Private Law in Theory and Practice  book cover
1st Edition

Private Law in Theory and Practice

ISBN 9780415516365
Published November 14, 2011 by Routledge-Cavendish
336 Pages

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Book Description

Private Law in Theory and Practice explores important theoretical issues in tort law, the law of contract and the law of unjust enrichment and relates the theory to judicial decision-making in these areas of private law. Topics covered include the politics and philosophy of tort law reform, the role of good faith in contract law, comparative perspectives on setting aside contracts for mistake and the theory and practice of proprietary remedies in the law of unjust enrichment.

Contributors to the book bring a variety of theoretical approaches to bear on the analysis of private law. They include: economic analysis, corrective justice theory, comparative analysis of law, socio-legal inquiry, social history, political theory as well as doctrinal analysis of the law. In all cases the theoretical approaches are applied to recent case law developments in England, Australia and Canada, or, in the case of tort law, proposals in all these jurisdictions to reform the law.

The book presents the theory of private law and the application of theory to practical legal problems in an accessible form to teachers and students of tort, contract and the law of unjust enrichment, legal researchers and law reformers.

Table of Contents

Introduction  Part 1: Principle and Policy  Private Right and Public Interest Stephen Waddams  Part 2: Tort Law Policy  Policy and Principle in Tort Law Peter Cane  Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law Harold Luntz  The Use of Policy in Negligence Cases in the High Court of Australia  Harold Luntz  The High Court and Social Facts: A Negligence Case Study Kylie Burns  Part 3: Issues in Contract Law  Reconfiguring Mistake in Contract Formation David Capper The Standard of Good Faith Performance: Reasonable Expectations and Community Standards Jeannie Marie Paterson  Some Thoughts on the Comparative Jurisprudence of Mistakes in Assumption Catherine Valcke  Part 4: Certainty and Discretion in Property, Equity and Unjust Enrichment Estoppel, Discretion and the Nature of the Estoppel  Equity Elizabeth Cooke Unconscionability, Constructive Trusts and Proprietary Estoppel Nicholas Hopkins  Constructive Trusts from a Law and Economics Perspective Anthony Duggan  The Criteria for the Award of Proprietary Remedies: Rethinking the Proprietary Base Michael Bryan  Change of Position, Good Faith and Unconscionability Susan Barkehall Thomas






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Michael Bryan is Professor of Law at the University of Melbourne. He has researched and published extensively in the areas of equity, trusts and restitution, including The Law of Non-Disclosure (with A Duggan and F Hanks, Longmans, 1995) and contributed a chapter to The Law of Obligations: Connections and Boundaries (UCL Press, 2003).