bluuebunny/crossref_metadata_2025 huggingface dataset:
9. The Individual and the International Legal System
Authors: McCorquodale Robert
Published: August 2018

This chapter examines the role of the individual in the international legal system. It considers the direct rights and responsibilities of individuals under the international legal system; their capacity to bring international claims; and their ability to participate in the creation, development, and enforcement of international law. Particular examples from a wide range of areas of international law, including international human rights law, international criminal law, and international economic law, are used to illustrate the conceptual and practical participation of individuals in the international legal system. It is argued that individuals are participants in that system, and are not solely objects that are subject to States’ consent, though their degree of participation varies depending on the changing nature of the international legal system.
17. Countermeasures and Sanctions
Authors: White Nigel D , Abass Ademola
Published: August 2018

This chapter focuses on the issue of enforcement by means of non-forcible measures. Two legal regimes are considered: non-forcible countermeasures taken by States (countermeasures) and non-forcible measures taken by international organizations (sanctions). Discussions cover emergence of a restricted doctrine of countermeasures as the modern acceptable form of self-help; partial centralization of coercion in international organizations; problems within each of these regimes along with limitations placed upon their application; coexistence of countermeasures based on a traditional view of international relations, alongside post-1945 development of centralized institutional responses. State and institutional practices that lie between the basic right of a State to take countermeasures to remedy an internationally wrongful act, and the power of international organizations to impose sanctions in certain circumstances are discussed. Finally, the legality of continued use by States of non-forcible reprisals, retorsion, and wider forms of economic coercion; and collective countermeasures imposed either multilaterally or institutionally are considered.
4. The Rule of Law
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter explains the meaning and significance of the rule of law, briefly tracing the history of the rule of law and considering the main similarities and differences between various theories of the rule of law. It then assesses the impact of recent legal reforms on the operations of the rule of law in the UK. These reforms include the introduction of antisocial behaviour orders; the extension of detention without trial; and the Constitutional Reform Act 2005, which reinforces the importance of the independence of the judiciary and puts measures in place to attempt to strengthen the separation of the courts from the other arms of the state. Finally, the chapter discusses judicial interpretation of the rule of law through a selection of cases that have examined the legality, irrationality, or procedural impropriety of the actions of the executive or public bodies, and whether their actions conform to the Human Rights Act 1998.
5. The Separation of Powers
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. The separation of powers is a theory or a doctrine that describes how a state organizes the distribution of power and function between its different branches. It is often used as an umbrella term to denote the extent to which the three ‘powers’ in, or branches of, the state are fused or divided—that is, the legislative, the executive, and the judicial powers. This chapter begins by sketching the history of the separation of powers in the UK. It then discusses the purpose of the separation of powers; the similarities and differences between different theories of the separation of powers; the impact of recent constitutional reform on the operation of the separation of powers in the UK; how courts have interpreted the separation of powers; and the relevance of the separation of powers today including in the context of the balance of power between the executive and Parliament as regards the UK’s decision to exit the EU.
10. Devolution and Parliamentary Supremacy
Authors: Webley Lisa , Samuels Harriet
Published: August 2018

Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. Devolution can be defined as the conferral of powers by a central governing institution on a regional or national governing body, without the central institution having to concede legislative supremacy. Such devolved powers can be administrative, executive, or legislative in nature. The process of devolving such powers to three of the UK’s four nations—England, Scotland, Wales, and Northern Ireland—was initiated by the passing of the Devolution Acts of 1998. This chapter begins by tracing the history of devolution, and then discusses the ways that power can be devolved, and the roles and powers of the Scottish Parliament, Welsh Assembly, and the Northern Ireland Assembly. It addresses the question of whether there should there be an English Parliament, and finally, examines the effects of devolution on parliamentary supremacy as well as the effects the UK’s exit from the EU may have on the devolution settlement too.
8. Defences of incapacity and mental conditions
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines the use of incapacity and mental condition defences for criminal offences in Great Britain. It discusses the general principles of the excusatory defence of insanity and automatism as distinct from diminished responsibility and explores the notion that insanity is out of date and unrelated to contemporary classifications of mental illness. The chapter explains that intoxication is often not considered a valid defence although it may negate mens rea and provide partial defence to crimes of specific intent. It explains and clarifies the Majewski rule and how it works. The chapter evaluates arguments for and against the age of criminal responsibility and analyses court decisions in relevant cases.
9. Defences of compulsion
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter focuses on legal defences to criminal offences in Great Britain that will result in acquittal, which include duress and duress of circumstances, necessity, public and private defence, and mistaken belief. These defences can be divided into justifications and excuses, and most of them consist of subjective and objective elements. The chapter explains the general principles of these excusatory and justificatory defences, and evaluates proposed reforms of criminal law covering these types of defence. It also provides examples of relevant cases and analyses the bases of court decisions in each of them.
11. Sexual offences
Authors: Loveless Janet , Allen Mischa , Derry Caroline
Published: August 2018

