This chapter discusses the duties and liabilities of the company’s auditors. These duties derive from contract, tort and statute.
Chapter
10. Shares
Book
Craig Purshouse
Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. Essential Cases provides you with succinct summaries of some of the landmark and most influential cases in tort law. Each summary begins with a review of the main case facts and decision. The summary is then concluded with expert commentary on the case from the author, Craig Purshouse, including his assessment of the wider questions raised by the decision.
Chapter
16. Vicarious liability
This chapter examines the doctrine of vicarious liability. It explains that vicarious liability is not a tort in its own right, but is a means whereby a party can be held liable for the tortious acts of another. Vicarious liability can arise through a number of relationships, the most common being that of employer and employee. The traditional requirements for vicarious liability are discussed, namely (i) the existence of an employer–employee relationship; (ii) the employee must have committed a tort; and (iii) the tort must have been committed in the course of the employer’s business. Finally, the chapter looks at defences available to an employer who has been held vicariously liable for the acts of an employee.
Chapter
14. The tort of negligence
This chapter focuses on the tort of negligence. It explains that under the English legal system, negligence can be defined as a breach of a legal duty to take care which results in damage to the claimant. It suggests that negligence is the most important tort and is central in allowing victims to obtain compensation for injuries that they suffer. The chapter discusses in detail the four requirements for establishing negligence, namely the establishment of a duty of care, breach of duty, causation, and remoteness. This chapter also discusses the current test to establish a duty of care which includes foreseeability of damage, proximity, and fairness of the imposition of a duty.
Chapter
7. Relations between principal and third party
This chapter examines the relationship that exists between principal and third party, focusing in particular on the liability that exists between principal and third party, and those instances when they can sue, and be sued by, the other. Liability principally arises in contract and tort, and so these two areas of liability will be discussed, beginning with the contractual liability of the principal and third party. The contractual relationship between the principal and third party, and the extent to which one party can be liable to the other, can be complex and depends upon a number of variables, notably whether the principal is disclosed or undisclosed. In a typical agency relationship an agent will effect a contract between his principal and a third party, after which the agent will ‘drop out’ of the transaction.
Chapter
13. Responsibilities of Employers for the Torts of Employees and Statutory Duties
This chapter identifies the doctrine of vicarious liability and its potential impact on employers. An employer faces vicarious liability when an individual engaged by it to perform some function for the business commits a tort; if this occurs within the course of employment and the individual engaged has the employment status of an employee, the employer may be jointly liable with the tortfeasor. The doctrine was developed, through the courts, to ensure that injured persons are compensated for losses sustained as a result of a negligent or wrongful act, with the obligation being placed on the employer to compensate and further to prevent any future torts being committed. The chapter considers the liability of those producing, supplying, marketing, and importing goods that contain defects which cause damage or loss.
Chapter
3. The Standard of Care in Negligence
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 introduces the reader to the fault principle or negligence standard, along with its positive and negative implications. This chapter first asks. ‘What is negligence?’. It covers the standard of care and, within this, it looks at the objective standard. The chapter goes on to explore the way in which professional skill and care are assessed in the medical context. It also considers reasonable risk-taking and the absence of evidence of fault.
Chapter
1. Introduction
Jack Beatson, Andrew Burrows, and John Cartwright
This introductory chapter first considers the nature and function of contract. It then discusses the contractual obligations in English law; the content of the contract law as set out in this book, which is concerned with the ‘general principles’ of contract rather than the detailed rules applicable to different types of contracts; the location of contract as part of the law of obligations and its relation to other parts of the law of obligations, tort and restitution of an unjust enrichment, and property law.
Chapter
2. Some Factors Affecting Modern Contract Law
M P Furmston
This chapter discusses factors affecting contract law which will be met in the rest of this book. It can usefully be read both at the beginning and the end of the book. These include continental influence in the nineteenth century; the influence of economic theory; inequality of bargaining power; the use of standard form contracts; consumer protection; the relationship between standard form contracts, inequality of bargaining power, and consumer protection; contractual behaviour; the interrelationship of contract and tort; good faith in contract law; the globalization of contract law; and the Human Rights Act 1998.
Chapter
4. Rules of attribution—corporate acts and liabilities
This chapter considers whose acts are the acts of the company for the purposes of determining the rights and liabilities of the company. The chapter examines corporate liability in contract and in tort including directors’ personal liability in tort. The attribution of liability for criminal offences is considered in detail addressing the common law and the recent statutory reforms. These provide for a senior manager regime and a new offence of failure to prevent fraud. The chapter also considers attribution in the context of a breach of directors’ duties and the availability of an illegality defence.
Chapter
5. Passing Off
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 the protection which the law affords to unregistered trade marks through the tort of passing off. It covers the definition of passing off; the relationship between passing off and unfair competition; the elements of both the classic and the extended form of passing off; the role of customer confusion in passing off and types of confusion, including initial interest confusion as well as reverse passing off; the types of damage resulting for an actionable misrepresentation; and defences to passing off (delay or acquiescence, bona fide use of the defendant’s own name, and concurrent use)
Chapter
4. Rules of attribution—corporate acts and liabilities
This chapter looks at identifying whose acts are the acts of the company for the purposes of determining the rights and liabilities of the company, given that the company is an artificial legal entity. There are several distinct rules of attribution which may assist in this context. The chapter examines corporate liability in contract, corporate liability in tort, and criminal liability of the company. The chapter addresses the debate between the traditional approach to attribution, relying on directing mind and will theory, (especially in criminal matters) and the more purposive approach being adopted in civil matters. Attribution in the case of the wrongdoing director is considered as well as the application of an illegality defence.
