bluuebunny/crossref_metadata_2025 huggingface dataset:
24. Health and safety—the criminal law
Authors: Taylor Stephen , Emir Astra
Published: August 2019

This chapter introduces health and safety law in general terms, before describing and assessing those aspects which fall under the jurisdiction of the criminal courts. It discusses the structure of health and safety law; the Health and Safety at Work Act 1974; other major health and safety regulations; enforcement of health and safety regulations; corporate manslaughter; and debates about criminal liability in health and safety law.
27. Freedom of association
Authors: Taylor Stephen , Emir Astra
Published: August 2019

This chapter provides an introduction to collective employment law. Collective employment law concerns the regulation of the relationship between trade unions and employees in their capacity as trade union members. In order to be able to enforce these rights it is often necessary for a union to be listed by the Certification Officer, recognised by an employer or for its members to be acting ‘officially’ in the name of the union. Freedom of association is protected by laws which deter employers from dismissing employees or taking action short of dismissal against them for a trade union reason. The law gives equal protection to people who suffer the same detriments because they are not union members or because they have left a union.
Public Law Directions
Authors: Dennett Anne
Published: August 2019

Public Law Directions provides a balance of depth, detail, context, and critique. The aim is to empower readers to evaluate the law, understand its practical application, and confidently approach assessments. The text offers scene-setting introductions and highlighted case extracts, the practical importance of the law becomes clear. It shows readers when and how to critically evaluate the law by introducing the key areas of debate and encourages a questioning attitude towards the law. Topics covered include: the UK constitution; constitutional principles and values; power in the UK including an examination of the three arms of state; an analysis of the relationship between the individual and the state; and a close examination of human rights, including a look at the Human Rights Act 1998.
4. How the UK is organised
Authors: Dennett Anne
Published: August 2019

This chapter details how power is allocated in the UK, and its organisation in terms of devolution and regional and local government. Power in the UK is divided into three branches or arms of state: legislature (law-makers), executive (government and administration), and judiciary (courts and judges). Before devolution, the government's (executive's) administrative power was centralised and it extended to the whole of the UK, but devolution has made significant changes to the constitution and has brought a substantial rebalancing of power in the government of the UK. Since devolution's introduction, the power of central government no longer extends to the growing areas of domestic policy that have been devolved to Scotland, Wales, and Northern Ireland. The UK government's remit therefore now covers England and the whole of the UK on non-devolved matters including the conduct of foreign affairs, defence, national security, and oversight of the Civil Service and government agencies.
5. Parliamentary sovereignty
Authors: Dennett Anne
Published: August 2019

This chapter focuses on parliamentary sovereignty. The term ‘Parliamentary sovereignty’ is normally defined as the ‘legislative supremacy of Parliament’. Since the constitutional settlement brought about by the Bill of Rights 1689, the UK Parliament has had unchallenged authority to create primary law. Parliament's legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament's legislative competence. Parliament has broad legislative power but cannot make unchangeable statutes, and a current parliament can reverse laws made by a previous parliament. Nobody but Parliament can override Acts of Parliament. The Enrolled Bill rule requires that, if a Bill has passed through the House of Commons and House of Lords and received royal assent, the courts will not enquire into what happened before or during the legislative process.
10. The House of Lords
Authors: Dennett Anne
Published: August 2019

This chapter studies the House of Lords. The membership of the House of Lords largely relies on patronage. Members of the Lords come from a variety of backgrounds with wide-ranging expertise, and are appointed by the Queen on the Prime Minister's advice. They can be nominated by political parties, by the public, or by themselves. The House of Lords is an important revising and scrutinising chamber, but it is also subordinate to the democratically elected House of Commons. The Lords' main functions are scrutinising and challenging the government, investigating and debating issues of public interest, and scrutinising and revising legislation. While it respects the primacy of the Commons, the House of Lords is also a check on constitutional change by the Commons. The chapter then looks at the Parliament Act 1911, which established the Commons' primacy over the House of Lords.
14. Challenging government action
Authors: Dennett Anne
Published: August 2019

