Matthew Gerber
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199755370
- eISBN:
- 9780199932603
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199755370.003.0001
- Subject:
- History, European Early Modern History, Family History
Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from ...
More
Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from their illicit origins. This mark, rather than uncertain paternity, was the basis for their exclusion from both paternal and maternal inheritance. Jurists grounded this doctrine on diverse elements of “French law”—a concept originating in this period—particularly the droit de bâtardise, the right of the king to confiscate the estates of extramarital offspring who died without legitimate descendants. The doctrine helped to protect lineal interests, complementing the contemporaneous efforts of the royal courts to assure parental control over marriage choice through the assertion of appellate jurisdiction over disputed nuptials. In spite of the doctrine, children born of parents free to marry continued to inherit from their mothers under the terms of Roman law in the south-eastern province of Dauphiné.Less
Defining as “bastard” any child born outside of legitimate marriage, sixteenth-century French jurists alleged that all such offspring were tainted with a mark of criminal unworthiness stemming from their illicit origins. This mark, rather than uncertain paternity, was the basis for their exclusion from both paternal and maternal inheritance. Jurists grounded this doctrine on diverse elements of “French law”—a concept originating in this period—particularly the droit de bâtardise, the right of the king to confiscate the estates of extramarital offspring who died without legitimate descendants. The doctrine helped to protect lineal interests, complementing the contemporaneous efforts of the royal courts to assure parental control over marriage choice through the assertion of appellate jurisdiction over disputed nuptials. In spite of the doctrine, children born of parents free to marry continued to inherit from their mothers under the terms of Roman law in the south-eastern province of Dauphiné.
Simon Whittaker
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.001.0001
- Subject:
- Law, Comparative Law
The EU has been active in attempting to harmonize the laws of product liability and sale of goods to consumers, with the aim of promoting fair competition, developing the internal market, and ...
More
The EU has been active in attempting to harmonize the laws of product liability and sale of goods to consumers, with the aim of promoting fair competition, developing the internal market, and protecting consumers. But how do the resulting laws relate to existing national laws of liability and compensation? Is the resulting harmonization genuine or merely formal? Has implementation of the EC directives changed the law, but left claimants and defendants as differently treated as ever in different Member States? This comparative study considers the French and English laws governing all those who may be liable for products: their producers, their suppliers, their users, and their regulators. To do so, it examines in each system the private law of tort and contract and aspects of the civil process which are important in determining liability; the administrative law concerning failures to regulate or control product safety; and the liability for products of suppliers of public services, such as water or healthcare. The book considers how the substantive criminal offences affecting product safety, whether particular to products or under more general law, relate to civil liability or to compensation. The emerging picture reveals two complex and significantly different patterns of liability for products in the English and French systems, cutting across the traditional boundaries of private law, public law, and criminal law.Less
The EU has been active in attempting to harmonize the laws of product liability and sale of goods to consumers, with the aim of promoting fair competition, developing the internal market, and protecting consumers. But how do the resulting laws relate to existing national laws of liability and compensation? Is the resulting harmonization genuine or merely formal? Has implementation of the EC directives changed the law, but left claimants and defendants as differently treated as ever in different Member States? This comparative study considers the French and English laws governing all those who may be liable for products: their producers, their suppliers, their users, and their regulators. To do so, it examines in each system the private law of tort and contract and aspects of the civil process which are important in determining liability; the administrative law concerning failures to regulate or control product safety; and the liability for products of suppliers of public services, such as water or healthcare. The book considers how the substantive criminal offences affecting product safety, whether particular to products or under more general law, relate to civil liability or to compensation. The emerging picture reveals two complex and significantly different patterns of liability for products in the English and French systems, cutting across the traditional boundaries of private law, public law, and criminal law.
Eric Descheemaeker
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562794
- eISBN:
- 9780191705533
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562794.001.0001
- Subject:
- Law, Comparative Law, Law of Obligations
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ...
