Category Archives: Public policy

Just Published: ‘Illegality after Patel v Mirza’ (Sarah Green and Alan Bogg eds)

1. Introduction (Alan Bogg and Sarah Green) Part I: General Perspectives on Illegality 2. A New Dawn for the Law of Illegality (Andrew Burrows) 3. The Law of Illegality: Identifying the Issues (James Goudkamp) 4. Restitution or Confiscation/Forfeiture? Private Rights versus Public Values (Robert Sullivan) 5. Not a Principle of Justice? (Nicholas J McBride) 6. […]

Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’

Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]

Michal Gal, ‘Algorithms as Illegal Agreements’

Abstract Despite the increased transparency, connectivity, and search abilities that characterize the digital marketplace, the digital revolution has not always yielded the bargain prices that many consumers expected. What is going on? Some researchers suggest that one factor may be coordination between the algorithms used by suppliers to determine trade terms. Simple coordination-facilitating algorithms are […]

Karton and Shervill, ‘New Wine in Old Bottles: Corrupt Contracts in Canadian Private Law’

Abstract The Canadian criminal law on foreign corruption recently experienced great upheaval, as Canada worked to bring its legislation up to international standards following years of inadequate substantive law and lackadaisical prosecutions. Canadian private law, by contrast, has remained highly stable on paper, but longstanding doctrines have been effectively applied to modern, internationalized forms of […]

JE Penner, ‘We All Make Mistakes: A “Duty of Virtue” Theory of Restitutionary Liability for Mistaken Payments’

Abstract In contrast to the moral foundations of contract, tort, and the law of property, which are generally regarded as elements of Kantian ‘right’, the liability to return the value of mistaken payments is, it is argued, an example of the law’s enforcing a duty of virtue, the legalisation of the duty of beneficence in […]

James Lee, ‘Tax, equity and artificiality’

Introduction: … The artificiality caveat proposed by Lord Walker has since been criticised by academics and treated sceptically by judges, in both England and elsewhere, with suggestions that it may not form a meaningful part of the test at all. The reception has been particularly frosty in offshore jurisdictions: in one Isle of Man case, […]

‘Can an agreement that was void at any moment due to a violation of competition law be revived?’

“When a court invalidates an agreement because the rules of contract law were violated (for example because the agreement was concluded as a result of a mistake or deception), then that agreement is deemed to have never existed. It was never valid and never will be valid. Aside from a few exceptions, everything that has […]

Grantham and Jensen, ‘The Proper Role of Policy in Private Law Adjudication’

Abstract The re-emergence in recent years of interest in the private law in and of itself, rather than as an instrument of extrinsic, regulatory goals, has called into focus the appropriateness of ‘policy-based’ reasoning in private law adjudication and rule formulation. While many have become accustomed to the idea that the courts both can and […]

Hendrik Verhagen, ‘The Policies against Leapfrogging in Unjust Enrichment: A Critical Assessment’

Abstract This article critically examines the merit of the policy reasons against leapfrogging one’s contractual counterparty in unjust enrichment. Where the benefit of a performance, which is rendered by someone (C) pursuant to a contract with his counterparty (T), ends up with someone (D) who is not a party to that contract, will the law […]

Andrew Burrows, ‘Illegality after Patel v Mirza

Abstract English law on illegality in private law (eg illegal contracts) has long been regarded as both difficult and unsatisfactory. In 2016, the Supreme Court, sitting as a panel of nine, looked at the area again in Patel v Mirza. Here £620,000 had been paid for the defendant to bet on share prices using inside […]