This chapter focuses on the administrative justice system. Administrative justice refers to the systems that enable individuals to resolve complaints, grievances, and disputes about administrative or executive decisions of public bodies, and to obtain redress. Grievance mechanisms exist to achieve redress and to ensure accountability and improved public administration. They include formal court action through judicial review, but range well beyond the courts to informal, non-legal mechanisms. Whereas a public inquiry may concern a grievance of a larger section of the public and can raise political issues, an inquiry by an Ombudsman concerns a grievance of an individual or small group, with a different fact-finding process. Meanwhile, tribunals determine rights and entitlements in disputes between citizens and state in specific areas of law, such as social security, immigration and asylum, and tax.
16. Judicial review
Authors: Dennett Anne
Published: August 2019

This chapter assesses judicial review and the rule of law, the three traditional grounds of judicial review, proportionality, the modern approach to judicial review, and remedies. Judicial review is the rule of law in action. Through judicial review, the courts place constraints on executive power by upholding and projecting rule of law principles on to executive actions. Indeed, it ensures that administrative decisions are taken rationally, in accordance with a fair procedure, and within the powers conferred by Parliament. As such, the traditional judicial review grounds of illegality, irrationality, and procedural impropriety are applied flexibly to protect individuals against the unreasonable, arbitrary, procedurally unfair, or unlawful use of power. Judicial review has unique remedies known as prerogative orders which comprise mandatory orders, prohibiting orders, and quashing orders.
4. Public Law
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

This chapter explains the important role that public law, particularly administrative law, plays in environmental law. This role comes about because much of environmental law requires vesting decision-making and regulatory power in the hands of public decision-makers at all levels of government. This chapter begins by providing an overview of the different constituent elements of public law: constitutional law, administrative law, the role of the EU and international law, as well the complexities of this area of law. The chapter then moves on to consider the way in which the different types of interests involved in environmental problems and the need for information and expertise provide challenges for public law. The chapter then provides an overview of four major features of public law that are particularly relevant to environmental lawyers: the Aarhus Convention, accountability mechanisms, judicial review, and human rights.
6. Statutory Liabilities and Remedies
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

An important feature of environmental law is the creation of statutory schemes that impose liability on those that engage in environmental deleterious activity and/or require them to remediate environmental harm. This chapter discusses three different statutory regimes that exist in UK and EU environmental law which create liabilities, obligations, or provide remedies to address a range of environmentally related problems: statutory nuisance; the contaminated land regime under Part IIA of the Environmental Protection Act; and the EU Environmental Liability Directive. The chapter begins by providing a brief conceptual overview of different types of statutory liability techniques. Its aim is to give some feeling for both the conceptual complexity and the practical significance of these areas of law.
9. Regulatory Strategy
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

This chapter discusses the meaning and role of regulatory strategy in English and EU environmental law. Regulatory strategy is often thought of as an instrument to achieve certain environmental protection ends but the chapter argues that, despite the availability of a plethora of regulatory tools to implement them, regulators often face significant challenges to act in a strategic manner and to turn environmental regulatory strategy into an effective instrument of behavioural change. Against this background the chapter outlines the strengths and weaknesses of the key regulatory strategies currently adopted by both public and private regulators in a range of jurisdictions.
20. Environmental Assessment
Authors: Fisher Elizabeth , Lange Bettina , Scotford Eloise
Published: August 2019