More
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.Less
The common law, despite procedural divisions, has only ever had one class of civil wrongs. The civilians, by contrast, have typically split their law of wrongs in two, one group being called ‘delicts’ and the other ‘quasi-delicts’. Yet this division, which originated in Roman law, remains mysterious: it is clear neither where the line was drawn nor why a separation was made along this line. This book does two things. In the first two parts, it investigates the origins of the division and its development in a modern civilian jurisdiction, France. What is argued for is that the Roman dichotomy was originally one between fault (culpa)-based and situational liability, which was prompted by a historical contraction of the Roman concept of a wrong (delictum). French law, building on medieval interpretations of the division, redrew the line one level higher, between deliberate and negligent wrongdoing. By doing so, it involved itself in severe taxonomical difficulties, which the book explores. The third part of the work concerns itself with the significance of the civilian division of wrongs according to degrees of blameworthiness (dolus, culpa, casus) for the common law. A rather provocative thesis is developed, in effect, that there is a strong case for the adoption of a similar trichotomy as the first-level division of the English law of civil wrongs. From its formulary age, English law has inherited an unstable taxonomy where wrongs intersect. The existence of these mismatched categories continues to cause significant difficulties, which a realignment of causes of action along the above lines would allow to sort out.
Solène Rowan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199606603
- eISBN:
- 9780191738722
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606603.003.0003
- Subject:
- Law, Company and Commercial Law
The chapter examines the law of termination for breach of contract in England and France. It shows that the differences between the two jurisdictions are extensive. Whereas English law confers a ...
More
The chapter examines the law of termination for breach of contract in England and France. It shows that the differences between the two jurisdictions are extensive. Whereas English law confers a relatively broad right to terminate on the injured promisee, French law aims to preserve the contractual bond created by the parties. The conclusions drawn from these findings reinforce the argument made in the monograph that the desire to protect contractual performance in England is in many circumstances equivocal. A second and connected conclusion is that the remedial regimes of both English and French law are internally coherent and consistent. Comparison of the English and French approaches to termination for breach of contract also serves to illustrate that the defaulting promisor may himself have an ‘interest in performing’ the contract that is deserving of protection.Less
The chapter examines the law of termination for breach of contract in England and France. It shows that the differences between the two jurisdictions are extensive. Whereas English law confers a relatively broad right to terminate on the injured promisee, French law aims to preserve the contractual bond created by the parties. The conclusions drawn from these findings reinforce the argument made in the monograph that the desire to protect contractual performance in England is in many circumstances equivocal. A second and connected conclusion is that the remedial regimes of both English and French law are internally coherent and consistent. Comparison of the English and French approaches to termination for breach of contract also serves to illustrate that the defaulting promisor may himself have an ‘interest in performing’ the contract that is deserving of protection.
John R. Spencer and Antje Pedain
- Published in print:
- 2005
- Published Online:
- January 2010
- ISBN:
- 9780199278510
- eISBN:
- 9780191706967
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199278510.003.0010
- Subject:
- Law, Criminal Law and Criminology
This chapter explores the Continental position with a view to explaining the differences and similarities identified. Focusing on the French and German systems, the first part describes the doctrinal ...
More
This chapter explores the Continental position with a view to explaining the differences and similarities identified. Focusing on the French and German systems, the first part describes the doctrinal positions in each of these jurisdictions and illustrates their practical operation in reaction to situations in which strict or constructive liability arises under English criminal law. The second part comments on the findings: to what extent are the Continental approaches really different? What has historically driven these systems to move away from strict and constructive liability? Can its remnants be reconciled with the rationales offered for avoiding it? And to the extent that Continental criminal law does without crimes of strict or constructive liability, how does this affect the law's capacity to meet its preventative and desert-oriented objectives? The chapter concludes with some observations on the merits and limitations of the Continental approach.Less
This chapter explores the Continental position with a view to explaining the differences and similarities identified. Focusing on the French and German systems, the first part describes the doctrinal positions in each of these jurisdictions and illustrates their practical operation in reaction to situations in which strict or constructive liability arises under English criminal law. The second part comments on the findings: to what extent are the Continental approaches really different? What has historically driven these systems to move away from strict and constructive liability? Can its remnants be reconciled with the rationales offered for avoiding it? And to the extent that Continental criminal law does without crimes of strict or constructive liability, how does this affect the law's capacity to meet its preventative and desert-oriented objectives? The chapter concludes with some observations on the merits and limitations of the Continental approach.
