Saskia Lettmaier
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199569977
- eISBN:
- 9780191722066
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569977.001.0001
- Subject:
- Law, Legal History
While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their ...
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While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.Less
While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.001.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to ...
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The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.Less
The economic torts for too long have been under-theorised and under-explored by academics and the judiciary alike. Also in recent years claimants have exploited the resulting chaos by attempting to use the economic torts in ever more exotic ways. This book attempts to provide practical legal research to both explore the ingredients of all these torts — both the general economic torts (inducing breach of contract, the unlawful means tort, intimidation, the conspiracy torts) and the misrepresentation economic torts (deceit, malicious falsehood, and passing off) — and their rationales. In addition, an optimum framework for these torts is suggested. However, that framework has to take on board the apparent tension within the House of Lords as revealed in the recent decisions in OBG v Allan and Total Network v Revenue. These decisions and the conflict of policy that appears to lie behind them reveal different agendas for the future development of the general economic torts. These agendas are debated (against the background of the growing academic debate) and a coherent approach suggested. As for the misrepresentation torts their potential for development is also discussed and the peril of allowing them to transform into unfair trading or misappropriation torts is explained. The thesis of this book remains that a coherent framework for these torts can best be constructed based on a narrow remit for the common law.
William Cornish
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199239757
- eISBN:
- 9780191705151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239757.003.0034
- Subject:
- Law, Legal History
This chapter on laws governing trade secrets and other confidences in the 19th century discusses the innominate equity against breach of confidence and equity against breach of confidence as properly ...
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This chapter on laws governing trade secrets and other confidences in the 19th century discusses the innominate equity against breach of confidence and equity against breach of confidence as properly grounded in contract, express or implied.Less
This chapter on laws governing trade secrets and other confidences in the 19th century discusses the innominate equity against breach of confidence and equity against breach of confidence as properly grounded in contract, express or implied.
Robert D. Cooter and Ariel Porat
- Published in print:
- 2014
- Published Online:
- October 2017
- ISBN:
- 9780691151595
- eISBN:
- 9781400850396
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151595.003.0008
- Subject:
- Law, Comparative Law
This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With ...
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This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With anti-insurance, promisor's liability for breach is 100 percent and promisee's compensation is 0 percent, as required for efficient incentives. The chapter first illustrates how anti-insurance works with a numerical example and considers some factors affecting its scope. It then presents examples of anti-insurance for losses and gains before comparing anti-insurance with other legal devices that give incentives to the promisee without eroding the promisor's incentives; these include mitigation of damages, foreseeability of damages, comparative fault, and liquidated damages. It concludes by explaining why anti-insurance is not available in the market.Less
This chapter proposes a novel contract, dubbed “anti-insurance,” that perfectly solves the paradox of compensation. Breach of contract by the promisor poses a risk of loss to the promisee. With anti-insurance, promisor's liability for breach is 100 percent and promisee's compensation is 0 percent, as required for efficient incentives. The chapter first illustrates how anti-insurance works with a numerical example and considers some factors affecting its scope. It then presents examples of anti-insurance for losses and gains before comparing anti-insurance with other legal devices that give incentives to the promisee without eroding the promisor's incentives; these include mitigation of damages, foreseeability of damages, comparative fault, and liquidated damages. It concludes by explaining why anti-insurance is not available in the market.
Margaret Jane Radin
- Published in print:
- 2012
- Published Online:
- October 2017
- ISBN:
- 9780691155333
- eISBN:
- 9781400844838
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691155333.003.0011
- Subject:
- Law, Company and Commercial Law
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we ...
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This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.Less
This chapter explains how abusive boilerplate could either be treated as a defective product, or else regulated under a new tort of intentional deprivation of basic legal rights. It argues that we should put boilerplate rights deletion schemes into the legal category—tort law—in which we can actually consider them as products, instead of considering them one at a time as a contract between two individuals. It also highlights boundary the fuzzy and shifting boundary between contracts and torts by focusing on doctrinal border areas such as fraud or misrepresentation, bad faith breach of contract, and warranty. A case study involving implied warranty of habitability in residential leases is presented. The chapter concludes with a comparison of tort and contract remedies, along with the common-law economic loss doctrine.
