The textual layers of European contract law

by | Mar 31, 2020 | ACTA, ACTA 2019

The textual layers of European contract law 

Authors R Zimmermann

ISSN: 1996-2088
Affiliations: Honorary Professor of Law at the University of Edinburgh
Source: Acta Juridica, 2019, p. 165 – 199

Abstract

For the past four decades, lawyers in Europe have been fascinated by the idea of creating (or re-creating) a European private law. Contract law has, so far, been at the centre of attention. Various actors have shaped the development: the European legislature and the European Court of Justice as much as academic writers. National law reform has also contributed to a rapprochement of thinking patterns. One of the most interesting developments has been the creation of various sets of model rules, or restatements, of European contract law. It began with the elaboration of ‘Principles of European Contract Law’ by the ‘Lando’ Commission, a purely academic initiative, and it eventually led, in 2011, to the publication of a Proposal for a Regulation on a European Sales Law, ie the attempt to codify central parts of general contract law and sales law within the European Union. That Proposal was withdrawn by the European Commission in late 2014. Thus, there is now some time for reflection. The present essay attempts to sketch the various ‘textual layers’ that have accumulated in the quest for a code of European contract law. At the same time, it explains the background for a research project that attempts to provide a synthesis of the development.

Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech

by | Mar 31, 2020 | ACTA, ACTA 2019

Balancing ‘equality of respect’ with freedom of expression: The actio iniuriarum and hate speech

Authors J Burchell

ISSN: 1996-2088
Affiliations: Emeritus Professor and Fellow of the University of Cape Town
Source: Acta Juridica, 2019, p. 203 – 227

Abstract

This essay begins with a brief tribute to Emeritus Professor Danie Visser, a very close friend and respected colleague. The essay then evaluates the common-law protection of dignity in the South African law of delict, as well as criminal law, and examines the role of the courts in balancing this right to individual dignity with freedom of expression against the backdrop of recent draft legislation aimed at curbing hate speech. The essay favours the established common-law protection of dignity (supplemented by existing statutory remedies) and questions the need for further legislation on hate speech. The author also highlights the role of education in preventing hate speech.

Punishment, reparation and the evolution of private law: The actio iniuriarum in a changing world

by | Mar 31, 2020 | ACTA, ACTA 2019

Punishment, reparation and the evolution of private law: The actio iniuriarum in a changing world

Authors F du Bois

ISSN: 1996-2088
Affiliations: Professor of Law and Head of School, Leicester Law School, University of Leicester
Source: Acta Juridica, 2019, p. 229 – 282

Abstract

Tracking the long journey of the actio iniuriarum from its Roman origins via seventeenth-century Holland to South African law today, this contribution explores its transformation from a punitive action into a reparative one. In doing so, it investigates the evolution of our contemporary concept of private law: how did it come about, how did this conceptual development of the law interact with the law’s substantive content, and what does this tell us about the way in which private law relates to a changing environment? It shows how the growing differentiation of private law as a distinctive field drove forward conceptual and procedural innovations that, with increasing intensity, focused attention on the nature of the individual entitlements at play, and tended towards a bilateral form of justice in which liability is imposed only when, and only to the extent that, it is justified to hold one person liable to another. Whereas in Roman law hubristic behaviour was the core of the wrong and any impact on the victim the means bringing this about, the South African law of delict treats the impact on the victim as the gist of the wrong, and the defendant’s behaviour as the means. It is this change, along with the associated separation of criminal and civil liability, that has enabled the actio iniuriarum to survive in a fundamentally changed world.

Why intention matters and how it does

by | Mar 31, 2020 | ACTA, ACTA 2019

Why intention matters and how it does

Authors A Fagan

ISSN: 1996-2088
Affiliations: WP Schreiner Professor of Law in the UCT Law Faculty
Source: Acta Juridica, 2019, p. 283 – 313

