Divergences in Private Law

Description

This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream and the causes and effects of those departures. Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances. In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path. The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. Another collection, entitled The Common Law of Obligations: Divergence and Unity (ISBN: 9781782256564), is also being published. PREFACE TABLE OF CONTENTS LIST OF CONTRIBUTORS TABLE OF CASES TABLE OF LEGISLATION TABLE OF INTERNATIONAL INSTRUMENTS 1. Why Diverge? 2. Proximity: Divergence and Unity I. Understanding Proximity II. Proximity in the Common Law Mainstream III. Proximity in Australian Law IV. Conclusions 3. Canada's Common Law, Quebec's Civil Law and the Threshold of Actionable Mental Harm Following Tortious Conduct I. Introduction II. The Threshold of Actionable Mental Harm: Post-Mustapha Interpretations by CommonLaw and Civil Law Courts III. Of Thresholds, Convergence and Damage IV. The Wider Debate on Damage: Convergence of
Preoccupations and Concerns V. Conclusion 4. 'Pure Economic Loss' and
Defective Buildings 5. Divergence and Convergence in the
Tort of Public Nuisance I. Introduction II. Divergence and Convergence in Conceptualisation III. Divergence and Convergence in Special Damage:
Particularity IV. Divergence and Convergence in Special
Damage: Personal Injury V. Conclusion 6. Defamation on the Internet I. Introduction II. Liability of Internet Intermediaries III. Liability of Providers of Internet Search Engines IV. Concluding Remarks 7. Convergence and Divergence: The Law of Non-Delegable Duties
in Australia and the United Kingdom I. Introduction II. General Principles of Non-Delegable Duty III. Divergence: Road Authorities IV. Other Differences Between English
and Australian NDD Law V. Convergence VI. Misreadings of the NDD VII. Recent Developments of NDD in Workplace Contexts VIII. NDD and Intentional Torts IX. Collateral Negligence? X. Conclusion 8. The Scope of the Rule Against Contractual Penalties:
A New Divergence I. Introduction II. The Breach Requirement Outside Australia III. The Litigation in Andrews and Paciocco IV. The Decision by the High Court of Australia in Andrews V. Methodological Flaws in the High Court’s Reasoning VI. The Penalty Doctrine in Australia after Andrews VII. The Distinction Between Alternative and Collateral Stipulations VIII. The Possible Impact of Andrews on Certain Common Clauses IX. Lessons for Other Common Law Countries X. Conclusion 9. Rights Restricting Remedies I. Introduction II. From Caterpillar to Butterfly III. Penalty Clauses IV. Conclusion 10. The Methods and Madness
of Unjust Enrichment I. Introduction II. Two Unjust Enrichment Models III. Distinctions … Without Difference? IV. The Bigger Picture: How Method Distractsfrom Substance V. Conclusion 11. Recovery of Non-Gratuitously
Conferred Benefit Under Section 70
of the Indian Contract Act 1872 I. Introduction II. Section 70: Past, Present and Future III. Defendant’s Enrichment IV. At the Plaintiff ’s Expense V. Unjust Factors VI. Restitution VII. Defences VIII. Conclusion 12. Revisiting Canada's Approach to
Fiduciary Relationships I. Introduction and Background II. Protecting Important Relationships III. Achieving Policy Goals: Sexual Abuse IV. How Can the Canadian Approach be Explained
or Justified? V. Conclusion 13. The Presumptions of Resulting
Trust and Advancement Under
Singapore Law: Localisation,
Nationalism and Beyond I. Introduction II. The Twin Presumptions: Convergence and Divergence III. Spousal Presumption of Advancement:
Domestic Factors IV. Real Property: Diminishing Role for the Resulting Trust V. Implications for Related Areas of Law VI. Conclusion 14. Divergence in the Australian and English Law of Undue Influence:
Vacillation or Variance? I. Introduction II. Undue Influence in England and Australia III. Recent Developments: Convergence Impeded IV. Analysis: Divergence or Convergence? V. Conclusion 15. Whose Conscience? Unconscionability
in the Common Law of Obligations I. The Nature of the Problem II. The Language of Conscience and Unconscionability III. Contemporary Interpretations of Conscience IV. A New Taxonomy of Conscience V. Implications VI. Conclusions 16. Form and Substance in
Equitable Remedies I. Introduction II. Form III. Substance IV. Conclusion INDEX