Powers Common Law

INTRODUCTION TO THE
COMMON LAW
Course Structure
I. Introductory Notions (Background/History/Legal Science)
II. Development of substantive areas of common law

(Contract, Tort of Negligence, Criminal law of Self
Defence, the Common Law and the US constitution)
III. Specific Aspects of the Common Law (Jury Trial, Adversarial
system, rule of law, Separation of Powers, Colonialism)
Department of Justice – The Government of Hong Kong Special
Administrative Region
‘The legal system of the Hong Kong Special Administrative

Region (HKSAR) is based on the principles of the rule of
law and the independence of the judiciary. The
constitutional framework for the legal system is provided
by the Basic Law enacted by the National People’s
Congress of the People’s Republic of China (PRC) in
accordance with Article 31 of the Constitution of the PRC.
Hong Kong Under the principle of ‘one country, two systems’, the
HKSAR legal system, which is different from that of
Mainland China, is based on the common law,
supplemented by statutes…..’
• https://www.doj.gov.hk/en/our_legal_system/index.html
(emphasis added)
An Example of a Choice of Law Provision from a
Company in the Spanish speaking world
The choice of law of the State of New York as the governing law is a valid choice of law under the
laws of Colombia, and the courts of Colombia will honor this choice of law. A final and conclusive
judgment (not subject to appeal) of the courts of the State of New York would be recognized by the
courts of Colombia, subject to obtaining therefore the Exequatur of the judgment from the Supreme
Court of Colombia. Pursuant to articles 605 through 607 of Law 1564 of 2012, the courts of Colombia
would give effect to and enforce a judgment obtained in a court outside Colombia without re-trial or
re-examination of the merits of the case provided (i) that there exists a treaty or convention relating
to recognition and enforcement of foreign judgments between Colombia and the country of origin of
the judgment or, in the absence of such treaty, that proper evidence is provided to the Supreme
Court of Colombia to the effect that the courts of the country of the subject judgment would
recognize and enforce Colombian judgments, and (ii) that the subject judgment fulfills the
requirements listed below.
•Background
Introductory
Notions
•History
•Legal Science
Background
Sources of Law
What is the Common Law
in Common
common law? Systems
Law Systems
What is the Common
Law?
What is the • The common law is judge made law.
Common • It is law based on court decisions rather than

codes or statutes - - CASE LAW.
Law?
• Judges interpret, apply and develop the
common law.
Case Law
developed
case by case
• Simkinseled, CC0, via Wikimedia Commons

Precedents are prior decisions that function as
models for later decisions.
Authoritative precedents are prior decisions that
for some reason one ought to use as governing
models for later decisions.
In common law courts precedents can be binding.
Precedents The binding nature of precedents is the central
feature of the Common Law.
Case law can create or refine pre-existing common
law rules.
What is the Civil Law?
Compared with Civil Law Systems
• Civil law systems rely primarily on codes and statutes.
• Judicial decisions apply and interpret the law but do not make law
Common Law v. Civil Law
Common Law Civil Law

• Judge Made law • Civil Law is based on Codes or
Statutes
• Judicial Precedents are Binding
• Judicial Precedents are Not
• Case Law is Important Source of Binding
Law
• Codes and Statues are the Main
• Adversarial system Sources of Law
• Judges interpret and develop • Inquisitorial System
the law and apply the law to the • Judges Establish Facts and Apply
facts the Law to those Facts
The increasing displacement of common law by
The legislation/codification.
Convergence of Narrows the gap between common law and civil law systems;
the Common BUT:
Law and the In contrast to civil law systems, the role of judicially created
common law remains the primary source of law in many
Civil Law fields and is a gap-filler in fields largely governed by
legislation.
Main legal systems - civil law and common law.
Legal
Other systems include customary law and religious law.
Systems
Hybrid systems, e.g. civil law or common law overlaid

on customary law (for instance in parts of post-colonial
Africa); civil law and common law – e.g. Scotland.
World Legal Systems
• Former British colonies such as America, Australia, Canada,
New Zealand have common law systems.
• The American legal system remains firmly within the
common law tradition brought to the North American
colonies from England.
Common Law • Civil law tradition and its importance in the hemisphere
maybe found within state legal traditions across North
Countries America.
• Louisiana - history as a French and Spanish territory prior
to its purchase from France in 1803.
• Quebec
Customary law is also referred to as
"indigenous law," and "folk law."
The earliest systems of law in human society
were customary.
Customary Law As the term implies, customary law is based

upon the customs of a community.
Common law grew from custom.
Customary Law Today
• A number of states practiced customary law many centuries prior to colonial influences.
• Following colonization, such laws were written down and incorporated to varying extents
into the legal systems imposed by their colonial powers.
• Serves as the basis of, or has influenced, the present-day laws in approximately 40
countries - mostly in Africa, but some in the Pacific islands, Europe, and the Near East.
Religious
• The main types of religious law are sharia in Islam, halakha
in Judaism, and canon law in some Christian groups.
• Sharia is the most widespread religious legal system -- it is
Law the legal system enforced in over 30 countries, particularly

in the Arab world, but also in Central and South Asia,
Africa, and Indonesia.
• In many countries Islamic law operates in tandem with a
civil law system.
• No country is fully governed by halakha, but Jewish people
may decide to settle disputes – like an arbitration --through
Jewish courts and be bound by their rulings.
• Mixed Legal Systems – combination of civil
law/common law/customary law/religious
law.
• Louisiana has, in important respects, a
Hybrid or codified civil law system within the USA,
Mixed Systems just as that within Canada, Quebec uses
the code civil.
• Scotland -- Scots law as a system with civil
law roots but at the present 'common law'
approach to legal methodology.
• Case law
Sources of • Statutes
Law in • Legislature makes legislation and
judiciary interprets legislation and
Common develops common law.
Law Systems • Common law rules can be displaced
by legislation.
The Role of
The Judiciary
Legislature
The Role of
the
Legislature Enacts
Legislation
Presidential System
Superinformative, CC BY-SA 4.0
<https://creativecommons.org/licenses/by-
sa/4.0>, via Wikimedia Commons
Two Types of Common Law Systems
• Westminster and Presidential Systems
• Difference is with separation of powers
• In both, legislature enacts legislation and judiciary interpret statutes
and apply common law
The Branches of Government
Legislature
Executive Judiciary
• Enacts • Administers • Interprets

legislation the law and develops
the common
law
U.S. Strict Separation of Powers
The Westminster
System
Tony Moorey, CC BY 2.0
<https://creativecommons.org/licenses/by/2.0>, via
Wikimedia Commons
Parliament
The
Westminster Executive (The
System Government)
Enacts
Legislation
Australian Westminster System of Government
• The Governor General is the Crown’s

representative in Australia and assents
to all legislation
A Brief History of the
Common Law
Voluntary/Suggested Reading (materials not necessary
for the exam):
The Origins of Paul Brand, ‘The Beginnings of the English Common

Law (to 1350)’ in Heikki Pihlajamäki, Markis D.
the Common Dubber, and Mark Godfrey (eds), The Oxford
Handbook of European Legal History (Oxford
Law University Press, Oxford, 2018), Ch. 19, 430-449.
-- Reading Paul Brand, ‘The Formation of the English Legal

System, 1150-1400’, in Antonio Padoa-Schioppa
(ed.), Legislation and Justice (Clarendon Press,
Oxford, 1997), Ch. 6, 103-21.
The Common Law in
the US
Ken Lund from Reno, Nevada, USA, CC BY-SA 2.0

<https://creativecommons.org/licenses/by-sa/2.0>, via Wikimedia
Commons
• England in the First Millennium: a variety of constituent peoples,
England Picts, Romans, Angles and Saxons, Vikings, with disparate local
kingdoms with local customs.
Before the • By 600 CE Languages could be divided into 5 groups – Germanic in
Common Law south and eastern regions, Brittonic, Gaelic and Pictish in the
northern and western regions, and Norse in the north-east.
Anglo-Saxon
England c. 800
CE
UK Historical Association, The Historian, Autumn

2018
https://www.history.org.uk/primary/resource/3865/
anglo-saxons-a-brief-history
Established an
‘English’ identity
King Alfred the

Great First attempt to
provide a law for
(871-901 CE) the English (c. 878
CE).
Founder of Oriel College, after a painting in the

Bodleian Library (colour engraving) by English School
(19th century), Public domain, via Wikimedia
Commons
Alfred the Great and the English
Assortment of customs and unwritten laws flowing from of Roman, Germanic/Danish influence following Roman
and Viking occupations. The Anglo-Saxon law especially of Kent and Wessex were largely of Germanic origin.
After driving the Vikings/Danes out of southern England, Alfred the Great (878-901 CE) attempted to provide a
law the ‘English’.
Established a book of laws or ‘Dooms’, which evolved/combined the laws and customs of Kent, Mercia and
Wessex.
Laws also included biblical teachings and Church laws.
Incorporated local customs and local laws enforced by Sheriff.
This body of customary law was the seed of the common law.
Even after Alfred had taken
control of southern
England, Danes or Vikings
continued to occupy
northern part of
contemporary England –
area known as ‘Dane Law’
c. 1000 CE Danes again
The Vikings invaded southern portion
of England
Again 1013 CE King Cnut or
Canute became King of
England
Image: https://the-wanderling.com/longship09.jpg
A code of Laws for All of England
– King Knut, Cnut or Canute
King of England from 1016, Denmark from 1018 and
Norway from 1028 until his death in 1035 -- England
became part of the North Sea empire
King Knut proclaimed a code of laws for all of England
This law code was based upon the evolving of Anglo-
Saxon laws initiated by King Alfred and developed by his
son King Edgar son of Alfred.
Image: De Desconocido - Scanned from the german histrory magazine Der Spiegel Geschichte (6/2010): Die Wikinger - Krieger
mit Kultur: Das Leben der Nordmänner. Spiegel-Verlag Rudolf Augstein GmbH & Co. KG, Hamburg 2010, p.87, Dominio
público, https://commons.wikimedia.org/w/index.php?curid=12664262
The Norman Conquest in
1066
1066 -- The Often cited as the starting

point for the development
Norman of the common law
But more a continuation –
Conquest William the Conqueror
proclaimed that he was
upholding the law of his
Anglo-Saxon predecessors.
The Norman Conquest and Feudalism
• England was Feudal society - Norman conquest did not introduce feudalism but aided its
development.
• Feudalism was a hierarchical social, political and religious structure based on exchange of
land for loyalty, military service or rent.
• Most innovative aspect of Norman conquest regarded land tenure. Modern property law
continues to have peculiar language arising from its feudal roots.
William the Conqueror asserted all land under royal control
was owned by him pursuant to a right of conquest
Property Beginning of precisely defined interests - lords/vassals,
Knights fee – evolved to fee simple, life estates, estates tail,
Tenure remaindermen and reversioners, etc.
The King or Crown owns the land and property holder only
has an interest, which can be possessory (fee simple, life
estate) or non-possessory (easements).
A Feudal Hierarchy
Queen/King
Tenants in Chief
(Nobles 55% of Land, Church 25% of
Land -- grant land to Knights or
Vassals for military service or rent
Under Tenants
(Knights/Vassals -- grant land to Peasants in return for
labour or rent)
Peasants
(serfs provide labour, free peasants pay rent)
Survey provided precise
information on land: an
inventory of the entire
kingdom and of the holding
and value.
Domesday Designed to be used by royal

administrators in raising
Book revenue.
Domesday’s primary concern

(1085-86) was with royal properties and
with tenants-in-chief.
It benefited landholders by
giving them something akin to
a written title to their lands.
Image: By Birmingham 1066-1625, Public Domain,

https://commons.wikimedia.org/w/index.php?curid=1
7165629
The Unification of the
Common Law
King Henry II (1154-1189)
The common law as the ‘English’ common law
followed the unification of public authority and the
centralization of power -- gradual and evolutionary
process began before Norman Conquest, with Kings
such as Alfred and Canute.
Henry II most important figure in creation of English