Abstract

This essay looks at the role that intention plays in the determination of Aquilian liability. The essay explains that the role is an important, if restricted, one. There are three reasons for this, each of which is discussed in detail in the essay. First, certain kinds of harm-causing conduct can be wrongful, for the purpose of Aquilian liability, only if performed with intent. Second, even if harm-causing conduct could be wrongful also if performed negligently, the fact that it was performed intentionally may increase, even significantly, the likelihood that it was wrongful. Third, in the case of certain kinds of harm-causing conduct, the fact that the conduct was performed with intent excludes from the determination of wrongfulness, and thus also of liability, the kind of trade-offs involved in determining negligence. Having explained the role of intent in Aquilian liability, the essay goes on to discuss an important implication of the fact that intent has this role. Intentional harm-causing conduct was wrongful, for the purpose of Aquilian liability, if and only if it breached a duty not to cause harm intentionally – in the same way that negligent harm-causing conduct was wrongful if and only if it breached a duty not to cause harm negligently. A proper understanding of the role that intent plays in Aquilian liability thus provides further reason to reject the standard view of wrongfulness, as constituted by the breach of a duty not to cause harm (full stop) or of a duty not to cause harm by conduct that was ex post facto unreasonable.

Aquilian liability for negligence and proximity considerations

by | Mar 31, 2020 | ACTA, ACTA 2019

Aquilian liability for negligence and proximity considerations

Authors A Price

ISSN: 1996-2088
Affiliations: Honorary Professor of Law at the University of Edinburgh
Source: Acta Juridica, 2019, p. 315 – 344

Abstract

This essay defends the importance of proximity considerations under the Aquilian action for negligence. These concern the type of relationship between the parties, and their respective undertakings, roles and previous interactions. Proximity considerations should be, and to an extent already are, taken into account by the courts under the rubric of wrongfulness, alongside well-known legal and public policy considerations (eg the floodgates concern) and constitutional norms (eg accountability). Wrongfulness under the Aquilian action has a dual function: first, to provide an initial justification for the imposition of liability; and second, as a mechanism to keep that liability in check. Proximity considerations are crucial to the first of these two functions, as they contribute to the justification of primary legal duties not to harm negligently and thus to the imposition of liability when justified by corrective justice.

What is unjust about theft?

by | Mar 31, 2020 | ACTA, ACTA 2019

What is unjust about theft?

Authors M Bryan

ISSN: 1996-2088
Affiliations: Emeritus Professor of Law, University of Melbourne
Source: Acta Juridica, 2019, p. 347 – 370

Abstract

The principles governing the restitution of stolen property ought to be straightforward in any legal system, but in common-law systems it is surprisingly hard to state what these principles are. There are many reasons for the unsettled state of the law. The restitution of stolen property, or its value, lies on the indistinct boundary that separates restitution for unjust enrichment from restitution for wrongs. On the unjust enrichment side of the boundary, common lawyers have never clearly articulated the precise injustice that justifies the claim to restitution. They have also not identified the precise circumstances in which the thief, or later the receiver, is in law enriched. Furthermore, the historic division between common law and equitable property rights obstructs attempts to rationalise the restitutionary principles. Finally, disagreement between common-law jurisdictions as to whether proprietary claims can be brought to recover the proceeds of thefts not involving a breach of fiduciary duty also complicates the story. This paper proposes a scheme of restitution based on the absence of consent to taking rather than on the commission of the crime of theft. The scheme recognises that the unauthorised taking of property by fiduciaries, such as trustees and company directors, raises different considerations from those raised by thefts committed by non-fiduciaries.

Long live the law of unjustified enrichment – A response to Jansen

by | Mar 31, 2020 | ACTA, ACTA 2019

Long live the law of unjustified enrichment – A response to Jansen

Authors J du Plessis

ISSN: 1996-2088
Affiliations: Distinguished Professor of Law, Stellenbosch University
Source: Acta Juridica, 2019, p. 371 – 394

Abstract

The law of unjustified enrichment is a prominent feature of the legal landscape of many civil-law systems and of German law in particular. However, resorting strongly to historical arguments relating to the development of German law, Nils Jansen has argued that the strands of material united under its law of unjustified enrichment are too disparate to warrant its recognition as a distinct field of law. The purpose of this essay is to explore the basis for and implications of Jansen’s argument. This is done mainly by adopting the perspective of South African law, which shares many features of the civil-law background of German law. The exploration commences with a brief examination of Jansen’s argument, followed by an inquiry into what it entails to locate rules in various fields of law. Thereafter, the implications of his argument for South African law are considered. It is concluded that the view that certain rules should be (exclusively) located in some fields of law because they serve policies or values that ‘belong’ to those fields is problematic. Furthermore, it is not apparent why Jansen sets such a high standard for uniformity in the application of the general principles of the law of unjustified enrichment, compared to other areas of law. And finally, it is doubtful what practical benefits could arise from his proposed alternative approaches, for example, relocating part of its subject matter to a ‘law of performances’.