This chapter examines the types of sexual offence in Great Britain contained in the Sexual Offences Act 2003. These include rape, assault by penetration, sexual assault, and causing sexual activity without consent. The chapter discusses the key elements of these offences, analyses the social context of rape, and investigates the reasons behind the low conviction rates for rape cases. It explains the principle of the rape theory and the actus reus and mens rea elements of sexual offences, considers marital rape, and also provides examples of several relevant cases and analyses the bases of court decisions in each of them.
1. Defining the Constitution?
Authors: Loveland Ian
Published: August 2018

This chapter identifies evaluative criteria that readers may keep in mind when considering the description and analysis of Britain’s current constitutional arrangements presented in the rest of the book, and discusses the essential features of a democratic state. It considers hypothetical examples of democratic governance and the notion of a constitution as a social and political contract, as well as the solutions adopted by the American revolutionaries to resolve the constitutional difficulties they faced when the United States became an independent country.
3. The Rule of Law and the Separation of Powers
Authors: Loveland Ian
Published: August 2018

This chapter examines the various meanings that the ‘rule of law’ principle has been accorded in Britain’s post-revolutionary constitution. The rule of law, which may be viewed as a vehicle for expressing ‘the people’s’ preferences about two essentially political issues, first relates to the substance of the relationship between citizens and government. Second, it deals with the processes through which that relationship is conducted. More simply, the rule of law is concerned with what government can do—and how government can do it. Many theorists have presented variations on these two themes. The chapter analyses the theories of A V Dicey, Friedrich Hayek, and Harry Jones, which span the spectrum of mainstream debate about the nature of the rule of law in Britain’s modern constitution.
6. The House of Lords
Authors: Loveland Ian
Published: August 2018

This chapter examines whether the House of Lords plays an effective anti-majoritarian legislative role. The variations on the theme of reforming the powers and composition of the House of Lords qua legislative body are legion, as are the pros and cons of each scheme proposed, but most reform plans present a paradox. The more we ask a second chamber to perform functions complementary to those of the Commons, the more we demand of its members that they be (as individuals and as a body) ‘expert’, ‘experienced’, and ‘nonpartisan’, and so the more we reveal the crushing dominance of party politics in the lower house, and the incapacity and/or unwillingness of backbench MPs to exert a restraining influence on government activities. This suggests that the key division within the legislative process is now not Lords versus Commons, nor Labour versus Conservative, but party versus national interest.
7. The Electoral System
Authors: Loveland Ian
Published: August 2018

A recent survey of electoral laws in modern societies identified six fundamental characteristics of democratic systems: (i) that virtually all adults may vote; (ii) that elections are held regularly; (iii) that no large group of citizens is prohibited from fielding candidates; (iv) that all legislative seats are contested; (v) that election campaigns are conducted fairly; and (vi) that votes are secretly cast and accurately counted. This chapter examines how well Britain’s electoral system satisfies these tests, first tracing the evolution of the democratic electoral system, followed by a review of the contemporary electoral process.
9. Constitutional Conventions
Authors: Loveland Ian
Published: August 2018

This chapter assesses the nature and purpose of constitutional conventions. The discussions cover the concepts of collective and individual ministerial responsibility; the relationship between the Monarch and her Ministers; the relationship between convention, statute, and the common law; the Matrix-Churchill controversy; the ‘Ponsonby rule’ and the Constitutional Reform and Governance Act 2010. It is argued that the concentration of effective political power is often very intense, even within a political party; small groups of senior Ministers or even the Prime Minister alone may occasionally be, to all intents and purposes, ‘elected dictators’.
11. Parliamentary Sovereignty within the European Union
Authors: Loveland Ian
Published: August 2018

