Private Law in Theory and Practice

  • Filename: private-law-in-theory-and-practice.
  • ISBN: 9781135391812
  • Release Date: 2007-03-12
  • Number of pages: 336
  • Author: Michael Bryan
  • Publisher: Routledge



Private Law in Theory and Practice explores important theoretical issues in tort law, the law of contract and the law of unjust enrichment and relates the theory to judicial decision-making in these areas of private law. Topics covered include the politics and philosophy of tort law reform, the role of good faith in contract law, comparative perspectives on setting aside contracts for mistake and the theory and practice of proprietary remedies in the law of unjust enrichment. Contributors to the book bring a variety of theoretical approaches to bear on the analysis of private law. They include: economic analysis, corrective justice theory, comparative analysis of law, socio-legal inquiry, social history, political theory as well as doctrinal analysis of the law. In all cases the theoretical approaches are applied to recent case law developments in England, Australia and Canada, or, in the case of tort law, proposals in all these jurisdictions to reform the law. The book presents the theory of private law and the application of theory to practical legal problems in an accessible form to teachers and students of tort, contract and the law of unjust enrichment, legal researchers and law reformers.

Accounting for Profit for Breach of Contract

  • Filename: accounting-for-profit-for-breach-of-contract.
  • ISBN: 1849462518
  • Release Date: 2012
  • Number of pages: 232
  • Author: Katy Barnett
  • Publisher: Hart Pub Limited



This book defends the view that an award of an account of profits (or 'disgorgement damages') for breach of contract will sometimes be justifiable, and it fits within the orthodox principles and cases in contract law. However, there is some confusion as to when such an award should be made. The moral bases for disgorgement damages are deterrence and punishment, which shape the remedy in important ways. Courts are also concerned with vindication of the claimant's performance interest, and it is pivotal that the claimant can procure a substitute performance via an award of damages or specific relief. The book argues that disgorgement damages should be available in two categories of case: 'second sale' cases, where the defendant breaches his contract with the claimant to make a more profitable contract with a third party; and 'agency problem' cases, where the defendant promises the claimant he will not do a certain thing, and the claimant finds it difficult to supervise the performance. Moreover, disgorgement may be full or partial, and 'reasonable fee damages' for breach of contract are best understood as partial disgorgement rather than 'restitutionary damages.' Equitable bars to relief should also be adopted in relation to disgorgement damages, as should allowances for skill and effort. Accounting for Profit for Breach of Contract will be of interest to contract and commercial lawyers, and it will be especially valuable to anyone with an interest in contract remedies and restitution. The book draws on case law in a number of common law jurisdictions, primarily England, Wales, and Australia. (Series: Hart Studies in Private Law)

Theory and Practice of Harmonisation

  • Filename: theory-and-practice-of-harmonisation.
  • ISBN: 9780857933171
  • Release Date: 2012
  • Number of pages: 640
  • Author: Mads Andenas
  • Publisher: Edward Elgar Publishing



Harmonised and uniform international laws are now being spread across different jurisdictions and fields of law, bringing with them an increasing body of scholarship on practical problems and theoretical dimensions. This comprehensive and insightful book focuses on the contributions to the development and understanding of the critical theory of harmonisation. The contributing authors address a variety of different subjects concerned with harmonisation and the application of legal rules resulting from harmonisation efforts. This study is written by leading scholars engaged in different aspects of harmonisation, and covers both regional harmonisation within the EU and regional human rights treaties, as well as harmonisation with international treaty obligations. With comparative analysis that contributes to the development of a more general theory on the harmonisation process, this timely book will appeal to EU and international law scholars and practitioners, as well as those looking to future legal harmonisation in other regions in Asia, Latin America and Africa.

Exploring Private Law

  • Filename: exploring-private-law.
  • ISBN: 9781139491105
  • Release Date: 2010-09-02
  • Number of pages:
  • Author: Elise Bant
  • Publisher: Cambridge University Press



Inspired by recent debate, the purpose of this collection of essays on private law doctrines, remedies and methods is to celebrate and illustrate the contribution that both 'top-down' and 'bottom-up' methods of reasoning make to the development of private law. The contributors explore a variety of topical subjects, including judicial approaches to 'top-down' and 'bottom-up' methods; teaching trusts law; the protection of privacy in private law; the development of the law of unjust enrichment; the private law consequences of theft; equity's jurisdiction to relieve against forfeiture; the nature of fiduciary relationships and obligations; the duties of trustees; compensation and disgorgement remedies; partial rescission; the role of unconscionability in proprietary estoppel; and the nature of registered title to land.