Solène Rowan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199606603
- eISBN:
- 9780191738722
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606603.003.0002
- Subject:
- Law, Company and Commercial Law
This chapter considers the specific remedies available in England and France. It shows that, in stark contrast with the position in France where specific remedies are unequivocally the rule, the ...
More
This chapter considers the specific remedies available in England and France. It shows that, in stark contrast with the position in France where specific remedies are unequivocally the rule, the availability of specific relief in England is limited, with remedies such as specific performance and mandatory injunctions being very much the exception. The chapter shows that a multitude of factors are behind the difference between England and France. The comparatively moderate protection afforded by English law to the performance interest is subjected to scrutiny. Consideration is given to whether the proffered justifications for the narrow availability of key specific remedies are sustainable. By reference to the approach of French law, it is contended in the chapter that, should there be a desire in England to improve protection of the performance interest, this could be achieved partly through the development of these remedies.Less
This chapter considers the specific remedies available in England and France. It shows that, in stark contrast with the position in France where specific remedies are unequivocally the rule, the availability of specific relief in England is limited, with remedies such as specific performance and mandatory injunctions being very much the exception. The chapter shows that a multitude of factors are behind the difference between England and France. The comparatively moderate protection afforded by English law to the performance interest is subjected to scrutiny. Consideration is given to whether the proffered justifications for the narrow availability of key specific remedies are sustainable. By reference to the approach of French law, it is contended in the chapter that, should there be a desire in England to improve protection of the performance interest, this could be achieved partly through the development of these remedies.
Solène Rowan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199606603
- eISBN:
- 9780191738722
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606603.003.0004
- Subject:
- Law, Company and Commercial Law
The focus of this chapter is on the exploration of some central aspects of the law of damages which shed light on the degree to which the performance interest is protected in English law. The ...
More
The focus of this chapter is on the exploration of some central aspects of the law of damages which shed light on the degree to which the performance interest is protected in English law. The protection afforded to the performance interest by damages in English law is contrasted with the way in which the remedy operates in France. The first three sections of this chapter discuss how damages awards are measured, damages for non-pecuniary loss and damages for loss suffered by third parties respectively. In the fourth section, consideration is given to a common law limit on the right to recover compensatory damages which is often regarded as being incongruous with the protection of the performance interest, namely loss mitigation. The final section departs from the compensatory theme of the chapter by considering gain-based monetary awards. The chapter shows that whilst the protection of the performance interest through damages is stronger in France than in England, courts in the latter jurisdiction have recently exhibited greater willingness to adopt more protective and flexible solutions for contractual default.Less
The focus of this chapter is on the exploration of some central aspects of the law of damages which shed light on the degree to which the performance interest is protected in English law. The protection afforded to the performance interest by damages in English law is contrasted with the way in which the remedy operates in France. The first three sections of this chapter discuss how damages awards are measured, damages for non-pecuniary loss and damages for loss suffered by third parties respectively. In the fourth section, consideration is given to a common law limit on the right to recover compensatory damages which is often regarded as being incongruous with the protection of the performance interest, namely loss mitigation. The final section departs from the compensatory theme of the chapter by considering gain-based monetary awards. The chapter shows that whilst the protection of the performance interest through damages is stronger in France than in England, courts in the latter jurisdiction have recently exhibited greater willingness to adopt more protective and flexible solutions for contractual default.
SIMON WHITTAKER
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.003.0019
- Subject:
- Law, Comparative Law
The second European directive that impacts significantly on liability for products is the Directive on certain aspects of the sale of consumer goods and associated guarantees enacted in May 1999, ...
