bluuebunny/crossref_metadata_2025 huggingface dataset:
8. Resulting Trusts
Authors: Virgo Graham
Published: August 2023

This chapter examines the nature of the resulting trust. It explains that a trust is called resulting when the beneficial interest in the property returns to the person who transferred the property in the first place. It discusses the theoretical foundation of the resulting trust and its categories, which include presumed and automatic resulting trusts. This chapter examines the consequences of a total or partial failure of express trust and the Quistclose trust which arises where property is transferred for a purpose which has failed, and suggests that there is no need to expand the resulting trust to encompass claims in unjust enrichment and following the rescission of a contract.
14. Dispositive Powers and Duties
Authors: Virgo Graham
Published: August 2023

This chapter examines the powers and duties of trustees relating to the distribution of trust property to beneficiaries or objects. It explains that dispositive powers enable the trustees to exercise a discretion relating to the distribution of trust assets and dispositive duties requires them to act in a particular way or to make a particular decision. This chapter also discusses the underlying principles of the duty to distribute and the powers of appointment, maintenance, and advancement. The chapter further considers a variety of principles which are applicable to determine how powers of appointment should be exercised, what happens when the power is not exercised properly, and mechanisms to assist trustees in the exercise of these powers.
4. The contract
Authors: Nair Aruna
Published: August 2023

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter explains the contract for the sale of an estate or an interest in land. It discusses the rules for contracts made on or after September 1989; contracts made before 27 September 1989; and the use of estoppel and constructive trusts to replace part performance after the Law of Property (Miscellaneous Provisions) Act 1989. It also covers the effects of a valid contract to sell land and applies the law to the sale of the freehold property, 2 Trant Way.
6. Registered land
Authors: Nair Aruna
Published: August 2023

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. The Land Registration Act 1925, which governed the system of registered land, was repealed and replaced by the Land Registration Act 2002, which in the main came into force on 13 October 2003. This chapter focuses on the terms of the 2002 Act and the rules made under it (Land Registration Rules 2003). The discussion covers the basics of land registration, including the appearance of the land register and the types of entry that can be made on it; the process of first registration of unregistered land; the formalities for transferring and creating rights in registered land; the protection of purchasers of registered land and the role of overriding interests; and the circumstances in which the register can be changed and those who have suffered loss by reason of the registration system can be indemnified by the state. It illustrates the law by reference to the case of Mr and Mrs Armstrong who were introduced in Chapter 3 as buyers of a registered freehold estate, 1 Trant Way.
10. Obligations of landlord and tenant
Authors: Nair Aruna
Published: August 2023

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter deals with the rights and duties of the landlord and tenant who are the parties to the lease. Every lease contains provisions which define the obligations of the landlord and tenant under the lease and some obligations are also implied into leases by operation of law. The chapter discusses the distinction between covenants and conditions in leases, some obligations peculiar to landlords and how they arise, some obligations peculiar to tenants and how they arise, and concludes by considering some cases of shared responsibility. It illustrates the law by reference to the two leases of the basement flat and the maisonette at 5 Trant Way, introduced in Chapter 9.
14. Trusts of land
Authors: Nair Aruna
Published: August 2023

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter provides an overview of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996), with a special focus on the impact of the Act on the rights of beneficiaries and the duties of trustees under settlements of land created after 1 January 1997. These are illustrated by reference to: Mary Brown, the owner of 10 Trant Way, who needs advice about creating a settlement in her will; and six students who hold 8 Trant Way as co-owners, and are therefore subject to a statutory trust of land.
16. The rule against perpetuities
Authors: Nair Aruna
Published: August 2023

Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter provides a brief account of the ‘rule against perpetuities’ which controls how far into the future a landowner can control the enjoyment of rights to land by creating future interests. It discusses the common law perpetuities rules; legislative modifications before 2010; the breadth of the application of old rules; and the Perpetuities and Accumulations Act 2009.
2. Development of the EU
Authors: Craig Paul
Published: August 2023