Saskia Lettmaier
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199569977
- eISBN:
- 9780191722066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569977.003.0003
- Subject:
- Law, Legal History
This chapter considers the wider implications of the infusion of mythologized femininity for the law, in particular for the position of plaintiffs. It suggests that the feminizing process imported a ...
More
This chapter considers the wider implications of the infusion of mythologized femininity for the law, in particular for the position of plaintiffs. It suggests that the feminizing process imported a contradiction to the centre of the action and lodged an inconsistency at the very heart of the plaintiff. By virtue of her position as litigant – come to a public court of law to take legal action about and obtain pecuniary damages for a romantic grievance – a woman bringing a breach-of-promise suit put herself in direct opposition to the central tenets of the very femininity the Victorians valorized, and in accordance with which the ninteenth-century cause of action was shaped. As both a legal codification of true womanhood and a platform for not so very true women, the nineteenth-century breach-of-promise action may thus be seen as beset from its inception by a fatal structural inconsistency.Less
This chapter considers the wider implications of the infusion of mythologized femininity for the law, in particular for the position of plaintiffs. It suggests that the feminizing process imported a contradiction to the centre of the action and lodged an inconsistency at the very heart of the plaintiff. By virtue of her position as litigant – come to a public court of law to take legal action about and obtain pecuniary damages for a romantic grievance – a woman bringing a breach-of-promise suit put herself in direct opposition to the central tenets of the very femininity the Victorians valorized, and in accordance with which the ninteenth-century cause of action was shaped. As both a legal codification of true womanhood and a platform for not so very true women, the nineteenth-century breach-of-promise action may thus be seen as beset from its inception by a fatal structural inconsistency.
Saskia Lettmaier
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199569977
- eISBN:
- 9780191722066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569977.003.0005
- Subject:
- Law, Legal History
This chapter considers the high Victorian abandonment of the previously employed strategies of containment and the attendant exposure of the structural inconsistency. It demonstrates that as the ...
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This chapter considers the high Victorian abandonment of the previously employed strategies of containment and the attendant exposure of the structural inconsistency. It demonstrates that as the structural inconsistency was rendered more visible, so the breach-of-promise action and, more particularly, the breach-of-promise plaintiff became targets of cultural exclusion and attack. Plaintiff success was dampened and breach-of-promise fiction started to thrive on an exploitation of the structural inconsistency. The plaintiff of the high Victorian period is the ideal corrupted, a pinchbeck angel. Her outwardly perfect womanhood is shown to be inwardly flawed, hollow, and vicious. In the high Victorian period, breach-of-promise comedy takes on the features of satire as it dramatizes the utter lack of coherence between surface appearance and reality, between professions of virtue and the practices that contradict them.Less
This chapter considers the high Victorian abandonment of the previously employed strategies of containment and the attendant exposure of the structural inconsistency. It demonstrates that as the structural inconsistency was rendered more visible, so the breach-of-promise action and, more particularly, the breach-of-promise plaintiff became targets of cultural exclusion and attack. Plaintiff success was dampened and breach-of-promise fiction started to thrive on an exploitation of the structural inconsistency. The plaintiff of the high Victorian period is the ideal corrupted, a pinchbeck angel. Her outwardly perfect womanhood is shown to be inwardly flawed, hollow, and vicious. In the high Victorian period, breach-of-promise comedy takes on the features of satire as it dramatizes the utter lack of coherence between surface appearance and reality, between professions of virtue and the practices that contradict them.
Saskia Lettmaier
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199569977
- eISBN:
- 9780191722066
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199569977.003.0006
- Subject:
- Law, Legal History
This chapter explores the post-Victorian period, beginning after 1900. It reveals that, as the feminine ideal veered away from the nineteenth-century definition of true womanhood towards the ...