More
The second European directive that impacts significantly on liability for products is the Directive on certain aspects of the sale of consumer goods and associated guarantees enacted in May 1999, which is referred to as the Consumer Guarantees Directive or the 1999 Directive. This chapter looks first at very broad differences between the Product Liability and Consumer Guarantees Directives; then at the debates in France and the UK concerning how the Consumer Guarantees Directive should be implemented; and finally at the substantive legal impact of this Directive on French and on English law.Less
The second European directive that impacts significantly on liability for products is the Directive on certain aspects of the sale of consumer goods and associated guarantees enacted in May 1999, which is referred to as the Consumer Guarantees Directive or the 1999 Directive. This chapter looks first at very broad differences between the Product Liability and Consumer Guarantees Directives; then at the debates in France and the UK concerning how the Consumer Guarantees Directive should be implemented; and finally at the substantive legal impact of this Directive on French and on English law.
SIMON WHITTAKER
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.003.0020
- Subject:
- Law, Comparative Law
This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation ...
More
This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe. It discusses the differences between the Product Liability Directive and the Consumer Guarantees Directive; the meaning of fault under English and French laws; the relationship between the interpretation of substantive legal rules, the legal procedure by which they are applied to facts, and the judicial institutions which decide the outcome; the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law; the connections between legal institutions, legal processes, and substantive laws within Member States; and the European harmonising effect of the two directives.Less
This chapter offers more general conclusions to the work as a whole in terms of the relationships between the broad bodies of law under consideration and any lessons to be drawn for the harmonisation of laws in Europe. It discusses the differences between the Product Liability Directive and the Consumer Guarantees Directive; the meaning of fault under English and French laws; the relationship between the interpretation of substantive legal rules, the legal procedure by which they are applied to facts, and the judicial institutions which decide the outcome; the impact of the French and English laws of liability for products from the perspective of administrative law as well as of private law; the connections between legal institutions, legal processes, and substantive laws within Member States; and the European harmonising effect of the two directives.
SIMON WHITTAKER
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.003.0010
- Subject:
- Law, Comparative Law
This chapter discusses English law governing the sale of goods. From the starting point of a general immunity enjoyed by sellers expressed by the catchy (if un-Roman) tag caveat emptor, English law ...
More
This chapter discusses English law governing the sale of goods. From the starting point of a general immunity enjoyed by sellers expressed by the catchy (if un-Roman) tag caveat emptor, English law has developed a number of different bases of liability based on the law of sale, or appearing in its context. As in the French law, under the garantie légale or for défauts de non-conformité, liability is strict in the sense that the buyer does not need to show ‘fault’ or negligence for liability to be established; as in French law, ‘liability’ extends to rights in a buyer to claim termination of the contract and restitution of the price, as well as to damages. And as regards both systems, we can see the growing significance of consumer sales in the development of the rules and concepts used by the law.Less
This chapter discusses English law governing the sale of goods. From the starting point of a general immunity enjoyed by sellers expressed by the catchy (if un-Roman) tag caveat emptor, English law has developed a number of different bases of liability based on the law of sale, or appearing in its context. As in the French law, under the garantie légale or for défauts de non-conformité, liability is strict in the sense that the buyer does not need to show ‘fault’ or negligence for liability to be established; as in French law, ‘liability’ extends to rights in a buyer to claim termination of the contract and restitution of the price, as well as to damages. And as regards both systems, we can see the growing significance of consumer sales in the development of the rules and concepts used by the law.
Mark Freedland
- Published in print:
- 2008
- Published Online:
- March 2012
- ISBN:
- 9780199541393
- eISBN:
- 9780191701221
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199541393.003.0013
- Subject:
- Law, Comparative Law
This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete ...
More
This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete overturning of the existing order) is in the course of occurring, though not by any means solely engendered by the Presidential Election of 2007. Those embarking upon the study of employment law quickly come to realize that it is a highly political or politicized legal subject whose boundaries and purposes are more hotly contested than with most legal subjects. In this, French employment law is no different from that of the United Kingdom or other European countries. What is special to the French system is the extent to which one can express those difficulties by locating the subject in relation to the distinction between public law and private law.Less
This chapter suggests that French employment law has recently entered an acute phase of rapid and probably quite fundamental change; it is felt that nothing less than un bouleversement (a complete overturning of the existing order) is in the course of occurring, though not by any means solely engendered by the Presidential Election of 2007. Those embarking upon the study of employment law quickly come to realize that it is a highly political or politicized legal subject whose boundaries and purposes are more hotly contested than with most legal subjects. In this, French employment law is no different from that of the United Kingdom or other European countries. What is special to the French system is the extent to which one can express those difficulties by locating the subject in relation to the distinction between public law and private law.