This chapter traces the development of what is now the EU. It first describes the origins of ideas of European unity. It then discusses the various treaties that paved the way towards broader European integration. These include the European Coal and Steel Community Treaty of 1951, the Single European Act 1986, the Treaty on European Union (TEU) of 1992, and the Lisbon Treaty of 2009. The hope that an expanded EU might develop in relative calm was, however, undermined by the financial crisis, Brexit (the UK’s decision to leave the EU), and the migration crisis. The chapter concludes by introducing theories that seek to explain why integration has occurred.
3. The EU’s political institutions
Authors: Peers Steve
Published: August 2023

This chapter examines the possible tension between democracy and effectiveness in the context of the EU’s political institutions: the European Parliament, the European Council, the Council, and the Commission. To this end, it examines in turn the composition, powers, and functioning of each of these institutions, comparing them to national systems and assessing their democratic accountability and the effectiveness of their functioning. It shows that the role of various EU institutions has evolved over time—in particular to strengthen the legislative role of the European Parliament, and that body’s control over the Commission.
21. EU health law
Authors: Hervey Tamara K
Published: August 2023

This chapter examines the ‘transversal’ EU law on health. Specifically, it discusses the law governing patient mobility; health care professionals; health care institutions; medical devices and pharmaceuticals; blood, organs, and human tissue; and public health. EU health law provides an excellent case study of important questions for EU lawyers, such as the appropriate balance between the ‘economic’ and the ‘social’; when public health justifies limiting free movement; and whether EU law pushes health care systems towards a focus on individual autonomy and away from a national welfare system model. EU health law also raises constitutional issues, such as whether these questions should be determined by litigation or legislation; whose interests should be represented in decision-making processes; and what level (regional, national, EU, or even global) should decisions be taken.
2. Family Relationships Between Adults
Authors: George Rob , Thompson Sharon , Miles Joanna
Published: August 2023

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 the introduction of same-sex marriage and mixed-sex 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’).
11. Private Disputes over Children
Authors: George Rob , Thompson Sharon , Miles Joanna
Published: August 2023

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter, which examines the current legal framework for resolving private law disputes over children, first considers procedural issues germane to all private law disputes, including the extent to which children are able to participate in these proceedings. It then turns to the three main private law orders available under the Children Act 1989—child arrangements orders, specific issue orders, and prohibited steps orders—including detailed discussion of the law’s approach to contact applications in cases of domestic abuse allegations, and specific areas such as relocation disputes.
7. Public Health
Authors: Farrell A. M. , Dove E. S.
Published: August 2023

This chapter covers the efforts undertaken by the UK’s four nations to address aspects of public health, including both communicable (or infectious) and non-communicable disease, through law and policy. We consider the Covid-19 pandemic and its demonstration of the limitations and strengths of the existing organisations, infrastructure, laws, and regulations to address matters of public health. This in turn has generated a good amount of public disquiet about the role of the state in interfering with individual liberties and the appropriate balance to be struck between protection of the population’s health—what is considered the state’s most important responsibility—and individual choice and liberty—something often seen as a matter of primary value in our society and a component of our fundamental rights. As we come to see, more than most other areas of medicine and law, public health is fundamentally a political endeavour.
12. Clinical Negligence
Authors: Farrell A. M. , Dove E. S.
Published: August 2023

This chapter examines the law of clinical negligence. First, the key elements of making a claim in the tort of negligence are outlined. Examples are then drawn from existing case law in clinical negligence, including the use of innovative techniques, complementary medicine, misdiagnosis, the problem of the novice, negligence in treatment and protecting patients from themselves, as well as wrongful conception, birth, and life claims. The doctrine of res ipsa loquitur is also briefly considered. Thereafter, an overview is provided of key aspects of criminal negligence, before moving on to examine alternatives to clinical negligence litigation, including recent proposals for reform such as the creation of no-fault schemes for medical injury.
2. Trusts in context
Authors: Watt Gary
Published: August 2023

This chapter places trusts in their contemporary social, economic, legal, and international context. It first discusses their significance to the world outside the lawyer’s office, and shows that they play an important social and economic role in the lives of ordinary people. The trust operates in key areas such as home, employment, and commerce. The chapter also examines the trust in the context of laws, focusing on how it corresponds to, and coexists with, other legal ideas such as contract, debt, powers, gift, agency, bailment, tax, and corporation, and concludes by looking at the international and comparative dimension of the trust.
4. Effective disposition of benefit: constitution of trusts
Authors: Watt Gary
Published: August 2023

