Pub Date : 2023-03-01DOI: 10.1017/s0008197323000144
A. Dickinson
{"title":"SERVICE OUT OF THE JURISDICTION – RAISING SPIRITS?","authors":"A. Dickinson","doi":"10.1017/s0008197323000144","DOIUrl":"https://doi.org/10.1017/s0008197323000144","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"56690648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-03-01DOI: 10.1017/s0008197323000156
{"title":"CLJ volume 82 issue 1 Cover and Front matter","authors":"","doi":"10.1017/s0008197323000156","DOIUrl":"https://doi.org/10.1017/s0008197323000156","url":null,"abstract":"","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42976215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-16DOI: 10.1017/S0008197322000915
Jodi Gardner
Abstract Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a “so-called principle … of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome”. It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.
{"title":"RETHINKING RISK-TAKING: THE DEATH OF VOLENTI?","authors":"Jodi Gardner","doi":"10.1017/S0008197322000915","DOIUrl":"https://doi.org/10.1017/S0008197322000915","url":null,"abstract":"Abstract Volenti non fit injuria allows a negligent defendant to escape liability by showing that the claimant voluntarily and willingly accepted the risk in question. This article combines the theoretical limitations of the volenti defence with a case analysis of how its application has played out in the “real world”, and argues it is not fit for modern tort law. The defence has a controversial and chequered history, being described as a “so-called principle … of little help: indeed, it is confusing, unnecessary, and if we are not careful, it will lead us to the wrong outcome”. It is submitted that volenti is based on unjustified concepts of people agreeing to risks, leads to harmful outcomes and that the defence does not fit with current approaches to tort liability. This article therefore concludes that the harmful outcomes of the volenti defence far exceed any potential benefits provided, and the defence should therefore be abolished.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-01-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43554001","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-10DOI: 10.1017/S0008197322000903
M. J. Crawford
Abstract According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of property is the wrong solution to the problem. This article departs from previous analyses by stressing that the analogue of acts of interference with contractual rights is not the conversion of a chattel but a “triangle dispute”. The problem raised by triangle disputes is not how to reach the primary wrongdoer, but how to allocate the loss between the innocent parties. Invoking the concept of “property” cannot solve this problem. Its efficient solution is to be found in better contracts, not more property.
{"title":"CONTRACT AS PROPERTY: TRIANGLES AND TRAGIC CHOICES","authors":"M. J. Crawford","doi":"10.1017/S0008197322000903","DOIUrl":"https://doi.org/10.1017/S0008197322000903","url":null,"abstract":"Abstract According to the “Inadequacy Thesis”, the law's refusal to extend the tort of conversion to interferences with contractual rights is evidence of systemic ossification and proof of its failure to protect the most valuable asset class in the modern economy. Whilst it is true that, like chattels, the benefit of contractual rights can be usurped by third parties, transforming such rights into objects of property is the wrong solution to the problem. This article departs from previous analyses by stressing that the analogue of acts of interference with contractual rights is not the conversion of a chattel but a “triangle dispute”. The problem raised by triangle disputes is not how to reach the primary wrongdoer, but how to allocate the loss between the innocent parties. Invoking the concept of “property” cannot solve this problem. Its efficient solution is to be found in better contracts, not more property.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48589684","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-06DOI: 10.1017/S0008197322000897
Sagi Peari, Marcus Teo
Abstract Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.
{"title":"JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW","authors":"Sagi Peari, Marcus Teo","doi":"10.1017/S0008197322000897","DOIUrl":"https://doi.org/10.1017/S0008197322000897","url":null,"abstract":"Abstract Can claimants choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences? While domestic legal systems generally recognise concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field's values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law, and that no field-unique concerns foreclose it.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2023-01-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44458969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000514
Adam Hofri-Winogradow, Galeano David
Abstract Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company's other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently allowed under company law and the law of corporate insolvency. We then discuss the normative question as to which Quistclose trusts should be allowed, given the principles of these branches of the law.