Duncan Fairgrieve
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199258055
- eISBN:
- 9780191698507
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258055.003.0007
- Subject:
- Law, Law of Obligations
This chapter aims to provide accounts of the most significant similarities and differences of legal rules on the issues of damages caused by administrative wrongdoings (economic loss, loss of a ...
More
This chapter aims to provide accounts of the most significant similarities and differences of legal rules on the issues of damages caused by administrative wrongdoings (economic loss, loss of a chance, moral damages, damages for injury to the person, death and damages liability, and property damages) in English and French laws. Though French law holds a wider jurisdiction than English law, it is flawed — liberalism in their system is sometimes more apparent than real — with restrictions and control mechanisms at play, such as rare findings of requisite entry and careful causation examinations. The French judiciary takes into consideration influential policies regarding types of recoverable loss and the quantification of damages. The measurement of damages for personal injury and dependency loss in particular are seemingly unfavourable in the French system.Less
This chapter aims to provide accounts of the most significant similarities and differences of legal rules on the issues of damages caused by administrative wrongdoings (economic loss, loss of a chance, moral damages, damages for injury to the person, death and damages liability, and property damages) in English and French laws. Though French law holds a wider jurisdiction than English law, it is flawed — liberalism in their system is sometimes more apparent than real — with restrictions and control mechanisms at play, such as rare findings of requisite entry and careful causation examinations. The French judiciary takes into consideration influential policies regarding types of recoverable loss and the quantification of damages. The measurement of damages for personal injury and dependency loss in particular are seemingly unfavourable in the French system.
Jean Marc Sauvé
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0021
- Subject:
- Law, Legal History
This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French ...
More
This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.Less
This chapter deals with how the Council acts as both legal advisor of the government and highest administrative judge. It identifies the key issues and changes that lie before the French administrative justice system in the years ahead. It deals with problems such as how to address the massive increase in the number of claims; how to reconcile determining an ever increasing number of claims and retaining high quality standards; how to make the Council of State and administrative courts more effective; and what approach they should follow in order to fulfill adequately their mission in the framework of European law.
SIMON WHITTAKER
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.003.0017
- Subject:
- Law, Comparative Law
This chapter explores the Product Liability Directive’s provisions in more detail, looking at how they have been implemented and interpreted by French and English lawyers. In the case of French law, ...
More
This chapter explores the Product Liability Directive’s provisions in more detail, looking at how they have been implemented and interpreted by French and English lawyers. In the case of French law, we still have to rely on la doctrine, given that there are only one or two decisions applying the loi of 1998 itself: the jurisprudence of the 1990s which ‘implemented’ the Directive can be only an approximate guide given its formal basis in other provisions of the Civil Code and its doubtful present status. In the case of English law, there are a handful of decisions applying the 1987 Act, including the important decision in A v The National Blood Authority. There are also two important decisions of the European Court itself in Commission v United Kingdom and Veedfald v Århus Amtskommune.Less
This chapter explores the Product Liability Directive’s provisions in more detail, looking at how they have been implemented and interpreted by French and English lawyers. In the case of French law, we still have to rely on la doctrine, given that there are only one or two decisions applying the loi of 1998 itself: the jurisprudence of the 1990s which ‘implemented’ the Directive can be only an approximate guide given its formal basis in other provisions of the Civil Code and its doubtful present status. In the case of English law, there are a handful of decisions applying the 1987 Act, including the important decision in A v The National Blood Authority. There are also two important decisions of the European Court itself in Commission v United Kingdom and Veedfald v Århus Amtskommune.
A C L Davies
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199287390
- eISBN:
- 9780191713484
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199287390.003.0002
- Subject:
- Law, Constitutional and Administrative Law
This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as ...