Common Law -- Centralization and unified legal
system
Image: File:Henry II
Plantagenet.jpg . In Wikipedia . https://commons.wikimedia.org/wiki/File:Henry_II
_Plantagenet.jpg
The Creation of a
National Court System
Mid 12th Century - creation of national Royal Courts (Common
Bench and General Eyre -- a travelling circuit court) began the
formation of English common law and elevated single law to
be the national law.
Progressive jurisdictional monopolization of royal courts
whereby litigation in local manorial courts could be removed
to a royal court.
The courts were essentially the king’s justice -- a prerogative
of the crown.
Common law emerged as the principal legal system of the
country, and this was achieved through the development of
courts.
Common law became universal.
Image: British Library, Detail of an historiated initial 'I'(udex) of a judge.

Limited royal power.
The Embodied The Rule of Law.

Magna Carta
1215 Protected specific liberties.
(reissued modified versions in

1216, 1217 and 1225) Hailed as the origin of habeas
corpus
Image: by unknown, held by The Granger

Collection, New York - Britannica.com, Public
Domain,
https://commons.wikimedia.org/w/index.php?cu
rid=4879431
Magna Carta -- provided an aspect of permanence to Royal Courts
– and a professional judiciary.
• Clause 17 stipulated that ‘common pleas’ should not follow the king’s court,
but for public convenience should be held ‘in some predetermined place’ --
The Magna Westminster.
• Clause 18 stipulated that two itinerant justices were to hold county court
Carta and the sessions four times a year to deal with civil actions.
Courts
• Clause 45 insisted that all those appointed as justices and sheriffs be men who
knew what could properly be called ‘the law of the realm’ and wanted to
maintain it.
The 1225 version became law, the first statute, and three of its clauses
have never been repealed, including:
• To no one will we sell, to no one will we deny, or delay right or justice

The Professionalization of
the Law
Enormous increase in litigation over the 13th
Century (3000 % increase) led to increased.
Judges with legal experience recruited.
Ethical standards and an ‘oath of office’ imposed
on judges.
Professional lawyers began to dominate judicial
appointments in the 14th Century and in 1330
gained a monopoly of permanent appointments.
Image: the earliest known depiction of the English court (c. 1460). "Manuscript Collection". Inner
Temple Library. Archived from the original on 22 August 2010.
Judges had tendency to adopt custom of court.
As case law became settled became basis of

common law and provided certainty and
predictability.
Precedent demands reports of preceding cases.

The Development
of Precedent First reports – plea rolls – supplemented by Law
reports (Year Books) around 1270.
‘Year Books’ eventually replaced by named reports

in late 16th Century with the printing revolution.
Early Treatise: Henry De Bracton, Laws and Customs

of England, c. 1220-30 – compilation of case law
Court Procedure –
Writs-
‘No writ, no remedy’
The Court machinery was built around the writ system– a written
order in king’s name following a complaint and the defendant to
appear on court to see justice done
Pre-formulated texts enabling inclusion of specific details to be
included
Original with King’s full name and title
Different writs for different claims
Standard writs and standard procedures were all conducive

essential, to a standardised ‘common’ law.
Thomas Littleton, On Tenures,
c. Ante 1481.
Christopher St. German,
Doctor and Student (1528-30).
Edward Coke, Institutes of the
Laws of England 1628-44.
Publication of Matthew Hale, The History

and Analysis of the Common
Treatises Law of England. Written by a
Learned Hand (Ante 1676).
William Blackstone,
Commentaries on the Laws of
England (1765-69).
Image: Institutes of the Lawes of England. (2022,
June 26). By Smuconlaw. - Own work;
photographed from an original copy., CC BY-SA
3.0,
https://commons.wikimedia.org/w/index.php?cu
rid=29826979
Introduction to English Contract Law 1/3
Introduction to the English approach to Contract