Environmental impact assessment (EIA) and other related forms of assessment require decision-makers to take into account the environmental implications of an activity before making a decision about those acitvities. EIA is a feature of most environmental law systems of the world. This chapter is an overview of the Environmental impact assessment (EIA) and strategic environmental assessment (SEA) legal regimes in the EU and how they have been implemented into English law. It provides an overview of the distinctive legal nature of both EIA and SEA, the main legal features of each directive, and how they have been implemented into national law. A significant feature of this chapter is that it provides an overview of the case law of the CJEU and UK courts concerninig these regimes.
2. Family Relationships Between Adults
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter first considers demographic data on family relationships in England and Wales, and then examines the treatment of ‘trans’ people in this area of family law; and the history of legal recognition of intimate relationships between parties of the same gender, culminating in same-sex marriage and ensuing debates about the future of civil partnership. This is then followed by discussions of status-based relationships (marriage and civil partnership); creating a valid marriage or civil partnership; grounds on which a marriage or civil partnership is void; grounds on which a marriage or civil partnership is voidable; and non-formalized relationships (cohabitants and other ‘family’).
3. Ending Relationships: Divorce and Separation
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses the law on divorce and separation. It covers divorces in England and Wales; the nature, function, and limits of divorce law; a brief history of divorce law to 1969; the present law of divorce and judicial separation; evaluation of the current law; options for reform of divorce law and the process of divorce; and the future of English divorce law.
4. Domestic Abuse
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses what the law can do directly to punish and rehabilitate perpetrators of domestic abuse and to protect victims. The chapter sets out the latest empirical data regarding domestic abuse and considers various theories regarding domestic violence. The chapter addresses the requirements of human rights law in this area; the criminal justice system and domestic violence; the civil law and domestic violence; the Family Law Act (FLA) 1996, Part 4; enforcement of orders under the FLA 1996; third party action on behalf of victims, including the Crime and Security Act 2010 and latest proposals to enhance such powers; and legal responses to forced marriage.
5. Financial Provision for Children
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter, which discusses financial provision for children who live apart from one or both parents, whether in a single-parent family, step-family, or with other carers, begins with a brief history of financial provision for children. It then discusses the current law on child support; court-based provision; ‘family-based arrangements’ and other private ordering; and policy questions relating to the financial support of children.
7. Property and Finances When Non-Formalized Relationships End
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the resolution of property and financial disputes that may arise between family members who are not spouses or civil partners and so who cannot use the statutory remedies discussed in chapter 6. Instead, parties rely largely on the general law of property, trusts, and contract to provide solutions. This chapter examines those areas of law, and the few statutory provisions that apply between these parties, before considering the prospects for reform.
13. Adoption
Authors: Miles Joanna , George Rob , Harris-Short Sonia
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter examines the place of adoption within the government’s child protection policy, the legal framework for adoption under the Adoption and Children Act 2002 (ACA 2002), the core principles underpinning the ACA 2002, the adoption process, and the ongoing reform agenda. It considers the application of the welfare principle to three contentious issues: (i) the importance of the birth family in an adoption dispute; (ii) trans-racial adoption; and (iii) step-parent adoptions and adoptions by a sole natural parent. The chapter also examines the issue of ‘open adoption’, focusing on adopted children’s right to information about their birth families and provision for post-adoption contact, and, finally, considers the main alternative to adoption: special guardianship.
