Samuel Hickey, ‘Punitive damages for breach of contract: A Singaporean perspective’

In the recent decision of PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd [2017] SCGA 26, the Singapore Court of Appeal considered whether punitive damages could be awarded for breach of contract. In doing so, the Court was tasked with choosing between Canadian jurisprudence, which permits punitive damages in contract cases, and English jurisprudence, which forbids them. The Court ultimately decided against making an award of punitive damages and followed the reasoning of earlier English courts. However, Leong JA, who wrote the leading judgment, refused to rule out the prospect of allowing an award of punitive damages in the future. In this respect, it seems that Singaporean courts are more amenable than their English counterparts towards punishment in the private law.

Samuel J Hickey, Punitive damages for breach of contract: A Singaporean perspective, Common Law World Review, volume 46, issue 3, 2017. First Published October 16, 2017.

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As you may know, the current e-mail subscription facility is undiscriminating, notifying all 600-odd subscribers of everything new, even if their interests are more limited. I have allowed this situation to continue for so long partly because it works, but mostly because the alternative is worse: extra admin and complication for all concerned, over-reliance on developers I have no reason to trust, and difficulties caused by spammers or worse. Nonetheless, I have decided (not without misgivings) to take the plunge with a new system that allows subscribers to specify which topics they wish to receive e-mails on.

To use this system, you need to register with, and then specify which topics you wish to be updated about.

  1. To register, go to the registration page, and type in a username as well as your e-mail address. You will be sent a confirmation e-mail, which will ask you to specify a password. Keep a note of your chosen username and password, you need them at the next stage.
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Happy theorising,

Steve Hedley

Bede Harris, ‘A Roman law solution to an eternal problem: A proposed new dignitary tort to remedy sexual harassment’

This article discusses the failure of both common and statute law to provide an adequate remedy for sexual harassment. The author adopts a comparative approach and examines the actio injuriarum of Roman law, which gives a remedy to plaintiffs for impairment of dignity caused by insult. He discusses how case law which has developed under Roman-Dutch law in South Africa has been used to provide a remedy for sexual harassment in a wide range of circumstances and suggests that tort law b e developed along the same lines in Australia.

Bede Harris, A Roman law solution to an eternal problem: A proposed new dignitary tort to remedy sexual harassment. Alternative Law Journal. First Published October 16, 2017.

Charles Mitchell, ‘Current Issues in Unjust Enrichment: The “Time Value” of Money and Proprietary Remedies for Failure of Basis’

The paper examines two issues in the English law of unjust enrichment that have been considered in recent case law: whether claims lie for the value of an opportunity to use money, and if so how these should be measured, and whether proprietary remedies should be awarded to claimants who succeed in establishing a claim on the ground of failure of basis, and if so when.

Mitchell, Charles, Current Issues in Unjust Enrichment: The ‘Time Value’ of Money and Proprietary Remedies for Failure of Basis (November 6, 2017).

Jan Dalhuisen, ‘What Does the Transnationalisation of the Commercial Contract Mean? Is there a New Model and Are There Minimum Standards? Is There a Law and Economics Perspective?’

This presentation deals with the nature of the commercial contract and how it operates in the transnational commercial and financial legal order. It discusses and compares the common and civil law contract model and finds that transnationallly in professional dealings the common law model is favoured, the reason being that it derives from commercial law and is supported by the English language. The main challenge is the impact fundamental of principle and superior values and public policy, the latter at the transnational level expressed in international minimum standards. The paper ends with a discussion of the ‘law and economics’ contribution to this discussion and its so far limited impact on the progression of the professional contract to its transnationalisation in the business sphere.

Dalhuisen, Jan H Hendrik, What Does the Transnationalisation of the Commercial Contract Mean? Is there a New Model and Are There Minimum Standards? Is There a Law and Economics Perspective? (October 19, 2017).

