‘“Love is in the air” case: a missed opportunity to enforce moral rights in Australia’

“On 24 April 2020, the Federal Court of Australia handed down a decision in the case Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535 which concerned the copying of substantial parts of the iconic Australian pop-hit classic ‘Love is in the air’ by the US band, Glass Candy, and by the French airline Air France, as part of their international marketing campaign. The case is interesting from different perspectives, but especially in the way it treats moral rights of authors …” (more)

[Rita Matulionyte, Kluwer Copyright Blog, 6 August]

Albrecht Cordes, ‘Conflicts in 13th Century Maritime Law: A Comparison between five European Ports’

Almost simultaneously, at the end of the 13th century, maritime laws were being written down all around Europe. This invites a synchronic comparative study. This paper compares three areas of maritime law of varying levels of abstraction: jettison, seamen’s labour law, and common decision-making before and during the voyage. The outcome, as in any comparison, is differences and similarities – differences in the degree of the lord’s (king’s, duke’s) influence, who, for instance, ordered the presence of a ship notary on Mediterranean seafaring. The maritime laws less influenced by the heavy hand of the state abound in casuistic details, evidently being the product of the process of negotiations – negotiations which included the seamen, an influential and forthright group indeed. Despite all the natural differences within the vast space between Norway and the Mediterranean, the challenges posed by the characteristics of seafaring in general are quite similar. The solutions, however, differ greatly and bristle with creativity and variety. The maritime law of the 13th century looks like a gigantic legal laboratory in which experiments were conducted continuously. Tendencies towards a stronger unification and implementation of specific solutions only cropped up in the following century.

Albrecht Cordes, Conflicts in 13th Century Maritime Law: A Comparison between five European Ports (2020) Oxford University Comparative Law Forum 2.

Michiel Poesen, ‘Concurrent liabilities and jurisdiction over individual contracts of employment under the Brussels Ia Regulation’

This article sets out to map the different tests, and their corresponding theoretical foundations, used for determining whether the employment section of the Brussels Ia Regulation applies to concurrent liabilities. Thereby it will explicate the often unspoken theories that inform seemingly straightforward approaches to characterisation on which the applicability of the employment section to concurrent liabilities hinges. It argues that the preferable way forward is the ‘material link test’, under which the employment section should apply insofar as the facts underlying a claim have a material link to an employment relationship in terms of time, place, means or purpose. Other solutions, which are centred on the indispensability of interpreting the employment contract or the nature of a claim’s legal basis, are to be disregarded as ineffective and overly complex.

Michiel Poesen, Concurrent liabilities and jurisdiction over individual contracts of employment under the Brussels Ia Regulation, Journal of Private International Law, volume 16, 2020 – issue 2.

‘The Function of University Waivers’

“Yesterday, Jeremy posted about university liability waivers. I have written about the differences between notices and contracts in the past, and am in the middle of writing another article on the topic, and so found this issue particularly interesting. Generally, I am not a fan of liability waivers because they tend to be hidden in fine print and the person ‘agreeing’ to it has no choice. The university liability waivers, however, seem to be very different …” (more)

[Nancy Kim, ContractsProf Blog, 6 August]

John Inazu, ‘Beyond Unreasonable’

The concept of ‘reasonableness’ permeates the law: the ‘reasonable person’ determines the outcome of torts and contracts disputes, the criminal burden of proof requires factfinders to conclude ‘beyond a reasonable doubt’; claims of self-defense succeed or fail on reasonableness determinations But as any first-year law student can attest, the line between reasonable and unreasonable isn’t always clear. Nor is that the only ambiguity. In the realm of the unreasonable, many of us intuit that some actions are not only unreasonable but beyond the pale – we might say they are beyond unreasonable. Playing football, summiting Nanga Parbat, and attempting Russian roulette all risk serious injury or death, but most people do not view them the same. These distinctions raise vexing questions: what is it that makes us feel differently about these activities? Mere unfamiliarity? Moral condemnation? Relative utility? Or something else altogether? Moreover, who exactly is the ‘we’ forming these judgments?

This Article explores the vague lines that separate our sense of reasonable, unreasonable, and beyond unreasonable – the reasonableness lines. Part I examines the general characteristics of these lines. Part II explores their significance in law, and Part III considers their application in four discrete areas of law: tax policy for medical expenses, criminal punishment, speech restrictions, and tort liability for inherently dangerous sports. The Article ends by summarizing the implications of the reasonableness lines for our culture and for ourselves.

