Part II Related Doctrines, 17 Rectification and Correcting Mistakes through Construction

2017 ◽  
Author(s):  
McMeel Gerard
Keyword(s):  
Safety Valve ◽  
Common Law ◽  
Commercial Law ◽  
Mistaken Belief ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Written Word ◽  
Actual Agreement

This chapter concerns the equitable remedy of rectification of documents. This remedy is one which rewrites or amends documents where there is a mismatch between the parties' actual agreement and the instrument which purports to record it. The ultimate rationale of this equitable supplement to the common law is the strongly objective approach which the law takes to the formation of contracts, and the interpretation of agreements which are reduced to writing. The primacy which English law gives to the documentary contract, coupled with the strongly objective interpretative principle, are celebrated as one of the great strengths of English contract and commercial law, promoting the virtues of certainty and predictability. Accordingly, rectification of documents to accord with the parties' mistaken belief that the written word corresponds to their actual agreement acts as a subjective qualification or ‘safety valve’ to the objective principle to meet the justice of such cases.

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

scholarly journals THE BASIC ELEMENTS OF THE TESTAMENT IN THE ENGLISH LEGISLATION

2018 ◽  
Vol 12 (1) ◽  
pp. 11-20
Author(s):  
Laura-Dumitrana Rath Boșca ◽  
Bogdan Bodea
Keyword(s):  
Common Law ◽  
Judicial System ◽  
Social Solidarity ◽  
Historical Process ◽  
The Common ◽  
The Creation ◽  
English Law ◽  
The Law

Common Law represents the second biggest contemporary judicial system. Immanent to a historical process which led to the creation of a community, common law represents a form of social solidarity. It is not the result of any social consent to obey a law as much as it is the participation of the society, through its exceptions, to the process of elaborating the law by which it functions. So, society itself is through a sort of syncretism the common law.One the elementary concepts of common law is the doctrine of precedent which functions in parallel with organic laws in order to enhance both the results of judicial cases and the efficiency of the cases. In the English law, the testament is a representation of the wishes of a defunct person and the declaration of that persons wishes in relation to the belongings he wished to pass on after his death.

The English Law of Sanctuary

1990 ◽  
Vol 2 (6) ◽  
pp. 8-13 ◽  
Author(s):  
J. H. Baker
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Early Date ◽  
Administration Of Justice ◽  
Holy Places ◽  
Royal Courts ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church

Although the protection of churches and holy places was embodied froman early date in Canon law, the law of sanctuary as it applied in England was necessarily part of the secular common law. The Church never had the physical power to resist the secular authorities in the administration of justice, and although those who violated sanctuary were liable to excommunication the Church could not in cases of conflict prevent the removal from sanctuary of someone to whom the privilege was not allowed by the law of the land. The control of the common law judges was, indeed, tighter than in the case of benefit of clergy. The question whether an accused person was or was not a clerk in Holy Orders was ultimately a question for the ordinary, however much pressure might be put upon him by the judges; but the question of sanctuary or no sanctuary was always a question for the royal courts to decide, upon the application of a person who claimed to have been wrongly arrested in a privileged place. The present summary is confined to the position under English law.

Common mistake in English law: the proposed merger of common law and equity

Legal Studies ◽  
1989 ◽  
Vol 9 (3) ◽  
pp. 291-306 ◽  
Author(s):  
Andrew B.L. Phang
Keyword(s):  
Present Article ◽  
Systematic Approach ◽  
Common Law ◽  
Common Mistake ◽  
The Common ◽  
English Law ◽  
The Law

Although the law relating to common mistake has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature. The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable branches of common mistake into one coherent, doctrine.

scholarly journals The Common Law Choice of Law Rules for Resulting and Constructive Trusts

2005 ◽  
Vol 54 (4) ◽  
pp. 855-883 ◽  
Author(s):  
Adeline Chong
Keyword(s):  
Common Law ◽  
Hague Convention ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Common ◽  
The Hague ◽  
English Law ◽  
The Law ◽  
The Hague Convention ◽  
Rules Set

