Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution is not required to show that the accused failed to foresee a relevant risk; it only has to establish that his conduct failed to comply with a reasonable standard. A person is negligent if he is not able to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.
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4. Crimes of negligence
David Ormerod and Karl Laird
Chapter
4. Crimes of negligence
Negligence refers to conduct that does not conform to what would be expected of a reasonable person. Along with intention and recklessness, negligence involves a failure to comply with an objective standard of conduct; that is, all of them are forms of fault. To prove negligence, the prosecution are not required to show that the accused failed to foresee a relevant risk; they only have to establish that D’s conduct failed to comply with a reasonable standard. A person is negligent if unable to comply with an objective standard of behaviour set by the law. This chapter deals with crimes of negligence and negligence as mens rea, negligence as the basis of liability, degrees of negligence, negligence as a form of culpable fault, and negligence and capacity.
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3. Seeking a Divorce
Edwina Higgins and Kathryn Newton
This chapter considers the law and process for seeking a divorce in England and Wales, which is due to change radically in April 2022. It examines the current legal framework (as of September 2021) and the gap between the ‘law in books’ and the practical reality, highlighted in the key Supreme Court case Owens v Owens [2018] UKSC 41. It contrasts the conduct-based provisions of the current law with the ‘no fault’ provisions due to be introduced in 2022. It discusses the criticisms that have been made of the conduct-based law, and why there was pressure for reform. The discussion is placed in the context of divorce statistics in order to determine the link between the divorce law and the divorce rate, and whether this matters. In so doing, the chapter considers how much of a role the state should play in regulating divorce and the place of ‘fault’ in a modern divorce law. It also considers matters of process and procedure.
Chapter
12. Rylands v Fletcher and Strict Liability
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 analyses the rule in Rylands v Fletcher on liability for damage done by the escape of dangerous things accumulated on one’s land, regardless of fault. It considers the problem in overlap between negligence and strict liability, and how the tort of negligence can impose liability in situations far removed from cases of individual fault, including the situations covered by Rylands v Fletcher. After providing an overview of the case of Rylands v Fletcher and the origins and elements of the rule, the chapter looks at the rule and its categorization and boundaries today, paying particular attention to two major English cases that treat Rylands as an aspect of nuisance: Cambridge Water Company v Eastern Counties Leather plc and Transco v Stockport MBC. Finally, it examines the Australian High Court’s decision in Burnie Port Authority v General Jones Pty Ltd
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12. Discharge by frustration: subsequent impossibility
Robert Merkin KC, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas of the law curriculum. In general terms, non-performance constitutes a breach of contract. The contract may have expressly allocated the risk of certain external events which occur after the contract is made to one of the parties by means of a force majeure clause. The terms of this clause will determine the parties’ positions if the event in question occurs. In the absence of an express allocation of the risk, the frustration doctrine is a residual doctrine that governs when such frustrating events intervene, without the fault of either party. These frustrating events relate to impossibility, illegality or frustration of the common purpose of both parties. This chapter examines the legal basis of the frustration doctrine, when it applies, when it does not apply, and the legal consequences of frustration on the parties’ positions. Frustration automatically terminates the contract for the future and, where it applies, the provisions of the Law Reform (Frustrated Contracts) Act 1943 govern the parties’ pre-existing legal position.
Chapter
20. Personal Liability of Third Parties
This chapter examines the personal liability of third parties when there is a breach of trust or breach of fiduciary duty. It explains that there are two types of personal liability of third parties. One is receipt-based liability when a third party has received property in which the beneficiary or principal has an equitable proprietary interest and the other is accessorial liability when the third party has encouraged or assisted a breach of trust or fiduciary duty. The elements of different causes of action relevant to receipt-based liability and accessorial liability are examined, notably the action for unconscionable receipt and the action of dishonest assistance. The controversial question of whether liability should be strict or fault-based is considered and, if the latter, the nature of the fault requirement.
Chapter
8. Contractual impossibility and risk
Frustration and common mistake
James Devenney and Adam Shaw-Mellors
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 examines the law’s response to events that render performance of the contract impossible for reasons beyond the control of the contracting parties, and so provide an excuse for non-performance. The default legal doctrines—common mistake (initial impossibility) and frustration (subsequent impossibility)—may come into play in instances of impossibility of performance only where there is no express or implied allocation of the risk of the event in the contract. These default doctrines determine what is to happen to the existing and future obligations of the parties.