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This chapter explores the post-Victorian period, beginning after 1900. It reveals that, as the feminine ideal veered away from the nineteenth-century definition of true womanhood towards the twentieth-century vision of woman as autonomous, energetic, and competent, the breach-of-promise action was turned into a legal anachronism: a musty bit of common law machinery only rarely called into action after the 1920s and 1930s. Although the cause of action was not formally abolished in England until 1970, the age of breach of promise was effectively over with the paradigm shift in the feminine ideal. In the literary and cinematic versions of this final, post-Victorian period, breach of promise assumes symbolic meaning, signifying a conception of the nature and status of women which was, quite simply, passé.Less
This chapter explores the post-Victorian period, beginning after 1900. It reveals that, as the feminine ideal veered away from the nineteenth-century definition of true womanhood towards the twentieth-century vision of woman as autonomous, energetic, and competent, the breach-of-promise action was turned into a legal anachronism: a musty bit of common law machinery only rarely called into action after the 1920s and 1930s. Although the cause of action was not formally abolished in England until 1970, the age of breach of promise was effectively over with the paradigm shift in the feminine ideal. In the literary and cinematic versions of this final, post-Victorian period, breach of promise assumes symbolic meaning, signifying a conception of the nature and status of women which was, quite simply, passé.
Jack Beatson and Daniel Friedman (eds)
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198265788
- eISBN:
- 9780191682964
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265788.001.0001
- Subject:
- Law, Law of Obligations
This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. ...
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This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines breach of contract and remedial issues.Less
This chapter brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme: the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines breach of contract and remedial issues.
S.C. Dube
- Published in print:
- 2012
- Published Online:
- September 2012
- ISBN:
- 9780198077312
- eISBN:
- 9780199081158
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198077312.003.0005
- Subject:
- Sociology, Social Stratification, Inequality, and Mobility
This chapter focuses on the laws being upheld by the Kamar society and its possible breaches. It observes that the present tribal administrative system of the Kamars is similar to the British ...
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This chapter focuses on the laws being upheld by the Kamar society and its possible breaches. It observes that the present tribal administrative system of the Kamars is similar to the British sponsored judicial system. It reveals that tribal jurisprudence is founded on primitive ethics; occasional stealing, for example, is not considered wrong. Some of the breaches of the law include incest, and the breaches of taboos connected to menstruation. It then describes the Panchayat, where only the more serious breaches of tribal law and custom are taken up. The rest of the chapter provides a detailed discussion of the other serious breaches of the law (adultery, witchcraft, etc.). It also presents two cases of the use of love magic, and notes the tribe's attitude towards these kinds of cases.Less
This chapter focuses on the laws being upheld by the Kamar society and its possible breaches. It observes that the present tribal administrative system of the Kamars is similar to the British sponsored judicial system. It reveals that tribal jurisprudence is founded on primitive ethics; occasional stealing, for example, is not considered wrong. Some of the breaches of the law include incest, and the breaches of taboos connected to menstruation. It then describes the Panchayat, where only the more serious breaches of tribal law and custom are taken up. The rest of the chapter provides a detailed discussion of the other serious breaches of the law (adultery, witchcraft, etc.). It also presents two cases of the use of love magic, and notes the tribe's attitude towards these kinds of cases.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0013
- Subject:
- Law, Intellectual Property, IT, and Media Law
This final chapter provides a coherent framework for the economic torts. To do so it underlines the best policy for these torts, drawing on the discussion of the conflicting agendas and potentials ...
