Sinclair v. Brougham

1938 ◽  
Vol 6 (3) ◽  
pp. 305-326
Author(s):  
Lord Wright
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The Public ◽  
Unjust Enrichment ◽  
The Common ◽  
The Law ◽  
A Company ◽  
Rate Importance

The case of Sinclair v. Brougham has been generally regarded as an authority of first-rate importance. I think it has been properly so regarded, though my reasons for so thinking may not altogether agree with the reasons emphasized by some lawyers. I regard the case as primarily significant as embodying the leading principles on which the Court acts in exercising its equitable jurisdiction to give relief in order to prevent unjust enrichment, or to achieve restitution, if we accept the useful term which has been employed in the recently published American Restatement of the Law of Restitution. The word itself is only an echo of language which will be found in English judgments, indeed, in this very case of Sinclair v. Brougham. The case shows how the Court can do justice by applying equitable principles where the Common Law would have been powerless. But since every Court is now bound in the same proceeding to apply either law or equity or both as the circumstances may require, the distinction between law and equity is now only important in the sense that the differences of method and rules must be observed. In the case we are considering a company had borrowed money for purposes for which it was ultra vires for it to borrow. There could in law be no claim for money lent and no claim in law for the repayment on the ground of quasi-contract or, to use the now obsolete phrase, contract ‘implied in law’, because to allow such a claim as a merely money claim would be to sanction an evasion of the public policy forbidding ultra vires borrowing by companies. Further, as the money lent or its products could not be identified in the company's possessions, a claim in law could not be maintained. But the powers of the Court were not exhausted. The problem was further complicated by the conflicting claims of the shareholders.

‘Furiously Mad’: Vagrancy Law and a Sub-Group of the Disorderly Poor

Rural History ◽  
2013 ◽  
Vol 24 (1) ◽  
pp. 25-40 ◽  
Author(s):  
AUDREY ECCLES
Keyword(s):  
Nineteenth Century ◽  
Eighteenth Century ◽  
Social Problem ◽  
Common Law ◽  
Medical Texts ◽  
The Public ◽  
Course Of Action ◽  
The Subject ◽  
The Common ◽  
The Law

Abstract:Madness has been a social problem from time immemorial. Wealthy lunatics were made royal wards so that their estates would be looked after, and the common law very early admitted madness and idiocy as conditions justifying the exemption of the sufferer from punishments for crime. But the vast majority of lunatics have never been either criminal or wealthy, and many wandered about begging, unwelcome in any settled community. Finally, in the eighteenth century, the law made some attempt to determine a course of action which would protect the public and theoretically also the lunatic. This legislation and its application in practice to protect the public, contain the lunatic, and deal with the nuisance caused by those ‘disordered in their senses’, form the subject of this article. Much has been written about the development of psychiatry, mainly from contemporary medical texts, and about the treatment of lunatics in institutions, chiefly from nineteenth-century sources, but much remains to be discovered from archival sources about the practicalities of dealing with lunatics at parish level, particularly how they were defined as lunatics, who made such decisions, and how they were treated in homes and workhouses.

Rule and Reason in the Common Law of Foreign Judgments

1999 ◽  
Vol 12 (2) ◽  
pp. 193-221
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Public Policy ◽  
Procedural Justice ◽  
Common Law ◽  
Minimal Level ◽  
Choice Of Law ◽  
The Public ◽  
Natural Justice ◽  
Foreign Law ◽  
The Common ◽  
Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Public Policy in Family Contracts, Part II: Antenuptial Contracts

2021 ◽  
Vol 32 (1) ◽  
pp. 3-23
Author(s):  
Elsje Bonthuys
Keyword(s):  
Public Policy ◽  
Gender Equality ◽  
Bargaining Power ◽  
Common Law ◽  
Third Parties ◽  
Constitutional Court ◽  
Judicial Discretion ◽  
The Public ◽  
Property System ◽  
The Common

