bluuebunny/crossref_metadata_2025 huggingface dataset:
17. The right to self-determination
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the right to self-determination in international human rights law. It traces the origins of this right and considers issues characterizing the current debate on the future of self-determination. The chapter suggests that while self-determination is acceptable for divesting States of colonial powers, problems can arise when groups that are not the sole occupants of a State territory choose to exercise self-determination. The right to self-determination may sit uneasily with respect for territorial integrity of States. Various forms of modern self-determination, including partial or full autonomy within States are emerging.
18. Freedom of expression
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines freedom of expression in international human rights law. It discusses the freedom of the press and media; overlap with other rights (correspondence, privacy, and association); and exceptions to freedom of expression. The chapter concludes that the scope of the freedom of expression is still evolving and that international bodies are struggling with the challenges of the information technology age.
21. Indigenous peoples’ and minority rights
Authors: Smith Rhona K. M.
Published: August 2018

This chapter examines the scope and application of indigenous peoples’ rights and minority rights in international human rights law. It discusses the recognition of the need for minority protection in the drafting of the International Bill of Human Rights; analyses the provisions of Art 27 of the International Covenant on Civil and Political Rights; and describes tests employed to determine minority status. The chapter also considers developments in the protection of minority rights in Europe. The rights of indigenous peoples are also examined.
4. Breach of duty
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. Negligence is a tort in its own right and involves an unintentional wrong as opposed to trespass which involves an intentional wrong. It has three main elements: duty of care (whether the defendant owes the claimant a duty of care), breach (whether the defendant has broken that duty), and damage (whether that breach has caused damage of a legally recognized kind to the claimant). Duty of care is determined by proximity, foreseeability, and policy and is most likely to be established in cases of positive acts which cause physical injury or property damage. This chapter provides an overview of the history of negligence and discusses the function of duty of care in negligence. It also considers the way duty of care has been defined and developed and applies the principles of duty of care in the areas of omissions and liability of public bodies.
12. Nuisance
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. Manufacturers and producers are liable for personal injury or damage to property caused by a defective product. The claimant will not only recover in contract for personal injury and property damage caused by the defective product, but he will also be compensated for the cost of replacing the product itself. The Consumer Protection Act 1987 of the UK involves a strict liability regime for defective products on a variety of potential defendants. This discusses the limitations of the tort system in providing compensation to a victim of harm caused by a defective product, and analyses the scope and limitations of the Consumer Protection Act 1987.
13. Rylands v Fletcher
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. Nuisance protects against ‘indirect’ interference with the claimant’s use and enjoyment of land. There are two categories of nuisance: public nuisance and private nuisance. Private nuisance refers to an unreasonable interference with the use or enjoyment of land. In order to sue in private nuisance, the claimant must have an interest in the land affected. This chapter examines the elements of liability in private and public nuisance and discusses the differences between them.. It also looks at the relationship between nuisance and fault-based liability and evaluates the human rights dimension to the law of nuisance.
16. Privacy and misuse of private information
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. Defences to defamation protect freedom of speech in English law. Some of the defences are ‘absolute’ while others are ‘qualified’. Absolute defence means that regardless of how careless the defendant has been in publishing the statement or whether he has been motivated by malice, he is completely protected. Qualified defence applies to a wider range of situations, but fails if the claimant can show that the statement was made ‘maliciously’. This chapter the amendments to the existing defences to defamation contained in the Defamation Act 2013 and the introduction of new defences to protect operators of websites that host user-generated content are also examined.
17. Remedies and limitation
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. The Calcutt Committee Report on Privacy and Related Matters (1990) defines privacy as ‘the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information’. While a number of different torts indirectly address wrongful intrusion into another’s privacy, English law has not directly protected privacy in its own right. It was the Human Rights Act 1998 that has made it possible to use breach of confidence in regulating the publication of private information. This chapter looks at the history of the protection of privacy in English law, discusses the current legal approaches to privacy, examines the impact of the Human Rights Act 1998 on this developing area of law, and evaluates English law on privacy in an international context.
6. Legal realism
Authors: Wacks Raymond
Published: August 2018

