English private law

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

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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

INTRODUCTION

This introduction explains the structure of this book. It is the scheme pioneered

by Professor Peter Birks (inspired most by his beloved Gaius). He was anxious

to stress that it is nothing more than ‘the best currently available hypothesis as

to the structure of our law’.

3

The scheme is arrived at by first subdividing the whole law into private and

public. English public law deals with constitutional law, human rights,

administrative law, and criminal law. It is the subject-matter of the companion

volume in this series and is outside our present concern.

English private law is best viewed as concerned with the rights which, one

against another, people are able to realize in courts. There is then a threefold

division corresponding to three questions that may be asked about realizable

rights. Who can have rights? What are the rights? What are the means by which

the rights are realized in court? We therefore arrive at a threefold subdivision

between the law of persons; the law of rights; and the law of actions for the

realization of rights, which in modern parlance can be labelled ‘litigation’. The

trichotomy corresponds to, but is not identical to, the Roman proposition to the

effect that the concerns of private law are persons, things, and actions.

4

Two further adjustments are then made in order to arrive at the fivefold division

used in this book.

First, one needs a general introduction (applicable to both public and private

law) as to what counts as law and that, more specifically and practically,

identifies the sources of law. This is Part I.

Secondly, the law of rights, which requires the most detailed examination, can

be helpfully divided according to who the rights can be enforced against (the

question of ‘exigibility’). Some rights can be demanded only from the person

against whom they first arise or against someone who stands in that person’s

shoes and thus represents him. Some rights are by contrast, more widely

demandable and, of those, some follow things and can be demanded from any

person in whose hands the thing is found. When names are added, this makes a

division between rights in rem—that is, proprietary rights—whose exigibility

depends on the location of a thing (in Latin a res), and rights in personam—that

is, personal rights—which are rights exigible only against the person against

whom they originally arise or that person’s representatives.

5 Rights realizable in

court are therefore proprietary or personal. The law of property is the law of

proprietary rights;

6 and, as personal rights correlate with obligations, the

category of all personal rights is called the law of obligations. The law of

property and the law of obligations are the two great pillars of private law.

The subdivision of rights between property and obligations brings us to our

fivefold division. Private Law is about: I Sources, II Persons, III Property, IV

Obligations, V Litigation.

Part IV is itself structured according to the main causative events of personal

rights, namely contract, wrongs and unjust enrichment. So chapter 8 looks at

contract in general and chapters 9–16 examine specific types of contract

(agency, sales, carriage, insurance, banking, employment, and bailment).

Chapter 17 then deals with torts and equitable wrongs and chapter 18 is on

unjust enrichment.

No such straightforward ‘causative events’ division of Part III is possible

because the focus has to be as much on the different types of proprietary right

(which Birks referred to as the ‘content question’) as on the events by which

proprietary rights arise. So a good deal of the general chapter on property

(chapter 4) and the separate chapters on security and intellectual property

(chapters 5 and 6) is concerned with kinds of property right. Chapter 7, on

succession, is directed to a causative event, death, and the sub-species of that

event, death intestate and death testate.

7

Birks summarized his explanation of the structure of this book as follows: Our

business is with the rights which a claimant can if necessary realize through the

courts. Part I, with its single chapter on sources of law, is an essential

introduction. Part II separates out the study of persons who hold rights. At the

other end, Part V deals with the realization of rights. Part III and IV are about

the rights themselves. Part III is about property rights. Part IV is about personal

rights, called from their negative end, obligations. Property and obligations

divide in response to the question which asks against whom rights can be

demanded. At lower levels within Part III the treatment of property rights is

ordered primarily by two questions, the content question and the causative event

question: To what is the right-holder entitled? And, From what events does the

right arise? Within Part IV the treatment of obligations is dominated by the

latter question: From what events do obligations and their correlative rights

arise?

8

In conclusion, however, it is important to emphasize that Birks was not

suggesting, and nor are we, that this structure should be rigidly followed. On the

contrary, there are various ‘concessions to convenience’ as Birks labelled them.

It does not follow from the need for a structural overview that in its

application there can be no concessions to convenience. The

important thing is to know what the scheme is, when it is being

departed from, and why. Rigorous purity would have brought the

whole project to the ground. A more liberal attitude has been

adopted. There are a number of places where such concessions have

been made, whether to avoid affronting expectations based on

longstanding practice or simply because of the extreme

inconvenience of separating two consequences of a single causative

event. For example, the contract of sale is treated in the law of

obligations, where it properly belongs. Obligations arise from

contracts and from other events, and sale is a specific contract. A

rigid interpretation of the scheme would say that the passing of

property under a sale could not be mentioned at this point. The

reader should simply be remitted to the law of property.

Nevertheless, the chapter on sale does include its own discussion of

the proprietary effects. The same is true of the chapter on bailment.

Similarly, the chapter on unjust enrichment is considered within the

law of obligations, but the effects of unjust enrichment in generating

proprietary rights are also considered at some length and are not

remitted to the law of property. Again, personal security, though it

rests entirely on obligations, is treated alongside mortgages in

Chapter 5 within the law of property, and obligations arising from

entering into family relationships are considered in Part II on the law

of persons and are not postponed to Part IV on obligations. Too

many such concessions would dissolve the scheme, but a limited

number can be tolerated.

9

CONTENTS

Preface

Introduction

Table of Cases

Table of Legislation, Treaties and Conventions

I SOURCES OF LAW

1. Sources of Law

John Bell

A. Introduction

B. The Hierarchy of Norms

C. Statutes and Their Interpretation

D. Precedent

E. Influential Sources of Law

II THE LAW OF PERSONS

2. Family

Jonathan Herring

A. The Creation of Legal Family Relationships

B. The Termination of Legal Family Relationships

C. The Legal Consequences of Family Relationships

3. Companies and Other Associations

John Armour

A. Introduction

B. Corporations

C. Quasi-Corporations

D. Unincorporated Bodies

III THE LAW OF PROPERTY

4. Property: General Principles

William Swadling

A. Introduction

B. Property Rights in Respect of Land

C. Property Rights in Respect of Goods

D. Rights Held on Trust

E. Co-ownership

F. Creation of Property Rights

G. Transfer of Property Rights

H. Extinction of Property Rights

5. Security

Lionel Smith

A. Introduction

B. Real Security Over Land

C. Real Security Over Moveables

D. Priorities in Real Security

E. Personal Security

6. Intellectual Property

Graeme Dinwoodie and William Cornish

A. General

B. Patents for Inventions

C. Confidential Information

D. Copyright

E. Industrial Designs

F. Trade Marks and Names

G. Registered Trade Marks

7. Succession

Roger Kerridge

A. Introduction

B. Intestacy

C. Wills

D. Construction

E. Failure of Gifts by Will or of Interests on Intestacy

F. Executors and Administrators

G. Family Provision

IV THE LAW OF OBLIGATIONS

8. Contract: In General

Ewan McKendrick

A. Introduction

B. Constituent Elements

C. Contents

D. Standard Terms

E. Mistake

F. Misrepresentation

G. Improper Pressure

H. Illegality

I. Lack of Capacity

J. Plurality of Parties

K. Third Parties

L. Transfer of Contractual Rights

M. Performance