Article 2), the right to a private and family life (Article 8), and freedom of religious belief (Article 9). Article 2 provides that everyone's right to life shall be protected by law. No one shall be deprived of one's life intentionally save in the execution of a sentence of a court following one's conviction of a crime for which this penalty is provided by law. Article 8 provides that everyone has the right to respect for one's private and family life, home, and correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law. Meanwhile, Article 9 provides that everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change and manifest one's religion or belief.
19. Police powers
Authors: Dennett Anne
Published: August 2019

This concluding chapter studies police powers. It is the function of the police to keep the public secure by preventing and detecting crime, and maintaining public order. This involves the exercise of public power and powerfully engages the relationship between the citizen and the state. There are clear links between police powers and the rule of law: it is imperative that police powers are not used in a random, arbitrary way; are clear, foreseeable, and accessible; are not unlimited; and are in accordance with the law. Police powers are mostly statute-based, the most significant of which is the Police and Criminal Evidence Act 1984 (PACE) which was enacted to achieve a balance between protecting citizens' rights and effective police powers. Under section 66, the Home Secretary issues detailed Codes of Practice regulating the exercise of police powers and providing clear guidelines for the police and safeguards for the public.
5. Criminal Liability
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

This chapter introduces criminal liability for non-compliance with English environmental law. Environmental crime can be defined as behaviour that contravenes statutory provisions for the protection of the ecological and physical environment, where there is some kind of punitive sanction imposed for the contravention, with such provisions sometimes also pursuing the protection of public health. Environmental crime can also include criminal offences created through the common law, such as public nuisance. The purpose of this chapter is to discuss overarching themes, such as key elements of strict liability offences, in criminalizing behaviour that damages the environment, rather than details of specific offences spelt out in particular statutes. The argument here is that environmental crime sits uneasily within the environmental law regulatory landscape, which has been shaped in the UK in recent years by co-operative, ‘better regulation’ agendas that seek to reduce burdens on business.
13. Pollution Control Permitting
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

This chapter provides a basic overview of pollution control in England and Wales. It considers the nature of pollution, the evolving history of pollution control regulation, and the main mechanism for implementing pollution control—environmental permitting. Environmental permitting is a classic form of ‘command-and-control’ regulation, which is used in many areas of environmental regulation (water regulation, waste regulation, integrated pollution control etc). Moreover, England and Wales has adopted an innovative approach to permitting, bringing together many different types of environmental permits into a single, integrated scheme under the Environmental Permitting Regulations 2016. This administrative integration of permitting was designed to improve regulatory efficiency and certainty for operators and also to better coordinate environmental controls. This chapter provides an overview of this permitting scheme, which operates in most of the pollution control regimes covered in the chapters of Part IV.
14. Integrated Pollution Control
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

This chapter focuses on Integrated Pollution Control (IPC), a form of environmental regulation that was developed in the EU in the early 1990s. IPC takes a holistic view of the environment, acknowledging that ecosystems draw on interconnected and interdependent elements of the living and non-living environment. The chapter critically assesses the incorporation of holistic understandings of the natural environment into environmental law. First, it traces the elusive policy idea of holistic environmental regulation and decision-making, and draws attention to the early emergence of ideas of integrated pollution control in Victorian environmental law in Britain. Second, the chapter maps the application of holistic understandings of the natural environment through IPC regimes in both the EU and the UK, in particular the EU Directive on Industrial Emissions and its implementation through the Environmental Permitting (England and Wales) Regulations 2016.
1. Introduction to Family Law
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

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 begins with an overview of families and family law in England and Wales today. It then discusses themes and issues in contemporary family law, covering rules versus discretion; women’s and men’s perspectives on family law; sex and gender identity; sexual orientation; cultural diversity; and state intervention versus private ordering, including the role of the family court and of non-court dispute resolution in family cases, and challenges facing the family justice system.
6. Financial Remedies on Divorce
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

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 focuses on financial remedies on divorce. After outlining key socio-economic data about the family economy and its impact on family members (especially parents) on relationship breakdown, it discusses financial remedies on divorce; the principles governing the grant of those and exercise of the statutory discretion; the clean-break principle; private ordering; and reform.
9. Becoming a Legal Parent and the Consequences of Legal Parenthood
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

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 how the status of ‘legal parenthood’ is acquired under English law. It considers different concepts of parenthood and possible approaches to determining legal parenthood; the current legal framework for identifying a child’s legal parents where a child is conceived through natural procreation; and the problems and challenges raised by the use of assisted reproduction techniques and surrogacy.
11. Private Disputes Over Children
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