This chapter first addresses the following question: what are realists realistic about? It then turns to examine American realism. The focus is on the theories of Oliver Wendell Holmes Jr, Karl Llewellyn, and Jerome Frank, and examines the Scandinavian realists: Alf Ross and Karl Olivecrona. Both ‘schools’ seek to demystify law by questioning the use and meaning of abstract concepts such as ‘justice’, ‘commands’, ‘norms’, and so on. Instead they have adopted an empirical, pragmatic approach to law and the legal system. But they differ in several material respects. These distinctions are examined, and their respective standpoints and methodologies criticized.
7. Law and social theory
Authors: Wacks Raymond
Published: August 2018

A sociological account of law argues that in order to understand and explain the concept of law we need to adopt a sociological analysis based on the actual social circumstances in which the law and legal ideas are shaped and applied. This approach typically makes three related claims: that we cannot correctly comprehend the meaning of law except as a ‘social phenomenon’, that the study of legal concepts offers an incomplete explanation of ‘law in action’, and that law is only one form of social control. This chapter examines how these claims are developed in the theories of Roscoe Pound, Eugen Ehrlich, Émile Durkheim, Max Weber, Karl Marx, Michel Foucault, and Jürgen Habermas.
14. Feminist theory
Authors: Wacks Raymond
Published: August 2018

While orthodox legal theory has purported to be gender-blind, it often neglects or in some instances even ignores the position of women. This silence has been criticized by feminist theorists who have placed discrimination against, and the subordination of, women firmly on the jurisprudential agenda. It is a development that has had an enormous impact on legal education. It extends also to almost every branch of the law and legal system. This chapter examines the key elements of feminist legal theory, including the following: the origins of feminism; and legal feminisms (liberal feminism, radical feminism, postmodern feminism, and difference feminism).
15. Jurisprudence understood?
Authors: Wacks Raymond
Published: August 2018

This chapter presents some final thoughts from the author. It suggests that readers may understand the nature of law, and thus jurisprudence, by answering the following questions: What, after studying the many theories discussed in this book, do you believe law is? Can law be analytically severed from morality? Does law have a purpose? If so, what might that purpose be? Can law secure greater justice for all who share our troubled planet? Can greater analytical clarity improve not only our understanding of the concept of law, but also, and as importantly, enhance the prospects of a more just world? Is this the raison d’être of theorizing about law?
Land Law
Authors: McFarlane Ben , 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 edition of Land Law: Text, Cases, and Materials covers all core aspects of land law including legal estates, legal interests, equitable interests, acquisition of interests in land, trusts of land, the priority of interests in land, co-ownership and interests in the home, leases, easements, covenants, and security interests in land. The book provides students with the detailed knowledge and analytical tools required to understand and engage fully with the current topical debates surrounding the subject. The book comprises of a number of parts and it looks at the content question, the acquisition question, and priority and the defences question. It also considers the shared home, leases, neighbours and neighbourhoods (including easements, freehold covenants and flat ownership, including commonhold), and lastly security rights.
1. What’s Special About Land?
Authors: McFarlane Ben , Hopkins Nicholas , Nield Sarah
Published: August 2018