This chapter examines the way in which the UK’s membership in the European Economic Community (EEC) prompted changes in the domestic constitutional order. The discussions include the founding principles of the Treaty of Rome; the accession of the UK into the EEC; EEC law, parliamentary sovereignty, and the UK courts; and the horizontal and vertical effects of directives. The chapter explores the controversies engendered by the Maastricht, Amsterdam, and Lisbon Treaties; and concludes by assessing whether continued EC membership will entail a loss of the UK’s ‘sovereignty’ to a federal European constitution and a rebalancing of power within the constitution between Parliament and the courts.
19. Human Rights III: New Substantive Grounds of Review
Authors: Loveland Ian
Published: August 2018

This chapter considers how the UK constitution’s approach to the issue of civil liberties and human rights has changed in the past fifteen to twenty years. It starts by discussing the judicial incorporation of the European Convention on Human Rights and the difficulties domestic courts had in applying the Convention directly. The subsequent idea of Parliament enacting a statute giving Convention articles a superior status to common law rules, and Members of the House of Lords promoting private members’ Bills intended to give domestic legal effect to the ECHR are examined. The chapter goes onto discuss the re-emergence and consolidation of fundamental human rights as an indigenous principle of common law; and the ‘judicial supremacism’ controversy.
24. Conclusion
Authors: Loveland Ian
Published: August 2018

This chapter addresses the question of whether it is legally possible to entrench legislation in a way that safeguards it from repeal by the traditional ‘simple majority in Commons and Lords plus Royal Assent’ formula; and, if so, under what political circumstances it might legitimately be employed. It argues that the Blair government’s commitment to establishing a pluralist political culture is head and shoulders above any of their twentieth-century predecessors. This is most evident in its devolution legislation as well as in its embrace of the European Convention on Human Rights and Fundamental Freedoms and the provisions of the Amsterdam Treaty. The same observation may be made about the Blair government’s promotion of the Constitutional Reform Act 2005. Yet these initiatives, desirable though they may be, can hardly be seen as engineering a constituent reformation of the political system.
2. Trusts in context
Authors: Watt Gary
Published: August 2018

This chapter places trusts in their contemporary social, economic, legal, and international context. It first discusses their significance to the world outside the lawyer's office, and shows that they play an important social and economic role in the lives of ordinary people. The trust operates in key areas such as home, employment, and commerce. The chapter also examines the trust in the context of laws, focusing on how it corresponds to, and coexists with, other legal ideas such as contract, debt, powers, gift, agency, bailment, tax, and corporation, and concludes by looking at the international and comparative dimension of the trust.
5. Ineffective disposition of benefit: resulting trusts
Authors: Watt Gary
Published: August 2018

If the beneficial owner of an asset transfers the asset to another who does not give or promise anything in return, and where there is no evidence of any intention on the former's part to make a gift or trust of the property, it is impossible to determine to whom the benefit of the asset belongs. In this case, the beneficial ownership of the asset is assumed to be held by the beneficiary for the owner under a resulting trust. The resulting trust is therefore a type of trust that arises when there is no express intention to create it. This chapter examines the ineffective disposition of benefit, focusing on the resulting trusts. It also discusses the established factual categories of the resulting trust, the theory behind resulting trusts, rebutting the presumption of a resulting trust, resulting trusts of surplus benefits, the Quistclose trust, and pension fund surpluses.
8. Constructive trusts and informal trusts of land
Authors: Watt Gary
Published: August 2018

Constructive trusts differ from express trusts in many ways. Whereas an express trust gives effect to an owner's intention to transfer a beneficial interest in his property, a constructive trust may be imposed directly contrary to the owner's intentions. Another distinction between an express trust and a constructive trust is that the former is unenforceable unless it is evidenced in writing, whereas the latter is created and operates without formality. However, express and constructive trusts, by their very nature as trusts, have a number of similar features, the most fundamental being the presence of ascertainable property, in which a beneficiary has a proprietary interest for which the trustee is personally liable to account. This chapter examines the nature, operation, and variety of constructive trusts, and also considers one special category of constructive trusts: informal trusts of land. In addition, it discusses commonwealth jurisdictions and proprietary estoppel.
12. Trustees
Authors: Virgo Graham
Published: August 2018

This chapter examines the duties and powers of trustees. It considers how trustees can be appointed to and removed from office. It explains that trustees have a wide variety of powers but misuse of these powers will constitute a breach of trust. It also highlights the fact that, while trustees have the primary rights of ownership in trust property, they are not able to exploit the beneficial incidents of this ownership for themselves in their capacity as trustees, since they hold the property for other people or sometimes for particular purposes. This chapter also discusses the essence of trusteeship, the different types of trustees, and payment to trustees.
9. Errors of law and control of fact finding
Authors: Endicott Timothy
Published: August 2018