This chapter explains the reasons why a trust must be completely constituted in order to be valid and discusses the steps that must be taken in order to constitute a trust. Constitution matters because the beneficiaries of an incompletely constituted trust are ‘mere volunteers’ and therefore will not be assisted by equity. In other words, they do not have any rights in the trust property and thus cannot enforce the trust in court. Following the law, equity ‘will not assist a volunteer’ and ‘will not perfect an imperfected gift’. In order to have a ‘perfect’ gift, the donor must actually complete the disposition of the subject matter in favour of the intended donee or execute a formal ‘deed of gift’. The chapter also considers various modes of constitution of trusts, the court ruling in Strong v. Bird, and gifts made in contemplation of death.
6. Formality, perpetuity, and illegality: trust creation and public policy I
Authors: Watt Gary
Published: August 2023

Trust property apparently belongs to the person who is not the true owner despite having all the forms and powers of ownership. Thus, a trust creates an illusion of ownership that may prejudice trade creditors when the trustee becomes insolvent and deceive the state’s tax collection agencies. However, there are a number of safeguards designed to prevent the undesirable creation and operation of trusts. For example, the disposition of equitable interests under trusts must be made in writing and the creation of trusts of land must be evidenced in writing. This chapter discusses the ways in which the creation of trusts is influenced by special considerations of public policy, focusing on formality, perpetuity, and illegality. It also considers rules against perpetuities—the rule against remoteness of vesting, the rule against inalienability of capital, and the rule against accumulation of income—and finally, looks at the Perpetuities and Accumulations Act 2009.
4. The actors in the international legal system
Authors: Henriksen Anders
Published: August 2023

International society is first and foremost a society of individual sovereign states. However, states are by no means the only relevant actors in international law. In fact, one of the consequences of the post-1945 expansion of international law into areas that had traditionally been of limited international interest has been the increasing legal importance of a variety of non-state actors, most notably international organizations and individuals. This chapter introduces the various actors in the international legal system that possess rights, powers and obligations in international law. It provides a thorough presentation of statehood and the criteria for the creation of new states, and briefly discusses the (limited) legal significance of recognition. It discusses the modes by which a state can acquire title to new territory; the issues of state succession and state extinction; and the legal personality of territorial entities other than states, international organizations, individuals and additional actors in the international legal system.
15. International criminal law
Authors: Henriksen Anders
Published: August 2023

This chapter looks at the purposes and principles of international criminal law. International criminal law seeks to ensure that perpetrators of certain heinous acts are criminally liable for their acts, either before national or international criminal courts or tribunals. It is a fairly recent addition to international law and it was not until after the end of the Second World War that it became accepted that international law authorizes the criminal prosecution of individual perpetrators of serious offences. The chapter begins by discussing the most important sources of international criminal law. It then examines the prosecution of international crimes before international criminal courts, including the conditions for prosecuting suspected international criminals before the International Criminal Court. It also discusses the national prosecution of international crimes and the obligation found in a number of conventions to criminalize and prosecute certain conduct.
3. The Legislative Supremacy of the UK Parliament
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

This chapter examines the constitutional principle of parliamentary supremacy (which can also be called parliamentary sovereignty). The principle asserts that Acts of the UK Parliament are the highest form of law and prevents the judiciary questioning the validity of primary legislation (for example, that it contradicts another constitutional principle or infringes a fundamental right or freedom). Parliamentary supremacy is supported by political constitutionalists (who think that political control of legislation is more democratic than judicial power to override the will of the majority of MPs) but regarded with scepticism by legal constitutionalists (who would prefer judges to have constitutional power to adjudicate on legislation passed by Parliament, a power judges have in many other constitutional systems). The discussions then turn to parliamentary supremacy as a set of rules; the source of parliamentary supremacy; whether an Act of Parliament can bind future Parliaments; the rules on ‘implied repeal’; and the future of parliamentary supremacy.
5. Separating and Balancing Powers
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

