Oxford Studies in Private Law Theory: Volume I

2020 ◽  
Keyword(s):  
Full Range ◽  
Private Law ◽  
Unjust Enrichment ◽  
Methodological Approaches

This is the inaugural volume of Oxford Studies in Private Law Theory. OSPLT is a series of biennial volumes showcasing the best article-length work across private law theory. The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as private law in general.

Defenses

2020 ◽  
pp. 528-546
Author(s):  
Robert Stevens
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
Single Thing ◽  
Normative Justification ◽  
Monist View

This chapter focuses on defenses. A considerable number of theories has grappled with the normative justification(s) for the various claims that arise in private law. This focus on the rights and powers in private law is understandable. After all, without a claim there is nothing much further to discuss. What has gone underexamined are the justifications for the various defenses that exist—the ways of resisting otherwise good claims. Defenses pose a challenge to any monist theory of private law. If private law, or a part of it, is all about efficiency or independence or utility or any other single thing, why not deal with all the elements of what justifies the plaintiff’s claim as an element of the cause of action? Why do people need defenses at all? Either the claim is justified or it is not. On the monist view of private law—that it is only concerned with One Big Thing—what is the need or role for any separate “defenses” that concern countervailing considerations? The chapter then describes what a defense is before looking at pleading and proof and distinguishing between justification and excuse. It also considers the form of reasons and details the general defenses, defenses in contract, defenses to torts, defenses in unjust enrichment, and equitable defenses.

COHABITANTS IN PRIVATE LAW: TRUST, FRUSTRATION AND UNJUST ENRICHMENT IN ENGLAND, GERMANY AND CANADA

2013 ◽  
Vol 62 (3) ◽  
pp. 629-665 ◽  
Author(s):  
Anne Sanders
Keyword(s):  
Intimate Relationships ◽  
Case Law ◽  
Private Law ◽  
Party Autonomy ◽  
Unjust Enrichment ◽  
Legislative Action ◽  
The Law ◽  
Canadian Provinces ◽  
The Right ◽  
English Canadian

AbstractNeither in England, nor in Germany, nor in all Canadian provinces, does the law provide specific rules for the redistribution of property for unmarried cohabitants after the breakdown of their relationship. Instead, courts apply the law of trusts, contract and unjust enrichment with an eye to the characteristics of intimate relationships, as, for example, in decisions like the EnglishJones v Kernott([2011] UKSC 53) and the CanadianKerr v Baranow(2011 SCC 10). This article compares English, Canadian, and German case law and evaluates it both from a doctrinal perspective and as a part of a general approach towards cohabitation. The article concludes with an appeal for legislative action that strikes the right balance between party autonomy and protection of the weaker party.

scholarly journals Materially Identical to Mistaken Payment

2020 ◽  
Vol 33 (1) ◽  
pp. 31-57
Author(s):  
Tatiana Cutts
Keyword(s):  
Private Law ◽  
Unjust Enrichment ◽  
The Core ◽  
Powerful Effect ◽  
Starting Point ◽  
Central Characteristic ◽  
The Law

Mistaken payment is the ‘core case’ of unjust enrichment, and it has had a powerful effect on the development of this area of private law. For Peter Birks, unjust enrichment was simply ‘the law of all events materially identical to mistaken payment’—to be shaped through a process of abstraction from that core case. But this begs the question: how do we work out what counts as ‘materially identical’ to mistaken payment? The most obvious starting point, and that which Birks chose, is the central characteristic of money: money is valuable. Thus, ‘the law of all events materially identical to mistaken payments’ is ‘the law of all events that unjustly enrich one party at another’s expense’.In this article, I argue that this starting point is incorrect. Rather than looking for some factual similarity between mistaken payment and other events, we should identify the role that money plays in justifying restitution. And what justifies restitution in the core case is not the ‘value’ or ‘benefit’ that money confers; rather, it is a defect in the legal transaction that links payor with payee. The payee is not liable because she has been ‘enriched’, but because she is the counterparty to a legal transaction which exhibits traits that there are institutional reasons to disavow. Just like contract and torts, the role of value is secondary: where correcting the injustice in specie is impossible or undesirable, the defendant must pay whichever sum will most nearly achieve that goal.