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

The Law Merchant and the Common Law Before 1700

1979 ◽  
Vol 38 (2) ◽  
pp. 295-322 ◽  
Author(s):  
J. H. Baker
Keyword(s):  
Canon Law ◽  
Common Law ◽  
Roman Law ◽  
Commercial Law ◽  
Legal Doctrine ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Law Merchant ◽  
Ius Gentium

In 1845 a master of English commercial law wrote that there was “no part of the history of English law more obscure than that connected with the maxim that the law merchant is part of the law of the land.” Since then there have been detailed studies of the medieval law merchant and of the later development of English mercantile law, but the precise status of the law merchant in England and the nature of the process by which it supposedly became fused with the common law remain as obscure as they were in 1845. The obscurity begins with the very concept of the “law merchant,” which has been differently understood by different writers and continues to be used in widely divergent senses. Some have regarded it as a distinct and independent system of legal doctrine, akin in status to Civil or Canon law, and perhaps derived from Roman law. Others have supposed it to be a particular aspect of natural law, or the universal ius gentium, and as such akin to international law.

8. Introduction and definitions

2020 ◽  
pp. 277-303
Author(s):  
D Fox ◽  
RJC Munday ◽  
B Soyer ◽  
AM Tettenborn ◽  
PG Turner
Keyword(s):  
Common Law ◽  
Principal Source ◽  
The Common ◽  
English Law ◽  
The Law

This chapter serves as an introduction to the English law governing sale of goods, along with relevant definitions. It introduces the common law of sale of goods and its subsequent codification by the Sale of Goods Act 1893, later consolidated in 1979 and which (following further minor amendments) is now the principal source of the law. It also considers some key definitions relating to sale of goods, before discussing the nature of a sale and how it differs from related transactions such as barter or exchange, bailment, agency, and hire-purchase.

Interest as damages and interest on damages

2019 ◽  
Author(s):  
Andrew Burrows
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Breach Of Contract ◽  
House Of Lords ◽  
The Supreme Court ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Compensatory Damages ◽  
Compound Interest

The law on interest in English law is a tangled web. This is principally because the common law traditionally set itself against awards of interest and this has resulted in the piecemeal intervention of statutes which allow the award of interest in specific situations. In the leading modern case of Sempra Metals Ltd v IRC the House of Lords reformed the common law as regards awards of interest as compensatory damages for a tort or breach of contract (although the part of the decision that was concerned with interest as restitution of an unjust enrichment, which was the direct claim in question, was overruled by the Supreme Court in Prudential Assurance Co Ltd v HMRC). Sempra Metals was concerned with an award of compound interest (as damages or as restitution) which contrasts with the relevant statutes which allow awards of simple interest only.

Contract variation in the common law

2018 ◽  
Vol 47 (3) ◽  
pp. 196-207
Author(s):  
James C Fisher
Keyword(s):  
Common Law ◽  
Contract Law ◽  
The Common ◽  
Appeal Decision ◽  
English Law ◽  
The Law ◽  
The Uk ◽  
Business Exchange ◽  
Court Of Appeal

This note analyses the UK Supreme Court’s decision in Rock Advertising Ltd v MWB Business Exchange Centres Ltd, a case that confirms the long uncertain ability of ‘No Oral Modification’ clauses to exclude informal variations in English law. This note argues that, while the Court was correct to reject the putative oral variation in question, the majority’s description of the law is unsatisfactory because of its detachment from wider contract law principle, and compares unfavourably with the alternative ratio by which Lord Briggs reached a concurring outcome. This note also comments on the Supreme Court’s (cursory) treatment of the portentous Court of Appeal decision in Williams v Roffey Bros, which has reformulated the law on contract variation across common law jurisdictions. The Court acknowledged, but declined to resolve, the tensions Roffey introduced in to the law on part payment of debts. While it is unfortunate that the opportunity to resolve these tensions was missed, this note endorses the Court’s ( obiter) rejection of the analysis by which the Court of Appeal below sought to extend Roffey to the part payment of debts.

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