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource.This chapter illustrates the significance of land, and hence of land law. It concentrates on the features that make land special and the distinctive legal rules produced by those features. The chapter explains that the focus of land law is on private property rights to use land. It then demonstrates some important themes of land law by examining an important land law case involving a dispute between an occupier of land and a bank. It is noted that the special features of land sharpen the court’s dilemma when deciding between competing claims to the use of land. It also considers the differing judicial philosophies that may influence a court’s approach to resolving this dilemma.
12. Interests in the Home: The Acquisition Question
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 acquisition question in relation to the family home through an analysis of the doctrines of resulting and constructive trusts. The chapter explains the different initial presumptions drawn in cases of joint and sole legal ownership and the particular approach that has been adopted in the case of a home purchased ‘in joint names for joint occupation by a married or unmarried couple, where both are responsible for any mortgage’. The chapter considers how the ‘common intention’ of parties in relation to the common intention constructive trust is determined differently in relation to the primary acquisition question (in cases of sole legal ownership) and the secondary question of the quantification of beneficial shares (applicable in cases of joint and sole beneficial ownership). The chapter addresses the contentious issue of the extent to which the courts’ broader approach to common intention in relation to quantification may be carried over to the primary acquisition question. The chapter considers statutory rights to occupy and current Law Commission proposals for reform.
13. Regulating Co-Ownership: The Content Question
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 discusses the internal regulation of co-ownership. It is concerned with the content question: the rights enjoyed by co-owners, including their rights and duties in relation to each other, and whether one co-owner can insist on a sale of the land against the wishes of another. The joint tenancy and the tenancy in common are two forms of co-ownership. The chapter explores the operation of survivorship in respect of a joint tenancy and the process through which a joint tenant may become a tenant in common through severance. Co-ownership is terminated once there is a sole legal and equitable owner. The process of partition can also terminate co-ownership. In both forms of co-ownership, the rights and duties of the co-owners are governed through the imposition of a trust of land, regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). TOLATA 1996 contains a procedure enabling disputes relating to land held on trust to be determined by an application to court. The chapter considers how the courts have resolved disputes between the beneficiaries as to whether land should be sold. The chapter also considers the relationship between TOLATA 1996 and ‘home rights’ (of occupation) conferred by the Family Law Act 1996.
17. Co-Ownership and Priorities: The Defences Question
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 deals with the priority rules applicable where co-owned land is sold or mortgaged. It concentrates on overreaching. It is theorized that s 27(1) of the Law of the Property Act 1925 (LPA 1925) provides the basis of overreaching. Other theories include that the basis of overreaching lies in the doctrine of conversion and the trustees’ powers of disposition. The chapter considers the preconditions for overreaching to take place and the practical division that arises between trusts with one and two (or more) trustees. The chapter explores the contentious question of the effect on overreaching where a transaction constitutes an intra vires or ultra vires breach of trust and the protection available to purchasers in those circumstances where a breach of trust precludes overreaching.
19. Leases
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 focuses on a key feature of a lease: its ability to count as a property right. It explores the three principal questions that apply to any property right: the content question, the acquisition question, and the defences question. It then evaluates how the judges’ approach to defining the content of a lease as a property right may have been affected by the presence of statutory protection. The courts’ approach to the content of a lease may be shaped by the fact that, if B has such a right, he or she may qualify (or have qualified) for significant statutory protection.
1. Introduction
Authors: Chen-Wishart Mindy
Published: August 2018

This introductory chapter presents an overview of contract law. It discusses the questions addressed by contract law; sources of contract law and legal reasoning; values reflected in contract law; contract theory; the reach of contract law; contract law’s relationship to other branches of private law; and external influences on English contract law.
2. Agreement
Authors: Chen-Wishart Mindy
Published: August 2018

How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses the following: the objective test of intentions; offer and acceptance; termination of the offer; assessment of the mirror image approach; certainty; intention to create legal relations; and restitution for benefits conferred in anticipation of contracts that do not materialise.
4. Privity
Authors: Chen-Wishart Mindy
Published: August 2018

A contract alters the rights and liabilities of the contract parties: they are said to be privy to the contract. But what about someone who is not a contract party (a ‘third party’)? This chapter addresses the following questions: (1) What are the justifications for the general rule that only contract parties can sue on a contract? (2) What rights of enforcement does the Contract (Rights of Third Parties) Act 1999 confer on a third party? (3) What is the impact of the 1999 Act on the requirement that a contract claimant must have given consideration? (4) To what extent can a promisee enforce a contract for the benefit of a third party? (5) Aside from the Contract (Rights of Third Parties) Act 1999, what legal avenues exist for third parties to enforce promises made for their benefit? (6) When and how does a contract bind third parties?
8. Duress
Authors: Chen-Wishart Mindy
Published: August 2018

Contract law has always imposed limits on the permissible means used to persuade another to enter into a contract. The doctrine of duress allows a complainant to set aside the contract if these limits are exceeded. This chapter addresses the following questions: (1) What is the justification for the duress doctrine? (2) What must be proved for duress? (3) What sorts of pressures are regarded as illegitimate by the law? (4) How much pressure must the illegitimate threat exert on the other party? (5) Is the current law on duress satisfactory? If not, how might it be developed in the future? (6) What protection do consumers have against aggressive commercial practices?
9. Unfairness: undue influence, non-commercial guarantees, unconscionable bargains
Authors: Chen-Wishart Mindy
Published: August 2018