This chapter examines the division of powers between the executive, legislative, and judicial branches of government. It considers the debate as to whether, why, and how separation of powers should occur in the UK’s constitutional system. Political constitutionalists tend to downplay the role of courts, while legal constitutionalists tend to be keen on using the idea of separation of powers to bolster the importance of the courts as a major ‘check and balance’ on the institutions that carry out the other two functions (legislative and executive). The discussions also cover the separation of power between the Crown and Parliament; judicial analysis of separation of powers; and interactions between Parliament, the executive, and judges. The ‘Westminster model’ is also explored.
6. Multilevel Governing Within the United Kingdom
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

This chapter examines multilevel governing within the UK. It is organized around three levels of governing: national, regional, and local. For most of the twentieth century, mainland Great Britain (England, Wales, and Scotland) formed a centralized political unit, with policy-making and law-making being led by the UK government and the UK Parliament. There was devolved government in Northern Ireland from 1922, but this was ended by the UK government in 1972 amid mounting civil unrest and paramilitary violence. At the local level, there are 382 principal councils (unitary, upper, and second tier) throughout the United Kingdom. These vary considerably in size, both in terms of their territorial area that they cover and their populations. This chapter discusses how the introduction of devolved government in 1998 has altered the governance arrangements in Scotland, Wales, and Northern Ireland. It also examines how devolution affects the territorial constitution, (see Section 6.4), intergovernmental relations with Westminster (see Section 6.5), and the governance of England (see Section 6.6).
17. Judicial Review 1: The Importance and Role of Judicial Review
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

The first of three chapters on judicial review in the UK, explains the nature and importance of judicial review in the UK’s constitutional system. It looks at the historical development of judicial review; its constitutional foundations; the scale and use of judicial review; the procedure by which claims for judicial review must be made, including the need for claimants to show that they have sufficient standing to bring claims; and the remedies that may be granted when claims are successful. The chapter notes that while it may be a valuable and effective remedy judicial review has important limitations, including that it cannot be used the challenge decisions simply because the claimant does not like or agree with the decision made.
22. Institutions of the European Union
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

This chapter introduces the project of European integration and discusses the legal basis of the EU, which consists of treaties that authorize law-making. It will identify the principal executive institutions of the European Union and their functions. They will be classified under the headings of supranationalism and intergovernmentalism. The chapter will also examine the process of enacting legislation and the role of the European Parliament. Drawing on an understanding of similar institutions and processes in the UK, the discussion is particularly concerned with an assessment of the institutions in terms of public law values, such as legitimacy, accountability, and transparency.
23. Joining and Leaving the European Union
Authors: Sueur Andrew Le , Sunkin Maurice , Murkens Jo Eric Khushal
Published: August 2023

This chapter discusses the constitutionalization of EU law, which was led by the European Court of Justice from the 1960s using the twin principles of direct effect and supremacy. These principles were fully developed by the time the UK joined the European Community in 1973. The chapter also examines the UK’s accession process and the European Communities Act 1972 before turning to the process of withdrawing from the EU. In that context, the chapter will focus on the concept of ‘retained law’, the implications of withdrawal for Scotland and Northern Ireland, and the Internal Market Act 2020.
6. The preliminary ruling (Article 267 TFEU)
Authors: Foster Nigel
Published: August 2023

This chapter examines the procedural law of the European Union (EU), focusing on Article 267 of the Treaty on the Functioning of the European Union (TFEU). It explains that Article 267 is the reference procedure by which courts in member states can endorse questions concerning EU law to the Court of Justice (CJEU). Under this Article, the Court of Justice of the European Union (CJEU) has the jurisdiction to provide preliminary rulings on the validity and interpretation of acts of the institutions, bodies, offices, or agencies of the Union and on the interpretation of the Treaties. This ensures legal unity.
13. An introduction to EU competition policy and law
Authors: Foster Nigel
Published: August 2023

This chapter provides an introduction to Competition Policy and law in the European Union (EU). There are three sets of rules: one relating to the activities of legal persons—that is, the business undertakings, which now includes rules on concentrations and mergers; one relating to anti-dumping measures; and, finally, one relating to the activities of the member states, principally state aid. The rules concerned with private undertakings are further subdivided into: Article 101 TFEU for agreements between cartels involving more than one entity; Article 102 TFEU, concerned with dominant positions, dealing predominantly with one entity but also applicable to one or more undertakings; and the rules applicable to concentrations and mergers.
14. Discrimination law
Authors: Foster Nigel
Published: August 2023

