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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

25. Construction Industry Adjudication  

This chapter looks at the process of adjudication in construction industry disputes. Adjudication resembles arbitration, in that it produces a decision on the dispute, but one that is only of a temporary nature. The process involves an adjudicator reaching a decision very swiftly (only 28 days after appointment), with the idea being to get a decision on how much a contractor should be paid, potentially followed by a full-blown investigation through the courts or in a formal arbitration if either party does not agree with the adjudicator's decision. The underlying policy is ‘pay now, argue later’. An adjudication award is binding, but is not registrable as a judgment, unlike an award in arbitration. Instead, enforcement is through suing on the adjudicator's decision, often followed by the entry of judgment in default or an application for summary judgment.

Chapter

Cover Public Law

23. European Union Law in the United Kingdom Courts  

This chapter discusses the reception of Community (now EU law) in the UK courts, and in particular how UK courts reconciled the doctrine of supremacy with the doctrine of parliamentary sovereignty. The chapter will examine three ways in which the UK courts have attempted to reconcile these competing doctrines: by constructing national law in light of EU law; by disapplying conflicting national law; and by reasserting national sovereignty and threatening not to apply EU law automatically. Finally, the chapter will briefly re-visit the case of Miller in order to evaluate that case in light of earlier cases on the relationship between UK and EU law.

Chapter

Cover Essential Cases: Contract Law

Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Borkowski's Law of Succession

7. Construction of Wills  

This chapter discusses the construction of wills. The law of construction is a mixture of general principles and specific rules, developed mainly by the courts, but with some help from Parliament. To some extent, the general principles of construction can be regarded as broad guidelines to the court rather than as strictly binding. Consequently, some judges will feel that they have room for the exercise of a degree of discretion in achieving the result they think is merited on the facts of the case. Moreover, there is no universal agreement as to what constitutes a principle or a rule in this context. The remainder of the chapter covers the specific rules of construction and extrinsic evidence.

Chapter

Cover Intellectual Property Law

13. Patents III: Infringement, Exceptions, and Entitlement  

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter discusses patent infringement, exceptions to infringement, and entitlement. Assessment of whether a patent has been infringed involves a three-stage process. First, the patent claims must be construed to see whether the defendant’s activities fall within the scope of the monopoly. Second, the infringing acts that the defendant is alleged to have carried out must be identified. Third, the applicability of exceptions to infringement must be considered. The chapter then focuses on three key exceptions to infringement within the Patents Act 1977: acts done for experimental purposes (‘experimental use’); acts done for private and non-commercial purposes (‘private use’); and the right to continue use begun before the priority date (‘prior use’). Finally, it considers persons entitled to the grant of a patent, including the role of artificial intelligence in inventorship.

Chapter

Cover The Oxford Handbook of Criminology

2. Criminalization: Historical, legal, and criminological perspectives  

Nicola Lacey and Lucia Zedner

This chapter examines the relationship between legal and criminological constructions of crime and explores how these have changed over time. The chapter sets out the conceptual framework of criminalization within which the two dominant constructions of crime—legal and criminological—are situated. It considers their respective contributions and the close relationship between criminal law and criminal justice. Using the framework of criminalization, the chapter considers the historical contingency of crime by examining its development over the past 300 years. It analyses the normative building blocks of contemporary criminal law to explain how crime is constructed in England and Wales today and it explores some of the most important recent developments in formal criminalization in England and Wales, not least the shifting boundaries and striking expansion of criminal liability. Finally, it considers the valuable contributions made by criminology to understanding the scope of, and limits on, criminalization.

Chapter

Cover Contemporary Intellectual Property

12. The power of a patent  

This chapter deals with who is entitled to be a patentee, the rights that a patentee enjoys (which are some of the strongest within intellectual property law), the circumstances in which infringement actions might be brought, the defences that are available, and some points on exploitation practices. A key thread is the construction and interpretation of the patent and the inextricable link between the power conferred by the patent and questions of novelty and obviousness. This chapter also looks at sufficiency, the circumstances in which a patent may be revoked, and the risk of a claim for revocation of the patent.