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This final chapter provides a coherent framework for the economic torts. To do so it underlines the best policy for these torts, drawing on the discussion of the conflicting agendas and potentials explored in Chapters 8 and 12. The need to tackle and analyse all the economic torts is explained. In addition, civil actions and doctrines that may supplement the protection of economic interests provided by the economic torts — the principle in De Mattos v Gibson, the action for misfeasance in a public office, conversion, the action for breach of commercial confidence, and the action for dishonest assistance — are discussed and distinguished. The optimum framework offered provides a clear basis for liability while allowing freedom to compete effectively. However, the optimum framework offered now requires adjustment, following the decision of the House of Lords in Total Network. The full range of such possible adjustments is outlined.Less
This final chapter provides a coherent framework for the economic torts. To do so it underlines the best policy for these torts, drawing on the discussion of the conflicting agendas and potentials explored in Chapters 8 and 12. The need to tackle and analyse all the economic torts is explained. In addition, civil actions and doctrines that may supplement the protection of economic interests provided by the economic torts — the principle in De Mattos v Gibson, the action for misfeasance in a public office, conversion, the action for breach of commercial confidence, and the action for dishonest assistance — are discussed and distinguished. The optimum framework offered provides a clear basis for liability while allowing freedom to compete effectively. However, the optimum framework offered now requires adjustment, following the decision of the House of Lords in Total Network. The full range of such possible adjustments is outlined.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0001
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic ...
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This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic torts of inducing breach of contract, the unlawful means tort, intimidation, lawful means conspiracy, unlawful means conspiracy and the misrepresentation economic torts of deceit, malicious falsehood, and passing off. The tort of negligence is also discussed as in exceptional circumstances it may perform the function of an economic tort but it is noted that its rationale is different from the economic torts. Unlike negligence, which looks to dependency, the economic torts look to unlawful acts and offer the common law rules of the economic game. The policy issue for all these torts is whether the courts, in the absence of an action for unfair competition, should adopt an interventionist or abstentionist policy in relation to imposing liability.Less
This chapter introduces the economic torts, i.e., those torts that have as their name suggests the primary function of protecting claimants' economic interests. They include the general economic torts of inducing breach of contract, the unlawful means tort, intimidation, lawful means conspiracy, unlawful means conspiracy and the misrepresentation economic torts of deceit, malicious falsehood, and passing off. The tort of negligence is also discussed as in exceptional circumstances it may perform the function of an economic tort but it is noted that its rationale is different from the economic torts. Unlike negligence, which looks to dependency, the economic torts look to unlawful acts and offer the common law rules of the economic game. The policy issue for all these torts is whether the courts, in the absence of an action for unfair competition, should adopt an interventionist or abstentionist policy in relation to imposing liability.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0003
- Subject:
- Law, Intellectual Property, IT, and Media Law
The classic form of this tort, as featured in Lumley v Gye, involves the defendant persuading the claimant's contract partner to contract breach. Subsequently courts accepted varieties of this tort, ...
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The classic form of this tort, as featured in Lumley v Gye, involves the defendant persuading the claimant's contract partner to contract breach. Subsequently courts accepted varieties of this tort, some of which focused not on inducement but prevention and one of which focused on interference rather than inducement. This uncertain ambit resulted from the failure to identify the other major general economic tort namely the unlawful means tort. OBG re-asserts the classic scope of this tort, rejecting the modern varieties (most of which would now be covered by the unlawful means tort) and restricting liability to those claimants who have actual knowledge of the contract which they seek to persuade the claimant's partner to breach. This chapter explores the development of this tort, its relationship to the unlawful means tort and its analysis in OBG as a tort of secondary or accessory civil liability.Less
The classic form of this tort, as featured in Lumley v Gye, involves the defendant persuading the claimant's contract partner to contract breach. Subsequently courts accepted varieties of this tort, some of which focused not on inducement but prevention and one of which focused on interference rather than inducement. This uncertain ambit resulted from the failure to identify the other major general economic tort namely the unlawful means tort. OBG re-asserts the classic scope of this tort, rejecting the modern varieties (most of which would now be covered by the unlawful means tort) and restricting liability to those claimants who have actual knowledge of the contract which they seek to persuade the claimant's partner to breach. This chapter explores the development of this tort, its relationship to the unlawful means tort and its analysis in OBG as a tort of secondary or accessory civil liability.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0004
- Subject:
- Law, Intellectual Property, IT, and Media Law
Although the existence of this tort is implicit in the discussion in Allen v Flood, it has only received its first real analysis in OBG. This chapter maps the history of the tort and its relationship ...