This chapter examines three doctrines that allow a party to set aside a contract: (i) undue influence, which deals with the abuse of relationships of trust and confidence; (ii) a doctrine protecting non-commercial parties who guarantee another’s debts; and (iii) unconscionable bargains, which deals with the exploitation of bargaining weaknesses. It addresses the following questions: (1) What is the justification for these doctrines? (2) What is the burden of proof for undue influence, unfair non-commercial guarantees, and unconscionable bargains? (3) In practice, how is each element of the respective burdens of proof satisfied? (4) Is the law satisfactory? If not, how might it be developed in the future?
10. Identifying and interpreting contractual terms
Authors: Chen-Wishart Mindy
Published: August 2018

This chapter examines how contract terms are identified and interpreted. It also considers the problems arising from standard form contracts. The increasing use of such contracts has put enormous pressure on traditional contract rules, which are premised on a different model of individual negotiation between notionally equal parties. The topics covered are: express terms, collateral terms, interpretation of terms, interpretation of exemption clauses, and implied terms.
13. Damages
Authors: Chen-Wishart Mindy
Published: August 2018

Most contractual disputes are settled out of court to avoid the significant time, money, general aggravation, and uncertainties inherent in litigation. Where the parties have not agreed on the consequences of breach or any agreed remedies are unenforceable, the law supplies default rules to determine the available remedies. This chapter addresses the following questions: (1) What types of loss are recognised and so compensable for breach of contract? (2) How is loss calculated? (3) When and why might contract law allow departures from the expectation measure and allow awards based on reliance, restitution, account of profits, or loss of opportunity to bargain? (4) In consumer contracts, when might the consumer have the right to a price reduction?
3. The Course of Evidence
Authors: Choo Andrew L-T
Published: August 2018

Chapter 3 examines the principles relating to the presentation of evidence in court. It first discusses the adversarial tradition upon which the English trial process is based. It then distinguishes between the principles governing the questioning of one’s own witness (which occurs in examination-in-chief and re-examination) and those governing the questioning of another party’s witness (which occurs in cross-examination). It shows that, in criminal proceedings, provisions in the Criminal Justice Act 2003 now deal with two particular matters that may arise in the course of questioning one’s own witness—the extent to which refreshing memory is permitted, and the extent to which a previous consistent statement is admissible in evidence. The chapter also considers other issues, including the judicial approach to ‘no case to answer’ submissions in criminal trials, and the extent to which the claimant or prosecution may adduce further evidence after closing its case.
8. Public Interest Immunity and Related Matters
Authors: Choo Andrew L-T
Published: August 2018

Chapter 8 examines the doctrine of public interest immunity. It discusses the development of the law; ‘class’ claims and ‘contents’ claims; national security and analogous concerns; proper functioning of the public service; the two main contexts in which public interest immunity disputes in criminal cases have arisen—the disclosure of the identity of police informers, and the disclosure of the location of police observation points; how the doctrine of public interest immunity stands alongside, and probably overlaps with, the operations of the Freedom of Information Act 2000; and section 10 of the Contempt of Court Act 1981, which governs the disclosure of sources of information contained in publications.
9. Legal Professional Privilege
Authors: Choo Andrew L-T
Published: August 2018

Chapter 9 focuses on the doctrine of legal professional privilege. Technically, this encompasses two separate privileges: legal advice privilege, which protects communications between client and legal adviser; and litigation privilege, which protects communications between client or legal adviser and a third party, so long as preparation for litigation is the dominant purpose of the communication. Legal advice privilege, unlike litigation privilege, is regarded as ‘absolute’ and incapable of being overridden. The chapter also briefly looks at ‘without prejudice privilege’, aspects of which the House of Lords and Supreme Court have considered in relatively recent years.
11. Hearsay Evidence
Authors: Choo Andrew L-T
Published: August 2018

Chapter 11 discusses the law on hearsay evidence. It covers the admissibility of hearsay evidence in civil proceedings, now governed by the Civil Evidence Act 1995; other proceedings in which the hearsay rule is inapplicable; and the admissibility of hearsay evidence in criminal proceedings.
12. Expert Evidence
Authors: Choo Andrew L-T
Published: August 2018