Chapter

Cover Ashworth's Principles of Criminal Law

4. Criminal Law Fabric  

This chapter analyses the fabric of criminal law—rules, standards, and principles—giving examples of how each of these are used to construct the criminal law. A particular highlight, in the discussion of rules, is the importance of secondary legislation in creating offences, especially offences regulating business activity. The chapter also considers the values that the criminal law should respect, such as human rights, moral autonomy, and lifestyle autonomy. To that end, the chapter explains the harm principle, and the arguments for and against punishing ‘immoral’ behaviour. There is also an analysis of important principles of criminal offence construction and interpretation, such as the principle of strict construction and the authoritarian principle.

Chapter

Cover O'Sullivan & Hilliard's The Law of Contract

13. Common mistake and rectification  

Titles in the Core Text series take the reader straight to the heart of the subject, providing focused, concise, and reliable guides for students at all levels. This chapter examines the situation where both parties to a contract share a common mistake. It analyses several court cases indicating that certain sorts of mistake can render contracts void at the level of common law. It discusses the orthodox approach which asserts that there is a separate legal doctrine whereby certain sorts of common mistakes inevitably render a contract void; it also considers an alternative way of conceptualising common mistake cases, the construction approach, which argues that the effect of common mistake is ascertained by construing and interpreting the contract. This chapter also considers the scope of the equitable remedy of rectification for common and unilateral mistake, which gives the court the jurisdiction, in exceptional cases, to correct transcription mistakes in the parties’ written contractual document.

Chapter

Cover Contemporary Intellectual Property

12. The power of a patent  

This chapter deals with who is entitled to be a patentee, the rights that a patentee enjoys (which are some of the strongest within intellectual property law), the circumstances in which infringement actions might be brought, the defences that are available, and some points on exploitation practices. A key thread is the construction and interpretation of the patent and the inextricable link between the power conferred by the patent and questions of novelty and obviousness. This chapter also looks at sufficiency, the circumstances in which a patent may be revoked, and the risk of a claim for revocation of the patent.

Chapter

Cover Essential Cases: Contract Law

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Williams v Roffey Bros & Nicholls (Contractors) Ltd [1991] 1 QB 1. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Criminology

1. What is crime? Contrasting definitions and perspectives  

Wayne Morrison

This chapter, which introduces some of the complex interrelationships surrounding the various ways that crime is constructed and objectified, shows that, in practice and in the literature, there is much disagreement over the exact definition of a crime. It discusses four frameworks in which to make sense of how crime is defined: (a) crime as a social construction; (b) crime as a product of religious authority/doctrine; (c) crime as a reflection of nation-state legality; and (d) more recent concepts beyond the nation state derived from social and political theory.

Chapter

Cover The Oxford Handbook of Criminology

2. Criminalizaton: historical, legal, and criminological perspectives  

Nicola Lacey and Lucia Zedner

This chapter examines the relationship between legal and criminological constructions of crime and explores how these have changed over time. The chapter sets out the conceptual framework of criminalization within which the two dominant constructions of crime—legal and criminological—are situated. It considers their respective contributions and the close relationship between criminal law and criminal justice. Using the framework of criminalization, the chapter considers the historical contingency of crime by examining its development over the past 300 hundred years. It analyses the normative building blocks of contemporary criminal law to explain how crime is constructed in England and Wales today and it explores some of the most important recent developments in formal criminalization in England and Wales, not least the shifting boundaries and striking expansion of criminal liability. Finally, it considers the valuable contributions made by criminology to understanding the scope of, and limits on, criminalization.