Chapter
3. The elements of a crime: mens rea
David Ormerod and Karl Laird
This chapter examines the mens rea or mental fault of the accused. Because an actus reus is treated in law as a bad thing, an intention to cause it is, in law, a bad intention, a guilty mind. Similarly, consciously taking an unjustified risk of causing an actus reus—that is, recklessness—is also a bad state of mind. Unintentionally causing an actus reus by negligence may also be regarded as legally blameworthy. Each of these implies different degrees of ‘fault’. The chapter also discusses subjective and objective fault, intention in crimes other than murder, the distinction between motive and intention, subjective recklessness and malice, wilful blindness, suspicion and reasonable grounds to suspect, the correspondence principle and constructive crime, coincidence in time of actus reus and mens rea, ignorance of the law, absence of a ‘claim of right’ as an element in mens rea and proof of intention and foresight.
Chapter
3. Mens rea
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 reviews the mens rea elements of criminal offence. Mens rea means guilty mind, but the term is better thought of as the fault element of the offence. The role of mens rea is to attribute fault or blameworthiness (also called culpability) to the actus reus. The main types of mens rea are intention, recklessness, and negligence. Issues may arise when the mens rea and actus reus do not coincide in time. The doctrine of transferred malice allows mens rea to be transferred from the intended victim to the unintended victim, in certain situations.
Chapter
4. Strict liability
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 crime of strict liability. A strict liability offence is one which does not require mens rea in respect of at least one element of the actus reus. Strict liability is often referred to as no-fault liability. Strict liability is very rare at common law. Where a statute is silent as to mens rea, the judge must interpret the provision to decide if the offence has mens rea (the starting point) or is one of strict liability. There is a debate about whether the imposition of criminal liability in the absence of proof of fault can be justified.
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12. International State Responsibility for Wrongful Acts
Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà
The chapter begins by discussing the history of the codification of the law of State responsibility. It then considers the current regulation of State responsibility, by distinguishing the ‘ordinary’ legal regime and the ‘aggravated’ State responsibility, and goes on to explore the main differences between the two regimes. It focuses on the elements of the internationally wrongful act, particularly on the attribution of conduct to a State and the relevance of fault and damage. In addition, it examines the circumstances which preclude wrongfulness and the consequences of the internationally wrongful act (with particular reference to the obligation to provide reparation).
Chapter
8. Contractual impossibility and risk: frustration and common mistake
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 examines the law’s response to events that render performance of the contract impossible for reasons beyond the control of the contracting parties, and so provide an excuse for non-performance. The default legal doctrines—common mistake (initial impossibility) and frustration (subsequent impossibility)—may come into play in instances of impossibility of performance only where there is no express or implied allocation of the risk of the event in the contract. These default doctrines determine what is to happen to the existing and future obligations of the parties.
Book
Jeremy Horder
Principles of Criminal Law takes a distinctly different approach to the study of criminal law, while still covering all of the vital topics found on criminal law courses. Uniquely theoretical, it seeks to elucidate the underlying principles and foundations of the criminal law, and aims to engage readers by analysing the law contextually. This tenth edition looks at issues such as the law’s history and criminal law values, alongside criminal conduct, actus reus, causation, and permissions; criminal capacity, mens rea, and fault, excusatory defences; homicide; non-fatal violations; property crimes; financial crimes; complicity; and inchoate offences. A special aim of the book is to bring an understanding of business activity—in particular small business activity—closer to the centre of the stage, in a discussion of the values protected by the criminal law and of the way in which the law shapes its principles, rules, and standards. A large proportion of criminal offences are drafted with the conduct of businesses, as well as individuals, in mind.
Chapter
12. Complicity
This chapter examines the issue of complicity. ‘Complicity’ arises when two or more people agree to commit an offence which is then committed by one or more of them, or when a person plays a supporting role in the commission of an offence. The discussions cover the distinction between principals (those who commit the crime itself) and accessories (those who assist or encourage its commission). The discussion involves addressing complex questions about the conduct element in complicity, the fault element in complicity, joint ventures, and accessorial liability for different results. Also covered are derivative liability, the ‘missing link’, and special defences to complicity. Finally, some elements of complicity bearing on offences of public order are discussed, to show their relevance to civil liberties.
Chapter
12. Discharge by frustration: subsequent impossibility
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. Without the fault of either party, a contract may be automatically discharged due to frustration that renders further performance of the contract impossible, illegal, or radically different from what was originally conceived. In this case, the parties will be excused further performance of their contractual obligations. However, the frustration doctrine applies only where there is no express provision in the contract (a force majeure clause) allocating the risk. This chapter, which examines the frustration doctrine and discharge for subsequent impossibility, first considers the contractual risk allocation before turning to the theoretical basis for the doctrine of frustration. It then discusses limitations on the operation of the frustration doctrine before examining the effects of frustration and the effects on the parties’ positions of the Law Reform (Frustrated Contracts) Act 1943.