law and Formation of contract
- 18 April 2023 -
MANUEL PENADES
Roadmap
▪ Introduction and methodology
▪ Introduction to the English approach to Contract law
▪ Formation of the contract (Ingredients)
Manuel Penades 2
Introduction and methodology
▪ Why study English law? (even, why study a law other than your own?)
▪ Foreign law is around us: We are bound by foreign law!
Airbnb (Irish law), Uber (Dutch law), F1 (English law)
▪ English law is relevant in MANY areas: finance, insurance, shipping (Port de
Barcelona), etc
▪ Many international disputes are subject to the jurisdiction of English courts or
English arbitration
▪ Knowing English law makes you a BETTER lawyer under Catalan and Spanish
laws
Manuel Penades 3
The English approach to contract law
▪ What is a contract?
→ A set of promises for the breach of which the law provides a remedy
▪ Why are contracts relevant?
→ The relationship between contracts and the flow of trade: a mechanism for
the allocation of risks
▪ Legal certainty and the strict approach to contract law → freedom of contract
→ Consent, but contract law is only concerned with demonstrable consent
Subjectivity v Objectivity
[A person’s intention is subjective, BUT the test of a person’s intention is
NOT subjective; it is objective]
Manuel Penades 4
The English approach to contract law
▪ The sources of English contract law
a. Common law
i. Crucial influence of powerful industries (primarily shipping, insurance)
ii. England and Wales High Court (EWHC), England and Wales Court of
Appeal (EWCA), United Kingdom Supreme Court (UKSC), Privy Council of the
United Kingdom (UKPC)
Eg: Patel v Mirza [2016] UKSC 42
b. Legislation: Growing codification and influence of EU law
c. Equity: Relevant in few areas (estoppel, specific performance and other
equitable remedies). Only when allowed by common law and legislation.
Manuel Penades 6
Introduction and methodology
▪ Structure of our next three sessions → Timeline of a contract
Content of the
Discharge of
contract
Formation Factors defeating contract and
(interpretation and
(requirements) liability (vices) remedies for
implication of
breach
terms)
Sessions 1 Session 2 Session 2 Session 3
Exercises and
Assessment
Manuel Penades 7
Formation of the contract
Manuel Penades 8
Formation of the contract: Requirements
▪ Offer Agreement
▪ Acceptance
▪ Intention to create legal relations Legally relevant / enforceable
▪ [Form]
▪ Consideration Reciprocal undertakings
Manuel Penades 9
A brief recap
▪ The concept of contract law: video
Manuel Penades 10
Offer
▪ Definition: “It is an intimation, by words or conduct, of a willingness to enter into
a legally binding contract, and which in its terms expressly or impliedly indicates
that it is to become binding on the offeror once accepted by the offeree”
▪ The offer must be:
a. Concrete: “I may be prepared to sell you my laptop” is not an offer (Gibson v
Manchester City Council).
b. Communicated to the offeree: An offer will not be effective until it is
communicated to the offeree → No acceptance in ignorance
Manuel Penades 11
Offer
▪ Offer v invitation to treat (a mere invitation to make offers and do business)
- A: Will you sell me your laptop? Please text me minimum price
- B: Minimum price £1000
- A: I accept your offer to sell me your laptop for £1000
OPEN QUESTION: Is there a contract?
→ No, just an invitation to treat and an offer, but requires acceptance by B (Harvey
v Facey). B did not reply to A’s first question, only to the second request for
information.
Manuel Penades 12
Offer
▪ Invitations to treat → Adverts and Sales by machine
OPEN QUESTION: When you go the supermarket, who makes the offer?
You make the offer to buy by taking the goods to the check out and the cashier
accepts! → Boots v Pharmaceutical Society (also for display in shop windows and
catalogues)
▪ Reasons:
▪ Limited stock
▪ Right to change your mind
▪ How strict is this rule?
OPEN QUESTION: When you go the canteen/cafe at university and place a hot
plate of food in your tray, can you change your mind?
Manuel Penades 13
Offer
▪ Types of contracts depending on type of offer:
▪ Ordinary contracts: Promise for a promise (bilateral contracts).
▪ General offers: Promise for an act (unilateral contract).
General rule: An offer need not be made to an ascertained person; but no
contract will arise until the offer is accepted by an ascertained person
▪ Offer expires once the act has taken place: Eg, reward for lost property or
information (if it produces the desired effect)
▪ Offer is open to various acceptances: Carlill v Carbolic Smoke Ball
→ Communication of acceptance is waived
Manuel Penades 14
Offer [Carlill v Carbolic Smoke Ball and Pandemics]
The Times talked recently about how the COVID-19 outbreak will lead to legal upheaval.
Citing one of the leading English contract law cases - Carlill v Carbolic Smoke Ball
Company, the article described how the 1892 case arose from the influenza epidemic
that started in Central Asia in 1889 and then spread throughout Europe.
“The pandemic stimulated a thriving business in quackery and patent medicines. An
example was the Carbolic Smoke Ball, which its inventor, Frederick Roe, an American
living in London, advertised in the newspapers. He offered a £100 reward for anyone
who used the Smoke Ball and then contracted influenza.”
Louisa Carlill bought one of the smoke balls in 1891, but, after using it “assiduously”,
contracted the disease and sued for the £100.
She won in the High Court and Court of Appeal and, “Mrs Carlill eventually did die of
influenza — but not until 1942, when she was 96.”
Manuel Penades 15
Offer
▪ Termination of the offer
▪ Rejection of the offer: Once rejected, an offer cannot be accepted
Suppose that A makes an offer to B by letter and gives him until 15 May to
answer. On 13 May, B rejects the offer and communicates it to A. On 14 May,
still before the deadline, B calls A to let her know that he has changed his mind
and wants to accept the offer.
OPEN QUESTION: Is the acceptance effective? No, the rejection killed the offer
SCENARIO 2: Immediately on receiving the letter, B sends a letter back rejecting
the offer. Before the rejection arrives, B changes his mind and telephones A to
communicate her acceptance.
OPEN QUESTION: Is the acceptance effective?
Manuel Penades 17
Offer
▪ Termination of the offer (contd.)
▪ Revocation of the offer
▪ Revocable before acceptance: Revocation must be communicated (by
express revocation or by changing the first offer for another offer)
▪ Irrevocable after acceptance: The contract has been formed and binds the
offeror
▪ Lapse of time
Manuel Penades 19
Acceptance
▪ Definition: “Acceptance is the expression, by words or conduct, of assent to the
terms of the offer in the manner prescribed by the offeror”
▪ Offer and acceptance must correspond
The “mirror image” rule
- Acceptance must reflect
the terms of the offer
- Acceptance must be absolute
Manuel Penades 20
Acceptance
▪ Acceptance must be absolute
→ If it does not adhere to all the terms or intends to change some terms, it is
NOT an acceptance; it is a counter-offer
OPEN QUESTION: A makes an offer to sell to B her laptop for £1000. B replies
that he is only prepared to pay £950. A does not take that price. Is B able to
change his mind and accept the original offer of £1000?
→ No, a counter-offer rejects (“kills”) the original offer and introduces a new
offer (Hyde v Wrench)
Manuel Penades 21
Acceptance
▪ Acceptance must be communicated
a. Mental assent is insufficient to amount to acceptance (Brodgen v
Metropolitan Railway Co)
b. Communication must be to the offeror
c. In some cases, the offeror has waived the duty to communicate acceptance
(unilateral contracts: Carlill v Carbolic Smoke Ball). In these cases, silence can
amount to acceptance (the performance of the required act is the acceptance)
d. Postal rule:
- Instantaneous methods of communication: Acceptance is sent and received
at the same time. Eg.: face-to-face or phone.
- Non-instantaneous methods of communication: Sending ≠ Receipt. Eg.: post.
Manuel Penades 22
Acceptance
▪ Acceptance must be communicated (contd.)
d. Postal rule: (contd.)
OPEN QUESTION: Is acceptance by post effective when it is sent or received?
→ When it is sent (Adams v Lindsell): The offeror bears the risk of the letter
of acceptance being delayed or lost.
OPEN QUESTION: When is acceptance by email effective? And WhatsApp?
→ Email and WhatsApp are instantaneous methods of communication, so
receipt is necessary. But is actual reading necessary?
No, receipt is sufficient (ie, instead of ) BUT in commercial
contexts this is only applicable within business hours (The Brimmes and
Brinckibon)
Manuel Penades 23
Acceptance
▪ Prescribed mode of acceptance
- The offeror can request a specific mode of acceptance: Unless it is
expressly mandatory, other modes are accepted if they are not less
advantageous (Manchester Diocesan v Commercial & General Investments)
- What about silence? Can it be imposed as equivalent to acceptance?
- Unsolicited goods at home
- Windscreen wiper person
Silence cannot be imposed (Felthouse v Bindley)
→ [Unsolicited Goods and Services Act 1971 → Unconditional gifts]
Manuel Penades 24
Acceptance
▪ Prescribed mode of acceptance (contd.)
- Special rules for auctions (section 57(2) Sale of Goods Act 1979: at the
fall of the hammer)
[See: Banksy’s ‘prank’]
Manuel Penades 25
A recap so far
▪ Video 1: Short and fun
▪ Video 2: Longer and more content
Manuel Penades 26
Intention to create legal relations
Not every agreement is a contract
→ It is necessary that parties have reached the agreement in contemplation of
the legal consequences (remember: A contract is a set of promises for the breach
of which the law provides a remedy)
▪ Intention to create legal relations is presumed in the business context
▪ Absence of intention is presumed in
- Social engagements (Blue v Ashley [2017] EWHC 1928 (Comm))
- Family arrangements (Barfour v Barfour)
But this can be rebutted (Parker v Clark)
Manuel Penades 27
Rebuttal of presumptions:
- A maintenance agreement reached upon breakdown of the marriage is likely
to be enforceable: Merritt v Merritt [1970] 1 WLR 1211.
- A presumption against legal intention would arise if the promise were to be
made prior to breakdown of the marriage: Balfour v Balfour [1919] 2 KB 571
Manuel Penades 28
→ It is necessary that parties have reached the agreement in contemplation of
the legal consequences (remember: A contract is a set of promises for the breach
of which the law provides a remedy)
▪ Intention to create legal relations is presumed in the business context
▪ Absence of intention is presumed in
- Social engagements (Blue v Ashley [2017] EWHC 1928 (Comm))
- Family arrangements (Barfour v Barfour)
But this can be rebutted (Parker v Clark)
▪ OPEN QUESTION: What about lottery with friends or family?
Contract! Simkins v Pays
Manuel Penades 29
Form
▪ Generally, no requirement
▪ Exceptions (writing requirement): Sales of land and other dispositions;
consumer debit; contracts of guarantee
The requirement of notarisation: Video
Manuel Penades 30
Consideration
▪ Consideration is necessary for the formation of every contract. A promise
(unless in a deed) made without consideration is not actionable as a contract
in English law
▪ Definition: “Some right, interest, profit, or benefit accruing to the one party,
or some forbearance, detriment, loss, or resposibility given, suffered, or
undertaken by the other” (Currie v Missa)
→ In short: Either some benefit to the promisor or some detriment to the
promisee which is given in return for the promise
→ It makes reciprocity / exchange the distinguishing mark of a contract: A
gratuitous promise is unenforceable in English law
Manuel Penades 31
Consideration
Requirements:
▪ A moral duty as support of an express, but gratuitous, promise is insufficient
(unlike “causa” in Spanish law, art. 1274 CC “ánimo de liberalidad”)
▪ Consideration must be present or future, but not past [Roscorla v Thomas], as it
would not be in exchange of a promise (unless the previous act was performed at
the request of the promisor)
OPEN QUESTION: A saves B from drowning, and B later promises A a reward of
£1000. Can A enforce that promise if B does not pay? No, it would be past consider.
Manuel Penades 32
Consideration
Requirements: (contd.)
▪ Consideration must come from the promisee.
→ Privity of contract
▪ Consideration need not be adequate: Courts are not concerned about the
adequacy of the consideration. Nominal consideration is sufficient. The
relevant point is that there is an exchange of value, as this shows the
intention to assume a legal obligation.
BUT consideration must be real (something impossible or inexistent cannot
constitute valid consideration)
Manuel Penades 33
Consideration
Performance of an existing duty
▪ OPEN QUESTION: A contracts B to refurbish her house with a completion
date before Christmas. After some weeks, B communicates to A that he
believes he will not be able to finish on time, but if she pays another £5000
he will be able to. A agrees to the additional amount and B completes the
work before Christmas. A does not pay the additional £5000. Can B enforce
that promise?
In general, no. Performance of an existing duty is not good consideration
(Stilk v Myrick).
▪ Exception: When the promisor receives a practical benefit or obviates a
disbenefit, there will be consideration and the promise will be enforceable
(Williams v Roffey)
Manuel Penades 34
Consideration
▪ Performance of an existing duty is not good consideration (Stilk v Myrick).
▪ Exception: Valid consideration if practical benefit (Williams v Roffey)
▪ Exception to the exception: The practical benefit rule does not apply if the
agreement is to discharge a debt (Foakes v Beer, MWB Business Exchange v Rock
Advertising Ltd and Re Selectmove).
Eg, A owes B £5000 for work already done. A believes he will not be able to pay that
amount. A requests B to accept 50% (£2500) in discharge of the whole debt. B
accepts. Can B then claim against A for the full amount?
Yes. Even if having some money rather than nothing or having it earlier could amount
to practical benefit, there is no consideration in exchange for the reduction of the
debt, and hence it is not enforceable. The original amount remains.
Manuel Penades 35
Consideration
▪ Performance of an existing duty is not good consideration (Stilk v Myrick).
▪ Exception: Valid consideration if practical benefit (Williams v Roffey)
▪ Exception to the exception: The practical benefit rule does not apply if the
agreement is to discharge a debt (Foakes v Beer and Re Selectmove).
Eg, A owes B £5000 for work already done. A believes he will not be able to
pay that amount. A requests B to accept 50% (£2500) in discharge of the
whole debt. A accepts, but then intends to claim against B for the full amount.
Even if having some money rather than nothing or having it earlier could
amount to practical benefits, there is no consideration in exchange for the
reduction of the debt, and hence it is not enforceable. The original amount
remains.
Manuel Penades 36
Consideration
▪ Promissory estoppel
It is an equitable doctrine whereby parties to a transaction who have
conducted their dealings in reliance of an underlying assumption as to a
present, past or future state of affairs or on a promise or representation by
words or conduct, will not be allowed to go back on that assumption, promise
or representation when it would be unfair or unjust to do so.
The court will step in to prevent that a person who has acted upon that
assumption, promise or representation suffers from injustice.
Manuel Penades 37
Consideration
▪ Promissory estoppel
In cases of new agreement in discharge of a debt, even if there is no consideration
and the new agreement is not enforceable, the promisor will be stopped from
enforcing the original agreement in breach of the new one (Central London
Property Trusts v High Trees) → it only applies in alteration promises (Combe v
Combe)
▪ Requirements:
▪ A clear promise (eg., reduction of a debt)
▪ Inequitable to go back on the promise (genuine promise & acted upon/reliance)
▪ Promissory estoppel is only a defence, not a cause of action (Combe v Combe)
Manuel Penades 38
Consideration
▪ Promissory estoppel is only a defence, not a cause of action.
Manuel Penades 39
Consideration
You can watch a summary of consideration
Here and here (under English law)
And here (US law but essentially equivalent concept under English law)
Manuel Penades 41
Factors tending to defeat contractual liability and