This, the second part of an article on public policy in contracts between family members, focuses on legality in antenuptial contracts, particularly those which exclude all forms of sharing between spouses. The Matrimonial Property Act 88 of 1984 is now 35 years old and, apart from writing, it neither requires formalities to ensure that prospective spouses who enter into antenuptial contracts fully appreciate the consequences of their agreements, nor does it guarantee that the agreed upon property system is fair to both spouses. Instead, the focus is upon protecting the interests of third parties and creditors. The common-law principle of immutability makes it very onerous for parties to change the matrimonial property consequences during their marriage and, because the judicial discretion to order redistribution of benefits at divorce is limited to marriages concluded before the implementation of the Matrimonial Property Act, enforcement of antenuptial contracts at the termination of the marriage can lead to grossly unfair results. This unfairness has implications for gender equality, both because of gendered disparities in bargaining power at the conclusion of antenuptial contracts and legislation which limits the courts’ ability to deviate from contracts which mostly favour men, while retaining a discretion to deviate from contracts which tend to favour women. This article argues that the second leg of the public policy test, as articulated by the Constitutional Court in Barkhuizen v Napier can remedy the inadequacies in the statutory and common law by allowing the courts to consider inequalities in bargaining power and unfairness at the time of the enforcement of antenuptial contracts, in effect overriding the principle of immutability and creating a residual judicial discretion not to enforce an antenuptial contract.

created by the common law rule were addressed by Parliament in the Law Reform (Frustrated Contracts) Act 1943, considered below, but the unjust enrichment principle is also relevant in other respects in determining whether a particular event is capable of frustrating a contract. If the decision to treat a contract as frustrated might give one of the parties an undue advantage this may operate as a justification for refusing to treat the contract as frustrated. For example, in Tamplin SS Co v Anglo-Mexican Petroleum Products Co Ltd, an oil tanker was chartered for a period of five years, but was subject to government requisition when the charterparty still had nearly three years to run. In the circumstances, there was no prejudice to the charterers, since the government compensation payable to the charterers exceeded the agreed hire charges. However, the owners of the ship claimed that the contract was frustrated. The House of Lords held, by a narrow majority, that the contract was not frustrated. One explanation for the action of the owners is that they wanted to secure the increased benefit of the government compensation in replacement for the lower hire charges. In this case, it is readily understandable that the majority of the House of Lords preferred not to allow the owners to benefit in this way at the expense of the charterers. Remedies, unjust enrichment and frustration Money paid or payable before the date of frustration

1995 ◽  
pp. 382-382
Keyword(s):  
Common Law ◽  
Petroleum Products ◽  
Law Reform ◽  
Unjust Enrichment ◽  
House Of Lords ◽  
The Common ◽  
The Law ◽  
The Government ◽  
Undue Advantage ◽  
Oil Tanker

10. Company law II: directors, finance, and capital

2019 ◽  
pp. 143-159
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Company Law ◽  
Public Companies ◽  
Essential Information ◽  
Minority Protection ◽  
Company Directors ◽  
The Common ◽  
The Law ◽  
A Company

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 discusses the law governing company directors and shareholders. The common law duties on directors have been codified and expanded through the Companies Act (CA) 2006. Directors are responsible to the company itself, not to individual shareholders. Minority protection (of shareholders) is provided through the CA 2006 to restrict directors’ acts that may unfairly disadvantage them. Public companies must have a company secretary and they must satisfy statutory requirements in relation to their qualifications. Shareholders have no automatic right of management in the company although, through attendance and the rights to vote at shareholder meetings, they may have influence over the business conducted.

A Duty to Make Restitution

2013 ◽  
Vol 26 (1) ◽  
pp. 157-179 ◽  
Author(s):  
Stephen A. Smith
Keyword(s):  
Common Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Legal Consequence ◽  
The Common ◽  
The Law

The rules governing impaired transfers are widely thought to lie at the core of unjust enrichment law. This essay defends two propositions about these rules. First, there is no duty, in the common law, to make restitution of benefits obtained as the result of an impaired transfer (for example, a transfer made by mistake or as a result of fraud or compulsion). Rather than imposing duties to make restitution, or indeed duties of any kind, the rules governing impaired transfers impose only liabilities, in particular liabilities to judicial rulings. The only legal consequence of a mistaken payment is that the recipient is liable to be judicially ordered to repay a sum of money equal to the payment. Second, it matters that the law governing impaired transfers imposes only liabilities, and not duties, because, inter alia, explaining and justifying liabilities is different from explaining and justifying duties. In particular, certain well-known objections to attempts to explain impaired transfer law can be avoided once it is recognized that this law is concerned exclusively with liabilities. In summary, then, this essay argues that the distinction between duty-imposing and liability-imposing rules has important implications for understanding the foundations of the law governing impaired transfers.