More
This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.Less
This chapter introduces the regulatory regime for government contracts in English law, highlighting three key features of that regime. First, although government contracts are commonly thought of as a matter for private law, public law rules — both common law and statutory — play an important role in their regulation. Second, it is not possible to understand the formal legal regime without considering internal government guidance. Often, this is more important than common law or statute as a source of rules for officials. Third, it is essential to consider the interaction between ‘domestic’ law and EU law (and the Government Procurement Agreement at the international level) in regulating the procurement process in particular. The chapter also gives an overview of the way in which government contracts are regulated in two other jurisdictions, French law, and US federal law. Both jurisdictions offer important comparisons and contrasts with English law's approach.
Solène Rowan
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199606603
- eISBN:
- 9780191738722
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199606603.003.0005
- Subject:
- Law, Company and Commercial Law
This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the ...
More
This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the protection afforded to the performance interest by English law, might punitive damages be the answer? It is suggested in this chapter that English law should proceed cautiously. Absent wider reform, the adoption of punitive damages may lead to incoherencies in a system which has hitherto shown reluctance to consider contractual default as being reprehensible. Legal intervention by way of regulation in particular contexts may be more appropriate than punitive damages. Comparative analysis of French law is instructive. In France, the advent of a punitive damages regime is a distinct possibility following proposals of the Catala reform project. In contrast with English law, by reason of the strong emphasis on performance in French remedies for breach of contract, there would be no incongruity in French courts making punitive awards. This contrast is relied upon to reinforce the argument that the introduction of punitive awards into English law would risk creating incoherency and that caution should be exercised before any such reform is embarked upon.Less
This chapter focuses on a debate that has recently been ignited in England as to whether there may be a role for punitive damages for breach of contract. Should there be a desire to increase the protection afforded to the performance interest by English law, might punitive damages be the answer? It is suggested in this chapter that English law should proceed cautiously. Absent wider reform, the adoption of punitive damages may lead to incoherencies in a system which has hitherto shown reluctance to consider contractual default as being reprehensible. Legal intervention by way of regulation in particular contexts may be more appropriate than punitive damages. Comparative analysis of French law is instructive. In France, the advent of a punitive damages regime is a distinct possibility following proposals of the Catala reform project. In contrast with English law, by reason of the strong emphasis on performance in French remedies for breach of contract, there would be no incongruity in French courts making punitive awards. This contrast is relied upon to reinforce the argument that the introduction of punitive awards into English law would risk creating incoherency and that caution should be exercised before any such reform is embarked upon.
SIMON WHITTAKER
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780198256137
- eISBN:
- 9780191681639
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198256137.003.0016
- Subject:
- Law, Comparative Law
This chapter looks in turn at the background to the Product Liability Directive and the key decisions of the European Court of Justice in 2002, which declared that its purpose was to effect ‘complete ...
More
This chapter looks in turn at the background to the Product Liability Directive and the key decisions of the European Court of Justice in 2002, which declared that its purpose was to effect ‘complete harmonisation’ of the law within those matters that it governs; at the different processes of its implementation in the UK and France; and then at the review and reform of the directive at the EU level. This Directive is a key example of the problems facing legal systems in implementing directives in an area already broadly governed by national law. While some of these problems are shared by English and French law, some are significantly different, stemming in particular from the different roles of legislation in a codified and non-codified system and from the different way in which the central distinctions between public and private law, and between civil and criminal liability, are treated.Less
This chapter looks in turn at the background to the Product Liability Directive and the key decisions of the European Court of Justice in 2002, which declared that its purpose was to effect ‘complete harmonisation’ of the law within those matters that it governs; at the different processes of its implementation in the UK and France; and then at the review and reform of the directive at the EU level. This Directive is a key example of the problems facing legal systems in implementing directives in an area already broadly governed by national law. While some of these problems are shared by English and French law, some are significantly different, stemming in particular from the different roles of legislation in a codified and non-codified system and from the different way in which the central distinctions between public and private law, and between civil and criminal liability, are treated.
Emmanuel Decaux
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0008
- Subject:
- Law, Public International Law
French tradition combines the privileged position given to written law, and especially to codification over two centuries, with the desire to control ‘judicial authority’ by limiting the importance ...
