Rescission as a Self-Help Remedy: A Critical Analysis

2000 ◽  
Vol 59 (3) ◽  
pp. 509-543 ◽  
Author(s):  
Janet O'Sullivan
Keyword(s):  
Critical Analysis ◽  
Historical Development ◽  
Common Law ◽  
Third Party ◽  
Court Order ◽  
Self Help ◽  
Judicial Intervention ◽  
The Law ◽  
Conceptual Difficulties

Rescission (the process by which a voidable contract or other disposition is avoided) is frequently described as a remedy which can be effected both by judicial decree and by the act of the innocent party. This article seeks to explore the latter notion, that it is possible to rescind a contract or disposition by self-help means. It explains that the law is in some disarray, caused primarily by confusion between the dual historical development of rescission at law and in equity. Rescission was traditionally regarded as the act of the innocent party only for vitiating factors (such as fraud) actionable at common law, not those actionable in equity, but this separation was not maintained following the Judicature Acts. Moreover, there are practical and conceptual difficulties with the notion of rescission as a self-help remedy, both in the idea that rescission can be effected by the election of the innocent party without judicial intervention and that, even where judicial rescission is obtained, the court order is back-dated to the earlier date of the innocent party’s election. The principal difficulty arises when an executed or partly executed transaction is rescinded, for then there are restitutionary implications and implications for the security of third party title. The conclusion is that the notion of rescission as a self-help remedy serves only to confuse in the modern law of obligations and should be abandoned.

scholarly journals DAMAGES FOR ADULTERY: A LEGAL MISFIT OR A NECESSITY?

2018 ◽  
Author(s):  
Shantel E. Ndebele
Keyword(s):  
Capital Punishment ◽  
Common Law ◽  
Code Of Conduct ◽  
Third Party ◽  
Roman Law ◽  
Moral Code ◽  
Cape Of Good Hope ◽  
Self Help ◽  
The Law ◽  
Severe Punishment

To attempt any debate or discussion on the law of adultery in a Roman Dutch common law jurisdiction, without tracing the development of the law in this regard under Roman law would be a gross injustice. This is because the common law in Zimbabwe is largely Roman Dutch law with graftings of English principles.1 This is the law that was applied at the Cape of Good Hope as at 10 June 1891, as evidenced by section 89 of the old Zimbabwe Constitution.2 It would be of no benefit to explore English Law in this discussion for the simple reason that in England, all references to adultery have been deleted from the law.3 It is no longer a crime, no longer gives rise to a third party claim for delictual damages and is no longer included in the divorce statutes.4 Since Roman Dutch law is the foundation of our common law, it is important to understand the lex Julia which was the cornerstone of matrimonial law under Roman law.5 The lex Julia was an ancient Roman Law which was a moral code of conduct. It was a creation of patriarchy. Roman law was sometimes extreme when it came to adultery and it gave the husband powers of self-help.6 One cannot over-emphasise how serious adultery was perceived in the Roman law society. Adultery was a crime so serious that it attracted a severe punishment, sometimes even capital punishment, and this could be executed either by the couples’ guardian or the husband.7 Although murder is an unfathomable punishment for any marital misdemeanour, adultery included, it was justifiable under the circumstances.8 The law cannot however afford to stay stagnant hence, these ancient harsh penalties no longer find a place in our current Zimbabwean society as shall be highlighted below.

Insanity and Divorce

1892 ◽  
Vol 38 (162) ◽  
pp. 378-382
Author(s):  
A. Wood Renton
Keyword(s):  
Critical Analysis ◽  
Historical Development ◽  
The Subject ◽  
The Law

In view of the interest which the subject is at present arousing, a critical analysis of the historical development of the law of insanity in its relation to divorce may be neither inopportune nor uninstructive.

10. Industrial action

2019 ◽  
pp. 704-794
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Human Rights ◽  
Historical Development ◽  
Common Law ◽  
European Convention ◽  
Industrial Action ◽  
Unfair Dismissal ◽  
The Law ◽  
The Many ◽  
Contractual Rights ◽  
The Impact

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 and 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.

