Cambridge Law Journal最新文献

{"title":"PROPRIETARY ESTOPPEL IN THE SUPREME COURT: BANQUO'S GHOST?","authors":"B. Sloan","doi":"10.1017/s0008197323000119","DOIUrl":"https://doi.org/10.1017/s0008197323000119","url":null,"abstract":"THE facts of Guest v Guest [2022] UKSC 27, [2022] 3 W.L.R. 911 fitted a familiar pattern. For over 30 years, Andrew worked and lived on Tump Farm, owned by his parents, David and Josephine, for low wages. David promised Andrew (taking account of other familial expectations) a sufficient share of the farm to enable him to run a viable farming business on the parents’ deaths. The parents made wills accordingly. But following a falling out, Andrew was removed from the wills and left Tump Farm. The judge’s undisturbed conclusion ([2019] EWHC 869 (Ch)) was that Andrew had made out a proprietary estoppel claim against his still-living parents: he had relied to his detriment on David’s non-contractual promises, such that it was unconscionable for David to resile from them. The case invited the Supreme Court to consider a fundamental question, effectively for the first time in living memory at the highest level: should successful estoppel claimants like Andrew generally have their expectations fulfilled, should they generally be limited to having their detriment reversed, or was the correct approach a third way? The precise answer divided the panel, which issued two lengthy judgments (lacking explicit direct engagement with each other) over 10 months after the one-day hearing. Leading the majority, Lord Briggs (with whom Ladies Rose and Arden agreed) identified the objective of an estoppel remedy as compensating for the unconscionability caused by the defendant promisor in repudiating their representations. The preferable and simplest way of remedying that unconscionability was to assume (not presume) that claimants should have their expectations fulfilled. This was to be the “starting point” in “many cases”, although “considerations of practicality, justice between the parties and fairness to third parties may call for a reduced or different award” (at [94]). Lord Briggs grounded his approach in previous case law, identifying satisfying expectations as the “main driver of the remedy” (at [22]). Following a detailed review, he concluded that “there is not a single English authority favouring the approach that the essential aim of the remedy was to protect the claimant’s reliance interest and therefore to compensate for the detriment” (at [52]). Inter alia, he emphasised that the “minimum equity”-based approach in Crabb v Arun District Council [1976] Ch. 179, 198 was not about identifying expectation and detriment and then awarding whichever was cheaper for the defendant. Rather, Scarman L.J. in Crabb was concerned with the “minimum equity to do justice” (emphasis added), with “justice” meaning remedying the unconscionability in the repudiation of the Cambridge Law Journal, 82(1), March 2023, pp. 13–16 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/lic","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":"46843864","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}

{"title":"CREDIT WHERE CREDIT'S DUE: THE SUPREME COURT TAKE ON DIRECTORS’ DUTIES AND CREDITORS’ INTERESTS","authors":"Pedro Schilling de Carvalho, Bobby V. Reddy","doi":"10.1017/s0008197323000120","DOIUrl":"https://doi.org/10.1017/s0008197323000120","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":"41271884","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}

{"title":"CLJ volume 82 issue 1 Cover and Back matter","authors":"","doi":"10.1017/s0008197323000168","DOIUrl":"https://doi.org/10.1017/s0008197323000168","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":"41563680","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}

{"title":"The Redress of Law: Globalisation, Constitutionalism and Market Capture. By Emilios Christodoulidis. [Cambridge University Press, 2021. xiv + 592 pp. Hardback £95.00. ISBN 978-1-108-48703-0.]","authors":"Costas Douzinas","doi":"10.1017/S0008197323000041","DOIUrl":"https://doi.org/10.1017/S0008197323000041","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":"43242639","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}