the content of the contract
- 21 April 2023 -
DR MANUEL PENADES
Roadmap
▪ Brief recap
▪ Factors that defeat contractual liability
▪ The content of the contract: Incorporation, implication and interpretation of
terms
Manuel Penades 2
Formation of the contract: Requirements
▪ Offer Agreement
▪ Acceptance
▪ Intention to create legal relations Legally relevant / enforceable
▪ [Form]
▪ Consideration Reciprocal undertakings
Manuel Penades 3
Factors tending to defeat
contractual liability
Manuel Penades 4
Factors tending to defeat contractual liability
▪ Incapacity Insufficient ability to form consent
▪ Mistake A party agrees to something other than what she believes
▪ Misrepresentation A party induces the other into error and into the contract
▪ Duress Illegitimate pressure to form contractual consent
▪ Undue influence Abuse of existing relationship to induce a party into the
contract
→ Result: the contract will be void or voidable depending on the case
Manuel Penades 5
Incapacity
▪ English law provides for some limitations to the ability to contract. These
concern:
▪ Public authorities and the Crown
▪ Corporations acting ultra vires and unincorporated corporations
▪ Minors or infants → Moved from 21 to 18 in 1970
In general, a contract concluded by a minor is voidable at the request of the
minor and unenforceable against the minor unless ratified within a
reasonable time after majority. Except contracts for necessaries (section 3
SGA 1979)
Manuel Penades 6
Incapacity
▪ Persons lacking mental capacity (Mental Capacity Act 2005) & drunken persons
▪ A person is assumed to have capacity unless it is proved otherwise
▪ Incapacity is not found in general but on a case-by-case basis (ie, the
inability to make a decision in relation to a concrete matter). Unable to:
▪ Understand the information relevant to the decision,
▪ Retain that information,
▪ Use or weight that information as part of the process to make a decision, or
▪ Communicate his decision
▪ A contract concluded by a person lacking mental capacity or a drunken
person is voidable and is not binding on that person IF it can be shown that
at the time of making the contract the other party was aware of, or ought
to have known about, the incapacity
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Mistake
▪ Definition: “A situation in which one or both of the parties to a contract enter
into it under some misapprehension or misunderstanding but would not have
done so had they known the true position”
▪ In general, a contract entered under mistake is void ab initio
→ English law adopts a very narrow approach to mistake compared to many
European legal systems.
▪ Mistake can refer to:
▪ The terms of the contract
▪ The identity of the other contracting person
▪ The object or subject matter of the contract
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Mistake
▪ Mistake as to the terms of the contract
▪ Offer and acceptance not ad idem (genuine, well intentioned, not negligent
mistake) → The contract is void (Raffles v Wichelhaus)
▪ A party is not bound to disclose all the facts and circumstances which might
affect the bargain (caveat emptor) but is not allowed to snap up the other
party’s mistake (Smith v Hughes).
▪ When there is a written contract, a party can only invoke mistake (non est
factum) if:
▪ a) the contract contains an essentially different transaction in substance, and
▪ b) there is no negligence of the party signing the contract (Saunders v Anglia
Building Society)
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Mistake
▪ Mistake as to the identity of the other contracting party
▪ Mistake as to identity makes the contract void
▪ Contracts at a distance:
▪ The mistake must concern the identity of the other party identified in the contract:
A contracts with B thinking that B is in fact C (Shogun Finance v Hudson) [this
applied to a fraud in a written contract]
▪ It is insufficient if the mistake concerns an attribute of the party (Whittaker v
Campbell) and if the party identified in the correspondence is non-existent (King’s
Norton Metal v Edridge)
▪ Contracts face-to-face (also phone or videoconference):
▪ Mistake as to identity does not operate in general in contracts concluded face-to-
face (Lewis v Averay and Phillips v Brook): In these cases each party is assumed to
have the intention to contract with the person physically present
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Mistake
▪ Mistake as to the subject matter of the contract
▪ Common mistakes as to the subject matter may render the contract void:
▪ Mistake as to the existence of the subject matter: Void (Couturier v Hastie)
▪ Mistake as to the “essence” (essential difference) of the subject matter
which renders the contract “impossible to perform” (Bell v Lever Brothers
and Great Peace Shipping Ltd v Tsavliris (International) Ltd) → Strict
Caveat emptor (the risk is on the buyer) also applies to these cases
▪ Mistake as to a quality of the subject matter: Not void (Leaf v National
Galleries) The case of sleepers.
[Since Great Peace Shipping Ltd the court's equitable jurisdiction to declare a
contract voidable for common mistake has been denied.]
Manuel Penades 12
Misrepresentation
▪ Definition: “a false representation of fact or law made by one party to the other
party before or at the time of making the contract and which induces that party
to enter into the contract”
▪ Misrepresentation is regulated by common law and by the Misrepresentation Act
1967
▪ Misrepresentation renders the contract voidable, not void
Manuel Penades 13
Misrepresentation
▪ Features of an operative misrepresentation
▪ Positive representation by word or conduct (Aprilia v Spice Girls)
▪ Statement of fact, not opinion (Bisset v Wilkinson) (but when the vendor is in
the best position to know the true conditions of the item and has special
knowledge thereof what appears to be an opinion may be deemed a
misstatement of fact: Smith v Land & House Property Corp)
→ An opinion made by an expert in her area is likely to be a misrepresentation
if it is made negligently and with the intention that it be relied upon (Esso
Petroleum Co Ltd v Mardon)
▪ Must induce the party into the contract (relevant reason, not the only reason
→ Edgington v Fitzmaurice)
Manuel Penades 14
Misrepresentation
▪ Types of misrepresentation depending on the severity of the falsehood:
▪ Fraudulent: intentional or reckless (Derry v Peek). The essential ingredient for
fraud is an absence of belief in the truth of the statement made
▪ Negligent: Belief in the truth of the statement made is honestly held but is
unreasonable
▪ Innocent
▪ Remedies might be influenced depending on the type of misrepresentation and
whether the claim is brought in common law or in statue (MRA 1967)
Manuel Penades 15
Misrepresentation
▪ Remedies
▪ Fraudulent and Negligent:
▪ Rescission (voidable). The right to rescind might be lost if: affirmation of the
contract, lapse of time, rights of third parties or inability to make restitutions
▪ + Damages: S 2(1) MRA:
• Claimant needs to prove false statement and inducement to contract
• Shift of the burden of proof: Misrepresentor must disprove negligence
• Measure of damages: foreseeable and unforeseeable [Aim: To put the
misrepresentee into the position it would have been in had it not
entered into the contract]
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Misrepresentation
▪ Remedies (III)
▪ Innocent: Rescission (but s 2(2) MRA as per previous slide) + Indemnity [No
damages]
Manuel Penades 19
Duress
▪ Rule: “a contract that has been induced by unlawful or other illegitimate forms of
pressure or intimation is voidable on the grounds of duress”
▪ The key element is not absence of consent, but the existence of a vice
(illegitimate pressure) in the formation of that consent.
▪ Duress requires illegitimate pressure. Legitimate pressure in commercial dealings
is allowed. Illegitimate pressure can be:
▪ Unlawful (breach of contract, tort or crime)
▪ Lawful (“morally or socially unacceptable” (CTN Cash & Carry))
▪ Pressure can be: on the person, on the object or economic duress.
▪ Result: Voidable from the moment pressure has ceased
Manuel Penades 20
The content of the contract:
Incorporation, implication and
interpretation of terms
Manuel Penades 22
Food for thought (1)
The case of wobbly Ikea chair.
Can you claim against IKEA for an unstable chair when they never committed to
the stability of the chair that they sold to you?
→ Implied terms
Manuel Penades 23
Food for thought (2)
You go to a shopping centre 3 or 4 times a year. Every time you park in the same
parking. The parking contains the following notice next to the paying machine.
A fire occurs in the parking due to the malfunctioning and lack of upkeep of the
lift and your car burns down. The parking company say they are not responsible
for any damage, as explained in the notice. Can you claim liability?
Manuel Penades 24
Food for thought
Questions:
1) Is the clause that excludes liability valid (ie, legal)? Validity of
exemption
2) If you are a consumer, is it unfair? clauses
3) Can you claim that, even if it is valid, you never agreed to the
clause, so you are not bound? Incorporation of
4) Can they claim that the notice was visible next to the machine clauses
and you could have read it and objected to it?
5) Can you claim that, even if it is valid and your are bound by it,
it cannot cover cases where the reason of the damage is Interpretation of
clauses
attributable to the negligence of the parking company?
Manuel Penades 25
Roadmap
▪ Incorporation of terms
▪ Interpretation of terms
▪ Implication of terms
▪ Clauses aiming at excluding or limiting liability
Manuel Penades 27
Incorporation of terms
Manuel Penades 28
Incorporation
A. By signature
B. By notice
C. By course of dealing
D. By general trade practice
Manuel Penades 29
Incorporation by signature
Rule: A term included in a contract signed by a party is in principle binding on that

party (L’Estrange v F Graucob Ltd [1934] 2 KB 394)
In principle, the same applies to electronic contracts (including X in a box: )→
Law Commission, Electronic Commerce (2001) para. 3.37 (but this is not law)
→ Exceptions:
- (1) misrepresentation,
- (2) a plea of non est factum (‘it’s not my deed’), or
- (3) statutory prohibition as unfair term (see later Unfair Contract Terms Act 1977
[for B2B] and Consumer Rights Act 2015 [for B2C]).
Manuel Penades 30
Incorporation by notice
Is a party able to rely on a notice containing terms that were not included in the
main contractual document exchanged by the parties (if any)?
Manuel Penades 31
Roadmap
Manuel Penades 32
Is a party able to rely on a notice containing terms that were not part of the main
contractual document exchanged by parties (if any)?
[There are special rules for clauses that intend to limit or exclude liability → Unfair
Contract Terms Act 1977 (for B2B) and Consumer Rights Act 2015 (for B2C)].
Other types of clauses are:
Eg, “The Company will pay its providers with a 75-day waiting period”
“There will be a £5 charge for each day of delay in returning library books”
Manuel Penades 33
RULE: Actual notice is not required. The party relying on the term must prove
that they did what was reasonably sufficient in the circumstances to bring the
notice to the other party’s attention → Question of fact and case-by-case
analysis
(Some) Factors:
- How visible?
- When could the counterparty see it?
- Was it contained in a contractual document?
- How onerous is it?
Manuel Penades 34
Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2

Lord Denning: ‘In order to give sufficient notice, it would need to be printed in
red ink with a red hand pointing to it - or something equally startling.’
Red hand rule
Manuel Penades 39
Incorporation by course of dealing
It needs to be “regular and consistent” (McCutcheon v David MacBrayne Ltd [1964]

UKHL 4). Some support for the idea that actual knowledge of the term must be
proven.
What is “regular and consistent”? → Depends on the circumstances of the case
Eg.:
- Henry Kendall Ltd v William Lillico Ltd [1969] 2 AC 31: 3/4 times a year for 3
years → Dealing was regular and consistent enough to incorporate the term.
- Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71: 3/4 times in last 5 years →
The course of dealing was not regular and consistent enough.
Manuel Penades 45
Incorporation by general trade practice
British Crane Hire Corporation Ltd v Ipswich Plant Hire Ltd [1973] EWCA Civ 6
Evidence required that it is the habitual practice in the trade and both parties are
of equal bargaining power.
Manuel Penades 46
Interpretation of terms
Manuel Penades 47
Interpretation of terms
Evolution from a stricter to a slightly less strict / contextual approach

A. The literal interpretation:
→ North Eastern Railway Co v Hastings [1900] 1 AC 260, 263, Earl of Halsbury
LC, ‘words of a written instrument must be construed according to their natural
meaning’.
B. The contextual approach:
→ Investors Comp Scheme Ltd v West Bromwich Building Soc [1997] UKHL 28.
Lord Hoffmann. Rule: Words must be construed according to what a
reasonable person would understand in the context at hand, but exclude
evidence of prior negotiation
Manuel Penades 48
Interpretation of terms: The contextual approach
The SC has confirmed the relevance of commercial purpose and the prevalence
of the interpretation that makes more business common sense and fulfils the
commercial purpose of the contract:
- Wood v Capita Insurance Services Ltd [2017] UKSC 24
- Rainy Sky SA v Kookmin Bank [2011] UKSC 50
→ But this only applies when there are two or more possible interpretations. If
the literal interpretation is clear and leaves no doubt, that interpretation will
prevail.
Manuel Penades 52
Interpretation of terms: The contextual approach
The HoL confirmed the exclusion of pre-contractual negotiations from the body of
relevant evidence → Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38
Interpretation must be carried out on the basis of the concluded contract, not
what the parties discussed before the contract. Reasons?
• Avoid increase of costs for litigation and advice
• The aim is to identify what the agreement means, not to discover the real
intention of the parties. Objective interpretation
• Protection of third parties
• General interest in predictability in obtaining advice and adjudicating disputes
Manuel Penades 53
Implication of terms
Manuel Penades 55
Implication of terms
A. Implied terms in law (implied by statute)