RESCUING REMEDIALISM IN UNJUST ENRICHMENT LAW: WHY REMEDIES ARE RIGHT

1998 ◽  
Vol 57 (2) ◽  
pp. 301-327 ◽  
Author(s):  
KIT BARKER
Keyword(s):  
Private Law ◽  
Theoretical Level ◽  
Unjust Enrichment ◽  
Conceptual Apparatus ◽  
The Subject ◽  
Primary Focus

The primary focus in current analyses of English unjust enrichment law is upon restitutionary rights, not remedies. There are a number of explanations for this; some pragmatic, some historical, some linguistic, some theoretical. The author argues that none of these, when closely examined, justifies a failure to develop a separate remedial agenda for the subject, such as exists in other private law subjects like contract and tort. Indeed, there are powerful arguments in favour of this approach. The existing conceptual apparatus of unjust enrichment law (based on causes of action and defences) is ill-equipped to cope with quantification, valuation and choice of remedy issues. At a theoretical level, the traditional distinction drawn between primary and secondary rights (remedies) is as valid in unjust enrichment law as it is in contract and tort. A separate remedial focus contributes significantly to our understanding of restitutionary rights and has significant organisational advantages. Furthermore, the concerns expressed about the Canadian “remedial” constructive trust concept are misplaced in so far as they imply that remedial approaches are necessarily uncertain. The development of appropriate remedial concepts ought, if conducted in a disciplined way, to increase the coherence and predictability of outcomes, not detract from the achievement of these aims.

Smart Regulation and European Private Law – What linkages?

2013 ◽  
Vol 4 (2) ◽  
pp. 260-263
Author(s):  
Kristel De Smedt
Keyword(s):  
Self Regulation ◽  
Regulatory Environment ◽  
Private Law ◽  
Eu Legislation ◽  
Regulatory Quality ◽  
Better Regulation ◽  
Smart Regulation ◽  
Methodological Approaches ◽  
The University ◽  
The Eu

Private law in Europe has undergone a significant transformation during the last two decades. From a branch of law that was scarcely affected by EU legislation, it has become the object of considerable harmonisation measures to facilitate free trade and protect European citizens. Simultaneously, there has been an increased attention for ‘better regulation’ in the EU. The efforts of the European Commission to improve regulatory quality and to reduce administrative burdens for industry have promoted a regulatory environment in which formal intervention is more limited and self–regulation and co–regulation have emerged as alternatives. The University of Maastricht organized a workshop on ‘Smart Regulation of European Private Law’ in January 2013 with the aim to assess how the Smart Regulation agenda has shaped/can shape European private law; investigate the contribution of different methodological approaches to achieve ‘smart regulation’; and explore opportunities and threats for European private law, in particular in respect with developments in self–regulation and co–regulation. This report shortly summarises the discussions.

scholarly journals Theoretical-methodological and source-studying problems of the Economic history of Ukraine

2020 ◽  
Vol 2 (2) ◽  
pp. 5
Author(s):  
Vasyl Orlyk ◽  
Svitlana Orlyk
Keyword(s):  
Economic History ◽  
Materials Science ◽  
Full Range ◽  
Practical Significance ◽  
Historical Sources ◽  
Scientific Cooperation ◽  
Modern Development ◽  
New Knowledge ◽  
History Of ◽  
Methodological Approaches

The purpose of the article. To carry out the analysis of the basic theoretical-methodological and sourcestudying problems of the economic history of Ukraine, in particular: determination of the problem of informativeness, representativeness; the reliability of the source database; scientific critique of large arrays of sources and peculiarities of using the whole range of historical sources in the study of economic history of Ukraine problems in different historical epochs, as well as the possibilities of involving scientific tools of other sciences to solve certain research problems. Methods of specific scientific activity, methods of empirical research and general logical methods were used in the article. Main results. The article describes the main theoretical-methodological and source-studying problems of the economic history of Ukraine. It was noted the contradictions of the process of development of economic history in Ukraine in particular, the lack of proper scientific cooperation between historians and economists. Also, it was emphasized, that the institutionalization of the economic history of Ukraine and the complex interdisciplinary approach to the methodology of studying problems of the economic history thanks to the borrowing of theories and methods from other sciences, make it possible to achieve a specific goal and research objectives and allow gaining new knowledge. The most informative sources for different periods of economic history of Ukraine were identified and the theoretical-methodological problems of their use were analyzed. Conclusions. The analysis of the main theoretical-methodological and source-studying problems of the economic history of Ukraine, conducted in the article, showed the necessity of a complex and interdisciplinary nature of the choice of both methodological approaches and actually, the choice of the source base for such researches. An important paradigm of scientific studies in economic history is the use by researchers the full range of sources, which are typical to different historical periods and the choice of appropriate methodological basis, which allows to determine the informativeness, representativeness, reliability of the source base, to conduct scientific critique of large arrays of sources, and, most importantly, allow to solve set by researcher specific scientific tasks. The modern development of scientific studies in the economic history of Ukraine requires their institutionalization and development of theoretical and methodological approaches to the whole complex of problems and challenges, that facing scientists. The institutionalization of the economic history of the Ukraine should ensure the cooperation of scientists working on its various components and it also allows involving specialists from other fields of knowledge to the implementation of research projects. We fully support the thesis that economic history should serve as a "meeting place" for specialists in various sciences, especially historians, economists and lawyers. It is this scientific cooperation of economists and historians, as well as experts in statistics, materials science, cartography, physical and historical geography, and their methodological tools, that will enhance such research and enable new knowledge to be acquired. Unfortunately, usage of methods and techniques from other sciences by historians not always leads to objective research results. The practical significance of the article lies in the possibility of using the main of the basic theoretical-methodological and source-studying problems of the economic history of Ukraine in own studies, in particular concerning the choice of the sources base for researches and the methodology of its analysis. Originality. Many years of experience in own scientific researches in the field of economic history, especially the history of finance, as well as the analysis of many works on this issue, allows the authors of the article to focus attention on the most complex theoretical-methodological and source-studying problems of the economic history of Ukraine. The scientific novelty of the article lies in the comprehensive interdisciplinary analysis of the basic theoretical-methodological and source-studying problems of different periods in economic history. Type of the article: methodological.