This chapter examines sex discrimination law in the European Union (EU). It analyses the reasons for the original inclusion of sex discrimination in the Treaty on the Functioning of the European Union (TFEU) and discusses the provision of TFEU Articles that aim to promote equality and prohibit discrimination. It evaluates the scope of Article 157 TFEU and explains the principle of ‘equal pay for equal work’ and ‘work of equal value’. This chapter also considers the expansion of the EU equality law with Article 19 TFEU, the Pregnant and Breastfeeding Workers Directive, and the Social Security Directive.
3. Finding legislation
Authors: Finch Emily , Fafinski Stefan
Published: August 2023

This chapter explains how to find domestic legislation, that is, statutes, statutory instruments, and European legislation both online and in a law library. The chapter also explains how to determine whether there is any statute law on a particular topic and how to work out whether a piece of legislation is in force. The chapter closes by explaining how to find the official current text of the European Convention on Human Rights.
7. Using cases
Authors: Finch Emily , Fafinski Stefan
Published: August 2023

This chapter explains how to use cases. It first looks at the ‘anatomy’ of a law report, before considering how the key legal principles can be extracted from the case. Once the legal principles are known it considers the extent to which those principles are binding on other courts via the doctrine of judicial precedent. Finally, it examines the impact of both the Human Rights Act 1998 and EU law on the operation of precedent.
10. Study skills
Authors: Finch Emily , Fafinski Stefan
Published: August 2023

This chapter focuses on the skills needed to study law. It begins by describing how a law degree is structured and what sorts of activities students are likely to take part in as part of that degree. It then discusses lectures, seminars, and tutorials; note-taking; working with others; time management; learning from feedback; and personal development planning.
5. Positive terms
Authors: Taylor Richard , Taylor Damian
Published: August 2023

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 terms of the contract give substance to the contractual parties’ obligations. They lay down what each party is expected to do in performance of his obligations, and so it is crucial in any dispute to first establish the terms of the contract before looking to see whether one party has failed to perform his obligations. This chapter focuses on the positive terms of the contract. The discussions cover terms and representations; collateral warranties; implied terms; and conditions, warranties and innominate terms and the significance of the remedies, including termination, attached to each.
8. Mistake
Authors: Taylor Richard , Taylor Damian
Published: August 2023

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. This chapter discusses the various ways of classifying mistakes including communication mistakes, mistakes of fact, common mistake and unilateral mistake. It then looks at the case law on mistaken identity and the distinctions between face-to-face and correspondence contracts. Finally, it looks at the restrictive rules on common mistake, including the difference between fundamental mistake and mistake as to quality, and their relationship with the doctrine of frustration and the demise of the category of equitable mistake.
9. Duress, undue influence and unconscionable bargains
Authors: Taylor Richard , Taylor Damian
Published: August 2023

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. This chapter focuses on the principles applicable where a contract is entered into after there have been threats or improper influence brought to bear on one party or where the one-sided nature of the contract suggests that one party has been taken advantage of. The discussions cover duress (duress and pressure, threats against the person, threats against goods and economic duress); undue influence (actual undue influence, presumed undue influence and third-party cases); and unfairness and unconscionable bargains.
6. Legal services and the ethical lawyer
Authors: Slorach Scott , Embley Judith , Goodchild Peter , Shephard Catherine
Published: August 2023

This chapter examines the development of the legal profession in the UK. It discusses the importance of lawyers to the Rule of Law, and the role of lawyers as professionals. It identifies the range of lawyers and their roles. It then examines the nature of legal services in England & Wales, and their regulation. The chapter then looks at the central role of ethics in lawyers’ work, and the implications of this priority. The chapter identifies changes to the legal profession—changes driven by the wider worlds of politics, society and technology.
8. Research
Authors: Slorach Scott , Embley Judith , Goodchild Peter , Shephard Catherine
Published: August 2023

