The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

This paper explores the reasons for the proposed abolition of the Appellate Committee of the House of Lords and its replacement by a new Supreme Court of the United Kingdom. It focuses on the principal justification now advanced for the project, namely the need to institute full judicial independence. It does so very much in the spirit of the argument recently made by Lord Steyn in Counsel (although it comes to a very different conclusion from Lord Steyn's): even if there is a clear commitment to the reform of the United Kingdom's highest judiciary, the nature of that reform should depend entirely on the reasons for change. It is necessary to be clear on those reasons and to weigh them carefully.

Lawyers place great stress on the ‘objectivity’ of the law’s approach to agreements. Humpty-Dumpty may claim that ‘when I use a word it means just what I want it to mean, no more and no less’, but a lawyer would advise Humpty that the law, should it interest itself in any promise he made, would be interested not in what he meant by what he said, but in how a reasonable man would understand that which was said. This, the lawyer would explain, is the dichotomy between the subjective and the objective interpretation of words, and it is a dichotomy which has considerable influence on lawyers’ and judges’ thought. Treitel discusses it on the first page of his text, and the very title of one of the chapters of Cheshire, Fifoot and Furmston, ‘The Phenomena of Agreement’, is derived from the law’s concern ‘not with the presence of an inward and mental assent but with its outward and visible signs.

The maxim ‘ignorance of the law is no excuse” has much to answer for. Defendants arguing that they did not know or misunderstood the law have been told that their ignorance or mistake made no difference to their liability. The institutional writers have laid down as much. The courts have repeatedly emphasised it.

However, it is here submitted that this blanket approach, characterised by the very existence of such a general maxim, is misconceived. No such general principle exists, nor should it. Although the judges have spoken in general terms, their remarks really depend on the context of the particular offences in question, where no knowledge of the law has been necessary, and liability has been (in this respect at least) ‘strict’.

Proposals for a new constitutional settlement have highlighted issues, many of them factitious, about the Human Rights Act. This paper suggests that the relationship of rights to duties is poorly understood, and that the majority of recognised rights already carry corresponding duties, but that to try to make the enjoyment of rights conditional on the fulfilment of duties is neither principled nor practicable. It is suggested that, using mutual respect as a sounder basis, a larger Bill of Rights can be contemplated. But good constitutions cannot be willed into being: pending the arrival of a constitutional moment, reform is likely to be a process of interest-group wrangling in which the most that can be looked for are some modest but necessary reforms.

The impending arrival of the Single European Market and the consequent drive towards European legal integration raise in stark form the future role of the national law school. Should we continue to have national law schools at all, in the sense of law schools with a predominantly national focus? Or should we move towards a system in which the typical law school, though located in a particular country within Europe, encompasses a structure, a body of staff and students and a curriculum which are a national and which focus on European laws and institutions rather than on those of the particular home State? I-f law schools are to retain their essentially national character, how should the growing influence of European law in general and Community law in particular affect their role, organisation and activities?

Arguments are sometimes made attempting to justify proprietary awards to unjust enrichment claimants by reference to the ‘priority’ such awards supposedly give in the defendant's insolvency. Those justifications are variously that unjust enrichment claimants do not take insolvency risks, that the defendant's creditors would otherwise receive an underserved windfall, and that unjust enrichment claimants occupy a position analogous to secured creditors. This paper shows that such arguments are flawed. To award unjust enrichment claimants' proprietary rights is not to give them priority in their defendant's insolvency but to withdraw the right from the estate available for distribution to all the unsecured creditors, whatever their order of priority. Moreover, insolvency ‘priority’ is not the only consequence of such an award. Finally, when seen for what they are, viz arguments for the award of property rights, the justifications do not, for a number of reasons, stand up.

Protection of confidential information has two main juridical bases, contract and equity. Where the defendant is or was the employee or agent of the plaintiff he may be subject to an express or implied contractual duty not to use the latter’s confidential information without his consent Other defendants who receive such information knowing or believing it to be confidential, either from the plaintiff himself or a thiid party, may be subject to an equitable duty of like kind

The purpose of this article is to examine the range and scope of compensatory remedies for breach of the equitable duty of confidence. The term ‘damages’ is sometimes used generically to describe these remedies which are several and different from one another in certain respects? albeit difficult to pinpoint exactly.

Corporate law — both in the UK and US — remains preoccupied with the separation of ownership and control. Share ownership, the story runs, has become so dispersed in the larger company that control of its affairs has passed from shareholders to managers. It is assumed that managers will have interests which conflict with those of shareholders and will use their control to further the former at the expense of the latter. The orthodox response has been to stress the paramountcy of shareholder interests and to seek ways of compelling management to advance those interests in preference to their own. The urgency with which these prescriptions for company law have been pursued has rather fluctuated, depending upon the wider economic and political climate within which companies operate. Thus, the take-over activity of the late 1980’s created its own excesses, as in the Guinness affair. The subsequent recession, with its effect on profits, caused further strain, exacerbated by rises in executives’ pay and generous severance awards at times unrelated to the companies’ own financial performance. A number of substantial corporate failures or controversies have provided a further impetus.