Inazu, John D, Beyond Unreasonable (August 4, 2020). Nebraska Law Review, forthcoming, Washington University in St Louis Legal Studies Research Paper No 20-08-01.

Shetty and Budihal, ‘Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis’

A concluded contract may be rendered incapable of performance for a variety of reasons. The incapability of performance raises a variety of important legal questions: Is the claim of incapability acceptable to the counterparty? If not, does the claim meet the standards of force majeure and/or frustration? Does the contract between the parties address the grounds of incapability? Whether performance may be excused without the levy of damages?

Towards that end, this report attempts to draw attention to the core issues in making and resisting a force majeure claim, key decisions of the Supreme Court that have settled the parameters of force majeure, frustration and impossibility and important advancements made by the High Courts. We also offer insights into allied issues in making a force majeure claim that have bearing on the timing, forum and terms on which a force majeure claim may be made.

This report thereafter proceeds to offer empirical insights of the Supreme Court as well as 6 high courts – Delhi, Bombay, Madras, Karnataka, Allahabad and Calcutta. In presenting this information, we assemble a qualitative set of cases that have decided and applied the law on force majeure, frustration, and impossibility. We offer insights into the number of successful force majeure claims and common force majeure events.

Shetty, Smaran and Budihal, Pranav, Force Majeure, Frustration and Impossibility: A Qualitative Empirical Analysis (August 1, 2020).

Priora and Jütte, ‘No Copyright Infringement for Publication by the Press of Politician’s Controversial Essay’

Case comment of German Federal Supreme Court, Judgement of 30 April 2020, I ZR 228/15 – ‘Reformistischer Aufbruch II’. Following the preliminary ruling by the Court of Justice of the European Union (CJEU), the German Federal Supreme Court (BGH) found that the publication on an online news portal of full versions of a previously published essay written by a politician does not infringe copyright.

Priora, Giulia and Jütte, Bernd Justin, No Copyright Infringement for Publication by the Press of Politician’s Controversial Essay (July 2020) forthcoming in Journal of Intellectual Property Law and Practice, 2020.

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

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 too discretionary and overreaches itself, and suggests why its universality is feasible.

€ (Westlaw)

Zhong Xing Tan, ‘Illegality and the promise of universality’ [2020] (6) Journal of Business Law 428-450.

Maggie Hemsworth, ‘Part VI of the Road Traffic Act 1988: fit for purpose? A view of sections 151-152 Road Traffic Act 1988 in the light of Cameron v Liverpool Victoria Insurance

Considers whether the Road Traffic Act 1988 Pt VI on motor vehicle insurance is no longer fit for purpose. Reviews the existing regime under UK and EU law, the shortcomings of UK provisions on insurers’ liabilities under ss 151 and 152 of the Act, and the procedural problems highlighted by Cameron v Liverpool Victoria Insurance Co Ltd (SC). Suggests why Brexit presents an opportunity to rethink Pt VI, and the reforms that should be introduced.

€ (Westlaw)

Maggie Hemsworth, ‘Part VI of the Road Traffic Act 1988: fit for purpose? A view of sections 151-152 Road Traffic Act 1988 in the light of Cameron v Liverpool Victoria Insurance’ [2020] (6) Journal of Business Law 476-497.

Tamara Buckwold, ‘The Conceptual Structure of Commercial Law’

This article argues that commercial law is not merely a collection of rules, but a doctrinally coherent and conceptually sophisticated body of law structured through conceptions of property. The analysis focuses specifically on the aspects of commercial law that govern recovery of debt. The argument advances two related themes; that commercial law is built around conceptions of property and reciprocally defines the conceptions of property around which it is built. The article first addresses the role of property as the structural framework of commercial law. Property creates the basis for assertion of rights and provides the conceptual interface between the legal regimes of secured financing, judgment enforcement, and bankruptcy. Further, property is the basis on which commercial law rights and interests are reconciled with rights and interests that fall outside its boundaries. The article then explores the means by which commercial law resolves practical problems through the creative definition of property. The article concludes with thoughts on the importance of understanding the central role of property in the structure and function of commercial law.

Tamara M Buckwold, The Conceptual Structure of Commercial Law Authors, Alberta Law Review, volume 57, no 4 (2020-08-01).