2 The Modern ‘Penalty’ Rule

2018 ◽  
Author(s):  
Halson Roger
Keyword(s):  
Supreme Court ◽  
Appellate Court ◽  
Liquidated Damages ◽  
Equitable Relief ◽  
Penalty Clauses ◽  
The Law ◽  
The Relationship

Prior to decision of the UK’s Supreme Court in Cavendish Square Holding BV v Makdessi; ParkingEye Ltd v Beavis (Consumers’ Association Intervening), (the Cavendish case) in 2015, the principles underlying the law relating to contractual liquidated damages and penalty clauses was last examined by the UK’s highest appellate court over 100 years ago in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd. The breadth and scope of the decision is obvious from the different commercial contexts of the two conjoined appeals in the Cavendish case. This chapter analyses the Supreme Court’s decision in these cases, covering the requirement of breach, applying the test for a penalty, the application of the penalty rule to obligations other than to make payments, and the relationship between the penalty rule and the equitable relief against forfeiture.

The Pakistan Federal Shariat Court, Section 4 of the Muslim Family Laws Ordinance, and the Orphaned Grandchild

2002 ◽  
Vol 9 (1) ◽  
pp. 70-82 ◽  
Author(s):  
Lucy Carroll
Keyword(s):  
Supreme Court ◽  
Middle Eastern ◽  
Appellate Court ◽  
The People ◽  
The Supreme Court ◽  
The Law ◽  
Personal Law ◽  
Law Of Succession ◽  
Muslim Family

AbstractSection 4 of the Pakistan Muslim Family Laws Ordinance, 1961, dramatically altered the law of succession applicable to Muslims by granting to the orphaned grandchild(ren) the share that their deceased parent would have taken had s/he survived the propositus. The principle of representation incorporated in the Pakistani solution contrasts with the compulsory bequest relied upon by several Middle Eastern countries to deal with the same problem, although arguably representation more closely reflects the experience and expectations of the people of Pakistan. Nearly two decades later, the Federal Shariat Court was established and endowed with jurisdiction to declare a law contrary to "the Injunctions of Islam" and thus void. Some laws, however, were specifically exempted from the Court's jurisdiction; falling within this category is "Muslim Personal Law." A 1981 decision of the appellate Court (the Shariat Bench of the Supreme Court) held that the provisions of the Muslim Family Laws Ordinance were included within the phrase "Muslim Personal Law," and were thus outside the jurisdiction of the Federal Shariat Court. This position was reversed by another decision of the appellate Court in 1993, and the provisions of the Ordinance were immediately challenged on the basis of their alleged divergence from the "Injunctions of Islam." This essay reviews the provisions of section 4 of the Ordinance and examines the decision of the Shariat Court as regards this particular provision.

Contractual Damages: Kailash Nath Associates v Delhi Development Authority

2018 ◽  
pp. 1-11
Author(s):  
Akhileshwar Pathak
Keyword(s):  
Supreme Court ◽  
The Supreme Court ◽  
Liquidated Damages ◽  
The Law

The Supreme Court judgement, Kailash Nath Associates v. Delhi Development Authority consolidates the law on award of liquidated damages and stipulations on penalties. Contractual damages are to cover losses and not to profit from or penalise the party in breach. Stipulated amounts in damages or penalties are appraised by the courts and only a reasonable compensation is given. Earnest money, and its forfeiture, stood distinct. It could be forfeited without appraisal. The case integrates the different categories and re-states the principles for award of damages.

The Present Law

2015 ◽  
Author(s):  
Michael Ashdown
Keyword(s):  
Supreme Court ◽  
Present State ◽  
Active Role ◽  
Starting Point ◽  
The Supreme Court ◽  
The Law ◽  
The Relationship ◽  
Court Of Appeal

The starting point for any consideration of the Re Hastings-Bass rule must now be the Pitt v Holt and Futter v Futter litigation, which culminated in the 2013 decision of the Supreme Court in both cases. The judgment of Lord Walker is the leading exposition of the rule, and is likely to remain so for some time. However, it is not helpful to read Lord Walker’s judgment in isolation. At first instance both Pitt v Holt and Futter v Futter were decided on the basis of law which seemed then to be well settled and entirely orthodox. However, unlike in any of the Re Hastings-Bass rule cases which preceded them, Her Majesty’s Revenue and Customs played an active role in the proceedings, and after the taxpayer succeeded at first instance in each case, obtained permission to appeal to the Court of Appeal. The present state of the law owes its shape largely to the judgment in that court of Lloyd LJ, in the first appellate decision on the Re Hastings-Bass rule, which reformulated the rule so as to accord with important principles of English equity and trusts concerning the relationship between trustees and beneficiaries, and the supervision of the court.

scholarly journals The Bill of Rights and the Indian Act - Either? Or?