This chapter explores legal research and research skills in practice. It explains the purpose of legal research. A practical legal research strategy is provided, and guidance is given on each stage of that strategy. Information is provided about how to analyse a research task. Different types of resources are considered, including primary and secondary sources. Consideration is given to electronic sources, and how to identify a decent electronic source from one which is not appropriate. Information is provided about the most popular online databases, including how to ensure your research is up to date. Finally, guidance is provided about how to record the research trail and how to report the results of the research.
11. Client interviews and meetings
Authors: Slorach Scott , Embley Judith , Goodchild Peter , Shephard Catherine
Published: August 2023

This chapter builds on the learning from Chapter 10 about persuasive oral communication skills. It considers these skills specifically in the context of client interviews and meetings. It covers interview role-plays and assessments in academia, and interviews, meetings and calls in practice. A flowchart is provided for use as a guide on how to structure an effective first meeting or interview with a client. Consideration is given to the importance of rapport and how to establish it. Information is provided on the particular advantages and challenges of meeting using legal tech, including over the phone or in video conference, and how to overcome those challenges. Guidance is provided on effective note-taking and the production of an attendance note.
18. Understanding clients: individuals and businesses
Authors: Slorach Scott , Embley Judith , Goodchild Peter , Shephard Catherine
Published: August 2023

This chapter uses a client case study to explore life events that will require individuals and businesses to have recourse to the law. It also looks at how both individuals and businesses raise money, showing that there are many reasons why individuals and businesses will have recourse to the law. Often the need for legal services is triggered by some form of important life event, such as moving house, divorce, or setting up a business. All life events will have a legal and financial impact on individuals and businesses. Lawyers need to anticipate their clients’ needs in the light of this.
21. Law firms as businesses
Authors: Slorach Scott , Embley Judith , Goodchild Peter , Shephard Catherine
Published: August 2023

This chapter first discusses the business aspect of law firms. Law firms have the same financial motivations and pressures as any other business. They need money (investment) to set up, and then to survive and grow. Law firms need to make a profit, attract clients, and stay ahead of other law firms. They operate within the legal market, producing a product-legal services-the ‘consumers’ of which are the clients. The chapter considers the different types of law firm operating within this market, who their clients are, and why those clients chose a particular firm. It examines the challenges faced by law firms in both the domestic and international markets.
2. Introduction to the tort of negligence
Authors: Horsey Kirsty , Rackley Erika
Published: August 2023

The chapter begins by mapping and explaining the historical development of the tort of negligence, and some of the key themes underpinning the tort, before placing the discussion in the context of the modern law of negligence. The chapter then outlines the essential ingredients of a claim in negligence—a duty of care, a breach of that duty and the damage caused by that breach—before going on to explore these in practice through a close examination of the first instance judgment in X & Y v London Borough of Hounslow [2008].
16. Invasion of privacy
Authors: Horsey Kirsty , Rackley Erika
Published: August 2023

This chapter examines the nascent ‘tort’ of invasion of privacy. It first considers why no free-standing tort of invasion of privacy exists, before looking at breach of confidence—a legal concept straddling tort and equity and concerned with ‘secrets’ and judicially adapted to protect privacy by developing the new tort of misuse of private information. The chapter then asks whether developments in the law protecting privacy—particularly in the wake of the Human Rights Act 1998—threaten freedom of expression and therefore the general public’s ‘right’ to information, particularly about celebrities, including royalty and politicians.
6. Termination of the employment contract at common law
Authors: Smith Ian , Warnock Owen , Mitchell Gemma
Published: August 2023

This chapter looks at termination of employment at common law, and at the breach of employment contract action known as ‘wrongful dismissal’. It first discusses ways in which the contract might untypically end by operation of law rather than the ‘dismissal’ on which many employee rights rest. The chapter then considers the right of either party to terminate most contracts by giving notice—a major feature of UK employment law—and the ability of the employer to dismiss summarily for gross misconduct. It concludes with a detailed analysis of the principal remedy for an employee at common law—the action for wrongful dismissal—which is completely separate and different from statutory unfair dismissal, despite an unfortunate tendency for the press to treat them as interchangeable.
7. Unfair dismissal
Authors: Smith Ian , Warnock Owen , Mitchell Gemma
Published: August 2023