Administrative authorities deciding someone’s legal position must determine what the law is, and find the facts, and apply the law to the facts. This chapter asks how the courts control the exercise of power involved in each of those three elements of the application of the law. The chapter explains the famous decision of the House of Lords in the Anisminic case, and explains why that decision does not support the doctrine of ‘review for error of law’, which is commonly thought to have been established in Anisminic. The chapter explains why a power to apply the law is a discretionary power, and concludes with a discussion of the fundamental union (downplayed and sometimes denied by the judges) between judicial review for error of law, and other forms of control of discretionary power.
20. The right to education and human rights education
Authors: Smith Rhona K. M.
Published: August 2018

This chapter discusses the right to education and human rights education in international human rights law. It covers access to education; the nature of education; academic freedom; the United Nations’ special rapporteur on the right to education; achieving universal education on human rights; teaching non-discrimination; and the United Nations Decade of Human Rights Education.
22. Rights for specific vulnerable persons
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines human rights protection for four specific groups: women, children, internally displaced persons, and refugees. It first explains why group rights evolved in a system of human rights that, from the outset, was supposed to be universal and then discusses: the particular needs of these groups; the evolving international and regional human rights framework; and the extent to which the legal framework addresses the needs of the group in question.
1. Tort:
Authors: Bermingham Vera , Brennan Carol
Published: August 2018

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. In civil law, tort provides remedy for a party who has suffered the breach of a protected interest. Tort law protects a wide range of interests. Currently, negligence is the greatest source of litigation with respect to tort. Torts of trespass to the person protect physical safety while trespass to property governs the ownership of property. The tort of defamation provides remedies for threats to one’s reputation. Another tort-related area deals with the protection of privacy from media intrusion. This chapter discusses the range of activity to which tort law applies and the types of harm for which it provides compensation. It also considers the main interests protected by the law of tort, how the law of tort differs from other branches of the law, and the role of policy and the human rights dimension in the law of tort.
3. Classical legal positivism
Authors: Wacks Raymond
Published: August 2018

This chapter examines the theories of the foremost legal positivists of the nineteenth century: Jeremy Bentham and John Austin. Bentham is best known as a utilitarian and law reformer, but who insisted on the separation between the ‘is’ and ‘ought’ of law, or what he preferred to call ‘expositorial’ and ‘censorial’ jurisprudence, respectively. Austin was equally emphatic in maintaining this distinction, but his analysis is generally regarded as much narrower in scope and objective than Bentham’s. A number of key concepts analysed by both of these theorists are examined and compared, including their definitions of law, commands, sovereignty, and sanctions.
10. Rights
Authors: Wacks Raymond
Published: August 2018

One of the most important, complex, and controversial concepts in legal theory is that of a ‘right’. Apart from the analytical discussion, there is an inevitable debate concerning the difference between what constitutes a right, on the one hand, and what rights individuals or groups actually have or should have, on the other. This distinction between analytical and normative jurisprudence recurs throughout the literature. This chapter explores the concept of rights, various theories and types of rights (including human and animal rights), and concludes with a brief exercise in ‘applied jurisprudence’ that demonstrates how ostensibly competing approaches to a central democratic right are played out.
6. Equitable 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 explores the content of equitable interests in land, and considers how such rights differ from each of personal rights and legal estates and interests. Equitable interests in land are capable of being asserted against third parties. They have a power lacking in personal rights. The content and acquisition questions are answered differently depending on whether B claims a legal or equitable property right. It is noted that equitable interests in land depend on A’s coming under a duty to B. Moreover, as observed, equitable property rights are conceptually different from legal property rights.
8. Formal Methods of Acquisition: Contracts, Deeds, and Registration
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 the formality requirements that must be complied with for the creation or transfer of legal estates and interests in land. The three stages of creating and transferring legal rights are contract, creation or transfer, and registration. The Law of Property (Miscellaneous Provisions) Act 1989 increased the formality requirements for contracts and made more severe the consequences of non-compliance. Under s 2 of the 1989 Act, a contract may take the form of a single document signed by both parties or an exchange of documents, each of which has been signed by one of the parties. Non-compliance results in a document being void as a contract for sale of land, but a valid contract may be obtained through use of collateral contracts or rectification. The Law Commission had envisaged the use of estoppel in appropriate cases in which formality requirements for a contract for sale were not complied with. The fundamental objective of the Land Registration Act 2002 (LRA 2002) is directly associated with the introduction of e-conveyancing. The goal of attaining e-conveyancing has not been deserted, but its introduction appears just as far away now as it did when the LRA 2002 passed into law.
15. The Priority Triangle
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 question of when C can have a defence to B’s pre-existing property right. It covers the basic principles that apply when answering the priority question. It examines how a court determines which of two competing property rights arose first. It also examines exceptions to the basic rule that B’s property right, where it arises before C’s property right, will take priority.
22. Easements
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 easements. An easement is the proprietary right to enjoy limited use of the land of another, which may exist in both positive and negative form. To constitute an easement, a right over the land of another must display certain characteristics. If these characteristics are not present, the right over the land of another is merely a personal right. An easement may be created by express, implied, or presumed grant. As a proprietary right, an easement is not easy to extinguish but in the case of freehold land, easement will be extinguished where the dominant and servient land come into common ownership, and an easement attached to a lease may sometimes be extinguished upon the termination of that lease.
Contract Law
Authors: Chen-Wishart Mindy
Published: August 2018