Unjustified enrichment’s evolution in mixed legal systems: Confronting McCarthy Retail Ltd

by | Mar 31, 2020 | ACTA, ACTA 2019

Unjustified enrichment’s evolution in mixed legal systems: Confronting McCarthy Retail Ltd

Authors R Evans-Jones and M Fischer

ISSN: 1996-2088
Affiliations: Emeritus Professor, University of Aberdeen; PhD candidate, University College London
Source: Acta Juridica, 2019, p. 395 – 418

Abstract

Scotland has taken major steps towards the full recognition and development of a free-standing law of unjustified enrichment. It has been called a ‘revolution’. This essay briefly examines the content of the Scottish enrichment revolution. However, its main concern is modern South African law, with which aspects of the Scottish revolution resonate, particularly in relation to a general enrichment action. The examination of the Scottish and South African case law reveals that applying the standards of one category of enrichment claim to another category has its pitfalls. It is argued that the various established causes of action are significantly different from each other in important respects, and that they are much more than just historical mounds in the topography of unjustified enrichment. Therefore it remains to be seen whether the recognition of general principle in unjustified enrichment is capable of giving rise to a coherent, unified structure for the subject.

Cohabitants in the Scottish law of unjustified enrichment

by | Mar 31, 2020 | ACTA, ACTA 2019

Cohabitants in the Scottish law of unjustified enrichment

Authors H MacQueen

ISSN: 1996-2088
Affiliations: Professor of Private Law, University of Edinburgh, Scotland
Source: Acta Juridica, 2019, p. 419 – 452

Abstract

This paper considers private law responses to the growing social phenomenon of couple cohabitation rather than marriage in Scotland. Rather than being forced into the marriage model, or falling foul of earlier ideas about immorality and the requirements of public policy, couples regularly use couple cohabitation contracts, made available by family law firms in Scotland. This is especially true of couples who are acquiring houses together. The financial consequences of relationship breakdown were until 2006 dealt with mainly by way of an increasingly sophisticated law of unjustified enrichment, which in this regard has been cited as a possible model for South Africa. The Family Law (Scotland) Act 2006 introduced new regimes to deal not only with the financial consequences of relationship breakdown but also with issues arising when a cohabitant died intestate. Claims under each regime must be made within quite short time-frames: one year from the breakdown or six months from the death. In 2016 a first instance judgment in a breakdown case held that failure to meet the statutory time-limit could not be escaped by bringing a common-law enrichment claim instead. The paper criticises this judgment and argues that, while the statutory
regimes are probably better than unjustified enrichment claims when complex cohabitation relationships fall to be disentangled, the latter can still provide just solutions in less complicated cases. With reform of the statutory regimes very much in the air, it is suggested that any further legislation should make clear its relationship with the existing common law. The new legal status of cohabitant should not lead to the loss of rights that the party already enjoys in private law.

Enrichment ‘at the expense of another’ and incidental benefits in German law

by | Mar 31, 2020 | ACTA, ACTA 2019

Enrichment ‘at the expense of another’ and incidental benefits in German law

Authors S Meier

ISSN: 1996-2088
Affiliations: Professor of Civil and Comparative Law, University of Freiburg, Germany
Source: Acta Juridica, 2019, p. 453 – 468

Abstract

The current English discussion on the ‘at the expense of ’ element proceeds on the assumption that it has the same meaning in all kinds of unjust enrichment claims. The same assumption was made under the unitary doctrine in Germany after 1900. However, problems in defining the ‘at the expense of ’ requirement led to the development of the doctrine of separation, which prevails today. Its essential feature is that the elements of ‘at the expense of ’ and ‘without legal ground’ have different meanings in the different condictiones. A recurring problem is how to explain the exclusion of restitution in cases of incidental benefits. It may be argued that there is a legal ground, that the benefit has not been at the claimant’s expense, or that the defendant did not receive a benefit at all. Those who deny an enrichment at the claimant’s expense, however, have to be aware that this explanation holds true only if no performance is involved.