1. Introduction to the law of contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (and the fact that as of this date, the UK is still part of the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, the chapter gives detailed discussion on the scope of ‘good faith’, and whether there is an implied duty of good faith in performance. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.
2. Agreement
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter explains how to determine whether parties have reached an agreement. Traditionally, the existence of agreement is determined objectively on the basis of an offer and corresponding acceptance. However, this approach has been challenged for being artificial and inflexible, and even in the absence of these traditional criteria the courts have occasionally found agreement, particularly where there has been performance. For formation there needs to be an offer (as opposed to an invitation to treat) and that offer must be accepted before it has been rejected or otherwise lapsed. In order to be effective, offer and acceptance must be properly communicated, which normally means ‘received’. The chapter also considers the mirror image rule, whereby an acceptance must be unconditional and correspond with the exact terms proposed by the offeror.
3. Agreement problems
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. This chapter examines principles that determine when an agreement can be enforced with sufficient certainty and whether liability will arise in the absence of agreement. An apparent contract will be void if the terms are considered too uncertain or where there is no context for gap filling. But this must be balanced with the need to prevent the parties from using allegations of uncertainty to escape from bad bargains. This chapter therefore considers how the courts deal with the difficult question over agreements to agree. This chapter also considers mistakes that prevent agreement (mutual or cross-purposes mistakes and unilateral mistake as to terms, particularly identity mistakes). It also examines the availability of the remedy of rectification when the contract that does not accurately reflect what the parties agreed. The chapter also considers the defence of non est factum (this is not my deed).
4. Enforceability of promises: consideration and promissory estoppel
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Under English law, bargains and not gratuitous promises are enforced, thus a promise will not be enforceable if it is not contained in a deed (implying that any promise is taken seriously) or supported by consideration. Consideration refers to an act or a promise given in exchange for the promise (that is, the price for which the other’s promise was bought). The law does not recognize some acts or promises as good consideration, such as past consideration and performance of an existing legal duty. This chapter examines the general requirement in English law to provide consideration in order to enforce a contractual promise. The consideration requirement is relevant not only to the formation of a contract but also to the enforceability of promises altering the terms of an existing contract (alterations). An alteration promise that is not supported by consideration may still have some binding effect on the basis of the doctrine of promissory estoppel.
10. Remedies providing for specific relief and restitutionary remedies
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. Equitable remedies that provide for specific relief refer to remedies for breach of contract which compel actual performance rather than simply compensating for loss caused by breach. Compulsion of performance may take the form of claiming an agreed sum, a claim seeking specific performance, or a claim seeking an injunction. The claim or action for an agreed sum gives effect to the claimant’s performance interest by ordering the party in breach to pay the liquidated sum (debt), his agreed performance under the contract. The chapter examines the remedy of specific performance as a court order that compels actual performance of agreed obligations (other than payment of the price). As an equitable remedy it is available at the discretion of the court but only when damages would be an inadequate remedy. This chapter also examines remedies providing for specific relief and restitutionary remedies, the latter of which refer to recovery based on failure of consideration and quantum meruit. Finally, the chapter examines the availability of specific compensatory remedies in instances where there is no financial loss, namely the exceptional remedy of an account of profit or the remedy of ‘negotiating damages’ - and their relationship.
14. Misrepresentation
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