B. Implied terms in fact (implied by the court in the circumstances of the case)
Manuel Penades 56
Implication of terms in law (implied by statute)
Credit
Insurance
Leases
Commercial
sales
General
contract law Labour
Agency
See Chitty on Contracts, volume 2,

Consumer for more [Chart by Dr Ewan
Franchises McGaughey, KCL]
Companies
57
Implication of terms in law (implied by statute)
Sales contracts → Sale of Goods Act 1979 [B2B]

▪ s 12, it’s an implied term that the seller has title to the goods, free from charges
▪ s 13, the goods correspond to descriptions and, under s 15, samples of the
goods.
▪ s 14(2) for businesses, goods will be of ‘satisfactory quality’, eg (B2B) in terms of
appearance, safety, durability.
▪ S 14(3) goods sold for a specific purposes will be fit for that purpose
[Other in ss 13-15 Supply of Goods and Services Act 1982]
[Similar in ss 9-11 Consumer Rights Act 2015 for B2C contracts]
Manuel Penades 58
Implication of terms in fact (implied by the court)
The test for implication→ Test of business efficacy (The Moorcock (1889) 14
PD 64)
The ‘officious bystander’ test or the ‘of course’ test:
MacKinnon LJ, ‘If I may quote from an essay which I wrote some years ago, I
then said: “Prima facie that which in any contract is left to be implied and need
not be expressed is something so obvious that it goes without saying; so that,
if, while the parties were making their bargain, an officious bystander were to
suggest some express provision for it in their agreement, they would testily
suppress him with a common ‘Oh, of course!’”’
Manuel Penades 59
The test for implication→ Test of business efficacy (The Moorcock (1889) 14 PD 64)
The aim is not to improve the contract, but to make it operative:
Lord Hoffmann in AG of Belize v Belize Telecom Ltd [2009] UKPC 10: ‘The court has
no power to improve upon the instrument which it is called upon to construe,
whether it be a contract, a statute or articles of association. It cannot introduce
terms to make it fairer or more reasonable. It is concerned only to discover what
the instrument means.
... the implication of the term is not an addition to the instrument. It only spells
out what the instrument means.’
Manuel Penades 60
The test for implication→ Test of business efficacy (The Moorcock (1889) 14 PD 64)
Confirmed in Marks & Spencer plc v BNP Paribas Securities Ltd [2015] UKSC 72:
‘[23] a term can be implied if ‘(i) the reasonable reader is treated as reading the
contract at the time it was made and (ii) he would consider the term to be so
obvious as to go without saying or to be necessary for business efficacy... “[t]he
legal test for the implication of ... a term is ... strict necessity” (Equitable Life),
which he described as a “stringent test”.’
Manuel Penades 61
Is there a general duty to act in good faith? (Like in the US, EU law, most civil law
countries, Canada, NSW (in Australia), and probably NZ and Scotland)
→ NO:
- No duty of good faith in precontractual negotiations (Walford v Miles, HL).
- No duty of good faith in ordinary performance of the contract BUT
Duty of good faith in ‘relational’ long term contracts where a foundation of
honesty is necessary to fulfil reasonable expectations (Yam Seng Pte Ltd v
International Trade Corporation Ltd [2013] EWHC 111).
Manuel Penades 62
Clauses aiming at excluding
or limiting liability
(aka exemption clauses)
Manuel Penades 63
Clauses aiming at excluding or limiting liability
Two main questions:

A. Are they valid? → Unfair terms
1. B2B Contracts: The Unfair Contract Terms Act 1977
2. B2C Contracts: The Consumer Rights Act 2015
B. If so, how are they interpreted?
Manuel Penades 64
Clauses aiming at excluding or limiting liability: Validity
B2B Contracts: The Unfair Contract Terms Act 1977

Some exemption clauses are always void; other are subject to the test of
reasonableness.
Reasonableness is regulated in s 11 and schedule 2 UCTA 1977. Factors:
- S 11(4)(a) resources available for liability (b) how far it is open to get insurance in
light of the circumstances at the time parties entered into the contract
- Sch 2(a) bargaining power, (b) alternatives, (c) transparency, (d) compliance with
conditions practicable, (e) if goods are made to order, etc.
Manuel Penades 65
B2B Contracts: The Unfair Contract Terms Act 1977 → Void

S 2(1) → Liability for negligence for death or personal injury:
‘A person cannot by reference to any contract term or to a notice given to
persons generally or to particular persons exclude or restrict his liability for
death or personal injury resulting from negligence.’
S 6(1) → Liability for the breach of the implied duty that a seller/hirer has good
title to the thing (eg, as per s 12 SGA 1979)
S 10 → Contracts that take away rights in another contract (unless genuine
agreement)
Manuel Penades 66
B2B Contracts: The Unfair Contract Terms Act 1977 → Subject to reasonableness
S 2(2) → Liability for (non personal) loss or damage
S 3 → (1) When someone deals on another’s standard terms, terms that (2)(a)
exempt liability for breach of contract (b) allow a party to (i) perform something
different from what is reasonably expected, (ii) or perform nothing at all
S 6 (1A)→ Liability for breach of implied terms in ss 13-15 SGA 1979 and ors [goods
must match descriptions, samples, be of satisfactory quality and fit for purpose]
S 13→ Terms that restrict the right to claim or remedies available in scenarios of
breach
Manuel Penades 67
B2C Contracts: The Consumer Rights Act 2015

[Ss 31 and 65: similar limitations to those in ss 2 and 6(1) UCTA 1977]
But in addition imposes a general requirement of fairness for every
contractual term (not just exemption clauses) → ss 62-64 CRA 2015
Manuel Penades 68

[Ss 31 and 65: similar limitations to those in ss 2 and 6(1) UCTA 1977]
But in addition imposes a general requirement of fairness for every
contractual term (not just exemption clauses) → ss 62-64 CRA 2015.
Fairness is examined by the court ex officio (s 71 CRA 2015)
Exceptions: The ‘core exception’ (s 64 CRA 2015)
→ Terms which concern the appropriateness of the price or the main subject
matter of the contract are not subject to the fairness requirement as long as
they are prominent and transparent
- This exception must be construed narrowly
Manuel Penades 69

Fairness test→ s 62(4) CRA 2015:
‘A term is unfair if, contrary to the requirement of good faith, it causes a
significant imbalance in the parties’ rights and obligations under the contract to
the detriment of the consumer.’
Effect of unfairness→
- s 62(1): An unfair term of a consumer contract is not binding on the consumer.
- S 62(3): The consumer can rely on the term or notice if she chooses to do so.
Manuel Penades 70
Clauses aiming at excluding or limiting liability: Interpretation
Rule: Interpretation against the interests of the party seeking to benefit from it
→ Contra proferentem = Against the proponent
A. It applies with ‘full rigour’ to clauses excluding liability:
- Canada Steamship Lines Ltd v R [1952] UKPC 1
- Hollier v Rambler Motors (AMC) Ltd [1971] EWCA Civ 12
B. It applies with less rigour to clauses limiting liability:
- Ailsa Craig Fishing Ltd v Malvern Fishing Co Ltd [1981] UKHL 12
Manuel Penades 72
Discharge and breach of contract
- 24 April 2023 -
DR MANUEL PENADES
Structure of the four sessions: English contract law
▪ Timeline of a contract
Content of the
Discharge of
contract
(interpretation and
implication of
breach
terms)
Session 1 Session 2 Session 2 Session 3
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Roadmap
▪ Discharge of the contract
▪ Remedies for breach of contract
▪ Conclusion and overview of English contract law
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Discharge of the contract
Manuel Penades 4
Forms of discharge of a contract
1. Discharge by performance
2. Discharge by agreement
3. Discharge by operation of the law
4. Discharge by frustration
5. Discharge by breach
Manuel Penades 5
Discharge by performance
▪ Full performance → Discharge of the contract

▪ What type of obligation?
▪ Strict contractual obligations: an obligation to achieve a guaranteed result.
▪ Qualified contractual obligations: an obligation to exercise reasonable care
and skill.
Manuel Penades 6

▪ What about partial performance?
▪ Entire obligation contracts: The obligation by the innocent party only arises
after completion of the entire obligation by the other party. Eg.: contract of
carriage, building of a pool, installation of heating, etc.
The party in breach can recover nothing for incomplete performance (Cutter v
Powell) → Rationale: Holding parties to their contracts.
BUT General reticence to construe obligations as entire. The mere payment of
lumpsum in the end is not evidence of entire obligation.
EXCEPTION: [see next slide]
Manuel Penades 7
EXCEPTION:
Doctrine of ‘substantial performance’: The injured party is not discharged from
the obligation to perform (pay), but is protected by a counterclaim or set-off for
any loss which might have been sustained by reason of the incomplete or
defective performance.
Manuel Penades 8