{"title":"QUISTCLOSE TRUSTS FROM A CORPORATE INSOLVENCY PERSPECTIVE: A POSITIVE AND NORMATIVE ANALYSIS","authors":"Adam Hofri-Winogradow, Galeano David","doi":"10.1017/S0008197322000514","DOIUrl":"https://doi.org/10.1017/S0008197322000514","url":null,"abstract":"Abstract Leading cases show Quistclose trusts being used by companies nearing insolvency. Their use in this context raises serious normative problems: it may prefer the beneficiary to the company's other creditors, and creates a misleading impression that trust funds are in fact free of trust. Building on the emergent normative literature on Quistclose trusts, we first examine which Quistclose trusts are currently allowed under company law and the law of corporate insolvency. We then discuss the normative question as to which Quistclose trusts should be allowed, given the principles of these branches of the law.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44667050","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-11-01DOI: 10.1017/S0008197322000563
Geoffrey J. Samuel
that he is Napoleon? Since his claim sits so oddly with his circumstances, we hesitate to treat it as bearing its meaning upon its face. What exactly do the judges mean when they speak of rights and duties? Even if legal rights and duties may generally be viewed as a species of moral right or duty (as Raz claims), this may not be true within a legal system that has manifestly abandoned the pursuit of justice. Might not the obvious injustice of the law drain the vocabulary of its normal moral resonance, converting it into a purely technical language that applies the rules without any claim to justice or moral bindingness? If these interpretative issues could somehow be overcome, a further problem would remain. For, if “claims” can be ascribed to law on the basis of relatively narrow features, independently of the wider context within which those features exist, it is unlikely that any such claims could be regarded as integral to law’s nature. When depicted as depending exclusively upon relatively discrete features abstracted from a wider context, the claims of law come to seem superficial and contingent. Perhaps (as Christoph Kletzer has pointed out) any system of norms (such as the rules of a tennis club) could make the relevant claims, without this affecting the system’s nature in other respects. And, as Finnis has pointed out, a system resembling law in all other respects might choose to make no such claims. Consequently, it could be difficult to treat such claims as essential features of law’s nature. Law does not make claims. But the practices making up a legal order nevertheless express an idea: the idea of law. Those practices are oriented towards the idea of law in much the same way that the relationship of friendship is oriented towards the idea of friendship. Those who are friends value their friendship, and guide their conduct by respect for that value. When they no longer honour the value of friendship, they are no longer friends. Similarly, a system of governance that entirely abandons its concern with justice ceases to be a system of law. For legal thought must be guided by the idea of law, and that is an idea that is intimately bound to justice. In this imperfect world, the demands of legality and of justice may sometimes conflict. But, nevertheless, each is fully attainable only in conjunction with the other. Substantial departures from justice (falling outside the range of good faith moral disagreement but not amounting to a wholesale abandonment of justice as an aspiration) can seriously detract from legality. In such contexts, to honour the value of law, one must sometimes apply the Radbruch formula.
{"title":"Paradigms in Modern European Comparative Law: A History. By Balázs Fekete. [Oxford: Hart Publishing, 2021. xvi + 203 pp. Hardback £70.00. ISBN 978-1-50994-692-1.]","authors":"Geoffrey J. Samuel","doi":"10.1017/S0008197322000563","DOIUrl":"https://doi.org/10.1017/S0008197322000563","url":null,"abstract":"that he is Napoleon? Since his claim sits so oddly with his circumstances, we hesitate to treat it as bearing its meaning upon its face. What exactly do the judges mean when they speak of rights and duties? Even if legal rights and duties may generally be viewed as a species of moral right or duty (as Raz claims), this may not be true within a legal system that has manifestly abandoned the pursuit of justice. Might not the obvious injustice of the law drain the vocabulary of its normal moral resonance, converting it into a purely technical language that applies the rules without any claim to justice or moral bindingness? If these interpretative issues could somehow be overcome, a further problem would remain. For, if “claims” can be ascribed to law on the basis of relatively narrow features, independently of the wider context within which those features exist, it is unlikely that any such claims could be regarded as integral to law’s nature. When depicted as depending exclusively upon relatively discrete features abstracted from a wider context, the claims of law come to seem superficial and contingent. Perhaps (as Christoph Kletzer has pointed out) any system of norms (such as the rules of a tennis club) could make the relevant claims, without this affecting the system’s nature in other respects. And, as Finnis has pointed out, a system resembling law in all other respects might choose to make no such claims. Consequently, it could be difficult to treat such claims as essential features of law’s nature. Law does not make claims. But the practices making up a legal order nevertheless express an idea: the idea of law. Those practices are oriented towards the idea of law in much the same way that the relationship of friendship is oriented towards the idea of friendship. Those who are friends value their friendship, and guide their conduct by respect for that value. When they no longer honour the value of friendship, they are no longer friends. Similarly, a system of governance that entirely abandons its concern with justice ceases to be a system of law. For legal thought must be guided by the idea of law, and that is an idea that is intimately bound to justice. In this imperfect world, the demands of legality and of justice may sometimes conflict. But, nevertheless, each is fully attainable only in conjunction with the other. Substantial departures from justice (falling outside the range of good faith moral disagreement but not amounting to a wholesale abandonment of justice as an aspiration) can seriously detract from legality. In such contexts, to honour the value of law, one must sometimes apply the Radbruch formula.","PeriodicalId":46389,"journal":{"name":"Cambridge Law Journal","volume":null,"pages":null},"PeriodicalIF":1.5,"publicationDate":"2022-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41605781","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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