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Chapter

Cover The Concept of Law

I. Persistent Questions  

H. L. A. Hart

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 examines three recurrent issues about the nature of law. The issues are: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules? To dispel doubt and any perplexity on these three issues has been the chief aim of most speculation about the ‘nature’ of law. The chapter discusses why this speculation has usually been conceived as a search for the definition of law, and why the familiar forms of definition have done so little to resolve the persistent difficulties and doubts.

Chapter

Cover The Concept of Law

VIII. Justice and Morality  

H. L. A. Hart

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 examines the claim that, between law and morality there is a connection which is in some sense ‘necessary’, and that it is this which deserves to be taken as central, in any attempt to analyse or elucidate the notion of law. The chapter attempts to separate and identify some long-entangled issues. The first of these issues concerns the distinction within the general sphere of morality of the specific idea of justice and the special features which account for its peculiarly intimate connection with law. The second concerns the characteristics which distinguish moral rules and principles not only from legal rules but from all other forms of social rule or standards of conduct.

Chapter

Cover International Human Rights Law

5. Special Character  

Frédéric Mégret

This chapter first introduces the relationship of international human rights law to public international law, which is crucial to understanding the ‘special character’ of international human rights obligations. It then introduces the basic idea of what it means for a legal obligation to be described as ‘special’ in nature in international law, and discusses several key consequences that can be said to flow from this character in terms of reservations, enforcement, and withdrawal.

Chapter

Cover Clarkson & Hill's Conflict of Laws

5. Non-contractual obligations  

Jonathan Hill

Non-contractual obligations cover both tortious obligations and obligations which arise from unjust enrichment and analogous doctrines. Until relatively recently, choice of law rules formulated by the courts held sway in relation to both torts and restitution. However, the expanding role of the European Union in the field of private international law has led to Europe-wide legislation in the form of the Rome II Regulation. The Rome II Regulation lays down choice of law rules not only for tortious obligations, but also for other non-contractual obligations (arising from unjust enrichment, negotiorum gestio, and culpa in contrahendo). Because the material scope of the Regulation is limited in certain ways, the choice of law rules which preceded the entry into force of the European choice of law regime continue to apply to some common torts (in particular, defamation). This chapter discusses the Rome II Regulation, including its scope, tortious obligations, other non-contractual obligations, general provisions, non-contractual obligations excluded from the Rome II Regulation, and the interaction of non-contractual obligations and contractual obligations.

Chapter

Cover International Human Rights Law

7. Rights and Obligations  

Katharine G Young

Human rights are grounds for obligations. This chapter reviews the methods by which international human rights treaties oblige states to promote and secure rights. Two prominent approaches to the determination of obligations are discussed. First, the tripartite typology that calls on states to respect, protect, and fulfil human rights is examined. Second, the chapter considers the distinction between absolute norms and those that may be subject to justifiable and proportionate limitation or derogation. Finally, the chapter discusses how globalization impacts our understanding of human rights obligations: from the importance of extraterritorial obligations to different models for monitoring and accountability which affect how obligations are understood and specified.

Chapter

Cover Contract Law Directions

1. Introduction  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment and restitution. It also explains the wider range of situations covered by the law of contract, and puts the law of contract into its social and economic context.

Chapter

Cover The Concept of Law

V. Law as the Union of Primary and Secondary Rules  

H. L. A. Hart

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

Cover Contract Law Directions

1. Introduction  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. This introductory chapter explains how contract law is structured and how it fits into the overall scheme of the law of obligations and into English law more generally. It explains the boundaries between contract law, torts and unjust enrichment, and restitution. It also explains the wider range of situations covered by the law of contract, and puts the law of contract into its social and economic context.

Chapter

Cover McCoubrey & White's Textbook on Jurisprudence

8. Governing and Obedience  

J. E. Penner and E. Melissaris

This chapter explores how the philosophy of law meshes with political philosophy more generally, and considers three questions. First, is there a duty on those who have the power to govern, to do so, and if so, what sort of duty is it? Second, for those who take up the position of governors, what gives them the right to rule over others? Finally, the chapter asks whether the subjects of the law have a general moral obligation to obey the law.

Chapter

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

5. Consideration and estoppel  

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 explores and defends the consideration requirement in the enforceability of contractual obligations, both when the contract is formed and if it is varied, refuting some of the criticisms calling for the requirement of consideration to be reformed or abolished in English law. It defines consideration as the ‘price of the promise’ and clarifies that an act or promise must have been requested by the promisor to count as consideration. It explores issues such as past consideration, performance of an existing contractual duty, and part payment of a debt, for which latter issue the common law rule is ameliorated by the equitable doctrine of promissory estoppel.