Course-focused and comprehensive, the Textbook on series provides an accessible overview of the key areas on the law curriculum. False statements of fact that induce a contract are known as actionable misrepresentations. In case of a misrepresentation, there are different legal remedies for breaches of contract. A misrepresentation renders the contract voidable (liable to be set aside using the remedy of rescission) so that the contract will be treated as if it had never been made, whereas a breach of contract will have no effect on the existence of the contract (in the absence of a repudiatory breach that will terminate the contract when future contractual obligations will be discharged). The chapter identifies actionable misrepresentations and, in particular, loss in instances where there is a duty of disclosure in English law. There are three types of actionable misrepresentations, dependent upon the state of mind of the one who makes the false statement: fraudulent, negligent, and innocent. This chapter looks at the legal remedies for actionable misrepresentations such as rescission, the availability of damages for different types of misrepresentations and the provisions of the Misrepresentation Act 1967. It also examines the effect of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs) as amended on this area of law, the criminal offences and civil remedies for consumers, as well as the relationship of misrepresentation to other areas of law. Finally, it looks at clauses that seek to exclude or limit liability for misrepresentation or to deny any actionable misrepresentation, e.g. ‘non-reliance clauses’.
Poole's Casebook on Contract Law
Authors: Merkin QC Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Extracts have been chosen from a wide range of historical and contemporary cases to illustrate the reasoning processes of the courts and to show how legal principles are developed. The book begins with some guidance on reading cases, and then turns to agreement and agreement problems. Next it looks at the enforceability of promises and intention to be legally bound and the capacity to contract. The content of the contract is examined. Exemption clauses and unfair contract terms are analysed in detail. The book also considers issues relating to breach of contract and remedies, and excuses for non-performance. Finally it discusses initial impossibility, misrepresentation, duress, undue influence, and illegality.
1. Guidance on reading cases
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter offers tips for students on how to read cases relating to contract law. In reading a case, it is important to understand how it relates to the legal principles taught in lectures. The chapter also discusses the basics of reading a case and how to read a case in practice, using the case Carlill v Carbolic Smoke Ball Co. so that the student will learn to appreciate contract case law.
3. Agreement problems
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The courts will enforce an agreement only if it is sufficiently certain in its terms. A contract will not come into existence if certain types of mistakes ‘negative consent’ and so prevent agreement. In relation to certainty, the chapter focuses on vagueness and incompleteness, including agreements to agree and whether there can ever be a duty to negotiate in good faith. It also examines the position where there is no contract due to uncertainty, but there has been performance. This chapter also examines agreement mistakes which prevent formation of an agreement. These mistakes are mutual mistakes (where the parties are at cross purposes) and unilateral mistakes (where one party is mistaken and the other knows or ought to know this, e.g. unilateral mistake as to identity). Finally, the chapter looks at document mistakes and specifically rectification of a written document to reflect accurately what the parties in fact agreed, and the plea of non est factum (‘this is not my deed’).
4. Enforceability of promises: consideration and promissory estoppel
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. In order to be enforceable, a promise must either be supported by consideration or be expressed in the form of a deed. This stems from the assumption in English contract law that only bargains should be enforced. This chapter examines the enforceability of promises, focusing on consideration and promissory estoppel. The case law has addressed what can constitute consideration and whether a promise can be enforced in the absence of consideration. The chapter focuses particularly on the enforceability of alteration promises, discusses part-payment of a debt, when and how the doctrine of promissory estoppel will operate, and how far the doctrine can be extended.
5. Intention to be legally bound and capacity to contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with intention to be legally bound and capacity to contract. In order to enforce any promise not contained in a deed, there must be an intention to create legal relations. This intention is traditionally determined using different presumptions for domestic and commercial agreements. In the case of domestic and social agreements, there is a presumption that there is no intention to create legal relations. In contrast, there is a presumption of an intention to create legal relations in commercial agreements. Both presumptions are capable of being rebutted on the facts, e.g. an honour clause in a commercial contract. The second part of this chapter examines capacity to contract and particularly the enforceability of contracts made by minors.
8. Breach of contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. The performance obligations of the parties to a contract are determined by contractual terms. A breach of contract arises when a party fails to fully comply with a performance obligation, without lawful excuse. If a contractual obligation is strict, failure to comply constitutes a breach of contract regardless of fault. Subject to an enforceable exemption clause, the injured party is entitled to damages to compensate for the loss suffered as a result of the breach. This chapter focuses on breach of contract and its legal consequences. It discusses the election on repudiatory breach, termination or affirmation of a contract, the classification of terms: conditions, warranties and innominate or intermediate terms, the ‘entire obligation rule’, and anticipatory breach.
9. Damages for breach of contract
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Contractual damages aim to compensate the injured party for the loss suffered due to breach of contract. Damages for breach are compensatory and not punitive so that it is possible to recover only for the actual loss suffered by the injured party. This chapter considers the different measures to achieve compensation for loss suffered as a result of the breach and the limitations on the ability to be fully compensated in a breach of contract claim. It also discusses agreed damages provisions and their enforceability.
11. Privity of contract and third party rights
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter examines privity of contract, its relationship with consideration, and the ability of third parties to enforce contractual provisions for their benefit. The doctrine of privity of contract provides that the benefits of a contract can be enjoyed only by the parties to that contract and only parties can suffer the burdens of the contract. At common law, third party beneficiaries could not enforce a contractual provision in their favour so various devices were employed seeking to avoid privity. Statute now allows for direct third party enforcement but in limited circumstances. This chapter examines the background to privity and the attempted statutory reform in the Contracts (Rights of Third Parties) Act 1999 as it has been interpreted in the case law. The chapter also discusses the common law means of avoiding privity as illustrated by the case law, e.g. agency, collateral contracts, and trusts of contractual obligations. Finally it assesses the remedies available to the contracting party to recover on behalf of the third party beneficiary of the promise, including the narrow and broad grounds in Linden Gardens Trust. It concludes by briefly considering privity and burdens—and the exceptional situations where a burden can be imposed on a person who is not a party to the contract.
12. Discharge by frustration: subsequent impossibility
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.
16. Illegality
Authors: Merkin Robert , Saintier Séverine
Published: August 2019