More
French tradition combines the privileged position given to written law, and especially to codification over two centuries, with the desire to control ‘judicial authority’ by limiting the importance of jurisprudence and by avoiding general judgements. France reinforces this well established domestic law tradition on the international level by the primacy that is granted to the expression of the will of the state, which goes hand in hand with a distrust of spontaneous or vague obligations, ranging from soft law to jus cogens. For a long time French judges had a global approach to international law, without any distinction of categories, either on a material basis (humanitarian law), on a geographic basis (European law), or on a legal basis (self-contained regimes). This approach is problematic in reference to Community law, which, from these three points of view is not a law like others, but by maintaining the approach Community law has become a spearhead of progress for international law.Less
French tradition combines the privileged position given to written law, and especially to codification over two centuries, with the desire to control ‘judicial authority’ by limiting the importance of jurisprudence and by avoiding general judgements. France reinforces this well established domestic law tradition on the international level by the primacy that is granted to the expression of the will of the state, which goes hand in hand with a distrust of spontaneous or vague obligations, ranging from soft law to jus cogens. For a long time French judges had a global approach to international law, without any distinction of categories, either on a material basis (humanitarian law), on a geographic basis (European law), or on a legal basis (self-contained regimes). This approach is problematic in reference to Community law, which, from these three points of view is not a law like others, but by maintaining the approach Community law has become a spearhead of progress for international law.
Jeroen Kortmann
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780199280056
- eISBN:
- 9780191700101
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199280056.001.0001
- Subject:
- Law, Law of Obligations
This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for ...
More
This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, will we have any claim for the expenses that we incurred, or for a reward? This book examines and compares the responses of the Roman, French, German, and English legal systems to these problems, providing a treatment of English law in relation to ‘liability for nonfeasance’ (or ‘liability for omissions’) and negotiorum gestio (or ‘the doctrine of necessity’). In Part I, the book examines English law, which draws a distinction between action and inaction or ‘feasance’ and ‘nonfeasance’. In general, one is not held liable for failing to act. It explores the theoretical justifications for drawing this distinction and the different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. The book examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, the book concludes by demonstrating close interconnections between the two traditionally independent issues.Less
This book examines two problems in private law that are posed by the ‘good Samaritan’: First, do we have a legal duty to give aid to our fellow human beings? In particular: can we be held liable for damages if we fail to do so? Second, if we do come to the rescue, will we have any claim for the expenses that we incurred, or for a reward? This book examines and compares the responses of the Roman, French, German, and English legal systems to these problems, providing a treatment of English law in relation to ‘liability for nonfeasance’ (or ‘liability for omissions’) and negotiorum gestio (or ‘the doctrine of necessity’). In Part I, the book examines English law, which draws a distinction between action and inaction or ‘feasance’ and ‘nonfeasance’. In general, one is not held liable for failing to act. It explores the theoretical justifications for drawing this distinction and the different approaches taken in France and Germany, concluding that the English rule of no liability for nonfeasance requires reconsideration. In Part II the English approach to the problem of reimbursement or reward is examined, detailing its profound differences from the Continental European approach. In principle, English law does not grant the necessitous intervener a claim against the beneficiary of his intervention. The book examines the theoretical justifications for assuming this position and again concludes that the law deserves reconsideration. Finally, the book concludes by demonstrating close interconnections between the two traditionally independent issues.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.003.0016
- Subject:
- Law, Law of Obligations
The final method of demonstrating the truth and importance of seeing the common law of torts as based upon the infringement of primary rights is to examine other systems which do not have the same ...
More
The final method of demonstrating the truth and importance of seeing the common law of torts as based upon the infringement of primary rights is to examine other systems which do not have the same conception. Comparative law, although a dangerous business, sheds light upon the nature of the common law which is a result of the method of its creation. Not only are French and German law structurally different from the common law, this has repercussions for the outcome of many concrete cases which diverge markedly from those which would occur within the common law.Less
The final method of demonstrating the truth and importance of seeing the common law of torts as based upon the infringement of primary rights is to examine other systems which do not have the same conception. Comparative law, although a dangerous business, sheds light upon the nature of the common law which is a result of the method of its creation. Not only are French and German law structurally different from the common law, this has repercussions for the outcome of many concrete cases which diverge markedly from those which would occur within the common law.