▪ What about partial performance? (contd.)
▪ Contracts with non-entire obligations: Partial performance does not
necessarily give rise to a right to rescind the contract.
The remedy depends on the relevance of the breached obligation (see types of
contract terms in slide 20)
→ If the injured party accepts the partial performance: ‘quantum merit’ action
Manuel Penades 9
Discharge by agreement
▪ A contract can be discharged by agreement of the parties.
Manuel Penades 10
Discharge by operation of the law
▪ A contract can be discharged by operation of the law or a judgment.
Manuel Penades 11
Discharge by frustration
▪Four examples:
▪ Donald Trump v European Union: The effect of tariffs
[Video: Frustration and tariffs]
▪ The effect of Brexit: EMA v Canary Wharf [and comment]
▪ Coronavirus (?)
▪ War: impossibility to perform (e.g., closure of ports, destruction of factories)
Manuel Penades 12
Concept: Supervening external event beyond the control of either party (ie, not self
induced) which renders the performance of the contract impossible or, as a matter
of business, radically different from the contractually stipulated performance
▪ Grounds:
▪ Impossible: In fact [Eg, destruction of the subject matter (Taylor v Caldwell →
hired venue destroyed by fire the day before the event)], or in law [prohibitions
derived from coronavirus?].
▪ As a matter of business, radically different (aka frustration of the adventure): It
has to be real impossibility (eg, deteriorated product, ship no longer seaworthy)
not just more onerous or less lucrative (Davies Contractors v Fareham)
Manuel Penades 13
Davies Contractors v Fareham: A mere rise in cost or expense will not suffice. ‘It
is not hardship or inconvenience or material loss itself which calls the principle of
frustration into play. There must be as well such a change in the significance of
the obligation that the thing undertaken would, if performed, be a different
thing from the contracted for’.
- It arises after the contract is concluded
- It is not attributable to either party
Manuel Penades 14
Effects of frustration:
▪ Common law: The contract is brought to an end forthwith, without more and
automatically:
- Parties are discharged from future obligations.
- Accrued obligations (ie, obligations which were already due at that time)
remain and are left undisturbed [Chandler v Webster]
- If one party has performed and the other has not, the former will be entitled to
restitution if the performance by the latter has ‘totally failed’ [Fibrosa Spolka])
Manuel Penades 15
▪ Common law: This led to partial dissatisfaction as:
- If a party had performed partially, however small, was entitled to keep the
whole payment it had received.
- If a party returned the pre-payment because there had been no
performance at all by that party, but that party had incurred expenses to
prepare the performance (e.g., a builder had bought the materials for the
construction it never started because of the frustrating event), that party
would be at a loss.
Manuel Penades 16
▪ Law Reform (Frustrated Contracts) Act 1943 → Prevention of unjust
enrichment of either party to the contract at the other party’s expense.
Restitution is permitted beyond Fibrosa [s 1(2)]:
▪ If a party has received money and has performed some but not all her part of the
contract in exchange of that money, it can be asked to return part of the money.
▪ If a party has entered into expenses in preparation for the performance of the
contract, the court is able to allow her to retain funds to compensate those expenses
up to the limit of the money paid or payable before the frustrating event.
Manuel Penades 17
Discharge by frustration: Coronavirus and force majeure clauses
The English law of frustration is more stringent than the approach to force
majeure and rebus sic stantibus in Spanish law. These doctrines are not part of
English law. Under English law, force majeure considerations only apply insofar
parties have included them in the contract and only to the extent provided in the
contract → force majeure is a creature of contract and not of the general
common law
The law of frustration (common law) can be displaced by agreement (contract)
Force majeure clauses are contractual clauses which alter parties' obligations
and/or liabilities under a contract when an extraordinary event or circumstance
beyond their control prevents one or all of them from fulfilling those obligations.
Manuel Penades 18
Discharge by frustration: Coronavirus and force majeure clauses
Is Covid-19 a force majeure event?

Construction of the contract → Whether a particular clause relieves a party of
contractual liability will, under English, depend on the precise wording used in the
clause, the allocation of risk between the parties provided for by the contract as a
whole, the circumstances in which the parties entered into the contract, and the
situation that has arisen.
Wording of the clause
- Does it refer to pandemics, acts of government, open clauses (“any other causes
beyond our control”), just “force majeure”, …?
- Does it prevent or simply delay performance?
Manuel Penades 19
Discharge by breach
1. Types of terms of the contract

a) Conditions [by agreement (e.g., when something ‘is of the essence’) or
by statute or by common law (time terms)]
b) Warranties [ancillary terms of the contract]
c) Innominate terms (Hong Kong Fir Shipping) [wedding dress]
Manuel Penades 20
Discharge by breach
2. Types of breach depending on the term breached:

a) Repudiatory breach: Breach of a condition or breach of an innominate term
which produces essential deprivation to the injured party of what it was
entitled to expect under the contract.
Remedies: → Right to terminate the contract or to affirm the contract, PLUS
→ Right to damages to compensate loss
b) Non-repudiatory breach: Breach of a warranty or breach of an innominate

term which does not produce substantial deprivation.
Remedies: → Right to damages to compensate loss
[No right to terminate]
Manuel Penades 21
Remedies for breach of contract
[other than the right to terminate]
Manuel Penades 23
Types of remedies
1. Termination (see earlier slides)

2. Damages
3. Specific performance
4. Injunctions
Manuel Penades 24
Damages for breach of contract
1. The aim of damages: to put the injured party where it would have been had
the contract been performed [expectation loss] (Robinson v Harman).
Compensatory nature (not punitive) [Addis v Gramophone]
Where the innocent party sustains no loss from the breach he is only entitled
to nominal damages (sometimes restitutionary damages AG v Blake)
Manuel Penades 25
2.The type of loss that can be compensated

→ OPEN QUESTION: Can you get damages if you are disappointed by the
holiday you go to?
→ OPEN QUESTION: Can you get compensation if your swimming pool is
slighter shallower than what you had requested?
General rule: Only financial loss can be compensated
Manuel Penades 26
2.The type of loss that can be compensated

General rule: Only financial loss can be compensated. Implications:
- No damage for mental distress. EXCEPTIONS:
losses [EXCEPTION]
- When damage is direct consequence of physical inconvenience produced by

Non-pecuniary
the breach (living in deteriorating circumstances) (Farley v Skinner)

- When the contract is primarily about pleasure (Jarvis v Swam Tours)
BUT not necessarily the only aim (eg, wedding photographer [Diesen v
Samson] and survey of a house near Gatwick [Farley v Skinner])
- No damage for loss of reputation. ONLY when it produces financial loss [Malik
v Bank of Credit and Commerce International]
Manuel Penades 27
3. Requirements (Three):
a) Causation: The party has to prove the relationship (causal link) between the
breaching act and the loss suffered (Victoria Laundry: normal v abnormal
loss)
b) Remoteness: In order to be recoverable, the damage must not be too
remote
Hadley v Baxendale
The Achilleas
1.The natural consequences of breach
2.What could be known by the parties in the specific circumstances of the contract
Manuel Penades 28
OPEN QUESTION:
- Hadley v Baxendale→ H owned a mill; one of the shafts broke. H sent one of
the good shafts as a model to make a new one. B was the carrier of the shaft.
Due to B’s negligence there was delay in the carriage of the shaft which meant
that H could not resume the activity of the mill as it would have done if that
delay had not existed. Was H entitled to compensation for the loss of profit
during the period of delay or just the ordinary losses?
→ Only ordinary losses because B was not aware of the special purpose of the
shaft it had to carry (ie, that it was the only available shaft) BUT if an abnormal
loss was within the parties' actual knowledge at the time of contracting, the
loss of profit would not be too remote and could be recovered
Manuel Penades 29
OPEN QUESTION:
- The Achilleas → A charterer had to redeliver a ship on 2nd May to the owners,
who had arranged a follow-on charter for 8th May. They delivered on 11th May and
the owners were forced to renegotiate the charter for a lower rate, suffering a loss
of $8000/day. The owner asked for the loss of income for the whole duration of the
follow-on charter. The charterers only admitted liability for the 9 days of delay.
Was the injured party entitled to the damages for the reduction of the charter fee
for the whole duration of the charter party, or just for the 9 days of delay in
returning the ship?
→ Just the 9 days
Manuel Penades 30
3. Requirements (Three):[contd.]
c) Mitigation:
The injured party has the duty to take any reasonable steps that are
available to mitigate the extent of the damage caused by the breach (British
Westinghouse Electric)
Manuel Penades 31
Damages for breach of contract [Remember: Aim→ to put
the injured party where it
would have been had the
4. The measure and assessment of damages contract been performed]
Difficulty of calculation is not a ground to refuse damages [Chaplin v Wicks]
Manuel Penades 32
Damages for breach of contract [Remember: Aim→ to put
the injured party where it
would have been had the
4. The measure and assessment of damages contract been performed]
1 1. Loss of gains/profit
+ 2. The performance interest: What would have been received [expectation loss]
2 i. Difference in value (expected – received)
ii. [if unsatisfactory] The cost of cure: Performance by injured party / 3rd party
or
Except: when the cost is disproportionate (Ruxley Electronics v Forsyth) [loss
of amenity/consumer surplus] or the injured party does not intend to cure
3 3. [When claimant is unable to prove the financial benefit it would have obtained
under the contract] Reliance interest: Wasted expenses incurred in
anticipation of the contract or in part performance (Anglia TV v Reed)
Manuel Penades 33
5. Date of the assessment of damages

Damages are valuated taking the date of the breach as the point of reference. BUT
more flexible approach in some recent cases.
OPEN QUESTION:
- The Golden Victory→ A charterer ceased to pay the rates of a charter. The ship owner
reacted to the repudiatory breach and terminated the contract. After that moment but
before it commenced litigation to claim the loss of the remaining rates, war started. War
was an event which would have entitled the charterer to terminate the contract had the
contract still been alive. Should the injured party be entitled to the whole charter rates or
just the amount until the moment of break of war?
→ Only the value of the charter until the break of war
Manuel Penades 34
6. Liquidated damages clauses (v penalty clauses)

English law accepts clauses that calculate ex ante the damages following from a
breach as long as they are a ‘genuine pre-estimate of the loss which seems likely
to be caused if the breach provided should occur’ (Dunlop Pneumatic). Penalty
clauses are not allowed.
The test has relaxed slightly: liquidated damages clauses will be enforced, even if
not a genuine pre-estimate of loss, as long as they are the result of equal
bargaining in a commercial context, protect a legitimate interest of the claimant in
the performance of the contract and are not out of all proportion in doing so
(Makdessi and Parking Eye)
Manuel Penades 35
Specific performance
Ordering the party in breach to perform the breached obligations.

Equitable remedy available when damages are not an appropriate remedy
(Cooperative Insurance Society). Eg: when goods cannot be replaced, sale of
land, contracts with repeated performance (instalments)
Advantages:
- No subject to the mitigation rule
- No need to calculate damages
Limitations. Inappropriate for personal services (enforcement limitations),
contracts that require monitoring, vague obligations.
Manuel Penades 36
Overview of English contract law
Manuel Penades 37
Content of the
Discharge of
contract
(interpretation and
implication of
breach
terms)
Manuel Penades 38
Formation of the contract
1. Offer
2. Acceptance
3. Intention to create legal relations
4. Consideration
5. [Form]
Manuel Penades 39
Content of the
Discharge of
contract
(interpretation and
implication of
breach
terms)
Manuel Penades 40
Factors tending to defeat contractual liability (vitiating factors)
1. Incapacity
2. Mistake
3. Misrepresentation
4. Duress
5. Undue influence
Manuel Penades 41
Content of the
Discharge of
contract
(interpretation and
implication of
breach
terms)
Manuel Penades 42
The content of the contract
1. Incorporation of terms
2. Interpretation of terms
3. Implication of terms
4. Terms aiming at excluding or limiting liability
Manuel Penades 43
Content of the
Discharge of
contract
(interpretation and
implication of
breach
terms)
Manuel Penades 44
The discharge of the contract
1. Discharge by performance
2. Discharge by agreement
3. Discharge by operation of the law
4. Discharge by frustration
5. Discharge by breach
Manuel Penades 45
Remedies for breach of contract
1. Termination
2. Damages
3. Specific performance
4. Injunctions
Manuel Penades 46
Very good summaries: series of videos
Manuel Penades 47
The Tort of Negligence
Introduction to the Common Law – Section II, Session 4

Section II (continued)
Session 1: Negligence: focus on duty of care
Session 2: Criminal law: common law and codification
Session 3: Equity: Trusts/fiduciary duties
Session 4: Land Law: the basics
Session 5: Common Law Constitutionalism: US Fourth Amendment (Search and

Seizure/warrants)
Discuss the law of torts with a focus on law of negligence (the
most frequently used tort).
Objectives:
Today’s 1. Demonstrate development of common law through

the evolution of the duty of care as part of the law
Session of negligence.
2. Develop understanding of modern law of
negligence.
What is a tort?
A civil wrong that gives rise to a remedy.