Conditions in Favour of Third Parties

1952 ◽  
Vol 11 (2) ◽  
pp. 240-257
Author(s):  
T. C. Thomas
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Third ◽  
The Common ◽  
The Law ◽  
The Third Party

The purpose of this article is to consider the legal effects of a transfer of property by A to B subject to the performance by B of some obligation in favour of C, a third party to the transfer. The student of the law of contract is well familiar with the common law rule that no one who was not an original party to the contract is entitled to the benefit of that contract. But this rule creates hardship in particular cases and it has been shown that, in the main, three methods have been evolved to evade those unfortunate results. First, the legislature has intervened and provided C, the third party, with statutory rights. Secondly, the doctrine of agency has been invoked whereby C may claim that he is the principal of B. Thirdly, but with varying success, the trust concept has been pressed into service whereby C has sometimes been able to show that he is a beneficiary.

scholarly journals When is a Stranger a Constructive Trustee - A Critique of Recent Decisions

1969 ◽  
pp. 453
Author(s):  
Susan Barkehall Thomas
Keyword(s):  
Supreme Court ◽  
Critical Analysis ◽  
Conceptual Development ◽  
Recent Trend ◽  
Current Approach ◽  
Fiduciary Duty ◽  
Third Party ◽  
The Supreme Court ◽  
The Law ◽  
Context Specific

This article explores the conceptual development of third party liability for participation in a breach of fiduciary duty. The author provides a critical analysis of the foundations of third party liability in Canada and chronicles the evolution of context-specific liability tests. In particular, the tests for the liability of banks and directors are developed in their specific contexts. The author then provides a reasoned critique of the Supreme Court of Canada's recent trend towards context-independent tests. The author concludes by arguing that the current approach is inadequate and results in an incoherent framework for the law of third party liability in Canada.

Contracts for the Benefit of Third Parties: Hong Kong

2018 ◽  
Author(s):  
Lee Mason
Keyword(s):  
Hong Kong ◽  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
Strict Adherence ◽  
The Third ◽  
English Law ◽  
The Law ◽  
The Third Party ◽  
Contractual Rights

This chapter analyses the law on third party beneficiaries in Hong Kong long characterized by strict adherence to the traditional common law doctrine of privity. The law relating to third party rights was only reformed by way of Ordinance in 2016, along the lines of the statutory reform of English law in 1999. A small number of specifically enumerated types of contract are excluded from the scope of the Ordinance; other contracts may be concluded to confer enforceable contractual rights on third parties. Whether a third party may enforce a term of a contract depends on the interpretation of the contract: if the third party right was not expressly conferred there is a presumption that the conferral was intended; but this can be rebutted if the parties made it clear that they did not intend it to be enforceable. The third party must be identified by name, as a member of a class, or answering a particular description and may claim the same remedies for breach as a party to the contract.

6. Privity

2020 ◽  
pp. 128-158
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

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 examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.

6. Privity

2018 ◽  
Author(s):  
Janet O’Sullivan
Keyword(s):  
Common Law ◽  
Third Parties ◽  
Third Party ◽  
The Core ◽  
The Subject ◽  
The Law ◽  
Contractual Obligations ◽  
Contractual Rights

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 examines the doctrine of privity in the law of contract. The doctrine of privity dictates that a person who is not a party to the contract cannot be granted contractual rights by the contract or be placed under contractual obligations by it. It explores the rationale of the principle, discusses the authorities that established it, and explores the various common law exceptions to the rule that a third party cannot acquire rights under a contract. This chapter also covers the statutory exception to privity provided in the Contracts (Rights of Third Parties) Act 1999.

10. Industrial Action

2017 ◽  
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Human Rights ◽  
Historical Development ◽  
Common Law ◽  
European Convention ◽  
Industrial Action ◽  
Unfair Dismissal ◽  
The Law ◽  
The Many ◽  
Contractual Rights ◽  
The Impact

This chapter considers the law relating to strikes and other industrial action. It deals with the historical development of common law and statute in this field to illuminate the current law. The tortious and criminal liabilities flowing from industrial action are considered and 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 focuses on the effect of industrial action on the individuals employees is considered in relation to their contractual rights and liabilities and the law of unfair dismissal. The relevance of the European Convention on Human Rights is considered as are the changes which will be brought in by the Trade Union Act 2016.

10. Industrial action

2019 ◽  
pp. 720-812
Author(s):  
Ian Smith ◽  
Aaron Baker ◽  
Owen Warnock
Keyword(s):  
Human Rights ◽  
Historical Development ◽  
Common Law ◽  
European Convention ◽  
Industrial Action ◽  
Unfair Dismissal ◽  
The Law ◽  
The Many ◽  
Contractual Rights ◽  
The Impact

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.

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