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.
Chapter
11. Illegality
Jack Beatson, Andrew Burrows, and John Cartwright
Chapter
17. Co-ownership
Course-focused and comprehensive, the Textbook on Land Law provides an accessible overview of one key area on the law curriculum. This chapter discusses rules relating to the co-ownership of land. It covers the distinction between ‘joint tenancy’ and ‘tenancy in common’; how a court determines whether a joint tenancy or a tenancy in common has been created in equity, including a discussion of the impact of the leading cases of Stack v Dowden and Jones v Kernott on this issue; the severance of a joint tenancy; the relationship between co-owners; and the ending of co-ownership. The law is illustrated by reference to Mr and Mrs Armstrong (joint tenants of 1 Trant Way), six students who bought 8 Trant Way together and jointly occupy it, and a firm of chartered surveyors who jointly hold title to 10 Trant Way as their business address.
Chapter
8. The Legal Framework of Co-ownership
Co-ownership of land imposes a trust, which was originally a trust for sale but is now simply a trust of land, and which is imposed mainly because it is essential to determine, separately, the position of the co-owners in law and at equity. This is attributed to the legal framework that governs co-ownership. In the past, land could be co-owned via four different methods—joint tenancies, tenancies in common, tenancies by entireties, and coparcenery—the first two of which remain important, while the last two are now virtually nonexistent. This chapter examines the legal framework under which co-ownership of land takes place. It first considers joint tenancies and tenancies in common before turning to co-ownership after 1925, severance and implied severance, acts of severance, disputes between co-owners, and disputes over sale.
Chapter
16. Co-Ownership
This chapter studies the trust of land, and how this legal structure is used to manage co-ownership of land. It first describes the nature of interests under a trust of land, and the rights and obligations for trustees and beneficiaries which arise as a result of the creation of such a trust. The chapter then details the different forms of concurrent co-ownership which can exist in relation to land, looking at joint tenancies and tenancy in common as well as the process of severance. Since co-ownership cannot exist without a trust, it is useful to have understood trusts generally before examining it as a tool to manage co-ownership situations. Finally, the chapter assesses the regulation of disputes between trustees, beneficiaries, and third parties. Partly these disputes relate to questions of priority, and so it is useful to read this chapter in conjunction with the previous one concerning the general priority rules.
Chapter
8. Co-Ownership of Land—the Basic Principles
Titles in the Complete series combine extracts from a wide range of primary materials with clear explanatory text to provide readers with a complete introductory resource. This chapter discusses the basic principles of land co-ownership. It covers the two forms of co-ownership: joint tenancy and tenancy in common; the reform of co-ownership in 1925; joint tenancies in the early twentieth century; the current conveyancing practice to create an express trust; rules when there is no express declaration of a trust; resulting and constructive trusts; quantifying the beneficial interest under a constructive trust; severance of joint tenancies; and methods of severance.
Chapter
11. Illegality
Robert Merkin, Séverine Saintier, and Jill Poole
Course-focused and comprehensive, Poole’s Textbook on Contract Law provides an accessible overview of the key areas on the law curriculum. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
Chapter
13. Regulating Co-ownership: The Content Question
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 internal regulation of co-ownership. It is concerned with the content question: the rights enjoyed by co-owners, including their rights and duties in relation to each other, and whether one co-owner can insist on a sale of the land against the wishes of another. The joint tenancy and the tenancy in common are two forms of co-ownership. The chapter explores the operation of survivorship in respect of a joint tenancy and the process through which a joint tenant may become a tenant in common through severance. Co-ownership is terminated once there is a sole legal and equitable owner. The process of partition can also terminate co-ownership. In both forms of co-ownership, the rights and duties of the co-owners are governed through the imposition of a trust of land, regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). TOLATA 1996 contains a procedure enabling disputes relating to land held on trust to be determined by an application to court. The chapter considers how the courts have resolved disputes between the beneficiaries as to whether land should be sold. The chapter also considers the relationship between TOLATA 1996 and ‘home rights’ (of occupation) conferred by the Family Law Act 1996.
Chapter
10. Duress, undue influence, and unconscionable bargains
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. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning, or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced, and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
Chapter
11. Illegality
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. This chapter examines contracts that are tainted by illegality or otherwise contrary to public policy, and how illegality affects the parties’ positions following the hugely influential Supreme Court decision of Patel v Mirza. A contract may be illegal from the beginning or illegality may arise as a result of statute (for example, express statutory prohibitions). Examples of illegal contracts are those intended to commit crimes or contracts prejudicial to sexual morality. As a general principle, illegal contracts cannot be enforced and benefits conferred in the performance of an illegal contract cannot be recovered. There are some exceptions, however, such as where the parties are not in pari delicto (not equally guilty), or where the claimant can establish his right to the money or property transferred without having to rely upon the illegal contract. This chapter also examine the law’s treatment of contracts in restraint of trade, including exclusive dealing and exclusive service agreements.
Chapter
6. Trusts of Land
This chapter examines the legal regulation of trusts of land, with a particular focus on co-ownership trusts. It begins with a discussion of the two forms of co-ownership that exist in English law, joint tenancy and tenancy in common, as well as the ‘severance’ rules that enable a joint tenant to become a tenant in common. While joint tenants can act only collectively and their acts necessarily affect the whole of the co-owned estate, tenants in common can also act individually in relation to their own undivided shares in the estate. The chapter goes on to consider the trustees' powers, beneficiaries' rights, and the role of the court in relation to co-ownership trusts as provided by the Trusts of Land and Appointment of Trustees Act 1996. Finally, it explains how the courts resolve disputes between co-owners and disputes between co-owners and creditors as to whether co-owned land should be sold.
Chapter
13. Regulating Co-ownership: The Content Question
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 internal regulation of co-ownership. It is concerned with the content question: the rights enjoyed by co-owners, including their rights and duties in relation to each other, and whether one co-owner can insist on a sale of the land against the wishes of another. The joint tenancy and the tenancy in common are two forms of co-ownership. The chapter explores the operation of survivorship in respect of a joint tenancy and the process through which a joint tenant may become a tenant in common through severance. Co-ownership is terminated once there is a sole legal and equitable owner. The process of partition can also terminate co-ownership. In both forms of co-ownership, the rights and duties of the co-owners are governed through the imposition of a trust of land, regulated by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). TOLATA 1996 contains a procedure enabling disputes relating to land held on trust to be determined by an application to court. The chapter considers how the courts have resolved disputes between the beneficiaries as to whether land should be sold. The relationship between TOLATA 1996 and ‘home rights’ (of occupation) conferred by the Family Law Act 1996 are also considered.
Chapter
9. Competition Act 1998: substantive provisions
This chapter describes the substantive provisions of the Competition Act 1998 in the UK. The focus of attention in this chapter is the ‘Chapter I prohibition’, which prohibits anti-competitive agreements, and the ‘Chapter II prohibition’, which prohibits the abuse of a dominant position. The Chapter I and II prohibitions are closely modelled upon Articles 101 and 102 TFEU, although they are by no means identical in every respect. Following an overview of the Competition Act, and the changes introduced as a result of Brexit, it considers in turn the decisional practice and case-law under the Chapter I and Chapter II prohibitions. It then discusses the duty in section 60A of the Competition Act that sets out the principles to be applied in determining questions that arise in relation to competition within the UK with effect from 1 January 2021. The chapter also contains a table of all the decisions under the Competition Act to have been published on the website of the Competition and Markets Authority (CMA) since the ninth edition of the book in December 2017.