Usually includes a duty and a breach of that duty that results in harm.
Torts include:
• Trespass
• Nuisance
• Defamation
• Negligence
The Modern Law of Negligence
It is a breach of a legal duty to take care which

results in damage or harm to the plaintiff.
Primary
Elements of 1. Duty of Care
the Tort of 2. Breach of the Duty of Care
Negligence 3. Causation (the Breach results in
damage)
• While specific situations did give rise to
liability but no general principle.
• Instead, depended on the existence of a
Negligence and contract.
Privity of Contract • Courts happy to make defendants pay for

assumed obligations (contract), less willing
to impose a duty to take care.
• E.g. Winterbottom v. Wright (1842) 10
M. & W. 109.
Martinvl, CC BY-SA 4.0
<https://creativecommons.org/licenses/by-
Often utilized as an example of the unjust denial of a remedy
for negligent conduct because of the lack of privity of
contract.
Winterbottom • Plaintiff (Winterbottom) was a mail delivery person.
• Post-Master General contracted Plaintiff (through a
v. Wright third party sub-contractor) to deliver mail.
• Post-Master General also contracted with defendant to
(1842) 10 supply and maintain coach ‘to kept in a fit, proper,
safe, and secure state.’
M&W 109 • Plaintiff was injured after carriage collapses because of
defendant’s disrepair.
• Clear that defendant was negligent
• But defendant not liable to plaintiff because plaintiff
did not have a contract with defendant.
Winterbottom v. Wright (1842) 10 M&W 109
Lord Abinger (114-15):
‘If there had been any ground for such an action there would have been some precedent
of it; but with the exception of actions against innkeepers, and some few other persons, no
case of a similar nature has occurred in practice. That is a strong circumstance, and is of
itself a great authority against its maintenance. It is however contended, that this contract
being made on behalf of the public by the Postmaster-General, no action could be
maintained against him, and therefore the plaintiff must have a remedy against the
defendant. But that is by no means a necessary consequence - he may remediless
altogether. There is no privity of contract between these parties; and if the plaintiff can
sue, every passenger, or even any person passing along the road, who was injured by the
upsetting of the coach, might bring a similar action. Unless we confine the operation of
such contracts as this to the parties who entered into them, the most absurd and
outrageous consequences to which I see no limit could ensue. . . .
Duty of Care
• Established a general responsibility of individual
not to harm through carelessness
• Control mechanism to set limits on the
application of the tort of negligence.
Donoghue v. Stevenson [1932] A. C. 562.
Cases
Developing Anns v. Merton LBC [1978] A. C. 728.
Duty of Care
Caparo v. Dickman [1990] 2 A.C. 605.
The case of the
Snail in the
Bottle:
The Foundation of
a General Duty of
Care
• https://legalheritage.sclqld.org.au/donoghue-v-stevenson-1932-
ac-562
Paisley and
the Queen Thomas Nugent / Queen
Victoria statue
Paisley, Scotland
The Most
Famous Case
in English
Common Law Dear Duty (the 'Snail in
the Bottle' case)
Mandy McIntosh
(b.1967) and Powderhall
Bronze (founded 1989)
The Site of the
Wellmeadow
Cafe
• http://paisleyonline.co.uk/ht
ml/paisley_snail.html
Donoghue v. • Mrs. Donoghue (the Plaintiff) visited the Wellmeadow Café in
Paisley, Scotland, with her friend.
Stevenson: • Mrs. Donoghue’s friend bought her a bottle of ginger beer and
poured most of it into her glass. The bottle was opaque.
the Facts • After drinking the glass of ginger beer, Mrs. Donoghue’s friend
poured the remainder into Mrs. Donoghue’s glass.
• But to everyone’s shock and surprise, the remnants included a
partly decomposed snail.
• Mrs. Donoghue suffered shock and ‘severe gastroenteritis’.
Mrs. Donoghue sued the ginger beer manufacturer,
Stevenson, on the basis that:
1. the manufacturer owed a duty to her as a consumer,
2. to take care that there was no noxious element in
The Claim the goods,
3. the manufacturer neglected to take such care and
therefore breached their duty of care, and
4. was liable for any damage caused by such neglect.
There was no contract between Mrs.
Donoghue and the cafe owner because her
friend purchased the ginger beer.
Bottle was opaque and retailer could not

No Contract see inside bottle.
So Mrs. Donoghue sued the manufacturer

in tort.
Dead Animals
in Ginger Beer
Somewhat surprisingly,
dead animals in ginger beer
bottles were not
uncommon: just 20 days
before Mrs. Donoghue
commenced her case a
decision of the Scottish
appeal judges rejected a
claim for negligence arising
from a ginger beer bottle
containing a decomposing
mouse.
• Pierre Pericard, CC BY-SA 3.0

<https://creativecommons.org/licenses/by-sa/3.0>,
via Wikimedia Commons
Mullen v. A G Barr & Co [1929] S.C. 461.
In the absence of a contractual relationship between the
parties, no duty of care would have been owed by the
manufacturer to the consumer except where:
But not a dangerous
• firstly, the manufacturer knew that the product was
object per se: dangerous as a result of some defect and that fact was
concealed from the purchaser (in which case the
manufacturer would be guilty of negligence or, in
not a ‘nominate’ tort appropriate cases, even fraud); or,
• secondly, where the manufacturer was the producer of
goods which were dangerous per se (the judgments
give the example of explosives) and failed to warn the
purchaser of this fact.
Despite Mullen v. A G Barr & Co, at first
instance, Lord Moncrieff found in favour of
the Plaintiff and held that there was a legal
Donoghue v. right to make a claim even though a
Stevenson: contract was absent.
The Lower But
Courts the Scottish Appeal Court applied Mullen
and held that there was no difference
between a mouse and a snail: the case of
the snail was indistinguishable than the
case of the mouse, and the absence of a
contract was fatal to Mrs. Donoghue’s
claim.
The House of Majority decision in favour
Lords of Mrs. Donoghue.
The Minority (Dissenting) Decision
The minority (Lords Buckmaster and Tomlin) followed the

Winterbottom v. Wright line of authority that required ‘privity’ a
contract between the Plaintiff and Defendant.
Applied Mullin v. Barr on the basis that a snail was

indistinguishable from a mouse: ‘a case indistinguishable from
the present, excepting upon the ground that a mouse is not a
snail ...’
Floodgates
Those opposing duty feared opening the floodgates to litigants.
Lord Buckmaster quotes, approves and endorses Lord Anderson in Mullin v. Barr
when he says:
"In a case like the present where the goods of the defenders are widely
distributed throughout Scotland, it would seem little short of outrageous to
make them responsible to members of the public for the condition of the
contents of every bottle which issues from their works. It is obvious that if
such responsibility attached to the Defenders, they might be called on to
meet claims of damages which they could not possibly investigate or
insure.“
(emphasis added)
The Majority (Lords Atkin, Thankerton
and McMillan) found in favour of Mrs.
The Majority Donoghue and held that the
Defendant was liable in negligence.
The Lead Judgment – Lord Atkin
… in English law there must be and is some general conception of relations, giving rise
to a duty of care, of which the particular cases found in the books are but instances. […]
In this way rules of law arise which limit the range of complainants and the extent of
their remedy. The rule that you are to love your neighbour becomes in law you must not
injure your neighbour; and the lawyer's question "Who is my neighbour?" receives a
restricted reply. You must take reasonable care to avoid acts or omissions which you
can reasonably foresee would be likely to injure your neighbour. Who then in law is my
neighbour? The answer seems to be persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as being so affected
when I am directing my mind to the acts or omissions which are called in question.
Donoghue v. Stevenson [1932] A. C. 562 (pdf 8).
The Lord Atkin: The Neighbour Principle
You must take reasonable care to avoid
‘Neighbour acts or omissions which you can
Principle’ – reasonably foresee would be likely to
injure your neighbour. Who then in law is
not part of my neighbour? The answer seems to be
persons who are so closely and directly
the ratio affected by my act that I ought reasonably
to have them in contemplation as being so
affected.
But other members refrained from adopting
this principle.
Lord Thankerton
Even though no contract, ‘in placing his manufactured article of

drink upon the market, has intentionally so excluded interference
with, or examination of, the article by any intermediate handler of
the goods between himself and the consumer, that he has, of his
own accord, brought himself into direct relationship with the
consumer, with the result that the consumer is entitled to rely
upon the exercise of diligence by the manufacturer to secure that
the article shall not be harmful to the consumer.’
Donoghue v. Stevenson [1932] A. C. 562 (pdf 17).
Lord Macmillan
The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness
only where there is a duty to take care and where failure in that duty has caused damage. In
such circumstances carelessness assumes the legal quality of negligence and entails the
consequences in law of negligence. What then are the circumstances which give rise to this
duty to take care ? In the daily contacts of social and business life human beings are thrown
into or place themselves in an infinite variety of relationships with their fellows and the law
can refer only to the standards of the reasonable man in order to determine whether any
particular relationship gives rise to a duty to take care as between those who stand in that
relationship to each other. The grounds of action may be as various and manifold as human
errancy and the conception of legal responsibility may develop in adaptation to altering social
conditions and standards. The criterion of judgment must adjust and adapt itself to the
changing circumstances of life. The categories of negligence are never closed. The cardinal
principle of liability is that the party complained of should owe to the party complaining a
duty to take care and that the party complaining should be able to prove that he has suffered
damage in consequence of a breach of that duty.
Donoghue v. Stevenson [1932] A. C. 562 (pdf 24)
The Privy Council applied Lord Atkin’s
decision but only in regard to manufacturer’s
liability:
Grant v Australian ‘[Quoting Lord Atkin] “A manufacturer of
products, which he sells in such a form
Knitting Mills Limited as to show that he intends them to
[1935] UKPCHCA 1; reach the ultimate consumer in the form
in which they left him with no
(1935) 54 CLR 49 (21 reasonable possibility of intermediate
examination, and with the knowledge
October 1935) that the absence of reasonable care in
the preparation or putting up of the
products will result in an injury to the
consumer's life or property, owes a duty
to the consumer to take that reasonable
care”’. This statement is in accord with
the opinions expressed by Lord
Thankerton and Lord Macmillan, who in
principle agreed with Lord Atkin.’
Expanded scope of tort of negligence.
The Importance of No longer limited to ‘nominate’ torts.
Donoghue v. Privity of contract was not necessary.