1969 ◽  
pp. 292
Author(s):  
R. Michael M'Gonigle
Keyword(s):  
Supreme Court ◽  
Supreme Court Of Canada ◽  
Bill Of Rights ◽  
Indian Act ◽  
Statutory Power ◽  
The Law ◽  
The Relationship ◽  
Classification Test

review of cases concerning the relationship between the Bill of Rights and the Indian Act shows judicial confusion. The author analyzes the three major Supreme Court of Canada decisions and shows how "equality before the law" has been defined. He then applies the American "reasonable classification" test to the relationship by identifying the purpose of the above Acts to see if they apply to all persons who are similarly situated with respect to the said purpose. Mr. M'Gonigle concludes that the test is applicable to distinguish between discriminatory exercise of statutory power and one which reflects concern for the Indians, and further suggests the manner in which the three cases and all future cases should be judicially approached.

scholarly journals PASANG SURUT HUBUNGAN ANTARA MAHKAMAH AGUNG DENGAN KOMISI YUDISIAL DALAM SISTEM KETATANEGARAAN REPUBLIK INDONESIA

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
Muhammad Fauzan
Keyword(s):  
Supreme Court ◽  
Judicial Power ◽  
Constitutional Court ◽  
The Supreme Court ◽  
The Law ◽  
The Republic ◽  
The Relationship

The relationship between the Supreme Court by the Judicial Commission in the Republic of Indonesia system is not harmonious, this is due to the first, the disharmony between the law on judicial power, including the law on Judicial Power, the law on the Supreme Court, the law on Constitutional Court and the law on the Judicial Commission. Both of the leadership character that exist in the Supreme Court and the Judicial Commission were too emphasizes in ego that one sector feel more superior than the others. To create a harmonious relationship between Supreme Court and Judicial Commission can be done by establishing intensive communication between both of them and by improvement in legislation. Keywords : relation, Supreme Court, Judicial Commission   

scholarly journals Penanganan Sengketa Ekonomi Syariah Perspektif Cita Hukum di Pengadilan Tinggi Agama Semarang

2020 ◽  
Vol 5 (1) ◽  
pp. 14-37
Author(s):  
Mohammad Jamaludin Jamaludin
Keyword(s):  
Supreme Court ◽  
Field Research ◽  
Secondary Data ◽  
Ideal Theory ◽  
Primary Data ◽  
Appellate Court ◽  
Legal Certainty ◽  
High Court ◽  
Case File ◽  
The Law