Chapter
10. Industrial action
Ian Smith, Owen Warnock, and Gemma Mitchell
This chapter considers the law relating to strikes and other industrial action, including the important changes made by the Trade Union Act 2016. It deals with the historical development of common law and statute in this field to illuminate the current law. The relevance of the European Convention on Human Rights is considered. The tortious and criminal liabilities flowing from industrial action are considered, as well as the crucial immunity for tortious liability provided by the ‘golden formula’, including the exceptions to this immunity and the preconditions of complying with rules on balloting and notice of industrial action. Picketing is considered in relation to the many legal liabilities and the statutory immunity for some peaceful picketing. The granting of injunctions to stop industrial action is examined. The impact of industrial action on individual employees is considered in relation to their contractual rights and liabilities and the law of unfair dismissal.
Chapter
1. Introduction to the law of contract
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. Contracts are legally enforceable agreements intended for planned exchanges that are regulated by the principles of contract law. This chapter looks at some of the main theories underpinning the development of English contract law and examines the nature of contractual liability. Contractual obligations arise largely from party agreement, and this distinguishes contractual liability from liability in tort. Given the continued relevance of English law in a globalized world (in spite of the UK exiting the European Union), this chapter also briefly introduces the various attempts to produce a set of harmonized principles such as the Common European Sales Law, along with the impact of other international developments including the growth in e-commerce and electronic communications. Moreover, the chapter analyses the most significant European directives and their effect on the development of English contract law, especially in the context of consumer contracts. The implementation of these European directives has resulted in the introduction of the concept of ‘good faith’ into English contract law. Given the increasing importance of good faith as a concept, especially in the context of ‘a relational contract’, the chapter gives detailed discussion on the scope of and application of good faith in performance of the contract. Finally, the chapter considers the implementation of the Consumer Rights Directive in a number of statutory instruments and the Consumer Rights Act 2015.
Chapter
21. Crown Proceedings
Sir William Wade, Christopher Forsyth, and Julian Ghosh
This chapter discusses the liability of the Crown itself. ‘The Crown’ refers to the sovereign acting in a public or official capacity. The passage of the Crown Proceedings Act 1947 placed the Crown, in principle, in the position of an ordinary employer and of an ordinary litigant. The law as it now stands under the Act may be divided under four headings: tort, contract, remedies and procedure and statutes affecting the Crown.
Chapter
15. Business-related torts
This chapter examines the different types of torts that can affect businesses. A number of these torts (namely product liability, and wrongful interference with goods) aim to protect persons’ usage of goods, whereas other torts (such as nuisance, and the tort in Rylands v Fletcher) are more about protecting persons’ enjoyment of land and property. The tort of occupiers’ liability discusses the duties that are owed by persons who occupy land to those who are present on that land (both lawful visitors and non-lawful visotors). The chapter also discusses the protection of more abstract interests, such as how the law of defamation seeks to protect a person’s reputation. In addition, a number of other torts are discussed, including employers’ liability, and breach of statutory duty.
Chapter
10. Product liability
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. Manufacturers and producers are liable for personal injury or damage to property caused by a defective product. The claimant will not only recover in contract for personal injury and property damage caused by the defective product, but he will also be compensated for the cost of replacing the product itself. The Consumer Protection Act 1987 involves a strict liability regime for defective products on a variety of potential defendants. This chapter discusses the limitations of the tort system in providing compensation to a victim of harm caused by a defective product, and analyses the scope and limitations of the Consumer Protection Act 1987.
Chapter
11. Trespass to the person and to land
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. Trespass, one of the oldest torts, takes three forms that are all actionable per se: trespass to the person, trespass to land, and trespass to goods. In each case, a claimant is not required to prove damage to bring an action in trespass. Many modern cases of trespass to the person are taken against the police or other public officials, mainly to vindicate the claimant’s rights rather than to obtain an award of damages in compensation. This chapter focuses on trespass to the person and trespass to land, the former of which involves an intentional infliction of harm without a direct interference.
Chapter
13. Rylands v Fletcher
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. Rylands v Fletcher was an 1868 case that gave birth to a rule imposing strict liability for damage caused by the escape of dangerous things from land. The tort in Rylands v Fletcher differs from nuisance because it does not consider the involvement of the defendant in a continuous activity or an ongoing state of affairs. What distinguishes Rylands v Fletcher from actions in negligence is that there is no need for the existence of a duty of care and its breach, along with the questionable place of personal injury as an actionable type of damage. This chapter examines the tort in Rylands v Fletcher and the nature of the rule that arose from it. It also considers recent case law developments concerning Rylands v Fletcher and their impact on the current state of the law. Finally, the chapter evaluates the defences pertaining to Rylands v Fletcher.
Chapter
14. Elements of defamation
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. Defamation differs from other aspects of tort law because it is concerned with protecting against harm caused by words. The law of defamation is intended to provide compensation for people whose reputations have been damaged by untrue statements and it may allow one to obtain an interim injunction to stop a potentially defamatory statement from being published. This chapter discusses the human rights dimension in defamation and the procedural and substantive changes to defamation law introduced by the Defamation Act 2013. It also explores how to strike a balance between the competing rights of freedom of expression and protection of reputation.
