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English Private Law PDF

14968 Pages·2013·26.35 MB·English
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ENGLISH PRIVATE LAW ENGLISH PRIVATE LAW THIRD EDITION Edited by PROFESSOR ANDREW BURROWS All Souls College, Oxford Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Oxford University Press, 2013 The moral rights of the authors have been asserted First Edition published in 2000 Third Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013937552 ISBN 978–0–19–966177–0 Printed in Italy by L.E.G.O. S.p.A—Lavis TN Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. In Memory of Peter Birks 1941–2004 EDITOR Professor Andrew Burrows QC FBA All Souls College Oxford CONTRIBUTORS Professor Neil Andrews Clare College Cambridge Professor John Armour Oriel College Oxford Professor John Bell QC FBA Pembroke College Cambridge Professor Michael Bridge London School of Economics and National University of Singapore Professor Adrian Briggs St Edmund Hall Oxford Professor Malcolm Clarke St John’s College Cambridge Professor William Cornish CMG QC FBA Magdalene College Cambridge Mr John Davies Brasenose College Oxford Professor Graeme Dinwoodie St Peter’s College Oxford Professor Mark Freedland QC FBA St John’s College Oxford Professor Jonathan Herring Exeter College Oxford Professor Richard Hooley Kings College London Professor Roger Kerridge University of Bristol Professor Ewan McKendrick University of Oxford Professor Charles Mitchell University College London Mr Donal Nolan Worcester College Oxford Professor Norman Palmer QC CBE FSA 3 Stone Buildings Lincoln’s Inn Professor Francis Reynolds QC FBA Worcester College Oxford Professor Francis Rose University of Southampton Professor Lionel Smith McGill University Montreal Mr William Swadling Brasenose College Oxford PREFACE The aim of this book is to provide a high-quality overview of the rules and principles that constitute English private law. Along with its companion volume, English Public Law, it presents a unique picture of English law that it is hoped will be of great benefit to practitioners, academics, and students alike. Moreover, with the increasing emphasis on globalization in legal services, it is anticipated that foreign lawyers will find these two volumes of invaluable help in understanding English law, which may otherwise appear to be unstructured and lacking in principle. To produce a succinct and yet authoritative overview requires mastery of the field in question and it is with that in mind that the team of contributors has been assembled. The authors are acknowledged experts in their respective subject areas and their brief has been to produce as clear, simple and accurate an overview as possible of the relevant rules and principles. What one has here, therefore, is the product of many years of learning in each particular area. All this was the brainchild of the late Professor Peter Birks, to whom this book is dedicated. Inspired by the example of Gloag and Henderson’s Law of Scotland, and with the particular encouragement of the late Lord Rodger of Earlsferry, Birks’s goal was for this and English Public Law to be on every English lawyer’s desk as at least a first point of reference. His mark is indelibly stamped across the whole work not least in the structure which he devised for this book. It is worth recalling here that, while seeing the enterprise as following in the tradition of Gaius’ Institutes and Blackstone’s Commentaries, Birks regarded the need for a well-organized overview, or map, of English private law as responding to two particular challenges in the modern practice of law. He referred to these as ‘stovepipe mentality’ and ‘information overload’. In his words: There is a constant complaint of ‘stovepipe mentality’. It is an allegation that practitioners—especially young practitioners, since the complaint is usually made by senior people—know their law only in the way that many people know London, as pools of unconnected light into which to emerge from a limited number of friendly tube stations…The reason why these ‘stovepipe’ lawyers cannot move confidently from one area of the law to another is that nobody has shown them the map.1 Later he turned his attention to ‘information overload’: The information explosion makes the need for the structured Blackstonian approach all the more urgent. Information can now be accessed more and more rapidly. The mechanical aspects of the research function are well provided for and constantly being improved. Meanwhile the structure, which is the software which allows the brain to keep the mass of information under intellectual control, is being neglected. While it is becoming ever more essential that lawyers should have a sound grip on the concepts and principles which hold the law together, that need is not being met…A high price will be paid if this goes on. Clients will be badly served. The common law will become incoherent, and it will lose respect. That unnecessary disaster is what we hope that English Private Law, and its sequel English Public Law, will help to prevent, by setting out a coherent, economical account, not only of individual topics, but also of the larger categories of the law and the way that they fit together and, hence, of the law itself.2 In addition to a thorough updating—and, in some instances, substantial rewriting—of the chapters for this new edition, some minor gaps in coverage have been filled (on international sale of goods in chapter 10, regulatory reform in chapter 14, the horizontal impact of the Human Rights Act 1998 in tort law in chapter 17, and arbitration in chapter 22). We are very sorry to lose from the team for this edition, Stephen Cretney, Sir Guenter Treitel, and James Edelman and thank them for their hard work on previous editions. We welcome as new authors Jonathan Herring (chapter 2), Graeme Dinwoodie (as co-author of chapter 6), Francis Rose (chapter 11) and Donal Nolan (as co-author of chapter 17). Ewan McKendrick, already the author of chapter 10, has taken over chapter 8. We would like to thank the team at OUP (Roxanne Selby, David Lewis, and Fiona Sinclair) for their dedication, skill, and hard work. Fiona Sinclair was responsible for the early day-today overseeing of the project and we are especially grateful to her for being so efficient and patient in dealing with the inevitable complexities of such a multi-authored work. Particular thanks are also due to Elissa Connor for her excellent copy-editing. Subject to some minor amendments at proof stage, the law is stated as at 30 January 2013. Andrew Burrows Oxford 31 March 2013

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Now in its third edition, this work has established itself as a key point of reference on English private law for lawyers in the UK and throughout the world. The book acts as an accessible first point of reference for practitioners approaching a private law issue for the first time, whilst simultane
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