This article examines the handling of sharia economic disputes from the perspective of the ideals of law in the Religion High Court of Semarang, considering that up to now many decisions of the Religious High Court have been pursued at the cassation level (Supreme Court). The focus of this research study is to answer a number of issues, namely: how is the mechanism for handling sharia economic disputes in the Religion High Court of Semarang, what is the legal basis used by judges in the process of examining sharia economic disputes, and how the review of legal ideals towards handling sharia economic disputes in the Religion High Court of Semarang.            Judging from the type, this article was categorized as field research with an empirical juridical approach. In analyzed the data, the writer used descriptive-analytical methods, by described primary data that the author has obtained in the Religion High Court of Semarang, supplemented with secondary data related to handling sharia economic disputes in the Religion High Court, then analyzed using the legal ideal theory which includes justice, legal certainty, and expediency.            Based on the results of the research conducted by the writer in the Religion High Court of Semarang, the writer can conclude that, the handling of sharia economic disputes in the Religion High Court of Semarang has not been fully implemented as it should. The handling of sharia economic disputes in the Religion High Court of Semarang is carried out by examining and adjudicate cases based on facts / sitting cases contained in the appeal case file sent by the religious court that has examined and decided the case at the first level, plus an additional examination if the judge consider there are things that require clarity or to add to the completeness of evidence. A review of the legal ideals for handling sharia economic disputes in the Religion High Court of Semarang include: in terms of the ideals of the law of justice, judges in realizing the ideals of the law of justice are still constrained by vague provisions in the laws and regulations in which regulate about the procedures for examining sharia economic disputes in the level of appeal, which makes the judge unable to realize the desired justice. Judging from the ideals of legal certainty, the obstacle in realizing this legal ideal is the absence of special provisions regulate about civil procedural law (procedures for examining cases), especially sharia economic disputes at the appellate court, additionally there are several Supreme Court jurisprudences that are conflicting/contradicting. While in terms of the legal ideal of expediency, some have fulfilled this legal ideal because it is in accordance with the provisions that regulate the costs of handling cases and the duration of handling cases. Artikel ini mengkaji tentang penanganan sengketa ekonomi syariah perspektif cita hukum di Pengadilan Tinggi Agama Semarang, mengingat hingga saat ini banyak putusan Pengadilan Tinggi Agama diupayakan hukum di tingkat kasasi. Fokus kajian penelitian ini adalah untuk menjawab beberapa persoalan, yaitu: bagaimana mekanisme penanganan sengketa ekonomi syariah di Pengadilan Tinggi Agama Semarang, apa dasar hukum yang digunakan hakim dalam proses pemeriksaan sengketa ekonomi syariah, dan bagaimana tinjauan cita hukum terhadap penanganan sengketa ekonomi syariah di Pengadilan Tinggi Agama Semarang..Dilihat dari jenisnya, artikel ini dikategorikan sebagai penelitian lapangan (field research) dengan pendekatan yuridis empiris. Dalam menganalisis data, penulis menggunakan metode deskriptif-analitis, yaitu dengan menggambarkan data primer yang telah penulis dapatkan di Pengadilan Tinggi Agama Semarang, dilengkapi dengan data sekunder terkait penanganan sengketa ekonomi syariah di Pengadilann Tinggi Agama, selanjutnya dianalisis menggunakan teori cita hukum yang meliputi keadilan, kepastian hukum, dan kemanfaatan.Berdasarkan hasil penelitian yang penulis lakukan di Pengadilan Tinggi Agama Semarang, penulis dapat menyimpulkan bahwa, penanganan sengketa ekonomi syariah di Pengadilan Tinggi Agama Semarang belum sepenuhnya berjalan sebagaimana mestinya. Penganganan sengketa ekonomi syariah di Pengadilan Tinggi Agama Semarang dilaksanakan dengan cara memeriksa dan mengadili perkara secara ulang berdasarkan fakta/duduk perkara yang terdapat dalam berkas perkara banding yang dikirimkan oleh pengadilan agama yang telah memeriksa dan memutus perkara pada tingkat pertama, ditambah dengan pemeriksaan tambahan apabila hakim berpendapat ada hal-hal yang memerlukan kejelasan atau untuk menambah kesempurnaan pembuktian. Tinjauan cita hukum terhadap penanganan sengketa ekonomi syariah di Pengadilan Tinggi Agama Semarang di antaranya: ditinjau dari cita hukum keadilan, hakim dalam mewujudkan cita hukum keadilan masih terkendala dengan ketentuan yang samar dalam peraturan perundang-undangan yang mengatur tentang bagaimana tata cara pemeriksaan sengketa ekonomi syariah di tingkat banding, yang mana hal ini menjadikan hakim tidak dapat mewujudkan keadilan yang diinginkan. Ditinjau dari cita kepastian hukum, kendala dalam mewujudkan cita hukum ini adalah tidak adanya ketentuan khusus yang mengatur tentang hukum acara perdata (tata cara pemeriksaan perkara) khususnya sengketa ekonomi syariah pada peradilan tingkat banding, ditambah lagi terdapat beberapa yurisprudensi Mahkamah Agung yang saling bertolak belakang/bertentangan. Sedangkan ditinjau dari cita hukum kemanfaatan, sebagian telah memenuhi cita hukum ini karena telah sesuai dengan ketentuan yang mengatur tentang biaya penanganan perkara dan jangka waktu penanganan perkara. 

