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
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.
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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 discusses the various ways in which the law of trusts can be seen to provide remedies that can be described as ‘restitutionary’, and whether any aspects of the law of trusts should be treated as part of the law of unjust enrichment. The areas of trust law where these issues have been most often raised: the law of resulting trusts, the law of tracing, and the law governing breach of trust, are discussed in detail.
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This chapter evaluates the alternative means of responding to offenders and their crimes which have emerged in criminal justice and have been gaining wider recognition. Those who favour innovations of this kind tend to reject conventional assumptions and approaches, proposing new principles for the operation of the justice system. The chapter considers two distinct but similar challenges to conventional models of justice which have developed from this viewpoint: restorative justice and diversion. Restorative justice is based on the presumption that dealing with crime is a process rather than a single act or decision, that it involves collaboration between those with a stake in the offence, and that it emphasises healing as well as ‘putting things right’. Diversionary interventions, which can include community service, restitution, and education, as well as elements of restorative practice, provide an opportunity for the offender to avoid criminal charges or formal judicial processes, albeit sometimes by meeting certain conditional requirements.
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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.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 AC 669, House of Lords. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 AC 669, House of Lords. The document also includes supporting commentary from author Derek Whayman.
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Jack Beatson, Andrew Burrows, and John Cartwright
This chapter considers what counts as illegality and the effect of illegality on a contract (and consequent restitution). The approach of the Courts to illegality has been transformed for the better, and simplified, by the Supreme Court in Patel v Mirza in 2016. Illegal conduct, tainting a contract, can vary widely from serious crimes (eg murder) to relatively minor crimes (eg breach of licensing requirements) through to civil wrongs and to conduct that does not comprise a wrong but is contrary to public policy. As regards the effect of illegality, where a statute does not deal with this, the common law approach is now to apply a range of factors. A final section of the chapter examines contracts in restraint of trade.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] 2 AC 669, House of Lords. The document also includes supporting commentary from author Derek Whayman.
Chapter
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 discusses the various ways in which the law of trusts can be seen to provide remedies that can be described as ‘restitutionary’, and whether any aspects of the law of trusts should be treated as part of the law of unjust enrichment. This is one of those areas of trust law where these issues have been most often raised, the law of resulting trusts, the law of tracing, and the law governing breach of trust.
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17. Non-compensatory remedies
Specific performance, debt, and restitution
This chapter considers a range of non-compensatory remedies that are available at English law in cases of breach. Non-compensatory remedies seek to respond to breach of contract in ways other than compensation. The starting point for non-monetary obligations is that breach is best remedied through the award of damages. Literal enforcement of such an obligation, through an order for specific performance or an injunction, is only awarded in exceptional circumstances. In contrast, obligations involving the payment of a definite sum of money are frequently literally enforced through the remedy of debt. This chapter first examines literal performance as a non-compensatory remedy before discussing debt, gain-based remedies, and restitution interest.
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17. Non-compensatory remedies
Specific performance, debt, and restitution
This chapter considers a range of non-compensatory remedies that are available at English law in cases of breach. Non-compensatory remedies seek to respond to breach of contract in ways other than compensation. The starting point for non-monetary obligations is that breach is best remedied through the award of damages. Literal enforcement of such an obligation, through an order for specific performance or an injunction, is only awarded in exceptional circumstances. In contrast, obligations involving the payment of a definite sum of money are frequently literally enforced through the remedy of debt. This chapter first examines literal performance as a non-compensatory remedy before discussing debt, gain-based remedies, and restitution interest.
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JE Penner
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. The Law of Trusts provides perceptive analysis and original and thought-provoking commentary to give students a grounding in what is considered to be a difficult subject. The book introduces the controversies surrounding the topic in a thought-provoking way, engaging the reader and giving an all-round picture of the key issues relating to the subject. New to this edition, Chapters 3, 5, 11, and 13 (Chapter 12 in the previous edition) have all been significantly revised to reflect recent developments in the law and the academic commentary on, respectively, beneficiaries’ standing to sue and rights to information, resulting trusts, breach of trust, and the law governing fiduciaries. Chapter 12 ‘Restitution, unjust enrichment, and the law of trusts’ is new; it brings together material previously found in other chapters, organising it in a more coherent way for the better appreciation of the student reader, whilst also containing a wholly new discussion of the leading cases and academic commentary in this area of law.
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The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary and other features. The standard common law remedy of damages will not always prove adequate for the victim of a breach of contract. Equity therefore developed a number of additional remedies, discretionary in nature, aimed at ensuring that a claimant was not unreasonably confined to an award of damages; in particular, specific performance and injunctions. The possibility of awarding restitutionary damages, in part to offset any unjust enrichment secured by a contract-breaker, is also considered.
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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. The trust is an important invention of equity, a branch of English law compatible with common law. The history of equity oscillates between compatibility and competition with common law. This chapter serves as an introduction to equity and trusts. It outlines the major stages in the historical development of equity and trusts, examines the theoretical distinction between equity and the common law, explains how to correctly use the maxims and doctrines of equity, and discusses the distinction between equity as an inventive, flexible, remedial branch of law, and equitable institutions that are now settled and established, including the trust and the mortgage. The chapter also considers equity in relation to morality, co-operative remedies in equity and common law, equity and crime, and equity and restitution, before concluding with an assessment of the place of equity in the modern world and its possible future development.
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Most contractual disputes are settled out of court to avoid the significant time, money, general aggravation, and uncertainties inherent in litigation. Where the parties have not agreed on the consequences of breach or any agreed remedies are unenforceable, the law supplies default rules to determine the available remedies. This chapter addresses the following questions: (1) What types of loss are recognised and so compensable for breach of contract? (2) How is loss calculated? (3) When and why might contract law allow departures from the expectation measure and allow awards based on reliance, restitution, account of profits, or loss of opportunity to bargain? (4) In consumer contracts, when might the consumer have the right to a price reduction?
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bartlett v Barclays Bank Trust Co Ltd (Nos 1 & 2) [1980] Ch 515, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Patel v Mirza [2016] UKSC 42, Supreme Court. The document also includes supporting commentary from author Derek Whayman.
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Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Bartlett v Barclays Bank Trust Co Ltd (Nos 1 & 2) [1980] Ch 515, Chancery Division. The document also includes supporting commentary from author Derek Whayman.
Chapter
Essential Cases: Equity & Trusts provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Patel v Mirza [2016] UKSC 42, Supreme Court. The document also includes supporting commentary from author Derek Whayman.