‘The Non-Domination Principle in Fiduciary Law’

Evan J Criddle, Liberty in Loyalty: A Republican Theory of Fiduciary Law, 95 Texas Law Review 993 (2017), available at SSRN. Fiduciary law crosses many domains, but it is of particular import to the field of trusts and estates, where it lays down rules of conduct for key actors within that legal system. In Liberty in Loyalty, Professor Criddle presents an appealing and detailed case for why republicanism is the theoretical basis for fiduciary law. This feat is impressive because he is very much swimming against the tide; scholars and judges alike have often seen classical liberal theory as fiduciary law’s guiding light. But the Article’s contribution is not merely theoretical. Important questions of doctrine turn on fiduciary law’s theoretical foundation, as Criddle skillfully shows. This article’s discussion is essential reading for scholars in numerous areas, most notably agency law, corporate law, and trust law, but it is also a valuable read for anyone interested in how the law manages relationships between those with unequal power … (more)

[Alexander Boni-Saenz, JOTWELL, 20 October]

Robert Rabin, ‘Dov Fox on Reproductive Negligence: A Commentary’

This commentary offers three basic observations about Professor Dov Fox’s novel and illuminating conception of a new tort of reproductive negligence. In Reproductive Negligence, Professor Fox identifies three scenarios, categorically: imposition of unwanted parenthood, deprivation of wanted parenthood, and confounding of efforts to have expected traits. Drawing on these circumstances, Fox argues the case for a newly recognized tort of reproductive negligence that embraces all of these categories.

My commentary proceeds as follows. From a historical perspective, Part I attempts to locate his claim for recognition of a more expansive version of recovery for stand-alone intangible harm in currently accepted tort duties. From a liability perspective, while finding much to be admired in this proposed new theory of recovery, Part II questions whether it is workable to view reproductive negligence as a single pathway rather than three distinct routes to recognizing new tort rights. And finally, from a damages perspective, Part III draws on expansive themes in other areas of recovery for intangible harm to suggest additional foundational support for Fox’s effort to push the frontier of recovery for intangible harm into new territory.

Rabin, Robert L, Dov Fox on Reproductive Negligence: A Commentary (October 10, 2017). Columbia Law Review Online, volume 117, pp 228-239, October 2017.

Wendy Nixson, ‘Has the Right to Breach Patient Confidentiality Created A Common Law Duty to Warn Genetic Relatives?’

This paper discusses the conflict between a medical practitioner’s duty of care and duty to maintain patient confidentiality, and their statutory right to inform a relative about a possible genetic condition. The statutory right arguably creates a Rogers v Whitaker type duty to provide the same information a patient might require in order to make informed choices about testing and treatment. In the event that reasonable clinical judgment is not applied to disclosure, the genetic relative ought to be offered the opportunity to seek redress through the common law if they suffer harm as a result.

Wendy Jane Nixson, Has the Right to Breach Patient Confidentiality Created A Common Law Duty to Warn Genetic Relatives?, QUT Law Review volume 17, no 1, pp 147-159, October 2017.

Hofri-Winogradow and Kaplan, ‘Property Transfers to Caregivers: A Comparative Analysis’

Caregivers are key recipients of property transfers, both inter vivos and testamentary. The law’s treatment of property transfers to caregivers changes according to the caregiver’s relationship to the person cared for. Where caregivers are related to care recipients, the law generally favors the structuring of property transfers to caregivers as capital, rather than income transfers: while the law accepts that the daily work of care, done by people for their relatives, is often uncompensated, many family caregivers receive bequests larger than their intestate shares of the care recipient’s estate. Where, on the other hand, caregivers are not related to care recipients, the law approaches the care relationship using the terminology and frame of labor law. Bequests to non-family caregivers can raise a presumption of undue influence.

In this Article, we examine the approaches taken to property transfers to caregivers by the US, Israel and the UK. The US authorizes the payment of public benefits to family caregivers only in very restricted situations, relying on family caregivers working for free or being compensated by the care recipients. The UK provides modest public benefits to many family caregivers. Israel incentivizes the employment of non-family caregivers but will pay family caregivers indirectly when assistance from non-relatives is unavailable. We examine the pros and cons of several approaches to compensating family caregivers, including bequests from the care recipient, public benefits, tax incentives, private salaries paid by the care recipient and claims raised against the recipient’s estate. We conclude that while the provision of public benefits to family caregivers clearly needs to be increased, at least in the US, a fully publicly funded model is probably impossible.

Hofri-Winogradow, Adam S and Kaplan, Richard L, Property Transfers to Caregivers: A Comparative Analysis (October 18, 2017). Forthcoming, 103 Iowa Law Review (2018).

Gries and Slocum, ‘Ordinary Meaning and Corpus Linguistics’

This paper demonstrates how corpus analysis, and similar empirically-based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to demonstrate the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the current judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation …

Gries, Stefan Th and Slocum, Brian G, Ordinary Meaning and Corpus Linguistics (October 14, 2017). Brigham Young University Law Review, 2018.