Chapter 12 deals with expert evidence. It discusses the principles governing the admissibility of expert opinion evidence; use of the work of others and the rule against hearsay; expert witnesses; ‘battles of experts’ and the presentation of expert evidence; and disclosure and evaluation of expert evidence.
2. The elements of a crime: actus reus
Authors: Ormerod David , Laird Karl
Published: August 2018

The chapter begins the exploration of the elements of criminal offences. Two factors are crucial: the event, behaviour or state of affairs known as the external element or actus reus, and the state of mind known as the mental element or mens rea. This chapter discusses the principle of actus reus, proof and the elements of the offence, how to identify elements of actus reus and mens rea, coincidence of actus reus and mens rea, the effect of penalty provisions in determining the elements of the actus reus, actus reus and justification or excuse, the problematic case of Dadson with regard to actus reus, physical involuntariness, a ‘state of affairs’ as an actus reus, general liability for omissions, offences of mere omission, causation, the ‘but for’ principle, the connection between fault and result, and negligible causes.
3. The elements of a crime: mens rea
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter examines the mens rea or mental fault of the accused. Because an actus reus is treated in law as a bad thing, an intention to cause it is, in law, a bad intention, a guilty mind. Similarly, consciously taking an unjustified risk of causing an actus reus—that is, recklessness—is also a bad state of mind. Unintentionally causing an actus reus by negligence may also be regarded as legally blameworthy. Each of these implies different degrees of ‘fault’. The chapter also discusses subjective and objective fault, intention in crimes other than murder, the distinction between motive and intention, subjective recklessness and malice, wilful blindness, suspicion and reasonable grounds to suspect, the correspondence principle and constructive crime, coincidence in time of actus reus and mens rea, ignorance of the law, absence of a ‘claim of right’ as an element in mens rea and proof of intention and foresight.
8. Corporate and vicarious liability
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter focuses on the potential criminal liability of organizations, particularly corporations. Corporations have a separate legal identity, and are treated in law as having a legal personality distinct from the people who make up the corporation. Therefore, in theory at least, criminal liability may be imposed on the corporation separately from any liability imposed on the individual members. There are currently six ways in which a corporation or its directors may be prosecuted: personal liability of corporate directors, etc.; strict liability offences; statutory offences imposing duties on corporations; vicarious liability; the identification doctrine; and statutory liability of corporate officers. The chapter also discusses the limits of corporate liability, the distinction between vicarious liability and personal duty, the application of vicarious liability, the delegation principle, and the ‘attributed act’ principle. The chapter examines the failure to prevent offences found in the Bribery Act 2010 and the Criminal Finances Act 2017.
10. General defences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter considers general defences other than those focused on the mental condition of the accused, and looks at cases where the defendant will usually have performed the actus reus with the appropriate mens rea. These general defences include infancy (children less than ten years old and children ten years old and above), duress, necessity and orders of a superior. The chapter also discusses public and private defence (‘self’-defence), the statutory ‘clarification’ of these defences, and the controversy over householder self-defence, force used in the course of preventing crime or arresting offenders, force used in private defence, entrapment, and impossibility.
12. Murder
Authors: Ormerod David , Laird Karl
Published: August 2018

Murder is generally regarded as the most serious crime (apart perhaps from treason) in England and Wales, yet it has not been defined by statute. Anyone of sound memory and of the age of discretion can commit murder, but a corporation or other organization cannot be tried for murder because it cannot be sentenced to life imprisonment, the only penalty allowed by law. This chapter discusses the offence of murder, who can commit murder, where it can be committed, who can be the victim, and whether killing a foetus/child in the womb or in the process of leaving the womb is murder. It also examines whether a dead person is capable of being murdered, unlawful killing as an important element of murder, the mens rea of murder or ‘malice aforethought’, constructive malice, the sentence for murder, and the Law Commission’s proposed reforms for the offence of murder.
15. Further homicide and related offences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter deals with further homicide and related offences. It discusses offences ancillary to murder, solicitation and threats to kill, the offence of concealment of birth, complicity in suicide, mercy killing, and suicide pacts as well as the Suicide Act 1961 and proposals for reform. The chapter also covers offences of infanticide, child destruction, and abortion. Finally, it then moves on to provide an overview of the offences under the Domestic Violence, Crime and Victims Acts 2004 and 2012 of causing or allowing a child or vulnerable adult to be killed or caused serious injury. The chapter examines the recent line of case law from the House of Lords and the Supreme Court considering whether the absolute prohibition on assisted suicide violates rights guaranteed in the European Convention on Human Rights.
18. Theft
Authors: Ormerod David , Laird Karl
Published: August 2018