This chapter focuses on unfair dismissal, beginning with a consideration of the necessary procedures for a fair dismissal and the vital role of the ACAS Code of Practice. It continues by looking at the statutory definition of ‘dismissal’ and then tackles the central question of what the statute means by ‘fair’ and ‘unfair’. The meaning and limitations of the basic test here, the ‘band of reasonable responses’ test, are considered. Particular cases—including incapability, misconduct (including the relevance of human rights protections and of online misconduct), and the open-ended category of ‘some other substantial reason’—are dealt with in detail, as are automatically unfair dismissals that exist to give extra protection to certain employees. The chapter concludes with the complex law on remedies if a dismissal is unfair.
5. Principles of Direct Applicability and Direct Effects
Authors: Costa Marios , Peers Steve
Published: August 2023

This chapter examines the scope of the doctrines of direct and indirect effect (including ‘direct applicability’) in the context of European Union (EU) law. These doctrines allow individuals to rely on EU law rights in national courts. It explains that while the Court of Justice (CJ) has emphasised that EU directives can apply against the state (vertical direct effect: starting with the Van Gend case), but cannot have direct effect as against individuals (horizontal effect), its case law shows a range of developments which operate to undermine the simplicity of this position. The chapter suggests that granting individuals and national courts a role in the enforcement of Union law has ensured that EU law is applied and Union rights are enforced. It also considers questions concerning the idea of incidental direct effect, triangular situations and the consequences of the line of jurisprudence starting with the judgments in Mangold (case C-144/04) and Kücükdeveci (case C-555/07).
8. Remedies in National Courts
Authors: Costa Marios , Peers Steve
Published: August 2023

This chapter, which examines the issues concerning the responsibility for procedural rules and remedies between European Union (EU) and national law, discusses the relevant jurisprudence of the Court of Justice (CJ) and explains how it has developed the principles of equivalence and effectiveness, notably in specific fields such as sex discrimination law. It addresses the question of the extent to which EU law, while respecting the principle of national procedural autonomy, may nevertheless require the creation of new remedies in national legal systems for EU law rights—for instance as regards damages, time limits or interim relief.
17. Free Movement of Goods
Authors: Costa Marios , Peers Steve
Published: August 2023

This chapter examines the Treaty provisions designed to ensure free movement of goods within the European Union. It discusses prohibitions on quantitative restrictions, and on measures having equivalent effect to quantitative restrictions (MEQR) in Article 34 of the Treaty on the Functioning of the European Union (TFEU), in particular considering the key cases of Dassonville, Cassis de Dijon and Keck. It also outlines the prohibition on quantitative restrictions on exports and all measures having equivalent effect. It analyses the development of the jurisprudence relating to MEQR, and explains the provisions of Articles 35 (exports) and 37 TFEU (state monopolies). The chapter also addresses the underlying questions concerning the relationship between free movement and national regulatory competence. Finally, the chapter examines the provisions of Article 36 TFEU containing the derogation from the free movement of goods and considers proportionality and disguised restriction on trade. It also discusses the CJ’s jurisprudence on the rule of reason.
18. Free Movement of Payments and Capital
Authors: Costa Marios , Peers Steve
Published: August 2023

This chapter examines the rules concerning free movement of payment and capital within the European Union provided in Articles 63, 64, 65 and 66 of the Treaty on the Functioning of the European Union (TFEU). It explains the scope of and derogations to the free movement of capital. The chapter also considers restrictions on free movement of capital between Member States and third countries. It highlights the willingness of the Court of Justice (CJ) to borrow principles (ie, rule of reason) from the other freedoms. This chapter also considers briefly the provisions relating to monetary and economic union and the developments in the light of the financial crisis.
2. Agreement
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. A contract is a legally enforceable agreement. This chapter explains how the existence of an agreement is determined. After considering how the courts assess whether an agreement has been, using subjective and objective methods, it discusses the precise criteria used to determine agreement, namely offer and acceptance. The chapter defines offers and distinguishes them from invitations to treat. It focuses on identifying acceptances and distinguishing acceptances from responses which are not a mirror image of the offer, such as counter-offers. Much emphasis is placed on explaining the communication principles applicable to acceptances—postal and instantaneous communications, including email. The chapter explains revocations of offers and the communication principles applicable to revocations. The courts will enforce an agreement only if it is sufficiently certain in its terms. This chapter therefore considers how the courts deal with 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. Finally, the chapter distinguishes bilateral and unilateral contracts and the special principles applicable to unilateral contracts.
13. Breach of contract
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Poole’s Casebook on Contract Law 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.
10. Duress, undue influence, and unconscionable bargains
Authors: Merkin KC Robert , Saintier Séverine , Poole Jill
Published: August 2023

Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning, or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced, and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
3. Union Competences
Authors: Schütze Robert
Published: August 2023

This chapter explores the scope and nature of the European Union’s competences. Based on the principle of conferral, the EU must act within the scope of competences conferred upon it by the Member States. Three legal developments have significantly undermined the principle of conferral in the past. First, there has been a rise of teleological interpretation. The EU’s competences are here interpreted in such a way that they potentially ‘spill over’ into other policy areas. The second development is the rise of the EU’s general competences. The EU enjoys two very general legislative competences that horizontally cut across the various policy titles within the EU Treaties: Articles 114 and 352 TFEU, which concern internal market competence and residual competence, respectively. The third development is the doctrine of implied external powers. The chapter then finally studies the different categories of EU competences: exclusive, shared, coordinating, and complementary.
4. Fundamental Rights
Authors: Schütze Robert
Published: August 2023

This chapter explores the sources of EU fundamental rights. Fundamental rights constitutionally limit the exercise of all European Union competences—including its legislative competences. Three sources of European fundamental rights have been developed: an ‘unwritten’ bill of rights in the form of general principles of European law; the European Convention on Human Rights (ECHR); and the EU Charter of Fundamental Rights. The chapter investigates these three bills of rights of the EU, beginning with the discovery of an ‘unwritten’ bill of rights in the form of general principles of European law. Following this, the chapter analyses the EU’s ‘written’ bill of rights in the form of its Charter of Fundamental Rights and then explores the ECHR as an external bill of rights for the EU. It finally explores the extent to which EU fundamental rights also apply to the Member States.
3. Net neutrality
Authors: Murray Andrew
Published: August 2023

This chapter examines the nature of network neutrality or net neutrality. This is a highly prized design feature of the network that all data packets shall be treated equally. It was the nature of the early network that this design feature was protected as established by visionaries such as Vint Cerf and Bob Kahn. Tim Berners-Lee the creator of the World Wide Web has written at length as to how net neutrality allowed him to create the web without asking permission from anyone. However, modern network design challenges this ‘first amendment of the internet’ and recent developments in particular in the United States have led to debate on whether net neutrality should be legally enshrined.
7. Defamation
Authors: Murray Andrew
Published: August 2023

This chapter examines defamation cases arising from traditional media sites and user-generated media entries. It first provides an overview of the tort of defamation, and the issue of who is responsible and potentially liable for an online defamatory statement. The chapter looks at the Defamation Act 2013 and discusses when defences may be raised to a claim in defamation, and how online publication and republication may result in defamation. It also analyses a number of cases on tort and its defences including cases: Dow Jones v Gutnick, King v Lewis, and Jameel v Dow Jones and Riley v Murray. The chapter discusses intermediary liability, particularly the liability of internet service providers in the UK, by citing decisions on intermediary liability such as Tamiz v Google, Delfi v Estonia and MTE v Hungary as well as specific intermediary defences found in the Defamation Act 2013. The chapter concludes by discussing key social media cases such as McAlpine v Bercow and Monroe v Hopkins.
11. Copyright in the digital environment
Authors: Murray Andrew
Published: August 2023

This chapter examines copyright issues arising from copying and distributing information on the internet. The discussion focuses on how the internet has challenged the application and development of copyright law, considering web-copyright concerns such as linking, caching, and aggregating, citing Google Inc. v Copiepresse SCRL. It spends considerable time discussing the operation of the temporary reproduction right through key cases Infopaq International and Public Relations Consultants Association v Newspaper Licensing Agency. The analysis then moves on to examine the communication to the public right created by the Copyright and Related Rights in the Information Society Directive examining the application of the right through key cases such as Nils Svensson v Retriever Sverige, Stichting Brein v Ziggo BV, VG Bild-Kunst v Stiftung and Tunein Inc. v Warner Music. It concludes with a discussion of the newly enacted Copyright in the Digital Single Market Directive.