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Although the existence of this tort is implicit in the discussion in Allen v Flood, it has only received its first real analysis in OBG. This chapter maps the history of the tort and its relationship to the tort of inducing breach of contract (the unlawful means tort involving stand-alone, primary liability). It explores its key ingredients: intention and unlawful means. As is revealed, uncertainties remain post-OBG given the orthodox definition of intention for this tort is apparently rejected, and given Lord Hoffmann (speaking for the majority) and Lord Nicholls disagreed on the definition of ‘unlawful means’. The implications for the future of this tort are then debated, centred on a discussion of the possible polices that could shape the definition of unlawful means. In addition, this tort is distinguished from an obscure principle of equity that originates from the decision in Springhead Spinning v Riley.Less
Although the existence of this tort is implicit in the discussion in Allen v Flood, it has only received its first real analysis in OBG. This chapter maps the history of the tort and its relationship to the tort of inducing breach of contract (the unlawful means tort involving stand-alone, primary liability). It explores its key ingredients: intention and unlawful means. As is revealed, uncertainties remain post-OBG given the orthodox definition of intention for this tort is apparently rejected, and given Lord Hoffmann (speaking for the majority) and Lord Nicholls disagreed on the definition of ‘unlawful means’. The implications for the future of this tort are then debated, centred on a discussion of the possible polices that could shape the definition of unlawful means. In addition, this tort is distinguished from an obscure principle of equity that originates from the decision in Springhead Spinning v Riley.
Hazel Carty
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199546749
- eISBN:
- 9780191594946
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546749.003.0005
- Subject:
- Law, Intellectual Property, IT, and Media Law
This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These ...
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This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These are the relationship between this tort and the unlawful means tort, and the scope and implications of the two-party version of this tort (and in particular whether a threatened breach of contract should constitute an unlawful threat for this tort). The chapter, therefore, links into the discussion in Chapter 4 and Chapter 7. It argues that the two-party form of this tort does not provide the seed for a general development of two-party economic torts, but rather that two-party liability in the tort of intimidation is a separate area of tort liability, a necessary supplement to existing tort liability.Less
This chapter explores the history and modern form of this tort. Two key issues surrounding this tort remain controversial as was highlighted by the recent decisions in OBG and Total Network. These are the relationship between this tort and the unlawful means tort, and the scope and implications of the two-party version of this tort (and in particular whether a threatened breach of contract should constitute an unlawful threat for this tort). The chapter, therefore, links into the discussion in Chapter 4 and Chapter 7. It argues that the two-party form of this tort does not provide the seed for a general development of two-party economic torts, but rather that two-party liability in the tort of intimidation is a separate area of tort liability, a necessary supplement to existing tort liability.
Reinhard Zimmermann
- Published in print:
- 2006
- Published Online:
- January 2009
- ISBN:
- 9780199206551
- eISBN:
- 9780191705397
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199206551.003.0018
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter explains how the German law relating to restitution after termination for breach of contract has been changed by the provisions which were inserted into the BGB (Bürgerliches Gesetzbuch: ...
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This chapter explains how the German law relating to restitution after termination for breach of contract has been changed by the provisions which were inserted into the BGB (Bürgerliches Gesetzbuch: the German Civil Code) which took effect on 1 January 2002. These reforms are then set in their wider European context.Less
This chapter explains how the German law relating to restitution after termination for breach of contract has been changed by the provisions which were inserted into the BGB (Bürgerliches Gesetzbuch: the German Civil Code) which took effect on 1 January 2002. These reforms are then set in their wider European context.
Eric Descheemaeker
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199562794
- eISBN:
- 9780191705533
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562794.003.0002
- Subject:
- Law, Comparative Law, Law of Obligations
This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that ...