In English law, offences related to dishonesty are governed by the Theft Acts 1968 and 1978, the Theft (Amendment) Act 1996, and the Fraud Act 2006. These Acts are not a restatement of the common law and its numerous statutory additions but they do provide a code of the most important offences of dishonest dealing with the protection of property (with the notable exception of forgery and conspiracy to defraud). This chapter deals with the offence of theft. It offers a detailed review of the concept of dishonesty in light of the recent redefinition of that concept by the Supreme Court in Ivey v Genting Casinos.
19. Robbery
Authors: Ormerod David , Laird Karl
Published: August 2018

Robbery is an aggravated form of theft and is considered an extremely serious offence that carries a maximum life sentence and in practice attracts substantial sentences. It was put on a statutory footing in s 8 of the Theft Act 1968 and is triable only on indictment. The offence is very broad, applying to thefts in many circumstances ranging from the work of sophisticated gangs and armed bank robbers to extreme forms of playground bullying. This chapter examines robbery and the requirement of theft coupled with the use or threat of force in committing theft, and the mens rea of robbery.
21. Making off without payment
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter considers the offence of making off without payment. Under s 3 of the Theft Act 1978, a person is guilty of an offence if he dishonestly makes off without making payment as required or expected and with the intent to avoid payment of the amount due. The offence aims to deal in a simple and straightforward way with a person who having consumed a meal in a restaurant, or filled the tank of the car with petrol, or reached their destination in a taxi, leaves without paying. Although factually simple, difficulties arise in prosecuting such cases as theft. The chapter covers various elements including goods supplied or service done, unenforceable debts and dishonesty.
23. Other offences involving fraud
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter focuses on other offences involving fraud, including false accounting, false statements by company directors, suppression of documents, and cheating the public revenue—offences that are addressed in s 17 of the Theft Act 1968. Section 17(1)(a) criminalizes falsification of accounts, etc., whereas s 17(1)(b) criminalizes using a falsified account, etc. Section 17(2) provides an extended, albeit non-exhaustive, definition of falsity. The concept of a claim of right includes a claim to the payment of a debt. If a person genuinely believes in the claim of right to the money to which he acts with a view to gain, there is no reason why he should use false means (evidencing his dishonesty) to acquire that money. This chapter also discusses elements of the fraud-related offences including ‘gain’ and ‘loss’ as defined in s 34(2)(a) of the Theft Act 1968.
24. Blackmail and related offences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter deals with blackmail and related offences. The crime of blackmail involves making any unwarranted demand with menaces. Blackmail initially appears to have been coextensive with robbery and attempted robbery, but has since embraced more subtle methods of extortion. The law is currently set out in s 21 of the Theft Act 1968. This chapter considers unwarranted demand, the paradox of blackmail, the requirement of a view to gain or intent to cause loss, unlawful harassment of debtors and other offences based on threats including threats to kill, threats to damage property, threats of food terrorism, demanding payment for unsolicited goods with threats, robbery, assaults, threats of violence for the purpose of securing entry to premises, and sending malicious communications.
25. Burglary and related offences
Authors: Ormerod David , Laird Karl
Published: August 2018

Burglary is an offence under the Theft Act 1968. The offence is not confined to ‘breaking and entering’ in order to steal, but involves entering any building or part of a building as a trespasser and with intent to steal anything in the building or inflict or attempt to inflict on any person therein any grievous bodily harm. A separate form of burglary is found in s 9(1)(b) of the Theft Act 1968 where a person has entered as a trespasser and thereafter attempted to steal, actually stolen something, inflicted grievous bodily harm or attempted to inflict grievous bodily harm. This chapter looks at burglary and related offences, and also discusses aggravated burglary and the articles of aggravation, as well as trespass with intent to commit a sexual offence.
27. Offences of damage to property
Authors: Ormerod David , Laird Karl
Published: August 2018