In both England and Wales and New Zealand adoption law is under review. A series of discussion papers followed by a Report to Ministers has been published in this country, while New Zealand has published an interim proposal for amendment ofexisting legislation prior to a later full review The time is right therefore, to consider and compare the basis upon which adoption law reform is proceeding. The opportunity to question the nature of adoption as a legal construct and examine the particular patterns offamily morality that it promotes is timely. Equally, it is timely to re-assess the philosophical underpinning of the Adoption Act 1976 in light of the particular ideology imported into family law in England and Wales by the Children Act 1989. The Act stresses the durability of parenthood and establishes the concept of parental responsibility which survives both divorce and a child care order. While containing points of confluence with adoption law, the new ideology nonetheless clashes with the existing concept of adoption in certain fundamental ways.

Historically, Article 9 of the Uniform Commercial Code has influenced in the debate over the reform of personal property security law in England. The revision to Article 9 has provided some further impetus to the issue of reform. A central feature of Article 9 which has been adopted in recent reform proposals for English law is the development of a generic unitary concept of the security interest and the specific rejection of formalism in security transactions. The impact upon the common law environment in England and Wales of the adoption of such an approach is considered in this paper. It is argued that the unitary concept of a ‘security interest’ is too blunt a concept and is over inclusive in that it wrongly assumes that all security interests perform an identical function. Furthermore, the development of functionalism seen in Article 9 has blurred an important distinction drawn under the common law between relative property rights and in this way fails to distinguish between what are essentially different transactions. In turn, this invites scrutiny of the usefulness in this context of notice filing and the first-to-file priority rule which is at the heart of an Article 9 regime.

The law of theft, as understood in Gomez and Hinks, has been the occasion of almost unanimous academic condemnation and of robust dissenting opinions in the House of Lords. While much of the critical discussion is sophisticated and challenging, it is important that the baby is not to be expelled with the bathwater. We suggest that one argument in favour of the current position is that it offers distinct protection to some of the more vulnerable members of society. This advantage ought nevertheless to be sacrificed if it can be purchased only at the cost of violating the rule of law and the harm principle. But our examination of these ideas reveals that the price need not be paid. The rule of law contains not one idea, but a plurality of ideas, many of which support the current position. As for the harm principle, it is notable that Hinks does not castigate harmless behaviour; rather it attacks the wrong of exploitation. This raises many difficult issues, but we argue that unless such exploitative behaviour is explicitly addressed in Legislation, reforming the current ‘broad’ understanding of the law in favour of a ‘reductive’ account assimilating theft to non-voluntary transfers would be a retrograde step. In principle the new concern for protecting the vulnerable from exploitation is welcome.

In the twin cases of Barclays Bank Plc v O’Brien and CIBC Mortgages Plc v Pitt the House of Lords consided for the first time an issue which has fresuently troubled the lower courts in recent years. In essence the issue can be boiled down to the following question:

Where a debt owed by A to C is guaranteed by B, in what circumstances will the fact that A induced B to make the guarantee by misrepresentation, undue influence or other conduct of which Equity disapproves, render the guarantee voidable by B against C?

(This simplified scenario, where A is the principal debtor, C the creditor, and B the guarantor, will be used in much of what follows). The contemporary significance of the question, and the difficulty which it has posed to the courts, are graphically shown by the fact that it has given rise to eleven reported decisions by the Court of Appeal in the last eight years.

This paper argues that shadow directors, as defined in English law, ought to owe the full range of directors' duties, both fiduciary and non-fiduciary, enacted in the Companies Act 2006 (CA 2006), ss 171–177, to the relevant company under their influence. Following the enactment of the recent Small Business, Enterprise and Employment Act (SBEEA) 2015, these general duties are likely to apply to shadow directors, although there is still a case to be made as to why shadow directors should owe fiduciary duties to the relevant company. It is argued here that such a relationship is fiduciary in nature, but the current approach deployed in the English courts, based upon the application of Finn's originally formulated ‘undertaking’ test alone, is inadequate. Given these inadequacies, it is proposed that the Canadian ‘power and discretion’ test be deployed alongside the ‘undertaking’ test, in order to provide a far more comprehensive justification for the application of fiduciary obligations to shadow directors. This position is supported by establishing a theoretical basis for the ‘power and discretion’ test, via Paul Miller's ‘fiduciary powers theory’, as well as considering the application of such a test to shadow directors.

So-called ‘conversion therapy’ involves therapeutic attempts to change an individual's sexual orientation or gender identity. It is widely considered to be harmful to sexual minorities and there have been calls for it to be banned in the UK. In this paper, we examine whether victims of the practice could bring tort claims against ‘therapists’ for mental harm. Focusing on talking therapies, we assess tort doctrine in the law of negligence, the rule in Wilkinson v Downton, the Protection from Harassment Act 1997 and deceit. We conclude that while some forms of conversion therapy will be tortious, others will not and so this area of law may fail to assist many victims of the practice.

Writing in the introduction to his new treatise on contract in 1826, Joseph Chitty observed that ‘Perhaps no branch of the jurisprudence of this country has of late years been more subject of judicial inquiry and decision than the Law of Contracts’. It is generally accepted that the so-called classical model of contract law, which remains influential into the present day, was created at this time. Ever since the subject first attracted sustained attention from legal historians in the 1970s, the driving forces of these developments have been contested. Some saw legal change as a product of economic and social factors. For others the reception of new ways of thinking and legal literature provided a more convincing explanation. What is not usually disputed is that there was a fundamental revolution in contract doctrine and literature in the nineteenth century. This assumption is open to challenge. It fails to give proper weight to the past. In fact these changes were deeply rooted in the eighteenth century and even earlier.