scholarly journals EDWARDA MUSZALSKIEGO KONCEPCJA NARODOWEGO PRAWA CYWILNEGO

2016 ◽  
Vol 11 (4) ◽  
pp. 237
Author(s):  
Ewa Kozerska ◽  
Tomasz Scheffler
Keyword(s):  
Soviet Union ◽  
19Th Century ◽  
Trade Unions ◽  
Full Range ◽  
Private Law ◽  
The Soviet Union ◽  
Labor Legislation ◽  
The Creation ◽  
The Law ◽  
The 19Th Century

Edward Muszalski’s Idea of National Private LawSummary The paper presents the views of Polish lawyer Edward Muszalski on the state of private law in Europe and Poland of the interwar period and his proposals for changes. Muszalski assumed that the law was shaped by two schools of thought : liberal and socialist. In the 18th and 19th century the liberal school dominated, the result of which was the creation of the Napoleonic Code and the BGB. In the 19th century, socialism also influenced the law, which resulted in the creation of labor legislation and trade unions. In the 20th century, the bad qualities of both schools came together in the law of the Soviet Union. However it was possible to combine the good qualities of liberal and socialist law by assuming that the fundamental category of private law is the nation. According to Muszalski, national private law assumes, among others, the dominance of common law over statues, limitation of property rights, strengthening of family stability, limiting rights of will making and abandoning the principle of the will of the parties as the basis for interpreting contracts. Attempts to create national private law were made in Germany under the rule of Hitler and in Italy under the rule of Mussolini. However in both cases full-range law reforms failed, and in both countries private law remains liberal.

Introduction

2018 ◽  
Author(s):  
John Gardner
Keyword(s):  
Personal Life ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Law ◽  
Monist View

This introductory chapter clarifies the definitions of ‘personal life’ and ‘private law’ as undertaken by this book. Roughly, ‘personal life’ refers to what people do (as well as what they think, believe, want, etc.) apart from the law. The chapter discusses a ‘monist’ view that what private law would have us do is best understood by reflecting on what we should be doing, quite apart from private law, which entails reflection on the reasons why we should be doing it. As to ‘private law’, this chapter and the book as a whole primarily refer to the law of torts and the law of contract. This definition excludes a few similar but unrelated concepts such as unjust enrichment, breach of trust, and breach of confidence.

Peter Brian Herrenden Birks 1941–2004

2008 ◽  
Author(s):  
Alan Rodger ◽  
Andrew Burrows
Keyword(s):  
Legal Reasoning ◽  
Private Law ◽  
Unjust Enrichment ◽  
Innovative Thinking ◽  
The Law

Peter Birks was one of the most influential legal scholars of his generation. He owed that influence to the admiration in which his rigorous and innovative thinking was held by lawyers and judges, not only in this country, but throughout the Commonwealth and in Europe. Birks was most widely known through his writings, but in Oxford, in particular, his reputation also rested on his teaching, especially in the famous restitution seminars that he conducted with various colleagues over three decades. He had an enormous impact on the law of restitution/unjust enrichment both in the universities and in the courts. The ‘Birksian school of thought’ has pursued, and will continue to pursue, rational transparency and elegant coherence in legal reasoning, not only in the law of restitution, but across English private law generally.

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