Pub Date : 2019-11-28DOI: 10.5040/9781509929481.ch-017
J. Paterson, E. Bant
Doctrines that provide various rights of redress for misrepresentation and misleading conduct hold a central place across the spectrum of commercial and consumer law, including in tort, contract, and equity, as well as pursuant to statutory schemes of regulation and redress. Strong reasons for the law’s interest in such behaviour are not difficult to find: parties who have been induced to enter into contracts on the basis of misleading conduct have not exercised genuine choice and a trader who attracts customers through misleading conduct distorts the market and harms other more truthful competitors.
{"title":"Misrepresentation, Misleading Conduct and Statute through the Lens of Form and Substance","authors":"J. Paterson, E. Bant","doi":"10.5040/9781509929481.ch-017","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-017","url":null,"abstract":"Doctrines that provide various rights of redress for misrepresentation and misleading conduct hold a central place across the spectrum of commercial and consumer law, including in tort, contract, and equity, as well as pursuant to statutory schemes of regulation and redress. Strong reasons for the law’s interest in such behaviour are not difficult to find: parties who have been induced to enter into contracts on the basis of misleading conduct have not exercised genuine choice and a trader who attracts customers through misleading conduct distorts the market and harms other more truthful competitors.","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122610501","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-11-04DOI: 10.5040/9781509929481.ch-008
Dan Priel
In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though it enjoys a degree of academic popularity, it has no real existence in legal practice. My conclusion with respect to doctrinalism is different. I argue that it is a viable approach to legal analysis and an attractive one in certain political environments. As part of my evaluation, I compare doctrinalism with legal realism (of Karl Llewellyn’s stripe), and argue that, contrary to popular belief, the two are close to each other, differing mostly in the extent to which the legal system should be open to the influence of popular values. The choice between such views, I conclude, depends more on a given community’s political culture than is a matter to be decided by jurisprudential or linguistic analysis.
{"title":"Two Forms of Formalism","authors":"Dan Priel","doi":"10.5040/9781509929481.ch-008","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-008","url":null,"abstract":"In this paper I argue that what is called ‘formalism’ is actually two very different views: I call one ‘conceptualism’ and the other ‘doctrinalism’. The former is deductive and ‘philosophical’ whereas the latter is inductive and ‘pragmatic’. While the two views have sometimes been aligned in opposition to certain views they were both in opposition to, they are actually fundamentally at odds with each other. I demonstrate this by identifying eight parameters on which the two are opposed. After presenting the two views, I turn to evaluating the two views. I first argue that conceptualism is indefensible, and that though it enjoys a degree of academic popularity, it has no real existence in legal practice. My conclusion with respect to doctrinalism is different. I argue that it is a viable approach to legal analysis and an attractive one in certain political environments. As part of my evaluation, I compare doctrinalism with legal realism (of Karl Llewellyn’s stripe), and argue that, contrary to popular belief, the two are close to each other, differing mostly in the extent to which the legal system should be open to the influence of popular values. The choice between such views, I conclude, depends more on a given community’s political culture than is a matter to be decided by jurisprudential or linguistic analysis.","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-11-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130290346","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-10-24DOI: 10.5040/9781509929481.ch-009
B. Mcfarlane
Ben McFarlane The argument of this chapter is that the distinction between form and substance is crucial to understanding and justifying the distinction between common law and equity and, more fundamentally, the distinction between two different types of legal rule. The terms ‘form’ and ‘substance’ are used here in a particular sense: ‘form’ refers to the type of legal relation arising from the parties’ dealings and the application of particular rules to those dealings; ‘substance’ refers to the effect in practice of such dealings and rules. The argument here is not based on the notion that ‘equity looks to the substance not the form’. In fact, this chapter asserts something close to the opposite: the key to understanding much equitable intervention in the law of obligations lies in paying very close attention to the form of the legal relations involved. Three main points will be made. First, in seeking to...
{"title":"Form and Substance in Equity","authors":"B. Mcfarlane","doi":"10.5040/9781509929481.ch-009","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-009","url":null,"abstract":"Ben McFarlane The argument of this chapter is that the distinction between form and substance is crucial to understanding and justifying the distinction between common law and equity and, more fundamentally, the distinction between two different types of legal rule. The terms ‘form’ and ‘substance’ are used here in a particular sense: ‘form’ refers to the type of legal relation arising from the parties’ dealings and the application of particular rules to those dealings; ‘substance’ refers to the effect in practice of such dealings and rules. The argument here is not based on the notion that ‘equity looks to the substance not the form’. In fact, this chapter asserts something close to the opposite: the key to understanding much equitable intervention in the law of obligations lies in paying very close attention to the form of the legal relations involved. Three main points will be made. First, in seeking to...","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2019-10-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125254079","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-010
Man-Fung Yip
{"title":"Modern Equity – At the Edge of Formal Reasoning?","authors":"Man-Fung Yip","doi":"10.5040/9781509929481.ch-010","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-010","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124167267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-015
M. Leeming
{"title":"Statute Law in the Law of Obligations: Dimensions of Form and Substance","authors":"M. Leeming","doi":"10.5040/9781509929481.ch-015","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-015","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115588084","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-006
R. Stevens
{"title":"Private Law and the Form of Reasons","authors":"R. Stevens","doi":"10.5040/9781509929481.ch-006","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-006","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122840495","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-003
Birke Häcker
{"title":"‘Substance Over Form’: Has the Pendulum Swung Too Far?","authors":"Birke Häcker","doi":"10.5040/9781509929481.ch-003","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-003","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116392389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-014
James Goudkamp, Eleni Katsampouka
{"title":"Form and Substance in the Law of Punitive Damages","authors":"James Goudkamp, Eleni Katsampouka","doi":"10.5040/9781509929481.ch-014","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-014","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133185367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-007
L. Murphy
{"title":"The Formality of Contractual Obligation","authors":"L. Murphy","doi":"10.5040/9781509929481.ch-007","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-007","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124641241","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.5040/9781509929481.ch-018
K. Barker
{"title":"Form and Substance: Three Observations on the State of Debate","authors":"K. Barker","doi":"10.5040/9781509929481.ch-018","DOIUrl":"https://doi.org/10.5040/9781509929481.ch-018","url":null,"abstract":"","PeriodicalId":387790,"journal":{"name":"Form and Substance in the Law of Obligations","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120999305","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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