Contract Law offers a new approach, utilising diagrams to complement the text. The book explains the intricacies of contract law and the questions that arise during the life of a contract. Part I of the book explains what contract law is and defines its scope. Part II of the book looks at contract formation: the finding of agreement and meeting the criteria of enforceability. Part III focuses on the position of third parties. Part IV considers the vitiating factors of misrepresentation and non-disclosure, mistake, frustration, duress, undue influence, and unconscionability. Part V analyses the terms of contracts: express, implied, collateral, and examines their interpretation and enforceability. Part VI considers the breach of a contract and the remedies of termination, damages, and specific and agreed remedies. Part VII examines good faith in current contract law.
11. Direct control over terms
Authors: Chen-Wishart Mindy
Published: August 2018

This chapter examines direct controls over the contents of contracts, with particular emphasis on the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA). The discussions cover: patterns of control; the parties affected and excluded contracts; types of terms controlled and control mechanisms under UCTA and CRA; the enforcement mechanism; other statutory and common law control of terms; and control of substantive unfairness.
15. Good faith
Authors: Chen-Wishart Mindy
Published: August 2018

English law does not currently recognise a general duty of good faith, but this position is increasingly being challenged. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter addresses the following: the meaning of good faith; good faith in current contract law; and the nature of good faith. It further considers whether English law should recognise a general good faith doctrine and the difference this might make to various aspects of the law.
Evidence
Authors: Choo Andrew L-T
Published: August 2018

Andrew Choo’s Evidence provides an account of the core principles of the law of civil and criminal evidence in England and Wales. It also explores the fundamental rationales that underlie the law as a whole. The text explores current debates and draws on different jurisdictions to achieve a mix of critical and thought-provoking analysis. Where appropriate the text draws on comparative material and a variety of socio-legal, empirical, and non-legal material. This (fifth) edition takes account of revisions to the Criminal Procedure Rules, the Criminal Practice Directions, and the Police and Criminal Evidence Act Codes of Practice. It also examines in detail cases on various topics decided since the last edition was completed, including:

•Ibrahim v UK (ECtHR (GC), 2016) (confession evidence);

•Myers v R (PC, 2015) (expert evidence);

•R v Awoyemi (CA, 2016) (bad character evidence);

•R v Brown (Edward) (CA, 2015) (legal professional privilege);

•R v Evans (Chedwyn) (CA, 2016) (sexual behaviour evidence);

•R v FNC (CA, 2015) (DNA evidence);

•R v G (S) (CA, 2017) (vulnerable witnesses);

•R v Hunter (Nigel) (CA, 2015) (good character evidence);

•R v Lubemba (CA, 2014) (vulnerable witnesses);

•R v Mitchell (SC, 2016) (bad character evidence);

•R v Platt (CA, 2016) (bad character evidence);

•R v Shanmugarajah (CA, 2015) (photographic evidence);

•R v Tsekiri (CA, 2017) (DNA evidence).
5. The Right to Silence and the Privilege against Self-Incrimination
Authors: Choo Andrew L-T
Published: August 2018