Chapter

Cover Essential Cases: Contract Law

Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Essential Cases: Contract Law 5e

Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67  

Essential Cases: Contract Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis [2015] UKSC 67. The document also includes supporting commentary from author Nicola Jackson.

Chapter

Cover Sealy & Worthington's Text, Cases, and Materials in Company Law

15. Reconstructions, Mergers and Takeovers  

This chapter considers public disclosure, market regulation and the public investigation of companies. The ‘price’ that companies are required to pay for the privilege of incorporation (separate personality) and limited liability is compulsory publicity about their affairs. The Companies Acts’ disclosure rules are largely based on this philosophy. This chapter discusses general disclosure obligations; public regulation of securities markets; transparency obligations; disclosure and public offerings of shares; market abuse and market manipulation; and public investigation of companies.

Chapter

Cover Mayson, French & Ryan on Company Law

11. Borrowing and security  

This chapter considers borrowing as an important method of financing a company’s activities, and security as a right of recourse against company property if the loan is not repaid on time. It begins by discussing security for financial obligations, paying particular attention to security contracts, the redemption or discharge of security and the realisation of security. It then turns to the registration of non-possessory security contracts, the priorities of legal and equitable charges and floating charges as a form of security and their crystallisation. The extent to which the assets of a company, to which anyone is considering extending credit, are already charged as security is also explained. The chapter considers three particularly significant court cases: Evans v Rival Granite Quarries Ltd [1910] 2 KB 979; Re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680; and Re Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

1. What is equity?  

This chapter defines equity. Equity is both a different system of law which recognizes rights and obligations that the common law does not, and a system which seeks to address the inherent gaps which can exist in following any set of rules. Equity plays a large, but largely hidden, role in all our lives. For instance, buying houses with a partner, borrowing money, investing in private or company pensions, making complex arrangements in a will, or preventing human rights abuse all use some form of mechanism developed in equity, such as trust. Thus, equity, even if we do not always appreciate it, intrudes into many parts of our lives.

Chapter

Cover Pearce & Stevens' Trusts and Equitable Obligations

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

Cover Koffman, Macdonald & Atkins' Law of Contract

23. Additional chapter: An outline of the law of restitution  

This chapter presents an outline of the law of restitution and the factors that might make an enrichment unjust. The law of restitution is part of the law of obligations alongside contract and tort, although it also includes elements of property law. The law of restitution can be seen as a response to an unjust enrichment where the defendant should not be unjustly enriched at the expense of the claimant, although the principles may extend beyond this. Unjust enrichment requires one party to have been enriched; for the enrichment to have been at the expense of the other party; and for the enrichment to have been unjust. There are defences available to the enriched party.

Chapter

Cover Complete Contract Law

5. Consideration and Promissory Estoppel  

This chapter evaluates the other requirement for an agreement to be legally enforceable: consideration. In its simplest form, consideration is often described as being something of value that is given (or promised) by each party in exchange for the other party’s promise or performance. Disputes concerning consideration usually begin by one party claiming that the other is in breach of their contract. The other party then argues that no consideration had been given in return for what they promised to do, and therefore the agreement is not enforceable. In a case concerning consideration, courts will typically focus on the obligations to be enforced, and then work out if something of value was given (or promised) in return for the performance of those obligations. Sometimes, a strict application of the consideration requirement is a barrier to reflecting the parties’ intentions. For that reason, the courts have developed a more relaxed approach in certain circumstances. There is also a limited exception to the requirement for consideration, which is known as promissory estoppel.

Chapter

Cover Mayson, French, and Ryan on Company Law

11. Borrowing and security  

This chapter considers borrowing as an important method of financing a company’s activities, and security as a right of recourse against company property if the loan is not repaid on time. It begins by discussing security for financial obligations, paying particular attention to security contracts, the redemption or discharge of security and the realisation of security. It then turns to the registration of non-possessory security contracts, the priorities of legal and equitable charges and floating charges as a form of security and their crystallisation. The extent to which the assets of a company, to which anyone is considering extending credit, are already charged as security is also explained. The chapter considers three particularly significant court cases: Evans v Rival Granite Quarries Ltd [1910] 2 KB 979; Re Spectrum Plus Ltd [2005] UKHL 41, [2005] 2 AC 680; and Re Yorkshire Woolcombers Association Ltd [1903] 2 Ch 284.

Chapter

Cover Business Law Concentrate

5. Contract IV: discharge of contract and remedies for breach  

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 focuses on contract law. It discusses the discharge of contracts and the remedies for breach of contract where one of the parties has failed in their contractual obligations. Contracts can be discharged through performance, agreement, frustration, or breach. In the event of frustration, the parties can establish their own remedies or they can rely on the provisions developed through the Law Reform (Frustrated Contracts) Act 1943. Remedies have been established through the common law and equity. Damages are the primary remedy in most cases, but equitable remedies include specific performance, injunctions, and rectification.