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, which examines the current legal framework for resolving private law disputes over children, first considers procedural issues germane to all private law disputes, including the extent to which children are able to participate in these proceedings. It then turns to the three main private law orders available under the Children Act 1989—child arrangements orders, specific issue orders, and prohibited steps orders—and recent initiatives to try and improve the way in which disputes about children’s upbringing are handled, including detailed discussion of relocation disputes.
5. Intention to be legally bound, formalities, and capacity to contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines the requirement that there must be an intention to create legal relations and specific requirements of form, such as writing, for an agreement to be enforceable as a legally binding contract. Traditionally, this intention to create legal relations is determined objectively using two presumptions that can be rebutted on the evidence. First, it is presumed that there was no intention to be legally bound in the context of social or domestic agreements. Second, it is presumed that the parties to commercial agreements intended to be legally bound unless there are clear words indicating the opposite, such as the existence of an honour clause. In addition, some contracts require particular formalities to be binding. The chapter outlines some examples of these and discusses the consequences of non-compliance with the formality requirements. It also considers the capacity rules in contract (that is, a party’s ability in law to contract) and the effect of incapacity on a contract, focusing on contracts made by minors (persons below eighteen years old). The chapter concludes by discussing electronic signatures and the implications of e-commerce for formality requirements in contracts.
7. Exemption clauses and unfair contract terms
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. A clause which seeks either to exclude a party’s liability for breach or to limit that liability to a specified amount is known as an exemption clause. It is also possible for exemption clauses to seek to exclude or limit the remedies which would otherwise be available for breach or seek to deny that any breach of contract or breach of a duty of care has occurred. Although such clauses can allocate risks between the parties and prevent duplicate insurance cover, both the courts and the Parliament in the UK have sought to control their use. An exemption clause is enforceable if the clause in question is incorporated as a term, covers the loss that has occurred in the circumstances in which it arose, and is not rendered unenforceable by either the Unfair Contract Terms Act 1977 (B2B contracts) or Part 2 of the Consumer Rights Act 2015 (B2C contracts). This chapter examines the construction of exemption clauses as well as the legislative regulation of exemption clauses and, in the consumer context, unfair terms.
8. Breach of contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. There are four ways to discharge a contract: by performance, agreement, frustration, or breach. The standard of performance required in relation to each contractual obligation needs to be identified because a failure to perform to the required standard constitutes a breach. In the absence of lawful excuse, a breach of contract arises if a party either fails or refuses to perform a contractual obligation imposed on that party by the terms of the contract or performs a contractual obligation in a defective manner. While every breach of contract will give rise to a right to claim damages, the contract will remain in force unless the breach constitutes a repudiatory breach. The chapter examines the types of repudiatory breaches and the election to terminate or affirm, together with an assessment of the law governing the identification of a repudiatory breach and the consequences of terminating when the breach is not in fact repudiatory. It also examines the options available to the non-breaching party when an anticipatory breach occurs.
12. Discharge by frustration: subsequent impossibility
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. In general terms non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.
13. Non-agreement mistake
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter focuses on the legal treatment of mistakes that are presumed to nullify consent if both parties entered into the contract under the same fundamental mistake, assuming the absence of a provision of the contract allocating the risk of this initial impossibility. The doctrine of common mistake in English law is designed to protect the interests of third parties and to ensure certainty in transactions. A fundamental common mistake arises in cases where there is true impossibility or failure of consideration. Under these circumstances, the contract is automatically void and any money or property involved has to be returned. Fine distinctions can arise in terms of the legal treatment of impossibility depending upon whether the impossibility is initial (common mistake) or subsequent (frustration doctrine). Categories of common mistake at common law include mistake as to subject matter (res extincta) and mistake as to ownership (res sua). A mistake as to quality will very rarely be sufficiently fundamental to render the contract void since impossibility of the contractual adventure is required. This chapter also discusses Lord Denning’s attempts to introduce an equitable jurisdiction to set aside on terms in cases of mistakes as to quality which were rejected in Great Peace Shipping Ltd v Tsavliris (International) Ltd and the fact that this means there is no remedial flexibility in such instances.
16. Illegality
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
6. Content of the contract and principles of interpretation
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series 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.
14. Misrepresentation
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series 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 section 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.
15. Duress, undue influence, and unconscionable bargains
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series 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.