Chapter 5 deals with the right to silence and the privilege against self-incrimination. It considers relevant provisions of the Criminal Justice and Public Order Act 1994. These include sections 34, 36, and 37, which permit adverse inferences to be drawn from certain failures of the defendant at the pre-trial stage. Section 34, in particular, has generated a substantial body of case law. The manner in which the Court of Appeal has resolved the issue of silence on legal advice has been subjected to particular criticism. The operation of section 34 has been held to be compatible with the European Convention on Human Rights so long as a sufficiently watertight direction is given to the jury. The precise extent to which the privilege against self-incrimination applies to real evidence also remains uncertain and is an issue requiring resolution.
7. Investigatory Impropriety
Authors: Choo Andrew L-T
Published: August 2018

Chapter 7 examines two further examples of the interplay between the principles of evidence and pre-trial practices and procedures. The first part looks into the evidential consequences of pre-trial violations of the European Convention on Human Rights. The second part considers the implications of the use of undercover police operations.
13. Witnesses
Authors: Choo Andrew L-T
Published: August 2018

Chapter 13 examines three broad issues pertaining to witnesses. First, it considers whether certain categories of persons may be incompetent to testify, or, even if competent to testify, may not be compellable to do so. It then examines the relaxation of the rules on corroboration, and the emergence of a more contemporary approach to possibly unreliable witnesses. Finally, it investigates the availability and adequacy of any special measures or procedures for easing the burden on testifying witnesses.
17. Sexual offences
Authors: Ormerod David , Laird Karl
Published: August 2018

The Sexual Offences Act 2003 (SOA 2003) represents the most comprehensive and radical overhaul of the law relating to sexual offences ever undertaken in England and Wales. This chapter deals with non-consensual sexual offences; namely, rape, assault by penetration, sexual assault, and intentionally causing someone to engage in sexual activity. It also examines sexual offences against children below thirteen years of age, sexual offences against children aged thirteen to sixteen, causing a child to watch a sexual act, arranging or facilitating commission of a child sex offence, and meeting a child following sexual grooming, etc. Finally, the chapter explores offences of abuse of trust, family offences, offences involving mental disorder and other sexual offences such as those surrounding prostitution, pornography, and taking indecent photographs of children.
22. The Fraud Act 2006
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter considers the offences under the Fraud Act 2006 and the important body of case law that now exists interpreting the 2006 Act. It discusses the common elements of the offence of fraud; namely, dishonesty (including the impact of Ivey), with intent to gain or cause loss or to expose to a risk of loss, and remoteness of intention. The fraud offences are each examined in turn: fraud by false representation, fraud by failing to disclose information, fraud by abuse of position, possession of articles for fraud, and making or supplying articles for use in frauds. The chapter provides extensive discussion of the desirability of having a general fraud offence and examines the difficulties encountered in relying so much upon the concept of dishonesty.
2. Objectivity in contract law
Authors: Davies Paul S.
Published: August 2018

This chapter provides an overview of the concept of objectivity. In contract law, the intentions of parties are generally judged by their words and conduct and their ‘objective’ meaning. This is known as the ‘objective test’. The contents of a contract are determined objectively. The best evidence that a term has been incorporated into a contract and that a contract is binding is through the parties’ signatures, although entirely oral contracts are equally possible. Contractual communications, whether oral or written, are generally to be understood in the way that a reasonable person in the position of the recipient would have understood them.
10. Third parties
Authors: Davies Paul S.
Published: August 2018

This chapter considers two principal questions: firstly, may a person who is not a party to a contract acquire rights under it? Secondly, can a contract impose duties on a person who is not a party to it? With some exceptions, the common law answered ‘No’ to both. A contract between A and B cannot be enforced by a third party, C, even if the contract is for the benefit of C. Nor can a contract between A and B impose burdens on C. Following the Contracts (Rights of Third Parties) Act 1999 there is now a statutory exception to the principle that C acquires no rights under a contract between A and B. Under this Act, a third party might be able to enforce a term of the contract if the contract expressly provides that he may, or if the relevant term purports to confer a benefit on him.
11. Identifying the terms of a contract
Authors: Davies Paul S.
Published: August 2018

This chapter discusses the terms of a contract. It first examines the distinction between a ‘term’ and a ‘representation’, before considering how those terms can be incorporated into a contract. It then discusses the nature of the contract being examined—even if the relevant term is not to be found in the ‘main’ contract, it may be found in a ‘collateral’, or ancillary, contract. Finally, the chapter addresses the ‘parol evidence rule’, which essentially states that where there is a written contract, extrinsic evidence cannot be used to establish other terms. This rule is riddled with exceptions and often dismissed, although it is suggested that it should not be entirely discarded.
15. The control of exclusion clauses and unfair terms
Authors: Davies Paul S.
Published: August 2018

