Agreements, mistakes, and contract formation: a comparative theoretical analysis

This article explores the nature of contract formation. It does so by examining the will theory and the declaration theory as accounts of agreement. The article concludes that neither theory is adequate either as a description of the operation of the law in practice or, more fundamentally, as an explanation of agreement. Instead, the article recommends an alternative account - 'the objective will theory' - that both adequately explains agreement and captures the operation of the law

Policy in private law: an admission of failure

The role of policy in Private law is explained by focusing primarily on law of negligence. The article also discusses the distinction between policy and principle in the context of law. 'Principle' refers to the rules found in case law and 'policy' to the reasons for or against those rules. Policy and principle are contrasted in context of the law. Every law claims to be normative and imposes obligations due to which legal academics present them as justified. Justification of Private law by its creators is questioned.<br/

'The Structure of Aggravated and Exemplary Damages'

This article explores aggravated and exemplary damages in terms of their structure. It argues that the awards are distinguishable and once they have been appropriately analysed it can be seen that aggravated damages have a secure foundation in the private law and are importantly different from other compensatory awards. The article then argues that many of the reasons given in favour of exemplary damages are not consistent with the structure of that award. The article concludes by insisting that exemplary damages should be abolished as they are in serious tension with the nature of civil liability

Corrective justice and personal responsibility in tort law

It is sometimes argued that tort law is, or ought to be understood as, a system of personal responsibility and corrective justice. Moreover, it is often assumed that these notions are identical, or at least compatible. In fact, however, personal responsibility and corrective justice are very different concepts and they produce very different pictures of the law. The article demonstrates this by comparing the way in which personal responsibility and corrective justice deal with three important problems: the presence of non-subjective standards in the law, the place of liability insurance, and the relationship between law and politics

'Rediscovering the Law of Negligence'

Rediscovering the Law of Negligence offers a systematic and theoretical exploration of the law of negligence. Its aim is to re-establish the notion that thinking about the law ought to and can proceed on the basis of principle. As such, it is opposed to the prevalent modern view that the various aspects of the law are and must be based on individual policy decisions and that the task of the judge or commentator is to shape the law in terms of the relevant policies as she sees them. The book, then, is an attempt to re-establish the law of negligence as a body of law rather than as a branch of politics. The book argues that the law of negligence is best understood in terms of a relatively small set of principles enunciated in a small number of leading cases. It further argues that these principles are themselves best seen in terms of an aspect of morality called corrective justice which, when applied to the most important aspects of the law of negligence reveals that the law - even as it now exists - possesses a far greater degree of conceptual unity than is commonly thought. Using this method the author is able to examine familiar aspects of the law of negligence such as the standard of care; the duty of care; remoteness; misfeasance; economic loss; negligent misrepresentation; the liability of public bodies; wrongful conception; nervous shock; the defences of contributory negligence, voluntary assumption of risk, and illegality; causation; and issues concerning proof, to show that when the principles are applied and the idea of corrective justice is properly understood then the law appears both systematic and conceptually satisfactory. The upshot is a rediscovery of the law of negligence

'A Rights-Based Approach to the Recovery of Economic Loss in Negligence'

The following two claims are widely accepted: first, the ordinary principles of the law of negligence imply recovery for economic loss limited only by foreseeability and, second, such recovery is unacceptable. Hence, the task of legal scholarship has been to discover appropriate policy justifications for restricting the ordinary principles of the law. This, perhaps, has been the most pressing problem facing analysis of the law of negligence in recent times. This article accepts the second claim but rejects the first. That is, it argues that recovery for many kinds of economic loss is inconsistent with the ordinary principles of the law of negligence. This has been obscured, because it has largely been forgotten that the law of negligence is not an area of the law sui generis. Negligence is part of tort which is in turn part of the private law. The principles of negligence, then, are meant to operate in conjunction with principles from other areas of law. When the place of tort law within the private law as a whole is remembered, the problem of economic loss evaporates

'Aristotle on Equity, Law and Justice

In a famous passage in his Ethics, Aristotle considers the nature of equity and its relation to justice.1 His conclusion seems to be that equity's role is to prevent the law from adhering too rigidly to its own rules and principles when those rules and principles produce injustice. Hence equity permits judges to depart from legal principle in order to promote justice. In this article, however, I argue that this conclusion is problematic as it is inconsistent with other claims Aristotle makes, both in his short discussion of equity in the Ethics and elsewhere. Accordingly, I suggest a reinterpretation of Aristotle's view that explains more satisfactorily the connection between law, in its various senses, and justice