scholarly journals THE “LEGITIMATE INTEREST IN PERFORMANCE” IN THE LAW ON PENALTIES

2019 ◽  
Vol 78 (1) ◽  
pp. 148-174 ◽  
Author(s):  
Solène Rowan
Keyword(s):  
Supreme Court ◽  
Breach Of Contract ◽  
Performance Requirement ◽  
Legitimate Interest ◽  
The Supreme Court ◽  
Penalty Clauses ◽  
The Law

AbstractThe article focuses on the “legitimate interest in performance” requirement which is now at the heart of the new test on penalty clauses but which has been left undefined by the Supreme Court in Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2016]. It seeks to bring clarity to what is meant by “legitimate interest in performance” by examining other areas of the law of remedies for breach of contract where concepts of legitimate interest have featured in the court’s reasoning. It also makes suggestions as to what considerations are or might be relevant in determining whether a contracting party has a legitimate interest in performance, in particular a legitimate interest that goes beyond compensation.

scholarly journals Confidence and the constructive trust

Legal Studies ◽  
2003 ◽  
Vol 23 (1) ◽  
pp. 135-152 ◽  
Author(s):  
Tang Hang Wu
Keyword(s):  
Supreme Court ◽  
Appellate Court ◽  
The Law

Almost every leading work on the law of confidence mentions the possibility of a declaration of a constructive trust as a remedy for a claim involving an abuse of confidence. Apart from the Canadian Supreme Court, no other appellate court in the Commonwealth has seriously debated this issue. This paper investigates the legitimacy of the use of the constructive trust in this context.

Obligations in Contract, Tort and Equity: Reliance, Responsibility, and the Moral Dimension: Essay in honour of Sir John McGrath

2021 ◽  
Vol 52 (3) ◽  
pp. 643-662
Author(s):  
Andrew Tipping
Keyword(s):  
Supreme Court ◽  
Legal System ◽  
Appellate Court ◽  
Valuable Contribution ◽  
Moral Dimension ◽  
Great Loss ◽  
Detailed Consideration ◽  
The Supreme Court ◽  
The Law ◽  
Court Of Appeal

I publish this essay to honour the memory of Sir John McGrath. I sat with Sir John for a number of years, first in the Court of Appeal and then in the Supreme Court. Professional respect soon turned into friendship. While we did not always agree, I always respected his views. They were carefully considered and fully researched. John gave detailed consideration to the opinions of others but was very much his own man when it came to his ultimate conclusion. His innate caution in departing from the well-trodden path was a valuable contribution in a final appellate court. Stability is an important feature of any legal system. And John provided that quality, but not at the expense of innovation when that was clearly desirable and could be achieved in a principled way. John's passing, so soon after his retirement, was a great loss, not only to his wife and family, but also to his many friends and colleagues, both in the law and beyond.

Lessons for human rights and humanitarian law in the war on terror: comparing Hamdan and the Israeli Targeted Killings case

2007 ◽  
Vol 89 (866) ◽  
pp. 373-393 ◽  
Author(s):  
Marko Milanovic
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Armed Conflict ◽  
The United States ◽  
Humanitarian Law ◽  
Law Of Armed Conflict ◽  
The Supreme Court ◽  
The Law ◽  
The Impact ◽  
The Relationship

AbstractThe article examines and compares two recent judgments which provide some of the most valuable examples of the difficulties surrounding the application of international humanitarian law to the phenomenon of terrorism: the Hamdan judgment of the Supreme Court of the United States, and the Targeted Killings judgment of the Supreme Court of Israel. Both judgments deal with the thresholds of applicability of the law of armed conflict, as well as with the concept of unlawful combatancy and the relationship between human rights law and humanitarian law. Both judgments are at times inconsistent and lacking in analysis, with the Hamdan judgment in particular misinterpreting the relevant international authorities, including the Commentaries on the Geneva Conventions. Despite these flaws, or because of them, both of these judgments remain instructive. The purpose of this article is to present the lessons for the future that these two decisions might bring to ongoing debates on the impact of global terrorism on the law of armed conflict.

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