Chapter

Cover Contract Law

7. Interpreting the terms  

Construction, rectification, and mutual mistake

This chapter considers how the courts make sense of contracts whose terms are capable of more than one interpretation. It begins by discussing two broad approaches to construing contracts, both of which have influenced English law and both of which continue to form part of the law: literalism and contextualism. It then examines the role English law currently assigns to literalism and contextualism and how the courts decide which to apply, with particular emphasis on the Investors rule and contextual readings. It also evaluates an alternative remedy known as rectification and concludes with an analysis of the limits of construction and the law of mutual mistake.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

32. Enforcement of Settlements and Awards  

This chapter focuses on the enforcement of settlements and awards. The approach taken to enforcement of compromises in large measure depends on the nature of the process used to resolve the original dispute. In adjudicative procedures, enforcement will often be through registering the award with the courts of the state where enforcement is to take place, and then enforcing the award as a civil judgment. An exception is construction industry adjudications, where the decision is not itself registrable. Instead, it may be enforced through bringing court proceedings and entering judgment. In non-adjudicative procedures, if the parties have resolved their dispute, they will have entered into a contract of compromise. Enforcement is through suing on that contract. Alternatively, in a non-adjudicative procedure, the parties may convert the compromise agreement into a court judgment or order, and then enforce that judgment or order.

Chapter

Cover Poole's Casebook on Contract Law

6. Exemption clauses and unfair contract terms  

Robert Merkin and Séverine Saintier

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with exemption clauses and unfair contract terms. An exemption clause is a term in a contract or notice that can be either an exclusion clause (excluding liability or remedies) or a limitation clause (limiting liability to a specified sum). The chapter primarily focuses on the requirements that must be satisfied before an exemption clause can be relied upon, the question of construction and the natural and ordinary meaning of the clause, contra proferentem, liability for negligence, limitation clauses, inconsistent terms, and fundamental breach. It then examines the legislative regulation of exemption clauses, emphasizing the growing distinction between commercial and consumer contracts in this context. It considers in some depth the enforceability of exemption clauses in a B2B context in accordance with the Unfair Contract Terms Act 1977 and its interpretation in case law. In the B2C context, it discusses control of unfair terms in accordance with Part 2 of the Consumer Rights Act 2015 and the case law interpreting the previous legislative regulation of unfair terms.

Chapter

Cover Contract Law Concentrate

6. Exemption clauses and unfair contract terms  

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. This chapter discusses the use and enforceability of exemption clauses (total exclusion or limitation of liability clauses inserted into contracts) and their legislative regulation. Whereas the regulation of such clauses is limited to the common law and UCTA 1977 in the case of commercial contracts (B2B), in the case of consumer contracts (B2C) the law intervenes to control a broader category of terms, ‘unfair contract terms’ (Consumer Rights Act 2015) with the critical test being ‘unfairness’.

Chapter

Cover Poole's Casebook on Contract Law

6. Exemption clauses and unfair contract terms  

Robert Merkin KC, Séverine Saintier, and Jill Poole

Poole’s Casebook on Contract Law provides a comprehensive selection of case law that addresses all aspects of the subject encountered on undergraduate courses. This chapter deals with exemption clauses and unfair contract terms. An exemption clause is a term in a contract or notice that can be either an exclusion clause (excluding liability or remedies) or a limitation clause (limiting liability to a specified sum). The chapter primarily focuses on the requirements that must be satisfied before an exemption clause can be relied upon, the question of construction and the natural and ordinary meaning of the clause, contra proferentem, liability for negligence, limitation clauses, inconsistent terms, and fundamental breach. It then examines the legislative regulation of exemption clauses, emphasizing the growing distinction between commercial and consumer contracts in this context. It considers in some depth the enforceability of exemption clauses in a B2B context in accordance with the Unfair Contract Terms Act 1977 and its interpretation in case law. In the B2C context, it discusses control of unfair terms in accordance with Part 2 of the Consumer Rights Act 2015 and the case law interpreting the previous legislative regulation of unfair terms.