Unjustified Enrichment in Comparative Perspective

2006 ◽  
pp. 968-1002
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Perspective ◽  
The Future ◽  
The Common ◽  
English Law ◽  
The Law ◽  
Level Of Understanding ◽  
Unjustified Enrichment

Unjustified enrichment confronted both civil and common lawyers with thinking which was often completely outside the paradigm to which they had become accustomed. The recognition of unjustified enrichment as a cause of action in its own right in English law created a new arena of uncertainty between the systems. This article argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment. It may help to uncover the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

Unjustified Enrichment in Comparative Perspective

2019 ◽  
pp. 960-993
Author(s):  
Daniel Visser
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Comparative Perspective ◽  
Unjust Enrichment ◽  
The Future ◽  
The Common ◽  
The One ◽  
Level Of Understanding ◽  
Unjustified Enrichment

The emergence of unjust enrichment as a cause of action in its own right in England and Australia sparked a remarkable debate between, on the one hand, civil and common lawyers, who were confronted with thinking which was often completely outside the paradigm to which they had become accustomed, and, on the other hand, between common lawyers inter se about the merits of the various ways in which unjust enrichment may be understood and organized. At the heart of this debate was the struggle of the common law to confront and deal with the deficit caused by its reliance solely on ‘unjust factors’ to make sense of enrichment liability without taking account of the notion of ‘absence of basis’. This chapter argues that comparative lawyers can make an important contribution to the future of the fractured and fractious world of unjustified enrichment by uncovering the enormous wealth of learning of which both the common law and the civil law are the repositories, and so bring the same level of understanding to the law of unjustified enrichment which has, over the years, been achieved between the systems in regard to contract and tort.

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

The Future of Informed Consent in British Common Law

1999 ◽  
Vol 6 (3) ◽  
pp. 235-248 ◽  
Author(s):  
Keyword(s):  
Human Rights ◽  
United Kingdom ◽  
Informed Consent ◽  
Medical Profession ◽  
Common Law ◽  
European Convention ◽  
The United Kingdom ◽  
The Future ◽  
The Common ◽  
The Law

AbstractWithin the common law world, the use of the term informed consent implies the American doctrine. Informed consent as a doctrine is not part of the law in the United Kingdom. However, it is possible to predict a way forward in disclosure cases yet to be heard in the courts of the United Kingdom. These predictions are based on current developments in the common law in the United Kingdom as well as those in Canada and Australia, on the European convention on Human Rights and Biomedicine and on trends within the medical profession itself in the light of the Bolam test.

scholarly journals THE BASIC ELEMENTS OF THE TESTAMENT IN THE ENGLISH LEGISLATION

2018 ◽  
Vol 12 (1) ◽  
pp. 11-20
Author(s):  
Laura-Dumitrana Rath Boșca ◽  
Bogdan Bodea
Keyword(s):  
Common Law ◽  
Judicial System ◽  
Social Solidarity ◽  
Historical Process ◽  
The Common ◽  
The Creation ◽  
English Law ◽  
The Law

Common Law represents the second biggest contemporary judicial system. Immanent to a historical process which led to the creation of a community, common law represents a form of social solidarity. It is not the result of any social consent to obey a law as much as it is the participation of the society, through its exceptions, to the process of elaborating the law by which it functions. So, society itself is through a sort of syncretism the common law.One the elementary concepts of common law is the doctrine of precedent which functions in parallel with organic laws in order to enhance both the results of judicial cases and the efficiency of the cases. In the English law, the testament is a representation of the wishes of a defunct person and the declaration of that persons wishes in relation to the belongings he wished to pass on after his death.

6. Domicile, nationality, and habitual residence

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
Common Law ◽  
Civil Law ◽  
International Agreement ◽  
Habitual Residence ◽  
Choice Of Law ◽  
The World ◽  
Permanent Home ◽  
English Law ◽  
The Law ◽  
Personal Law

The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

Facticity

2020 ◽  
pp. 899-916
Author(s):  
Paul Daly
Keyword(s):  
Judicial Review ◽  
Traditional Approach ◽  
Common Law ◽  
Comparative Perspective ◽  
Evolutionary Path ◽  
England And Wales ◽  
Factual Error ◽  
Administrative Action ◽  
The Common ◽  
The Law

This chapter analyses, from a comparative perspective, the law of judicial review of administrative action as it relates to factual error. The analyses is conducted in four common law jurisdictions (Australia, Canada, England and Wales, and Ireland), which have a ‘filial relationship’ as part of the common law tradition of controlling administrative action through the ordinary courts. The chapter outlines the traditional approach to judicial review of factual error in the four jurisdictions, characterized by limited judicial oversight of issues of fact. Next, the chapter describes the recent evolution in the law of judicial review of factual error. Although the evolutionary path has not led to the same destination in each jurisdiction, there has been increased judicial willingness to examine alleged factual errors in judicial review proceedings. However, the factors which have influenced the evolution of the law are different in each jurisdiction.

The Common Law Legal Tradition: First Things First

2021 ◽  
pp. 15-22
Author(s):  
Steven Gow Calabresi
Keyword(s):  
Judicial Review ◽  
Common Law ◽  
Civil Law ◽  
Primary Source ◽  
Case Law ◽  
The United States ◽  
Public Law ◽  
Legal Tradition ◽  
The Common ◽  
The Law

This chapter explains briefly the origins and development of the common law tradition in order to better understand the rise of judicial review in the seven common law countries discussed in this volume. The common law legal tradition is characterized historically, in public law, by limited, constitutional government and by forms of judicial review of the constitutionality of legislation. In private law, the common law tradition is characterized by judge-made case law, which is the primary source of the law, instead of a massive code being the primary source of the law. The common law tradition is also characterized by reliance on the institution of trial by jury. Judges, rather than scholars, are the key figures who are revered in the common law legal tradition, and this is one of the key things that distinguishes the common law legal tradition from the civil law legal tradition. The common law legal tradition emphasizes judicial power, which explains why it has led to judicial review in the countries studied in this volume. It is the prevailing legal tradition in the four countries with the oldest systems of judicial review of the constitutionality of legislation: the United States, Canada, Australia, and India. Thus, judicial review of the constitutionality of legislation in these four countries is very much shaped by common law attitudes about the roles of judges.

Contempt: In the Common Law, but not the Civil Law

1997 ◽  
Vol 46 (3) ◽  
pp. 521-560
Author(s):  
Michael Chesterman
Keyword(s):  
Common Law ◽  
Civil Law ◽  
High Court ◽  
The Road ◽  
Administration Of Justice ◽  
Canadian Broadcasting Corporation ◽  
The Common ◽  
The Law ◽  
Court Orders

To allow Court orders to be disobeyed would be to tread the road towards anarchy. If the orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. Daily, thousands of Canadians resort to our Courts for relief against the wrongful acts of others. If the remedies that Courts grant to correct those wrongs can be ignored, then there will be nothing left but for each person to take the law into his own hands. Loss of respect for the Courts will quickly result in the destruction of our society. [O'Leary J, in Canada Metal Co. Ltd v. Canadian Broadcasting Corporation (1975) 48 DLR 3d 641, 669 (High Court of Ontario)]

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