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
I. Persistent Questions
H. L. A. Hart
Chapter
9. Obligations: Common Principles and Obligations Arising from Contracts
This chapter discusses the Roman law of obligations. The ‘obligation’, as a seminal part of Roman (and indeed modern) private law, is a legal tie created between individuals on account of voluntary interactions (such as contracts) or involuntary interactions (such as delicts). It begins with a general discussion of the nature and classification of obligations. This is an important aspect of the discussion as it links this particular branch of private law to other areas of Roman private law. It then covers the general features of Roman contracts; consensual contracts; verbal contracts; contracts re; contracts litteris; innominate contracts; pacts; and the quasi-contract. The next chapter is devoted to the other source of obligations, namely delicts and quasi-delicts. These two sources of obligations, namely contract and delict, form the substance of the law of obligations.
Chapter
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
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
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
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
1. The Nature of Trusts
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 first defines the trust concept. This is followed by discussions of the significance of the various aspects of this ‘definition’ and the ways in which it is contentious. Trust is defined as: a situation in which property is vested in someone (a trustee), who is under legally recognized obligations, at least some of which are of a proprietary kind, to handle it in a certain way, and to the exclusion of any personal interest. These obligations may arise either by conscious creation by the previous owner of the property (the settlor), or because some other legally significant circumstances are present. The chapter then explains the ways in which trusts can come about; the roles of the settlor, beneficiary, and trustee; the objectives of the trust; the need for obligations to be attached to property; trustees as fiduciaries; whether trust is an equitable concept; and the requirement that the trustee should know that a trust is being created.
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
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
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
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.
Chapter
7. Reviewing Promises
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 is concerned with instances where Equity allows one party to escape the rigours of an apparently binding promise. The justification for contradicting apparently binding contractual agreements and perfectly properly intended gifts is simply the perception that it is sometimes unfair or unconscionable for the defendant to insist on his strict legal rights. The offending deals are then unwound; the defendant is forced to give up any enrichments that he should not have obtained. The different forms of intervention can be categorized under three heads. The first category is confined to written contracts, where the writing does not embody the real agreement between the parties. The writing may either misrepresent or omit certain critical features of the deal. Equity may then intervene to ensure that injustice does not ensue. The second category is devoted to procedural unfairness, and focuses on flaws in the claimant's consent to the underlying deal. The third category is concerned with substantive unfairness. Here Equity's intervention is far more paternalistic. It will sometimes intervene if the terms of the deal are unfair. This is a most aggressive form of intervention. It means interfering with a bargain even though there is no suggestion that the parties did not truly consent to the arrangement.
Chapter
11. State Responsibility
State responsibility arises from the violation by a State (or other international legal person) of an international obligation that can be one of customary international law or arising from a treaty. The violation must be due to conduct attributable to a State. This chapter discusses the nature of State responsibility; attribution; breach of an international obligation of the State; circumstances precluding wrongfulness (defences); consequences of a breach; enforcement of a claim; and treatment of aliens.
Chapter
4. Offer and acceptance: unilateral contracts
This chapter analyses the formation of unilateral contracts. A unilateral contract arises where O promises A something if A does a particular act which is not the making of a promise to O. A unilateral contract only imposes obligations on O. A is not obliged to do anything. A unilateral offer can be accepted by A regardless of A’s motive for doing the required act. However, A must know of the offer in order for a contract to be formed. O may not be able to revoke the offer if A has embarked upon performance. This will depend upon whether or not O has made an implied promise not to revoke the offer.
Chapter
4. Direct actions in the Court of Justice of the European Union
Articles 258–260, 263, 265, 277, and 340 TFEU
Matthew J. Homewood and Clare Smith
This chapter discusses articles in the Treaty on the Functioning of the European Union (TFEU) that provide for actions that are brought directly before the Court. Under Articles 258 and 259 TFEU, respectively, the European Commission and Member States may bring enforcement proceedings against a Member State in breach of Treaty obligations. Article 260 TFEU, requires compliance with the Court’s judgment. Article 263 TFEU concerns judicial review of EU acts. The outcome of a successful action is annulment. Article 265 TFEU provides for actions against the EU institutions for failure to act.
Book
Edited by Malcolm Evans
International Law is a collection of diverse writings from leading scholars in the field that brings together a broad range of perspectives on all the key issues in international law. Featuring chapters written by those actively involved in teaching and practice, this fifth edition explains the principles of international law, and exposes the debates and challenges that underlie it. The book contains seven parts. Part I provides the history and theory of international law. Part II looks at the structure of the international law obligation. Part III covers the subjects of the international legal order. Part IV looks at the scope of sovereignty. Part V looks at responsibility. Part VI considers how to respond to breaches in international obligations. Finally, Part VII looks at the various applications of international law and explains issues relating to the law of the sea, environmental law, investment law, criminal law, human rights law, migration law, and the law of armed conflict.
Chapter
6. The Practical Working of the Law of Treaties
Malgosia Fitzmaurice
This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the concept of a treaty; the anatomy of treaties (including the making of treaties; authority to conclude treaties; expression of consent to be bound; invalidity of treaties (non-absolute grounds for invalidity of treaties, absolute grounds for invalidity of treaties, amendment, and modification); suspension and termination). The key issues addressed include the scope of legal obligation (the principle pacta sunt servanda, treaties, and third States); interpretation and reservation to treaties (including interpretative declarations); and finally, problems concerning the grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, with special emphasis on jurisprudence of the International Court of Justice.
Chapter
1. Foundations and structure of international law
This chapter introduces the subject of public international law and provides an overview of its most important elements. It begins with a brief historical overview of international law. It then presents the international legal system consisting of different structures of legal rules and principles; discusses the basis of international legal obligation; offers a brief overview of the relationship between international law and national law; and deals with the issue of enforcement. The chapter concludes with an overview of some of the critiques of the international legal system.
Chapter
6. The Practical Working of the Law of Treaties
Malgosia Fitzmaurice
This chapter examines key structural questions and fundamental problems relating to the law of treaties. These structural matters include: the making of treaties; authority to conclude treaties; expressions of consent to be bound; invalidity; and suspension and termination. The key issues addressed include the scope of legal obligations; interpretation and reservations and problems concerning grounds for termination (supervening impossibility and material breach). The chapter also considers the theory and practice of the law of treaties, with broad analysis of the case law of various international courts and tribunals, particularly that of the International Court of Justice.
Chapter
3. Hierarchy of norms in international law
This chapter examines the hierarchy of norms and sources in international law. Establishing a hierarchy of norms and sources allows for a community to elevate certain fundamental principles over ordinary norms, and to establish order and clarity in the relations between norms, authoritative institutions, and legal subjects. In the last half-century, a special class of general rules endowed with peremptory legal force has emerged. Known interchangeably as ‘peremptory norms’ or ‘norms of jus cogens’, these are regarded as possessing a higher status than ordinary rules of international law, and would prevail over the latter in cases of conflict. As such, whether an ordinary rule exists in treaty or customary law, or is a general principle, it is null and void if in conflict with a rule of jus cogens. The chapter also studies a related category known as rights or, more commonly, obligations erga omnes (‘owed to all’).