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This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that it is the violation of a right, and therefore a breach of duty. The relationship between the concepts of ‘duty’, ‘right’, and ‘wrong’ is explored; as are the notion of an ‘interest’, and the alternative analytical framework followed in particular by Nils Jansen. Concerning the delineation of the law of wrongs, this chapter explains why, in order to maintain a stable field of enquiry across jurisdictional divides, the book will exclude breach of contract and public law from its scope.Less
This chapter concerns itself with the identification of the subject-matter of the book, wrongs and the law of wrongs. Regarding the former, the definition offered of a wrong (or civil wrong) is that it is the violation of a right, and therefore a breach of duty. The relationship between the concepts of ‘duty’, ‘right’, and ‘wrong’ is explored; as are the notion of an ‘interest’, and the alternative analytical framework followed in particular by Nils Jansen. Concerning the delineation of the law of wrongs, this chapter explains why, in order to maintain a stable field of enquiry across jurisdictional divides, the book will exclude breach of contract and public law from its scope.
Roger Matthews, Helen Easton, Daniel Briggs, and Ken Pease
- Published in print:
- 2007
- Published Online:
- March 2012
- ISBN:
- 9781847420572
- eISBN:
- 9781447301509
- Item type:
- chapter
- Publisher:
- Policy Press
- DOI:
- 10.1332/policypress/9781847420572.003.0005
- Subject:
- Social Work, Crime and Justice
This has been an exploratory study of Anti-Social Behaviour Orders (ASBOs) in the United Kingdom based on a selective sample of offenders, agencies, victims and residents. It became evident in the ...
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This has been an exploratory study of Anti-Social Behaviour Orders (ASBOs) in the United Kingdom based on a selective sample of offenders, agencies, victims and residents. It became evident in the course of the research that these different groups tended to employ different criteria of ‘success’ in relation to the use of ASBOs. Assessments of success tended to be made on a number of dimensions: bringing relief to certain neighbourhoods and groups; reducing the level and impact of anti-social behaviour (ASB); changing attitudes and motivation of offenders; level of breaches and their enforcement; reduction of different forms of ASB in the area.Less
This has been an exploratory study of Anti-Social Behaviour Orders (ASBOs) in the United Kingdom based on a selective sample of offenders, agencies, victims and residents. It became evident in the course of the research that these different groups tended to employ different criteria of ‘success’ in relation to the use of ASBOs. Assessments of success tended to be made on a number of dimensions: bringing relief to certain neighbourhoods and groups; reducing the level and impact of anti-social behaviour (ASB); changing attitudes and motivation of offenders; level of breaches and their enforcement; reduction of different forms of ASB in the area.
Sir John Baker
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780198258179
- eISBN:
- 9780191681806
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198258179.003.0046
- Subject:
- Law, Legal History
This chapter examines the law of torts relevant to procurement of breaches of contract in England during the Tudor period. During this period, action for this case was usually associated with ...
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This chapter examines the law of torts relevant to procurement of breaches of contract in England during the Tudor period. During this period, action for this case was usually associated with disputes over employment, and its antecedent being the action on the Ordinance of Labourers for retaining or harbouring servants. This chapter discusses specific cases of breaches of contract filed during this period and analyses the legal bases of decisions in court. It also describes the factors that led to the evolution of the laws governing procurement for breaches of contract.Less
This chapter examines the law of torts relevant to procurement of breaches of contract in England during the Tudor period. During this period, action for this case was usually associated with disputes over employment, and its antecedent being the action on the Ordinance of Labourers for retaining or harbouring servants. This chapter discusses specific cases of breaches of contract filed during this period and analyses the legal bases of decisions in court. It also describes the factors that led to the evolution of the laws governing procurement for breaches of contract.
Steven Gee
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199566181
- eISBN:
- 9780191705458
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199566181.003.0040
- Subject:
- Law, Legal History
This chapter details the anti-suit injunctions and arbitration. It deals with the Supreme Court Act 1981, section 50 and damages for breach of the arbitration agreement, and discusses some central ...
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This chapter details the anti-suit injunctions and arbitration. It deals with the Supreme Court Act 1981, section 50 and damages for breach of the arbitration agreement, and discusses some central cases to this issue.Less
This chapter details the anti-suit injunctions and arbitration. It deals with the Supreme Court Act 1981, section 50 and damages for breach of the arbitration agreement, and discusses some central cases to this issue.