The Casebook series provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract may be deemed illegal or void on grounds of public policy. This chapter examines the illegality of contracts under English law, contracts prohibited by statute (express prohibition), and contracts that are illegal in their performance. It considers contracts that are void on grounds of public policy, focusing on contracts in restraint of trade, covenants between employer and employee, exclusive dealing agreements, exclusive service agreements, and severance of the objectionable parts of covenants. The chapter also discusses the recovery of money or property transferred under an illegal contract, along with the UK Law Commission’s proposed reform of the law governing illegal contracts and the supreme court decision of Patel v Mirza over controversy concerning the nature of illegality, the basis for intervention in illegal contracts and the ability to recover under an illegal contract.
1. Introduction to the English criminal process
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

This chapter starts by presenting a brief sketch of the key stages and decisions of the criminal process which forms part of the English criminal justice system. The significance of those stages and decisions is discussed before they are then classified according to their nature and consequence. This is followed in the next section by differentiating between the criminal process and the system before moving on to orient the reader by outlining significant reforms that have shaped the criminal process in the past decades. There is a final concluding section.
3. Ethics, conflicts, and conduct
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

Chapter 2 sketched a normative model of the criminal process in which the pursuit of a particular end—retributive justice—was constituted and constrained by respect for rights and other values. This chapter examines one way in which the demands of this rather abstract model can be put into practice: through the consideration of ethics. It begins with a brief discussion of the idea of ethical conduct. It then outlines some unethical practices, and is followed by attempts to examine and reconstruct some possible justifications for such practices. Next, it looks at the problems of displacing the occupational cultures and other influences which may lead to resistance against change. It goes on to discuss formal accountability systems and concludes with a consideration of the prospects for bringing about changes in the conduct of practitioners within the system.
4. Investigating crime and gathering evidence
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

The criminal process is, to a large extent, an investigative one, existing to prepare cases for effective trial. To this end, authorities are given powers enabling them to gather evidence. But these powers can infringe numerous interests, some relating to the workings of the process itself, in addition to external ones, such as liberty, privacy, freedom from humiliation, and bodily integrity. This chapter examines how the gathering of evidence is and should be affected by these concerns and covers powers and practices in relation to the investigation of crime and the gathering of evidence. It discusses stop and search, surveillance, eyewitness identification evidence, voice identification, forensic and biometric samples, and the privilege against self-incrimination.
9. Pre-trial issues: disclosure and abuse of process
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

This chapter reviews various procedural mechanisms to ensure that the eventual trial runs smoothly and fairly. In terms of facilitating the smooth running of the trial, it concentrates on ways of screening cases and clarifying some of the issues prior to trial. The disclosure of evidence is a fraught matter in this regard, with an impact on fairness as well as efficiency. In terms of ensuring that the defendant is not subjected to an unfair trial, it examines some question that arise under the broad heading of abuse of process, concentrating on issues of delay and the entrapment doctrine.
12. Appeals, reviews, and retrials
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

This chapter examines the appeals system, the most important purpose of which from the legal system’s point of view is the development and clarification of the law. Reviewing the law in this way allows the higher courts to exert some control over the lower courts and adds much to an understanding of the forces shaping the appeals system. From the point of view of litigants, appeals offer a chance to challenge a result they are unhappy with. The chapter discusses restrictions on appeal rights; challenging jury verdicts; due process appeals; post-appeal review of convictions by the Criminal Cases Review Commission; miscarriages of justice, prosecution appeals; and double jeopardy and retrials.
13. Circumventing the trial through preventive orders
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

This chapter examines a notable feature of the English legal system that has waxed and waned over the last decades—civil preventive orders. These are orders that may be made by a court sitting as a civil court; orders that contain prohibitions created by the court as a response to conduct by the defendant; and orders the breach of which amounts to a criminal offence. Thus, civil preventive order involves a kind of hybrid or two-step process (first, the making of the order according to civil procedure and, secondly, criminal proceedings in the event of breach), which has several implications for the criminal process and for the rights of defendants. More recently their form has been altered and their use moderated.
14. Criminal process values
Authors: Campbell Liz , Ashworth Andrew , Redmayne Mike
Published: August 2019