{"title":"Economic Torts and Economic Wrongs. Edited by John Eldridge, Michael Douglas and Claudia Carr. [Oxford: Hart Publishing, 2021. xiv + 344 pp. Hardback £85.00. ISBN 978-1-50993-475-1.]","authors":"John Murphy","doi":"10.1017/S0008197323000028","DOIUrl":"https://doi.org/10.1017/S0008197323000028","url":null,"abstract":"Writing extrajudicially, just a few years after delivering his leading speech in OBG Ltd. v Allan [2008] 1 A.C. 1, Lord Hoffmann suggested that, in the wake of that decision it was now fair to say that “the economic torts have run their course”. But despite their Lordships’ best endeavours in OBG to render the economic torts an area of interest to legal historians alone, cases involving these torts have continued to trouble courts all over the Commonwealth. Accordingly, in spite of what Lord Hoffmann hoped for in the wake of OBG, there is still a good deal of life left in these torts; and they continue to pose puzzles a-plenty. Against this background, a new book dealing with these actions was always destined to be eye-catching, especially when one bears in mind that the economic torts have been largely overlooked by most torts scholars. Furthermore, an especially attractive feature of this book is that it offers a collection of essays that is properly representative of the makeup of the private law community: there is none of the familiar dominance of contributions from male scholars based in England and Wales. However, as Shakespeare warned us several centuries ago, “all that glisters is not gold”. And that, I am afraid, is my overwhelming view of Economic Torts and Economic Wrongs. To be clear: the book is by no means a disaster. It comprises a collection of essays written by academics and practitioners located in various different jurisdictions and it undoubtedly contains some very worthwhile contributions. The problem, however, is that these are outnumbered by others that, for all their novelty, seem somehow to be misplaced. Before addressing the particular merits of some of the key essays in this volume, I think it is worth flagging up from the start what I take to be a serious omission in the editors’ introductory chapter. For this, instead of supplying a road map to the essays that follow, and a brief account of the arguments they advance, provides the reader with, in essence, a very swift (and therefore not very detailed) account of the way the economic torts have developed over the last century or so. Reference is made to a number of the landmark cases, and this is all well and good. But the reader is offered no guide to the particular conception of “economic torts” adopted by the editors. This is a great pity because, without such a guide, it is hard to fathom why quite a few of the essays that appear in this book should be thought to belong here. For all that there is well-known disagreement around the margins about just which torts comprise this particular family of actions, most torts scholars would consider some of the essays in this book as being fish out of water. There is, for example, an essay on defamation; and there are two on private nuisance. There is an essay concerned with “an award of equitable compensation against a defaulting fiduciary” (p. 232) and a related one entitled “Misfeasance by Directors”. There is also a con","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":"41998636","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}

{"title":"THE UNEXPLORED CONTRACT AND INSOLVENCY LAW DIMENSIONS OF HEDLEY BYRNE V HELLER","authors":"D. Campbell, D. Milman","doi":"10.1017/S0008197323000077","DOIUrl":"https://doi.org/10.1017/S0008197323000077","url":null,"abstract":"Abstract It has been argued in previous work that Hedley Byrne v Heller addressed no actual mischief. In the case itself, the defendant's credit reference about Easipower Ltd. was neither a misstatement nor negligently given, and in general the indemnification of reliance on negligent statements is far better regulated by contract than it can possibly be by negligent misstatement. This paper expands on the significance of contract relative to tort in Hedley Byrne, but mainly argues that the mischief perceived by the claimant was caused by the operation of the statutory regime regulating Easipower's insolvency. This makes regarding Hedley Byrne as a necessary response to “the privity of contract fallacy” even more implausible.","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":"45680123","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}

{"title":"Fintech Regulation in China: Principles, Policies and Practices. By Robin Hui Huang. [Cambridge University Press, 2021. xvi + 298 pp. Hardback £84.99. ISBN 978-1-108-48811-2.]","authors":"Lerong Lu","doi":"10.1017/S0008197323000065","DOIUrl":"https://doi.org/10.1017/S0008197323000065","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":"46894466","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}

{"title":"Fundamental Rights and the Legal Obligations of Business. By David Bilchitz. [Cambridge University Press, 2022. xxii + 499 pp. Hardback £110.00. ISBN 978-1-108-84194-8.]","authors":"Nick Friedman","doi":"10.1017/S000819732300003X","DOIUrl":"https://doi.org/10.1017/S000819732300003X","url":null,"abstract":"Following the publication of the United Nations Guiding Principles on Business and Human Rights (UNGPs) in 2011, and subsequent attempts at the national and international level to enforce human rights in the commercial sphere (like the UK’s Modern Slavery Act 2015), there has been renewed scholarly interest in the human rights duties of corporations. “Business and human rights” is a difficult area of inquiry: making sound policy proposals requires attention to the intersection of human rights, corporate law, tort, both private and public international law, and other legal fields besides. Moreover, it frequently requires a theory of these fields, including a theory about which field should be deployed to solve certain problems under certain conditions. Depending on the author’s aims, it can also require engagement with economics and with difficult philosophical issues concerning the nature of the corporation. This call for interdisciplinarity is what makes “business and human rights” an exciting field of study, but the difficulty of answering that call has created a body of scholarship that sometimes feels superficial or theoretically thin. In this regard, David Bilchitz is exceptional. Bilchitz is one of the leading figures in the field; he has been working on tricky pieces of the business and human rights puzzle for a long time. He has captured the depth and breadth of his knowledge in his latest book, Fundamental Rights and the Legal Obligations of Business, which is stunning in its sophisticated coverage of numerous legal fields as well as some associated areas of philosophy. The book is divided into three parts. After an initial chapter on the nature and purpose of the corporation (to which I return below), Part I describes and critiques various models of legal reasoning that courts have adopted to address human rights infringements by corporations. Most of the chapters in this part describe models which assume that human rights obligations bind only the state. Chapter 2 focuses on the state’s duty under international law to protect a person’s human rights from violation by a third party (say, another individual or a corporation). Chapter 3 describes the “indirect application model” that exists in some national legal systems. It is the domestic analogue of the international law duty to protect: once again, human rights obligations fall on states only, requiring them to enact legislation and develop their common law with a view to preventing human rights violations by corporate actors. Chapter 4 describes what Bilchitz calls the “expanding the state” model, which redraws the boundaries of the state to extend human rights obligations to at least some kinds of state-like corporations. The overriding critique of all three foregoing models is that they wrongly suppose that corporations themselves bear no human rights obligations, and so depend on circuitous reasoning to implicate the state in a corporation’s human rights abuses. By closely analysi","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":"45279955","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}