scholarly journals What's Wrong with Restitution

1969 ◽  
Vol 37 (1) ◽  
pp. 221 ◽  
Author(s):  
David Stevens ◽  
Jason W. Neyers
Keyword(s):  
Common Law ◽  
Private Law ◽  
Simple Formulation ◽  
Unjust Enrichment ◽  
The Past ◽  
The Subject ◽  
The Common ◽  
The Law ◽  
The Right ◽  
The Way

The law of restitution has developed out of the law of quasi-contract and the law of constructive trust. Inadequate attention to the logic and coherence of doctrines in the law of restitution, however, renders this new law as opaque and confused as its predecessor. This is largely due to the remedial mentality of the common law. The remedy to the remedial mentality is to concentrate future efforts in stating doctrine on defining rights, not remedies. The precedent for this type of change in method is the transformation that occurred in contract and tort over the past 100 years, inspired, in part, by civilian theories of private law. The right that generates the remedy restitution is the cause of action in unjust enrichment. It arises where there has been a non-consensual receipt and retention of value, that is, a receipt and retention of value that occurs without "juristic reason." "Nonconsensual" means by mistake, by theft or by finding. There are a number of problems in the method of the common law tradition which stand in the way of recognizing this simple formulation: (a) The inherent expansiveness of "restitution " and "unjust enrichment" if these terms are not rigorously defined; (b) The lack of serious competition for the expansive versions of the subject, on a number of fronts; (c) The lack of a clear direction in the efforts to reform the law of quasi-contract and constructive trust; (d) The deeply embedded nature of the quasi-contract thinking; (e) Poor analysis in some areas of the law of contract and (f) Tort; and (g) The lack of an explicit agency of reform in the tradition.

scholarly journals Economics, Public Policy, and Law

1996 ◽  
Vol 26 (1) ◽  
pp. 1
Author(s):  
Susan Rose-Ackerman
Keyword(s):  
Public Policy ◽  
Public Administration ◽  
Law And Economics ◽  
Common Law ◽  
Collective Decision Making ◽  
The World ◽  
The Common ◽  
The Law ◽  
The Relationship

Some lawyers view the law as a self-contained body of wisdom independent of the contaminating influences of other branches of knowledge. Such lawyers resist efforts to combine law with economics. In doing so, the author argues that these lawyers miss an opportunity for gaining a deeper understanding of the way law works in the world. This article thus explores the relationship between economics as a methodology, public policy, and the law. The author first tackles the argument that the economist's concentration on efficiency is flawed because it is unconcerned with justice. The author then discusses the role of economics in light of collective decision-making found throughout society. Economics and the design of efficient regulatory schemes are also discussed, as well as in the comparative law context. It is argued that the intersection between the common law and economics must be widely accepted, even though it suffers from limitations in resolving difficult policy issues. Thus, the author concludes that economic analysis alone cannot be an all-purpose resolver of the problems of the modern capitalist welfare state. Nonetheless, economic frameworks remain useful for lawyerly thinking; law and economics must thus be joined by a broader range of subjects, including political science and public administration. 

Public policy and private illegality in the pursuit of evidence

2016 ◽  
Vol 21 (1-2) ◽  
pp. 87-118
Author(s):  
David R. A. Caruso
Keyword(s):  
Public Policy ◽  
Common Law ◽  
The United States ◽  
The Internet ◽  
Court Case ◽  
The Public ◽  
Scope Of Application ◽  
The Common ◽  
Evidence Law ◽  
Language Context

The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.

“And Hast Thou Slain the Jabberwock?” The Law Relating to Demonstrations in the A.C.T.

1974 ◽  
Vol 6 (1) ◽  
pp. 107-149
Author(s):  
Roger A. Brown
Keyword(s):  
Civil Rights ◽  
Common Law ◽  
Public Order ◽  
The Public ◽  
Legal Position ◽  
The Common ◽  
The Law ◽  
Public Disorder

In an examination of the existing limitations of freedom of assembly and demonstration in the A.C.T., Mr Brown first deals with the common law and various statutory provisions as they stood in 1971. He then examines the Public Order (Protection of Persons and Property) Act 1971 (Cth) in some depth. His conclusion, after a brief discussion of rights of peaceful assembly in the present law, is that the current legal position in the A.C.T. is unsatisfactory in that it does not give sufficient guarantees to civil rights but rather embodies repressive laws to prevent threats of public disorder that may be more imaginary than real.

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