Juliet Bull, ‘New Zealand’s Accident Compensation Scheme and Chronic Pain Syndrome’

Chronic pain syndrome does not currently constitute a physical injury under New Zealand’s Accident Compensation scheme. This article considers the correctness of this exclusion given the Supreme Court’s adoption in Allenby v H of an expanded interpretation of the term ‘physical injury’, in deeming pregnancy to be an injury. It concludes that policy factors, particularly the need to uphold the integrity of the legislation enacted by Parliament, demand that the exclusion of chronic pain syndrome is maintained.

Bull, Juliet, New Zealand’s Accident Compensation Scheme and Chronic Pain Syndrome (2014). (2014) 45 Victoria University of Wellington Law Review 53.

Wei Wen, ‘Contractual Damages and Post-Sidhu Proprietary Estoppel: A Further Blow to the Statute of Frauds?’

After the High Court’s decision in Sidhu v Van Dyke, Australian proprietary estoppel is no longer fettered by the minimum equity principle in deciding quantum of relief. This estoppel may offer monetary compensation reflecting market value in informal land contracts cases. Informal contracts are rendered unenforceable by the Statute of Frauds, meaning contractual damages are not available. In this regard post-Sidhu proprietary estoppel appears to be a blow to the Statute of Frauds. This article argues that the estoppel does not completely undermine the Statute of Frauds. That is because the estoppel does not compensate for loss of profits as contractual damages do. Contractual damages and equitable compensation are measured by two different sets of mechanisms and oriented by different criteria. The amount awarded by post-Sidhu proprietary estoppel may lie somewhere between pre-Sidhu proprietary estoppel and contractual damages. Although post-Sidhu proprietary estoppel has commercial significance, it is still not as good as contractual damages in monetary terms. In this regard, post-Sidhu proprietary estoppel may still be fettered by the minimum equity principle in a more hidden way.

Wen, Dr Wei, Contractual Damages and Post-Sidhu Proprietary Estoppel: A Further Blow to the Statute of Frauds? (September 16, 2015). Property Law Review, Vol 5, 2015.

‘Interpretation and construction 2: Samuel Williston’

“In my last post on the interpretation-construction distinction I described Francis Lieber’s supplemental view of construction, which can be found in his 1839 book, Legal and Political Hermeneutics. Lieber’s view is characterized by two claims. First, construction is supplemental: it steps in only when interpretation runs out. Second, the activity of construction is for the most part continuous with that of interpretation. ‘Construction is the building up with given elements, not the forcing of extraneous matter into a text.’ (144) That said, Lieber also recognizes that sometimes construction departs from the spirit of the text, such as when the text yields to a superior legal principle …” (more)

[Greg Klass, New Private Law, 23 November]

‘Property Law, Law & Economics, and Means for Reaching Distributive Goals’

Lee Anne Fennell and Richard H McAdams, The Distributive Deficit in Law and Economics, Minnesota Law Review (forthcoming 2015), available at SSRN. Lee Anne Fennell and Richard H McAdams’ The Distributive Deficit in Law and Economics is framed as a law and economics article but makes a significant contribution to property theory. The Distributive Deficit takes on the standard law and economics assertion ‘that tax is strictly superior to legal doctrine as a means of redistributing income’, (p 7) and the related assumption ‘that the distributive pattern in a society will be invariant to the political form of redistribution’ (p 14). As Fennell and McAdams note, the general acceptance of both tax superiority and the ‘invariance hypothesis’ in law and economics can be credited largely to the work of Louis Kaplow and Steven Shavell (see here, here, and here). Fennell and McAdams’ article is a devastating and wholly convincing critique of this line of reasoning, grounded in the failure of standard law and economics approaches to take into account political action costs … (more)

[Ezra Rosser, JOTWELL, 23 November]

Bram Akkermans, ‘The Numerus Clausus of Property Rights’

The numerus clausus of property rights is one of the fundamental principles of property law (Van Erp 2006a; Akkermans 2008). It refers to the idea that both the number and content of property rights is limited and is traditionally placed in contrast to party autonomy that reigns in contract law. Property rights are special rights because they have effect against third parties, usually against everybody else. The holder of such a right is therefore in a more powerful position than the holder of a personal right, which is a right that is only valid between two, or at least a limited category of persons.

Strongly connected to the effect of property rights is the role of property law itself. Property law in many perspectives is transactional law and deals with the way in which property rights can be created, transferred and destroyed (Van Erp and Akkermans 2012). These rules are mandatory rules and can therefore not be deviated from by the parties creating, transferring or terminating property rights.

However, there is an inherent tension in these mandatory rules, both regarding property rights themselves as well as the transactional rules that govern them. This tension exists in the way in which property law operates. In almost all cases, to start applying property law an initiating legal act in another field of law is needed. Most of the time this is contract law, where contracts of sale provide the seller with an obligation to transfer his or her property right, or with a contract between parties seeking to establish a property right. Alternatively, the initiating act lies in the law of marriage or succession, where either property rights become jointly held, or pass to heirs or legatees. All of these areas, contract, marital property law and succession law are characterised by the possibility for parties to give content to their legal relationship. Party autonomy therefore enables contracting parties to provide conditions and make special arrangements in terms of the functioning of property law, spouses can make a marriage contract governing the property relations between them and through a last will anyone can determine, within the limits of the applicable succession law, what happens to his or her property after he or she passes away.