{"title":"The Province and Politics of the Economic Torts. By John Murphy. [London: Hart Publishing, 2022. xxx + 287 pp. Hardback £85.00. ISBN 978-1-50992-731-9.]","authors":"Sarah Green","doi":"10.1017/s0008197323000016","DOIUrl":"https://doi.org/10.1017/s0008197323000016","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":"42438881","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}

{"title":"UNDUE RETICENCE ON UNDUE INFLUENCE?","authors":"A. Mills","doi":"10.1017/S0008197323000132","DOIUrl":"https://doi.org/10.1017/S0008197323000132","url":null,"abstract":"VITIATING factors in contract law raise difficult and interesting questions. Lawful act duress has been subject to detailed scrutiny in Times Travel (UK) Ltd. v Pakistan International Airline Corp [2021] UKSC 40, [2021] 3 W.L.R. 727, albeit the decision has been subject to criticism (see Morgan [2022] C.L.J. 16). The decision of the Supreme Court of Canada in Heller v Uber Technologies 2020 S.C.C. 16 shone some light on unconscionable bargains (see Hunt [2021] C.L.J. 25). Now it was the turn of undue influence in Nature Resorts Ltd. v First Citizens Bank Ltd. [2022] UKPC 10, [2022] 1 W.L.R. 2788. Unfortunately, the Privy Council’s approach arguably raises almost as many questions as it answers. The Privy Council’s primary decision is that there was no basis for departing from the Court of Appeal’s decision that any presumption of undue influence would, on the facts, have been rebutted. Much more interesting, however, are the brief observations made regarding the presumptions which may be engaged in the doctrine of undue influence. The decision of the majority was given by Lord Briggs and Lord Burrows J.J.S.C.; Lady Arden J.S.C. dissented on a point concerning companies legislation, not discussed further in this note. The appeal concerned the sale of shares in the appellant company, Nature Resorts Ltd. (“NRL”), which owned the Culloden Estate in Tobago. The purchasers agreed to buy 75 per cent of the shares in NRL from the sole shareholder, Mr. Dankou. To facilitate this purchase, they obtained a loan from the Respondent bank. The terms included that the bank would have the security of a mortgage over the Culloden Estate. The bank instructed a lawyer, Richard Wheeler, to prepare the documents relating to the mortgage and the charge over the shares. The purchasers defaulted on their loan, and the bank decided to exercise its power of sale under the mortgage. NRL sought to set aside the deed of mortgage on the basis of undue influence exercised by Wheeler over Dankou, one of the issues being whether it should be presumed that Wheeler abused the professional relationship between himself and Dankou (and NRL), procuring the transaction under challenge. This claim failed before the High Court of Justice of Trinidad and Tobago, and likewise before the Court of Appeal of Trinidad and Tobago. The High Court had held that there was no presumption of undue influence; the Court of Appeal held that there was such a presumption, but it had been rebutted. The Privy Council dismissed NRL’s appeal, holding that the Court of Appeal was justified in finding that any presumption of undue influence had been rebutted; the Privy Council further held that the High Court had been right in the first place that there was no presumption which needed rebutting. Cambridge Law Journal, 82(1), March 2023, pp. 21–24 © The Author(s), 2023. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge. doi:10.1017/S0008197323000132","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":"41428486","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}