Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter begins by identifying two types of rules. The first, which may be considered the basic or primary type, requires human beings to do or abstain from certain actions, whether they wish to or not. The second type of rules are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. The chapter then argues that in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence’. It attempts to show that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. This union of elements is accorded a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought.
Chapter
V. Law as the Union of Primary and Secondary Rules
H. L. A. Hart
Chapter
5. Certainty
This chapter discusses the role of certainty in questions of trust and power in property management. For an obligation to be legally enforceable, it must be defined with sufficient certainty to allow the courts to control it, and a power conferring authority can only be exercised within the limits subject to which it is created. This range of different types of obligation has implications for the applicable tests for certainty. The court must know who is under an obligation, what the obligation is, to what property the obligation relates, and who can enforce the obligation. In the case of a power, the court needs to know who can exercise the power, how it can be exercised, and whether the power has been validly exercised.
Chapter
1. Foundations
This chapter focuses on the historical and conceptual foundations of trusts and equity, first examining the history of the relationship between law and equity, including the historical origins of the trust. It then explains the idea of equity and how it is intertwined with the common law, and compares the trust with concepts such as gifts and contracts. The chapter shows that the trust arose in response to equity’s special concern to ensure that legal rights are not used in bad conscience, but later developed into a sophisticated institution governed by established rules. It looks at the reform of the Court of Chancery and considers trust property, equitable rights under a trust, separation of legal and equitable title, and the paradox of property and obligation.
Chapter
11. Seller’s obligations as to quality
D Fox, RJC Munday, B Soyer, AM Tettenborn, and PG Turner
This chapter considers the seller’s obligations as to the characteristics and quality of goods sold. The main concentration is on the implied terms under ss 13–15 of the Sale of Goods Act 1979 requiring goods to correspond with their description, to be fit for purpose and of satisfactory quality, and to match any sample provided. But considerable stress is also laid on the vital practice of commercial parties to draft their own bespoke terms and oust those otherwise implied. The chapter also covers the contractual liability applying between seller and buyer.
Chapter
10. Performance of the Contract of Employment
This chapter begins with a discussion of the personal nature of the employment contract, and the fact that such a contract is necessarily one of personal service which gives rise to duties and obligations on both sides. It deals with issues such as the implied duties of the employer to provide for the employee (including the implied duty to provide work, pay wages, confidentiality, and the implied duty of trust and confidence), and the corresponding implied obligations of the employee (including the duty of faithful service, duty to use skill and care). There is also a discussion of whistleblowing and public interest disclosures. It then explains employer’s vicarious liability, and harassment and bullying.