This chapter analyses the law on exclusion clauses and unfair terms. Exclusion clauses are terms which exclude or limit a defendant’s liability. The enactment of the Unfair Contract Terms Act 1977 and the Consumer Rights Act 2015 has reduced the importance of common law techniques for avoiding the worst effects of exclusion clauses. Both statutes enable the courts to control the substance of the contract. The Unfair Contract Terms Act 1977 only applies to non-consumer contracts. It empowers a court not to enforce exclusion clauses where they are unreasonable. Unlike the Unfair Contract Terms Act 1977, the Consumer Rights Act 2015 is not limited to exclusion clauses. A term will be unfair if, ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer’.
25. Conditions, warranties, and innominate terms
Authors: Davies Paul S.
Published: August 2018

If a party fails to perform a promise in a contract, it is in breach and liable to pay damages. But some breaches of contract not only entitle the injured party to claim damages, but also to put an end to the contract. The nature of the term becomes important when considering the right to terminate. This chapter discusses the meaning and scope of conditions, warranties, and innominate terms. A party may terminate a contract for breach of condition, but never for breach of warranty. Terms that are neither conditions nor warranties are called ‘innominate’ terms. It may be possible to terminate a contract for breach of an innominate term if the breach is sufficiently serious. Breaches which justify termination are often called ‘repudiatory breaches’. The chapter also considers express termination clauses and another difficult sense in which the term ‘condition’ is used, namely to denote an ‘entire obligation’.
27. Compensatory damages
Authors: Davies Paul S.
Published: August 2018

This chapter focusses on compensatory damages for breach of contract. The innocent party will often seek to recover damages to compensate him for his ‘expectation loss’. Essentially, such loss corresponds to the profits the claimant hoped to make from the contract. Damages based upon ‘expectation loss’ protect the innocent party’s ‘expectation interest’ in having the contract performed. Damages are generally assessed at the date of breach. However, the court can take into account events that occur after the date of breach when assessing damages. Damages are not generally recoverable for disappointment or injured feelings resulting from the breach. But, if an object of a contract is to provide pleasure, or the distress is a result of physical inconvenience caused by the breach of contract, then damages for non-economic loss may be recoverable.
1. General themes and issues
Authors: O’Sullivan Janet
Published: August 2018

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter offers an introduction to the law of contract and contract theory. It explains that the law of contract provides the ground rules for what is needed for a contract to be valid and enforceable and for resolving disputes. It introduces the reader to key themes and concepts in the law of contract, and considers the crucial borderlines with others legal subjects, such as tort, restitution and public law. This chapter also considers some international developments beyond the domestic law of contract.
2. Offer and acceptance I: general principles
Authors: O’Sullivan Janet
Published: August 2018

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examies the general principles of the offer and acceptance requirement in the law of contract. It explains that an offer is an indication of one party’s willingness to enter into a contract with the party to whom it is addressed as soon as the latter accepts its terms while an acceptance is an agreement to the terms of the offer. It discusses the distinction between unilateral and bilateral contracts and introduces the principle of objectivity in contractual formation. This chapter also considers the communication of the acceptance, the prescribed modes of acceptance and the termination of an offer.
11. Undue influence
Authors: O’Sullivan Janet
Published: August 2018

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines undue influence in a contract, which is a vitiating factor and also a ground of restitution. It explains that undue influence is hard to define and can more easily be recognised when found than exhaustively analysed in the abstract. This chapter investigates how undue influence is proved by means of a rebuttable presumption based on a relationship of trust and confidence coupled with a transaction that calls for an explanation, and how the resulting presumption is rebutted. It then covers the remedy of rescission for undue influence. Finally it explores undue influence in three party cases, where relief depends on whether the contracting party had notice, actual or constructive, of the undue influence and whether it had taken reasonable steps.
12. Unconscionable bargains
Authors: O’Sullivan Janet
Published: August 2018

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the concept of unconscionable bargains and the conditions under which it operates as a vitiating factor. It discusses the history of the court’s jurisdiction to give relief in cases of unconscionable bargains and explains the current scope of relief, considering the elements in modern case law on unconscionable bargains.
17. Remedies II: specific remedies
Authors: O’Sullivan Janet
Published: August 2018

