Category Archives: Public policy

Zhong Xing Tan, ‘Illegality and the promise of universality’

ABSTRACT Reviews the universal ‘range of factors’ approach towards the illegality doctrine in Patel v Mirza (SC) and whether it has been followed in subsequent cases. Examines its application in the context of contract law and performance, tortious claims, unjust enrichment and cases involving property and trusts. Evaluates claims that the approach is inconsistent, is […]

Jane Thomson, ‘Discrimination and the Private Law in Canada: Reflections on Spence v BMO Trust Co

ABSTRACT Discrimination has long been identified as detrimental to the basic functioning of multicultural countries like Canada. While governments have adopted constitutional law and passed human rights legislation to combat and control discrimination, these laws are inapplicable to a significant portion of Canadian law. Areas of private law, such as wills and trusts are therefore […]

Alexandra Lahav, ‘Chancy Causation in Tort’

ABSTRACT This Essay demonstrates that the causation inquiry in tort law, at least where causation is chancy, is largely a normative inquiry. Chancy causation is where the cause of an event can only be attributed probabilistically. Contrary to the understanding popular in both tort theory and doctrine, scientific fact plays only a minimal role in […]

Hoffman and Hwang, ‘The Social Cost of Contract’

ABSTRACT When private parties perform contracts, the public bears some of the costs. But what happens when society confronts unexpected contractual risks? During the COVID-19 pandemic, completing particular contracts – such as following through with weddings, conferences, and other large gatherings – will greatly increase the risk of rapidly spreading disease. A close reading of […]

Frederick Wilmot-Smith, ‘Illegality as a Rationing Rule’

ABSTRACT Legal systems have limited resources; those resources have to be distributed, and ideally the distribution would be just. This paper considers the role of legal doctrines – and, in particular, the doctrine of illegality – to ration and distribute individuals’ access to the goods of a legal system. My conclusion is that the illegality […]

Matthew Dyson, ‘Coherence and Illegal Claims’

ABSTRACT What do we want ‘coherence’ to do in legal reasoning? That is, when we use ‘coherence’, what are we trying to achieve by its use rather than by using another idea? Lawyers should ask and answer a question like that about many concepts, such as ‘reasonableness’, ‘duty’, ‘foreseeability’, ‘wrongfulness’, but they have particular importance […]

Anthony Sebok, ‘Going Bare in the Law of Assignments: When is an Assignment Champertous?’

INTRODUCTION Dr David Capper’s paper on ‘The Assignment of a Bare Right to Litigate’ is a response to the Irish treatment of champerty and maintenance. It is judicious in its treatment of recent Irish and other common law precedent, and the conclusion it draws is a cautious one. Capper appears to sympathize with the concerns […]

Griffin Toronjo Pivateau, ‘An Argument for Restricting the Blue Pencil Doctrine’

ABSTRACT When faced with an unreasonable noncompetition agreement, a court faces a choice. In some states, a court may simply refuse to enforce such an agreement. In other states, however, a court may use a legal doctrine called the blue pencil doctrine. Under the blue pencil doctrine, courts are permitted to cross out overbroad provisions […]

Alan Bogg, ‘Okedina v Chikale and Contract Illegality: New Dawn or False Dawn?’

INTRODUCTION In what circumstances should workers be entitled to enforce their legal rights in a court of law where the legal claim is somehow tainted by criminal activity? In Okedina v Chikale the Court of Appeal considered the effects of the illegality doctrine on a migrant worker’s contract claims in circumstances where she did not […]

William Day, ‘Contracts, Illegality and Comity: Ralli Bros Revisited’

ABSTRACT There has always been considerable uncertainty about the nature and scope of the rule by which contractual performance is excused if illegal in the place of performance, even though performance would not be illegal by the contract’s governing law. This article revisits the so-called ‘Ralli Bros rule’ and looks at how the scope of […]