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Vol 21 No 10 Oct/Nov 2016

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Divergences in Private Law

Edited by: Andrew Robertson, Michael Tilbury

ISBN13: 9781782256601
Published: January 2016
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £70.00



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This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream, the causes and effects of those departures, and the extent to which they undermine the idea of the common law as a single, transnational body of law.

Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances.

In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path.

Subjects:
Contract Law, Tort Law, Restitution
Contents:
1. Why Diverge? Andrew Robertson and Michael Tilbury
2. Proximity: Divergence and Unity Andrew Robertson
3. Canada's Common Law, Quebec's Civil Law and the Threshold of Actionable: Mental Harm Following Tortious Conduct Louise Belanger-Hardy
4. 'Pure Economic Loss' and Defective Buildings Sarah Green and Paul S Davies
5. Divergence and Convergence in the Tort of Public Nuisance JW Neyers
6. Defamation on the Internet Robert Ribeiro
7. Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom Neil Foster
8. The Scope of the Rule Against Contractual Penalties: A New Divergence Sirko Harder
9. Rights Restricting Remedies Robert Stevens
10. The Methods and Madness of Unjust Enrichment Zoe Sinel
11. Recovery of Non-Gratuitously Conferred Benefit Under Section 70 of the Indian Contract Act 1872 Alvin W-L See
12. Revisiting Canada's Approach to Fiduciary Relationships Erika Chamberlain
13. The Presumptions of Resulting Trust and Advancement Under Singapore Law: Localisation, Nationalism and Beyond Man Yip
14. Divergence in the Australian and English Law of Undue Influence: Vacillation or Variance? Robyn Honey
15. Whose Conscience? Unconscionability in the Common Law of Obligations Graham Virgo
16. Form and Substance in Equitable Remedies Stephen A Smith