For centuries, therefore, parties have sought to introduce flexibility in property law to mirror the flexibility they enjoy in contract, marital property law and succession law. However, the rules of property law, especially due to the principle of numerus clausus that prescribes the available property rights and their content, prevent such flexibility. The reasons provided for this spring directly from the nature of the closed system of property rights and are therefore worth considering. Moreover, approaching numerus clausus from this perspective also sheds light on the limitations of property law and explains the rise of contract law to a considerable degree.

This contribution will focus on the origins of numerus clausus (section 2) and its scope (section 3), before turning attention to different academic perspectives on numerus clausus, such as legal doctrinal and law and economics (section 4). At the end of this section the focus will be on the future of property law and the role numerus clausus can play in this respect.

Akkermans, Bram, The Numerus Clausus of Property Rights (November 20, 2015). M Graziadei and L Smith, eds, Comparative Property Law: Global Perspectives, Cheltenham: Edward Elgar, 2016; Maastricht Faculty of Law Working Paper No 2015/10.

Oosthuizen and Carstens, ‘Medical Malpractice: The Extent, Consequences and Causes of the Problem’

In recent years South Africa has seen a sharp increase in medical malpractice litigation. A number of factors have contributed to this increase and doctors as well as other healthcare providers have been profoundly affected thereby. It seems as though the proliferation of claims for the adverse consequences of medical intervention, which has been a rising global trend, has eventually reached our shores. Not only has there been an increase in the frequency of claims, but the amounts that have been awarded have also risen significantly.

Oosthuizen, WT and Carstens, Pieter, Medical Malpractice: The Extent, Consequences and Causes of the Problem (May 21, 2015). Journal of Contemporary Roman-Dutch Law, Vol 78, p 269-284, 2015.

Chunlin Leonhard, ‘Illegal Agreements and the Lesser Evil Principle’

This Article builds on the existing scholarship on illegal agreements and joins the search for ‘consistency and rationality’. It offers the insight that, contrary to common belief, courts’ approach to illegal agreements shows a consistent pattern. The author advocates for an explicit recognition of the lesser evil principle in private law, drawing upon courts’ explicit adoption of the principle in criminal and tort law and its implicit adoption of the principle when resolving illegal agreement disputes.

Leonhard, Chunlin, Illegal Agreements and the Lesser Evil Principle (November 20, 2015). Catholic University Law Review, Vol 64, p 833, 2015; Loyola University New Orleans College of Law Research Paper No 2015-10.

James Goudkamp, ‘The Doctrine of Illegality: A Private Law Hydra’

This article offers an analysis of the decisions of the United Kingdom Supreme Court in Hounga v Allen, Les Laboratoires Servier v Apotex Inc and Jetivia SA v Bilta (UK) Limited (in liquidation. It seeks to understand the reasons given in those cases and their implications. It will be argued that the law in this area poses, partly as a result of this trilogy of cases, significant threats to the rule of law. Consideration is given to how these threats should be headed off.

Goudkamp, James, The Doctrine of Illegality: A Private Law Hydra (November 19, 2015) (2015) 6 Supreme Court Yearbook 254.

Just Published: Anna Beckers, ‘Enforcing Corporate Social Responsibility Codes – On Global Self-Regulation and National Private Law’ – 20% discount

Hart Publishing is delighted to announce the publication of ‘Enforcing Corporate Social Responsibility Codes: On Global Self-Regulation and National Private Law’ by Anna Becker.

We are pleased to offer you 20% discount on the book.

To order online with your 20% discount please click on the link below the title and then click on the ‘pay now’ button on the right hand side of the screen. Once through to the ordering screen type ref: CV7 in the voucher code field and click ‘apply’

Alternatively, please contact Hart Publishing’s distributor, Macmillan Distribution Limited, by telephone or email (details below) quoting ref: CV7


Enforcing Corporate Social Responsibility Codes: On Global Self-Regulation and National Private Law

By Anna Beckers    


Corporate social responsibility codes are guidelines that companies voluntarily develop and publish with the objective to show the public their commitment to respect human rights, to improve fundamental workplace standards worldwide and to not pollute the natural environment. These corporate codes have become a crucial element in the regulatory architecture for globally operating companies. By focusing on the characteristics of the codes, their effects on society, and their legal consequences, this book seeks to provide a comprehensive analysis of corporate codes and the law. Enforcing Corporate Social Responsibility Codes develops proposals on the relation between global corporate self-regulation and the national private law systems. It uses methods of comparative law and sociological jurisprudence to argue that national private law can, and in fact should, enforce these codes as genuine legal obligations. The author formulates legal policy recommendations for English and German private law which indicate how the proposed legal enforcement could be practically realised.

The dissertation on which this book is based was awarded the second prize in the humanities category of the Deutscher Studienpreis (German Thesis Award) by the Koerber Foundation in November 2015.

Anna Beckers is a member of the Maastricht European Private Law Institute and the Ius Commune Research School.

Please click here to view the table of contents for this book



October 2015   99781849468992  448pp   Hbk   RSP: £74.99

20% Discount Price: £59.99

‘Interpretation and Construction 1: Francis Lieber’

“In several posts on DIRECTV v Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, eg, here, here and here.) I’ve been working on a larger project on contract interpretation and construction, and want to use a few posts here to share some of what I’ve learned about the history and development of the distinction. What I have only scratches the surface. The history is a rich vein waiting to be mined. These posts describe only the outlines of the story as I currently understand it. In my telling, it has three protagonists: Francis Lieber, Samuel Williston and Arthur Linton Corbin …” (more)

[Greg Klass, New Private Law, 19 November]