This chapter reflects upon the values that appear to dominate the English criminal process, the values that ought to dominate it, and how change might be brought about, in the context of austerity and diminishing resource allocation for both economic and ideological reasons. Specifically, it considers the avoidance of criminal trials, as well as the principled approach to criminal justice. The purpose of the criminal process is to bring about accurate determinations through fair procedures. The approach therefore emphasizes various rights and principles that ought to be safeguarded. The chapter then covers discrimination and non-discrimination, as well as promoting the principled approach.
2. Introduction to Trusts
Authors: Davies Paul S , Virgo Graham
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter presents an introduction to the legal mechanisms of a trust, which involves a trustee or trustees holding property rights on behalf of another or for an identified purpose. A trustee is obliged in Equity to exercise those rights for that person or purpose. The law of trusts is primarily concerned with the different rights that various people might have following the creation of a trust. There is particular controversy about the nature of the beneficiary’s rights to trust property. There are a variety of reasons why someone would wish to create a trust, with the consequent separation of legal and equitable title, and a number of categories of trust exist, the operation of which is influenced by the context in which the trust arises.
9. Informal Arrangements Relating to Land
Authors: Davies Paul S , Virgo Graham
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter refers to informal arrangements relating to land and related transactions that fail to comply with statutory formality requirements. Through a number of equitable mechanisms, these transactions may be rendered effective. It must be noted that trusts of land are only enforceable when they are evidenced by signed writing and meet certain formality requirements relating to the disposition of land. Verbal contracts for the sale of land are, therefore, considered void. Equity may have a role to play in rendering a transaction effective where parties have entered into informal arrangements relating to property, and this has been recognized explicitly by statute. Trusts of land and contracts for the sale of land play a significant role in validating informal arrangements relating to property, as does the doctrine of proprietary estoppel.
14. Fiduciary Obligations
Authors: Davies Paul S , Virgo Graham
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with a definition of fiduciary relationships as presented by a retired judge of the High Court of Australia, Sir Anthony Mason. According to Mason, the relationship is a ‘concept in search of a principle’. Fiduciary relationships are voluntary, and some relationships, such as solicitor–client, are well recognized as fiduciary in nature. However, fiduciary relationships can arise in a wide variety of situations. A fiduciary owes a duty of loyalty to his or her principal, always acting in the best interests of said principal. Fiduciary obligations are strict, and any profits made by the fiduciary in breach must be disgorged to his or her principal. Where the profits are made from property that rightfully belonged to the trust, a constructive trust may be imposed upon the profits.
15. Variation of Trusts
Authors: Davies Paul S , Virgo Graham
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter shows how a variation of trust occurs in cases where all the beneficiaries of a trust are of full age, under no disability, and in agreement to terminate the trust and resettle the trust property on a new trust, varying the original trust. In cases of necessity, the court has an exceptional inherent jurisdiction to vary a trust. The Variation of Trusts Act 1958 enables the court to consent to the variation of a trust on behalf of certain actual or potential beneficiaries who are unable to consent to the variation. The Act enables the revocation of an existing trust and establishment of a new trust, but only where the new trust can be regarded in substance as similar to the old trust.
20. Equitable Orders
Authors: Davies Paul S , Virgo Graham
Published: August 2019

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the commercially significant remedies of injunctions, specific performance, rectification, and rescission — paying particular attention to injunctions. Although it is true that damages for the breach of Common Law obligations are available ‘as of right’, and that equitable remedies are inevitably discretionary, it is important to recognize that such discretion is informed by a number of key principles. Importantly, equitable remedies are only available where Common Law remedies are inadequate: Equity can only intervene where the Common Law fails to do justice. However, equitable orders can be made in support of both legal and equitable rights. Failure to comply with an equitable order constitutes the crime of contempt, the punishment for which may be imprisonment, sequestration of the defendant’s assets, a fine, or a combination of these sentences.
Introduction to Business Law
Authors: Jones Lucy
Published: August 2019

Introduction to Business Law demonstrates the relevance of key areas of the law to a world of work that the business student can relate to. Students of business often find business law modules challenging, irrelevant to their future career, and full of alien terminology and concepts. Structured in eight parts, this book provides a foundation in the key legal concepts of the English legal system, contract law, and negligence before discussing how the law affects the everyday workings of businesses and their employees from protecting intellectual property rights to company formation, winding up and insolvency. It covers a variety of topics around the subjects of the English legal system, contract law, the law of torts, employment law, the structure and management of business and the major intellectual property rights.
3. Sources of English Law
Authors: Jones Lucy
Published: August 2019

This chapter discusses the sources of English law, legislation, custom, case law, and EU law. It includes detail of how an Act of Parliament is created, an explanation of delegated legislation, and how legislation is interpreted by the courts. In considering case law, the importance of judicial precedent and how the system of precedence functions is fully explained. The chapter also discusses the major institutions of the EU including the jurisdiction of the Court of Justice of the European Union. The sources of EU law, treaties, regulations, directives, and decisions are outlined. The chapter outlines the 2016 referendum and the position of EU law in the UK during the negotiation period for the UK’s exit from the EU and the likely impact of the UK’s exit from the EU. Detail is given of the rights protected under the European Convention on Human Rights and Fundamental Freedoms and the impact of the Human Rights Act 1998.