Legal Fictions in Theory and Practice

  • Filename: legal-fictions-in-theory-and-practice.
  • ISBN: 9783319092324
  • Release Date: 2015-03-11
  • Number of pages: 413
  • Author: Maksymilian Del Mar
  • Publisher: Springer



This multi-disciplinary, multi-jurisdictional collection offers the first ever full-scale analysis of legal fictions. Its focus is on fictions in legal practice, examining and evaluating their roles in a variety of different areas of practice (e.g. in Tort Law, Criminal Law and Intellectual Property Law) and in different times and places (e.g. in Roman Law, Rabbinic Law and the Common Law). The collection approaches the topic in part through the discussion of certain key classical statements by theorists including Jeremy Bentham, Alf Ross, Hans Vaihinger, Hans Kelsen and Lon Fuller. The collection opens with the first-ever translation into English of Kelsen’s review of Vaihinger’s As If. The 17 chapters are divided into four parts: 1) a discussion of the principal theories of fictions, as above, with a focus on Kelsen, Bentham, Fuller and classical pragmatism; 2) a discussion of the relationship between fictions and language; 3) a theoretical and historical examination and evaluation of fictions in the common law; and 4) an account of fictions in different practice areas and in different legal cultures. The collection will be of interest to theorists and historians of legal reasoning, as well as scholars and practitioners of the law more generally, in both common and civil law traditions.

From Administrative Authorisation to Private Law

  • Filename: from-administrative-authorisation-to-private-law.
  • ISBN: 0792332008
  • Release Date: 1995
  • Number of pages: 324
  • Author: Jianfu Chen
  • Publisher: Martinus Nijhoff Publishers



This book is an in-depth, comparative study of the nature of civil and commercial law and of its development in the PRC. It focuses on the very complex interrelations and interactions between Party and state policies and measures, scholars' theoretical efforts and the development of civil and commercial law, especially the development of the institutions of legal personality and of property rights in the PRC. It also analyses the underlying influences of foreign legal systems and legal theories as well as the difficulties experienced by Chinese law makers and scholars in applying these theories. The book provides fresh insights into the role of law and the transformation of Chinese civil and commercial law, as now occurring in the PRC. The book is a valuable reference source for scholars who wish to explore the fascinating subject of the transformation of civil and commercial law in contemporary China.

Extraterritorial Jurisdiction in Theory and Practice

  • Filename: extraterritorial-jurisdiction-in-theory-and-practice.
  • ISBN: 9041108998
  • Release Date: 1996-08-06
  • Number of pages: 262
  • Author: Karl Matthias Meessen
  • Publisher: Martinus Nijhoff Publishers



This work contains the proceedings of a symposium held in Dresden addressing the topic of extraterritorial jurisdiction with respect to financial services, tax, arms control, environmental law, antitrust matters and mergers and acquisitions. It provides an overview of how differently jurisdictional issues are perceived and dealt with, especially in the USA and UK. Contributions are from experts in the field. The book differs from others in the field in that it provides a resolution on extraterritorial jurisdiction. "Audience: " Civil servants, practising lawyers and academics in the field of international public law and private international law.

European Consumer Protection

  • Filename: european-consumer-protection.
  • ISBN: 9781107013018
  • Release Date: 2012-04-05
  • Number of pages: 462
  • Author: James Devenney
  • Publisher: Cambridge University Press



This topical volume provides detailed analyses of European consumer protection law in both its theoretical and practical dimensions. Part I casts a critical light over consumer protection strategies and mechanisms in the EU, Part II critically explores responses to vulnerability and Part III contextualises aspects of European consumer protection law.

The Idea of Private Law

  • Filename: the-idea-of-private-law.
  • ISBN: 9780199664795
  • Release Date: 2012-09-20
  • Number of pages: 264
  • Author: Ernest J Weinrib
  • Publisher: Oxford University Press



This revised edition of The Idea of Private Law makes one of the major works of modern legal theory accessible to a new generation of lawyers and students. It includes a new introduction by the author, looking back at the work, its origins, and its aspirations.

Theory and Practice

  • Filename: theory-and-practice.
  • ISBN: 0814780555
  • Release Date: 1996-10-01
  • Number of pages: 501
  • Author: Ian Shapiro
  • Publisher: NYU Press



What are the relations between philosophical theories and everyday life? This question, as old as it is profound, is the central focus of Theory and Practice. The authors include some of the most influential thinkers of our generation, among them Cass Sunstein, Jean Bethke Elshtain, Martha Nussbaum, Jeremy Waldron, and Kent Greenawalt. In sixteen chapters--all published here for the first time--the authors examine major attempts to reconcile theory with practice in the Western tradition, from Herodotus, Plato, and Aristotle to Kant and Heidegger, and examine contemporary efforts to grapple with this problem.

Reconstructing American Legal Realism Rethinking Private Law Theory

  • Filename: reconstructing-american-legal-realism-rethinking-private-law-theory.
  • ISBN: 9780199890699
  • Release Date: 2013-09
  • Number of pages: 236
  • Author: Hanoch Dagan
  • Publisher: Oxford University Press



This book demonstrates how legal realism offers important and unique jurisprudential insights that are not just a part of legal history, but are also relevant and useful for a contemporary understanding of legal theory.

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