Revolution and Evolution in Private Law

✍ Scribed by Sarah Worthington; Andrew Robertson; Graham Virgo (editors)

• Publisher: Hart Publishing
• Year: 2018
• Tongue: English
• Leaves: 371
• Category: Library

✦ Synopsis

The development of private law across the common law world is typically portrayed as a series of incremental steps, each one delivered as a result of judges dealing with marginally different factual circumstances presented to them for determination. This is said to be the common law method. According to this process, change might be assumed to be gradual, almost imperceptible. If this were true, however, then even Darwinian-style evolution—which is subject to major change-inducing pressures, such as the death of the dinosaurs—would seem unlikely in the law, and radical and revolutionary paradigms shifts perhaps impossible. And yet the history of the common law is to the contrary. The legal landscape is littered with quite remarkable revolutionary and evolutionary changes in the shape of the common law.
The essays in this volume explore some of the highlights in this fascinating revolutionary and evolutionary development of private law. The contributors expose the nature of the changes undergone and their significance for the future direction of travel. They identify the circumstances and the contexts which might have provided an impetus for these significant changes.
The essays range across all areas of private law, including contract, tort, unjust enrichment and property. No area has been immune from development. That fact itself is unsurprising, but an extended examination of the particular circumstances and contexts which delivered some of private law’s most important developments has its own special significance for what it might indicate about the shape, and the shaping, of private law regimes in the future.

✦ Table of Contents

Preface
Table of Contents
Table of Cases
Table of Legislation
Notes on Contributors
FOUNDATIONS
1. Revolution and Evolution in Private Law
2. Revolutions in Private Law?
I. Introduction
II. The Law of Tort
III. Contract
IV. Unjust Enrichment
V. Concluding Thoughts
3. Private Law’s Revolutionaries: Authors, Codifiers and Merchants?
I. Introduction
II. Berman's Law and Revolutions
III. Roman Law in the Western Legal Tradition
IV. Civil Codes and Revolutions
V. Revolutions in the Law of Obligations: Scotland and Stair
VI. Mercantile Contracts
4. Paradigms Lost or Paradigms Regained? Legal Revolutions and the Path of the Law
I. Introduction: The Revolutionary Turn in Private Law
II. The Limits of Legal Revolutions
III. Scientific Revolutions and Legal Revolutions
IV. Paradigms, Theories and Black-Letter Law
V. Conclusion: The Failure of Legal Revolutions
DOCTRINES
5. Risk Revolutions in Private Law
I. Introduction
II. Risk Revolutions and Private Law
III. A Recognised ‘Security’ Revolution
IV. Backwards or Forwards with a New Risk Revolution
V. Tort, Security, Responsibility and Risk
VI. Conclusions: Revolution upon Revolution?
6. The Unacknowledged Revolution in Liability for Negligence
I. Introduction
II. Asocial Theories
III. Bringing in the Modern World
IV. Modern Irrelevance of Asocial Theories?
V. Abolishing Tort?
VI. Tort from the Government's Point of View
VII. Modern Theories about Tort
VIII. Symbolic Action: Current Debates
IX. Bureaucratic Action: Prospects for the Future
X. Conclusion
7. A Revolution in Vicarious Liability: Lister, the Catholic Child Welfare Society Case and Beyond
I. Introduction
II. Tracing the Need for Change: Sexual Abuse and Vicarious Liability
III. The Lister Revolution: Replacing ‘Unauthorised Mode’ with the ‘Close Connection’ Test
IV. Lister Revisited: A Modern Theory of Vicarious Liability
V. Back to the Supreme Court: Cox, Mohamud and the Two-Stage Test
VI. Conclusion
8. Revolutions in Contractual Interpretation: A Historical Perspective
I. Introduction
II. Some Background
III. Contractual Interpretation in the Sixteenth Century
IV. Two Approaches to Interpretation
V. The Seventeenth Century and Beyond
VI. Conclusion
9. Revolutions and Counterrevolutions in Equitable Estoppel
I. Introduction
II. Early Expansionism: Making Representations Good
III. The Nineteenth-Century Contraction
IV. Re-expansion: Proprietary and Promissory Estoppel
V. Contemporary Contractionary Turns
VI. Conclusion
10. Reflections on the Restitution Revolution
1. England and Wales
I. Introduction
II. The First Edition of Goff and Jones
III. The Development of the Subject Since 1966
IV. The Place of Goff and Jones in the Subject's Intellectual Evolution
V. The Future (R)evolution of the Subject
2. Australia
I. A Potted History of Unjust Enrichment in Australia pre-AFSL v Hills Industries
II. AFSL v Hills Industries
III. The Future of Unjust Enrichment and Restitution Law in Australia
IV. Conclusion
3. Canada
I. Introduction
II. History
III. A False Start
IV. A New Direction
V. Positive Developments
VI. A Very Bad Idea
VII. Conclusion
4. South Africa
I. The Idea of Unjustified Enrichment
II. The Rationalisation of Unjustified Enrichment
III. Farewell to Unjustified Enrichment?
5. A Judicial Perspective
11. Revolutions in Personal Property: Redrawing the Common Law’s Conceptual Map
I. Introduction
II. What Has English Law Done with the Numerus Clausus Principle?
III. Which ‘Things’ Count as Property?
IV. Which ‘Types of Interests’ Count as Property?
V. Consequences
VI. Conclusion
GENERAL ISSUES
12. Modern Equity: Revolution or Renewal from Within?
I. Introduction
II. A Revolutionary Narrative of Modern Equity
III. A Counter Narrative of Modern Equity
IV. The Integration of Common Law and Equity
V. Conscience
VI. Judicial Method
VII. Conclusion
13. Concurrent Liability: A Spluttering Revolution
I. Introduction
II. Contract versus Tort
III. Contract versus Trusts
IV. Conclusions
14. The Illegality Revolution
I. Introduction
II. The Central Controversy: Rule versus Discretion
III. Patel v Mirza
IV. Patel v Mirza: revolution or evolution?
V. Synthesis
15. The Revolutionary Trajectory of EU Contract Law towards Post-national Law
I. A Revolutionary Cocktail for the Ancien Régime
II. Techno-law
III. The Impact of Techno-law
IV. From Rule-Book to Rights-Based Conception of the Rule of Law
V. Real Transnational Law
VI. Post-national Law
Index