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines specific remedies for breach of contract. It explains that unlike compensatory remedies, specific remedies actually require the defendant to perform his side of the bargain. This chapter discusses the principles of the different types of specific remedies including the action for an agreed sum, liquidated damages and the penalty clause jurisdiction, injunctions, specific performance, and damages in lieu.
4. The interpretation of statutes
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie
Published: August 2018

This chapter explains the problems of statutory interpretation and how the courts approach the problems. The traditional rules of statutory interpretation, the literal rule, the golden rule, and the mischief rule are explained and the problems associated with their use explored. In modern times the courts now employ a more purposive approach to interpretation using a range of intrinsic and extrinsic aids to interpretation. These include the long title, preamble, cross-headings, marginal or side notes, punctuation, Explanatory Notes, Interpretation Act 1978, pre-parliamentary materials, parliamentary materials—Hansard, statutes on the same subject area— statutes in pari materia, and dictionaries. Rules of language may be employed, e.g. the ejusdem generis rule, the noscitur a sociis rule or the expressio unius est exclusio alterius rule.
9. The legal profession
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie
Published: August 2018

This chapter considers the respective roles of solicitors and barristers in the English legal system. It outlines the basic business models of legal practice and the constraints on such organisations. It discusses the rules affecting practice as a solicitor or a barrister and discusses the regulatory organisations overseeing solicitors and barristers. The debate as to whether the two main branches of the legal profession should be fused into one is set out. The most recent reforms to legal education are signposted.
11. Access to justice
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie
Published: August 2018

This chapter addresses the issues and arguments surrounding access to justice. The chapter considers the recent changes and proposed changes to legal aid provision. There is an outline of the basic principles relating to public funding in both civil and criminal cases. Different methods of funding civil legal representation are discussed including CFAs and DBAs. Organisations involved in giving legal advice include Citizens’ Advice Bureaux and law centres are also included in the discussion about the availability of legal advice.
6. Formalities
Authors: McKendrick Ewan
Published: August 2018

Requirements of form (such as writing) are not as important today as they were in the past. As a general rule, contracts can be made in any form and can be proved by any means, although there remain exceptional cases where the law does insist upon requirements of form. This chapter, which considers the reasons for continued reliance upon requirements of form, along with the criticisms levelled against such requirements, begins by explaining why legal systems impose formal requirements upon contracting parties. It then outlines the formal requirements in English contract law, followed by a discussion of the future of formal requirements, noting the distinction between cases where the contract must be made in writing and cases in which contracts must be evidenced in writing.
13. Exclusion Clauses
Authors: McKendrick Ewan
Published: August 2018

This chapter discusses one particular type of boilerplate clause, namely the exclusion or limitation clause. The chapter examines the role and function of exclusion and limitation clauses in modern commercial contracts. In order to perform its function an exclusion or limitation clause must (i) be validly incorporated into the contract; (ii) cover the loss that has been suffered; and (iii) survive scrutiny under the Unfair Contract Terms Act 1977. Difficult interpretative issues can arise where one party seeks to exclude liability in respect of its own negligence or exclude liability for fundamental breach. The Unfair Contract Terms Act 1977 applies a reasonableness test to a number of exclusion or limitation clauses.
15. Good Faith
Authors: McKendrick Ewan
Published: August 2018

This chapter discusses the role of good faith in contract law, first analysing the decision in Walford v. Miles [1992] 2 AC 128, where it was held that an obligation to negotiate in good faith is not valid. It then examines the reasons that led to the decision and also explores its limits. Next, the chapter considers the arguments that have been advanced in support of the refusal of English law to recognise the validity of a doctrine of good faith and then turns to the arguments that have been advanced by those who support the recognition of a doctrine of good faith. It concludes by examining the development of a doctrine of good faith in the performance of contracts.
17. Misrepresentation
Authors: McKendrick Ewan
Published: August 2018

A misrepresentation induces a party to enter into a contract but typically is not part of the contract itself. The chapter examines the different types of misrepresentation (fraudulent, negligent, or innocent) and the remedies that the law provides in respect of a misrepresentation. The chapter focuses on the liability for misrepresentation. Section 2 begins by examining the definition of a misrepresentation. Section 3 considers the extent to which English law recognises the existence of a duty of disclosure. Section 4 discusses the concept of rescission while Section 5 explores how misrepresentation gives rise to a claim for damages, with a particular focus on section 2 of the Misrepresentation Act 1967. Section 6 examines the possibility of excluding liability for misrepresentation.