The principal offences of damage to property are governed by the Criminal Damage Act 1971. Under s 1(1), a person commits an offence if he, without lawful excuse, destroys or damages any property belonging to another with the intention to destroy or damage such property or being reckless as to whether the property would be destroyed or damaged. This chapter deals with offences of damage to property and their mens rea, along with destroying or damaging property with intent to endanger life, arson, racially or religiously aggravated criminal damage, threats to destroy or damage property, possession offences, kindred offences, and mode of trial and sentence for those guilty of offences of damage to property.
29. Forgery
Authors: Ormerod David , Laird Karl
Published: August 2018

Forgery and counterfeiting are regulated by the Forgery and Counterfeiting Act 1981. Forgery overlaps with many other offences and tends to be committed in preparation for some other crime, usually one involving fraud. Although there are many available dishonesty offences, forgery is considered a separate offence because of its serious nature and because it warrants a particular label within the criminal code. It involves making, copying or using a false instrument as well as using a copy of a false instrument, having custody or control of specified kinds of false instrument, and making or having custody or control of any means (e.g. paper, machines) for making false instruments.
32. Selected road traffic offences
Authors: Ormerod David , Laird Karl
Published: August 2018

This chapter discusses road traffic offences including dangerous driving, careless and inconsiderate driving, causing death by driving, causing death by careless or inconsiderate driving when under the influence of drugs or alcohol, and causing death while driving unlawfully. A discussion of these offences contributes to an understanding of the general principles of criminal law. Dangerous and careless driving are rare examples of English law providing endangerment offences. The Road Safety Act 2006 includes some controversial new offences in which liability is imposed for a death arising while unlawfully on the roads irrespective of whether the death is due to some defect in the manner of the driving. The chapter examines the decisions of the Supreme Court in Hughes and in Taylor on the need for fault as to driving.
6. Identity of offeror and offeree
Authors: Davies Paul S.
Published: August 2018

This chapter considers situations where one party (A) makes an offer to another party (B) but a third party (C) purports to accept the offer made by A. If A makes an offer to B and B alone, that offer cannot be accepted by C. Whether an offer is restricted to B alone is a question of interpretation. If A makes a mistake as to the other party’s identity, no contract will be formed (or, as it is sometimes said, the contract will be void). If A makes a mistake as to the other party’s attributes (such as his creditworthiness) then a contract will be formed. However, that contract may be voidable as a result of a misrepresentation. Whether a contract is void or voidable is particularly important where third parties have acquired rights in the subject matter of a contract.
8. Intention to create legal relations
Authors: Davies Paul S.
Published: August 2018

This chapter discusses the intention to create legal relations in the formation of a contract in domestic or social and commercial transactions. In a domestic or social context, there is a presumption that the parties do not intend to create legal relations. In a commercial context, however, the reverse applies and it is presumed that the parties do intend to create legal relations. No matter which presumption initially applies, that presumption may be rebutted by evidence to the contrary. The chapter concludes that it will not always be easy to decide whether an arrangement is more ‘social’ than ‘commercial’ due to the lack of unanimity in cases such as Esso Petroleum Ltd v Commissioners of Customs and Excise. Courts continue to be split on whether or not an intention to create legal relations is present in particular disputes.
12. Interpretation
Authors: Davies Paul S.
Published: August 2018

This chapter examines approaches to contract interpretation. Interpretation is the exercise by which the meaning of the contract is ascertained. Under the so-called traditional approach to interpretation, where the contractual language chosen was clear and unambiguous, that language was simply given effect. By contrast, under the ‘modern’ approach to interpretation, a much broader range of factors can be taken into account, and courts now appear able to depart from the ‘plain meaning’ of a written document. The modern approach takes into account the ‘matrix of fact’ in which the contract is concluded, including the purpose of the contract. The modern approach has been praised for allowing judges greater flexibility in order to reach a fair result, but criticised for undermining commercial certainty, potentially prejudicing third parties, and intruding into the domain traditionally occupied by the doctrine of rectification.
20. Good faith
Authors: Davies Paul S.
Published: August 2018

