Law of Obligations

BARTER SİSTEMİ

by Gizem Gucuyeter

GENEL İŞLEM KOŞULLARI VE TACİRLER ARASI SÖZLEŞMELERDE KULLANIMI

by Gizem Gucuyeter

Powiernictwo w prawie polskim na tle porównawczym

by Piotr Stec

Contracts, Transactions, and Equity

by TT Arvind

Forthcoming in Commercial Contract Law: A Transatlantic Perspective (Cambridge University Press, 2012)

Equitable concepts and remedies play a significant - and growing - role in cases arising out of commercial... more Equitable concepts and remedies play a significant - and growing - role in cases arising out of commercial transactions. Such use is exceptional, but it is nevertheless systematic; and, significantly, the majority of the transactions to which it relates involve a contractual element. Courts, in other words, systematically invoke equitable principles – and not principles of the law of contract – to resolve commercial disputes in transactions governed by a contractual framework, and in relation to issues, such as gap filling and protecting expectations, that are generally taken to be part of the core functions of the law of contract.

I argue that the invocation of equitable principles in a commercial context must be understood as a deliberate departure from the market-rationality understanding of the transaction that is reflected in the law of contract, in favour of a more relational understanding of the transaction. The reasons for this departure and its exceptional character reflect the traditional equitable jurisdiction over fraud and its preoccupation with conscience, and specifically the equitable realisation that the unfettered application of strict rules of law can be destructive of the trust that is necessary for the effective functioning of commercial markets. Drawing upon the economic theory of Karl Polanyi, I argue that ‘conscience’, in the sense it is used by courts applying equitable principles today, is principally a device to capture and represent in legal terms the ‘embeddedness’ of commercial transactions in a broader social context, and of market expectations in broader social expectations. This, I argue, has broader implications for our understanding of the structure and basis of contract law and for theories of the relationship between the law and practice of commercial contracting.

The Tortological Question And The Public-Private Relationship In Tort Law

by TT Arvind

[2010] J. Juris. 349

In this paper, which is part of a collection marking the 25th anniversary of the publication of Hutchinson and... more In this paper, which is part of a collection marking the 25th anniversary of the publication of Hutchinson and Morgan's paper 'The Canengusian Connecton' I examine what light that paper sheds on the question of the public-private relationship in tort law. I argue the Canengusian judges for the most part implicitly treat tort as being either purely private in orientation or purely public, and ignore the possibility that tort law intrinsically has both private and public features. In this they reflect much (but not all) of academic writing, but stand in fairly sharp contrast to real judicial discussions of tort law, which are much more nuanced in their approach to the public-private relationship. I discuss the nature and causes of this gap and suggest that there is something to be learned from Christian theology, in particular the way it approaches questions of the dual nature of Christ as both divine and human. I draw upon the Christological theories of Dietrich Bonhoeffer to discuss how we might seek to use similar ideas to model the public-private relationship in tort law.

Beyond 'Right' and 'Duty': Lundstedt's theory of obligations

by TT Arvind

published in A Robertson and D Nolan (eds.), Rights and Private Law (Hart, Oxford: 2011) pp. 151-181

Although Vilhelm Lundstedt is principally known in the English-speaking world for his jurisprudential writings from... more Although Vilhelm Lundstedt is principally known in the English-speaking world for his jurisprudential writings from the point of view of Scandinavian realism, he also wrote extensively in Swedish on theoretical and practical issues within the law of obligations, most notably in his "Föreläsningar över valda delar av obligationsrätten" (Lectures on selected parts of the law of obligations), which appeared in eight volumes over a thirty-three year period between 1920 and 1953.  In this paper, I present an account of Lundstedt's theory of obligations drawn from his Swedish writings, and explore the relevance of his views for current debates on obligations in common law.  I focus in particular on two key strands within Lundsted's thought, which were fundamental to his views on the law of obligations, and his theory of law more generally.  The first is his well-known critique of rights, which in his writings on obligations takes the form of an express rejection of the notion that obligations are, or can be, grounded in legal rights.  The second, and less well-known, strand is his criticism of duty-based accounts of liability, and of concepts such as causation on which accounts of responsibility are based.  These views collectively led him to question the value of traditional taxonomic divisions within the law of obligations, and to reconceptualise what constituted a legal obligation with reference to the notion of "samhällsnyttan", or the good of society.  These theories, I argue, have an important contribution to make to current debates on the present and future shape of the common law of obligations, even though they may on the face of it seem fundamentally different from conventional accounts of the common law of obligations.

Obligations as Property

by John Tarrant

(2011) 34 UNSW Law Review 677-695.

Is Private Law Meaningless?

by Steve Hedley

Is private law meaningless? When we look at the cases, the statutes, the theories mentioned time-and-again in relation... more Is private law meaningless? When we look at the cases, the statutes, the theories mentioned time-and-again in relation to private law, are we just looking at a maze of technical reasoning, or can we give some overall shape or meaning to what the law is doing?

The Shock of the Old: Interpretivism in Obligations

by Steve Hedley

A new philosophy is now being urged on those engaged in the
study of the law of obligations. This ‘interpretive’... more A new philosophy is now being urged on those engaged in the
study of the law of obligations. This ‘interpretive’ approach is said
to represent a significant step forward in understanding, and to
save the area from numerous errors—and, indeed, from the risk of intellectual collapse. While this approach is in one sense new, its proponents are clear that they are simply stating openly what a significant body of scholarship has long assumed to be the case. This essay considers the new interpretivism, and works towards an assessment of its products.

Looking Outward or Looking Inward? Obligations Scholarship in the Early 21st Century

by Steve Hedley

It is a commonplace in the philosophy of law that you can try to understand legal institutions and practices from two... more It is a commonplace in the philosophy of law that you can try to understand legal institutions and practices from two points of view: you can look at them from the outside in, or from the inside out. From the outside or ‘external point of view’, you try to make sense of them by looking at the externals: what the various officials and other participants are actually doing and (what is in practice inseparable) what they say they are doing. From the inside or ‘internal point of view’ you try to get into the heads of the lawyers, to grasp what they think they are doing by considering their thoughts and (what is in practice inseparable) their utterances. Neither viewpoint is reducible to the other. ...