This chapter considers the principle of good faith. English law has traditionally been cautious about wholeheartedly adopting an overriding principle of good faith preferring instead to avoid unfair outcomes through particular doctrines (for example, misrepresentation, duress, and undue influence). However, the law in this area is developing. It appears that agreements to negotiate in good faith are not enforceable where no contract is yet in place, but, where the parties have already made an agreement, a term (whether express or implied) that the contract should be performed in good faith is enforceable.
21. Capacity
Authors: Davies Paul S.
Published: August 2018

This chapter discusses the issue of capacity. The general rule is that contracts are valid but unenforceable on minors (persons under 18 years of age). However, they are enforceable against adults, and a minor can ratify a contract upon attaining the age of majority so that the contract is enforceable against both parties. At common law, mental incapacity is not by itself a reason to set aside a contract. But if the other party knows, or ought to know, of the mental incapacity, then the contract can be set aside. The Mental Capacity Act 2005 makes it clear that a person who lacks capacity must still pay a reasonable price for necessary goods and services.
23. Common mistake: contracts void for failure of a basic contractual assumption
Authors: Davies Paul S.
Published: August 2018

This chapter examines contracts which were avoided because of the failure of a basic contractual assumption before the contract has been concluded. If a contract has been concluded based on a particular contractual assumption, then the failure of that assumption before the contract has been concluded means that the contract is void. This is because both parties have made a fundamental mistake about a basic assumption. A contract cannot be void due to a common mistake where the risk of an assumption failing has been allocated to one of the parties under the contract, or where the failure is attributable to the fault of one of the parties. Very few assumptions are held to be ‘basic’; the threshold is set at a very high level. The failure of the assumption must, at the very least, render performance of the contract fundamentally different from what was reasonably envisaged.
29. Remedies beyond compensatory damages
Authors: Davies Paul S.
Published: August 2018

This chapter considers gain-based and equitable remedies for breach of contract, which can be awarded in situations where restricting the claimant to damages would be inadequate. Damages may be awarded to strip a defendant of gains made from a breach of contract. Such ‘restitutionary damages’ are only awarded very rarely in ‘exceptional circumstances’ where the usual remedies for breach of contract are ‘inadequate’, and the claimant has a legitimate interest in preventing the defendant’s profit-making activity and depriving him of his profit. Where damages are inadequate to achieve justice, the court may grant equitable relief. The most important equitable orders are for specific performance and injunctions. Specific performance compels a person to perform his contract. Injunctions can either prevent a person from breaching his contract (prohibitory injunctions) or force a person to comply with his contract (mandatory injunctions).
4. Certainty
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 certainty requirement in contractual formation and discusses the factors that influence the courts in deciding whether an agreement possesses the requisite degree of certainty, in the context of issues such as agreements to agree, agreements to negotiate in good faith, and agreements to use reasonable or best endeavours to negotiate or agree.
6. Privity
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 doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.
13. Common mistake and rectification
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 situation where both parties to a contract share a common mistake. It analyses several court cases indicating that certain sorts of mistake can render contracts void at the level of common law. It discusses the doctrine of mistake approach which asserts that certain sorts of common mistake inevitably render a contract void and the construction approach which argues that the effect of common mistake is ascertained by construing and interpreting the contract. This chapter also considers the scope of the equitable remedy of rectification for common and unilateral mistake.
15. Discharge of a contract for breach
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 circumstances in which a contract can be terminated or discharged by one party following breach or incomplete performance by the other party, covering entire obligations. It explains that breach of contract does not automatically bring a contract to an end and that termination of a contract for breach is not the same as rescission. This chapter also discusses the two sorts of situation in which the innocent party can terminate the contract for the other party’s breach, namely breach of condition or serious breach of an innominate term, and following repudiation, and considers the innocent party’s option to elect whether to terminate the contract or keep it alive.
1. Studying the English legal system
Authors: Wilson Steve , Rutherford Helen , Storey Tony , Wortley Natalie
Published: August 2018

Studying the English legal system at degree level offers a different approach from study at ‘A’ level. Lectures will guide students to sources and seek to structure the learning experience for students. Primary sources of law such as legislation and case law, to be found in law reports, must be located and read. Also secondary sources such as textbooks and journal articles will offer explanations and discussion of legal areas or points of law. These sources must then be used to answer questions which will be set for seminars and ultimately for assessment, such as coursework, oral presentations and examinations.