Stevenson
First question was ‘is there a duty’.
The Subsequent Endorsement of the Neighbour
Principle
Beginning in the 1960s English Common Law began utilizing the ‘neighbour
principle’ as the starting point to determine a duty of care:
Hedley Byrne v. Heller and partners [1964] A.C. 465 (financial loss
caused by advertising companies negligent misstatement).
Home office v. Dorset Yacht [1970] A.C. 1004 (juvenile detainees

escaped because of guard’s negligence and caused some damage to
yachts).
Lord Atkin’s ‘neighbour
Affirming the principle’ was endorsed by
the House of Lords in Anns
Neighbour Principle v. London Borough of
Merton [1978] A.C. 728.
Anns v. London Borough of Merton [1978] A.C. 728.
The Borough Council failed to notice that the

foundations for a new block of flats were not
deep enough resulting in the walls of the
apartments cracking. The Plaintiffs had taken
long-term leases over the property and sued
the Council for the cost of rebuilding.
Rejected Limited to ‘Nominate’ Torts
Lead judgment by Lord Wilberforce (with concurrence of

other Law Lords).
‘… in order to establish that a duty of care arises in a
particular situation, it is not necessary to bring the
facts of that situation within those of previous
situations in which a duty of care has been held to
exist’.
Lord Wilberforce applied a two stage
test to determine whether there is a
duty of care.
The General
Duty:
Stage One: Proximity
A 2-stage test
Stage Two - Limiting Factors
Stage One - Proximity
‘is a sufficient relationship of proximity or neighbourhood such

that, in the reasonable contemplation of the former, carelessness
on his part may be likely to cause damage to the latter—in which
case a prima facie duty of care arises.’
(per Lord Wilberforce)
Stage Two - Limiting Factors
‘if the first question is answered affirmatively, it is necessary to

consider whether there are any considerations which ought to
negative, or to reduce or limit the scope of the duty or the class of
person to whom it is owed or the damages to which a breach of it
may give rise’.
(per Lord Wilberforce)
The Presumed Duty of Care
Lord Wilberforce’s test presumed existence of duty of

care leading to expansive liability.
Law Lords had expressed concern about broad imposition

of liability since Donoghue v. Stevenson.
The Retreat from the 2-Stage Test
Because the 2-stage test was seen as too expansive the Courts began to retreat from broad
application of two-stage test:
• Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985]
A.C. 210.
• Leigh and Sillavan Ltd. v. Aliakmon Shipping Co. Ltd. [1986] AC 785.
• Curran v. Northern Ireland Co-ownership Housing Association Ltd. [1987] A.C. 718.
• Council of the Shire of Sutherland v. Heyman (1985) 157 C.L.R. 424.
• Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175.
Overruling Anns as Wrongly Decided
House of Lords utilized 1966 House of Lords Practice

Statement to overrule Anns as wrongly decided.
Murphy v. Brentwood DC, 1991 A.C. 398.
Leading to the modern test for establishing a duty of care.

Caparo v. Dickman [1990] 2
The Modern A.C. 605.
Approach
A case of negligent misstatement.
Caparo Industries Caparo Industries, an investment firm
invested in Fidelity after examining its
PLC. v. Dickman accounts. The accounts were
prepared by Dickman. The accounts
[1990] 2 A.C. 605. indicated that Fidelity was a
significantly profitable enterprise and
accordingly Caparo purchased a third
of its shares. However, the accounts
were wrong and Fidelity was
operating at a loss. Caparo Industries
sued Dickman.
Only Develop Law Incrementally
The Court in Caparo adopted statement Sutherland Shire Council v. Heyman (1985) 60 A.L.R.
1, 43–44 (High Court of Australia) :
“It is preferable, in my view, that the law should develop novel categories of negligence
incrementally and by analogy with established categories, rather than by a massive
extension of a prima facie duty of care restrained only by indefinable ‘considerations
which ought to negative, or to reduce or limit the scope of the duty or the class of
person to whom it is owed.’”
(per Brennan, J., quoting Wilberforce in Anns)
Rejected Single Principle
Rejected as impractical of articulating a single general principle for the

existence of a duty of care.
… not susceptible of any such precise definition as would be necessary to
give them utility as practical tests, but amount in effect to little more than
convenient labels to attach to the features of different specific situations
which, on a detailed examination of all the circumstances, the law
recognises pragmatically as giving rise to a duty of care of a given scope.
Lord Bridge (pdf 4):
First step: Analogy and Precedent
First step is to determine whether there is a closely

analogous precedent.
Look to previous case law ‘to determine the essential

characteristics of a situation giving rise, … to a duty of
care owed by one party to another.’
Caparo (per Lord Bridge, pdf 6)
Winterbottom v. Wright (1842) 10 M&W 109
Lord Abinger (114-15):
‘If there had been any ground for such an action there would have been some
precedent of it; but with the exception of actions against innkeepers, and some few
other persons, no case of a similar nature has occurred in practice. That is a strong
circumstance, and is of itself a great authority against its maintenance.
The Caparo ‘Necessary Ingredients’
Lord Bridge 4-5 (pdf).

What emerges is that, in addition to the foreseeability of damage, necessary ingredients in
any situation giving rise to a duty of care are that there should exist between the party
owing the duty and the party to whom it is owed a relationship characterised by the law as
one of “proximity” or “neighbourhood” and that the situation should be one in which the
court considers it fair, just and reasonable that the law should impose a duty of a given
scope upon the one party for the benefit of the other. But it is implicit in the passages
referred to that the concepts of proximity and fairness embodied in these additional
ingredients are not susceptible of any such precise definition as would be necessary to give
them utility as practical tests, but amount in effect to little more than convenient labels to
attach to the features of different specific situations which, on a detailed examination of all
the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given
scope.
Lord Roskill (pdf 13)
I agree with your Lordships that it has now to be accepted that there is no simple formula or
touchstone to which recourse can be had in order to provide in every case a ready answer to the
questions whether, given certain facts, the law will or will not impose liability for negligence or in
cases where such liability can be shown to exist, determine the extent of that liability. Phrases such
as “foreseeability,” “proximity,” “neighbourhood,” “just and reasonable,” “fairness,”
“voluntary acceptance of risk,” or “voluntary assumption of responsibility” will be
found used from time to time in the different cases. But, as your Lordships have said,
such phrases are not precise definitions. At best they are but labels or phrases descriptive of
the very different factual situations which can exist in particular cases and which must be carefully
examined in each case before it can be pragmatically determined whether a duty of care exists and, if
so, what is the scope and extent of that duty. If this conclusion involves a return to the
traditional categorisation of cases as pointing to the existence and scope of any duty
of care, as my noble and learned friend Lord Bridge of Harwich, suggests, I think this
is infinitely preferable to recourse to somewhat wide generalisations which leave
their practical application matters of difficulty and uncertainty.
Although impossible to articulate a general
test to establish a duty of care in novel
situations provided a framework.
The Caparo Indicia- 1. the damage must be foreseeable,

The Modern Test 2. there must be a proximate
relationship between the parties,
For Negligence 3.
and
it must be fair, just and reasonable
for the court to impose a duty of
care.
The three indicia are facets of the same thing

and are not sequentially considered.
The Damage Objective test: it is what is foreseeable by a
reasonable person.
Must be It must be reasonably foreseeable that the
Foreseeable conduct of the defendant will affect the
particular claimant in the case.
• Closeness of relationship between
defendant and victim
Proximity
• Degree of proximity required depends on
the type of damage suffered.
Murphy v. Brentwood DC [1991] 1. A.C. 398 at
487.
• Depends upon the court’s perception of

what is the reasonable area for the
imposition of liability.
Alcock v. Chief Constable of South Yorkshire
[1992] 1 A.C. 310 at 410.
‘Fair, Just and Policy factors that enable court to determine
the existence of a duty of care.
Reasonable’
Primary
Elements of 1. Duty of Care
the Tort of 2. Breach of the Duty of Care
Negligence 3. Causation (the Breach results in
damage).
Breach of the Duty of Care
To establish a breach:
Defendant’s conduct must fall below the standard of

care required in all the circumstances.
Objective Standard
The standard is objective – reasonableness –

judged by the standard of a reasonable person in
the defendant’s circumstances – being all the
circumstances of the case.
Foreseeability of harm:
• risk must be reasonably foreseeable.
Magnitude of the risk:
Factors • The likelihood of harm
• The seriousness of the consequences (even a small risk
Relevant to but serious consequences increases obligations to take
care)
the Standard Burden of taking precautions:
of Care • cost and practicality – must be proportional to risk and
consequences
Social utility of defendant’s conduct:
• greater social utility less likely to breach duty of care.
Common practice:
• failure to conform to common practice is strong
evidence of negligence whereas conformity with
common practice is good evidence that not negligent.
Causation
Kurt:S, CC BY 2.0
<https://creativecommons.
org/licenses/by/2.0>, via
Wikimedia Commons
Causation
Two issues:
1. Whether defendant’s action or inaction was the
factual cause of loss or injury.
2. Even if loss was caused by defendant's conduct was it
too remote.
‘But For’ test
But for the defendant’s conduct the claimant’s loss would not
have occurred.
Alternatively, would the claimant's loss have occurred in any

event.
Problematic with multiple causes and cases of contributory

negligence.
Other issues: Intervening acts

Remoteness of Damage
Law will deny recovery if loss is a vary unusual result of the defendant’s
conduct.
• To recover the ‘kind of damage’ must be foreseeable.
Hughes v. Lord Advocate [1963] A.C. 837
• The precise ‘way the damage’ is caused need not be reasonably
foreseeable, so long as defendant could reasonably foresee damage of the
relevant kind.
Jolley v. Sutton LBC [2000] 1 W.L.R. 1082.
• The defendant can be held liable for damage even when the damage
caused is greater in extent that was reasonably foreseeable.
Hughes v. Lord Advocate [1963] A.C. 837
The Eggshell Dulieu v. White & Sons, [1901] 2. K.B. 669.
‘if a [person] is negligently run over or otherwise negligently
Skull Rule injured in [their] body, it is not answer to the sufferer’s
claim for damages that [they] would have suffered less
injury, or no injury at all, if [they] had not had an unusually
thin skull or an unusually weak heart.’
The wrongdoer must take his victim as she or he finds her or

him.
Lagden v. O’Conno [2004] 1 A.C. 1067
If interested in the law of torts:
Some Other
Torts –
Paula Glicker
A brief review Tort
Sweet & Maxwell,
London, 7th Ed. 2020
Trespass can take 3 forms:
1. Trespass to the person
Trespass 2. Trespass to land
3. Trespass to goods
Common Characteristics
• Committed intentionally.
• Cause immediate and direct harm.
• Are actionable per se – without proof of damage (but

damage will impact damages awarded).
Trespass to the Person
Trespass to the person includes:
• Battery
• Assault
• False Imprisonment
Battery
Intentional application of force
Immediate bodily contact
Direct injury
Assault Assault is the fear of battery.
Involves:
• Reasonable apprehension of harm

• Defendant intended claimant to
apprehend use of immediate and direct
force against her
Trespass to Property
1. Direct and Unjustifiable interference
2. Intentional act of entry (but not necessarily

intentional trespass)
3. Claimant must have exclusive possession of the

property)
Protects reputation of the claimant.
2 types:
1. Libel: takes a permanent form such
as a written article or photograph
2. Slander: spoken words
Defamation (temporary).
Partly common law and partly

statutory
Causes or likely to cause harm to
reputation
A reasonable person would

Elements of understand that the defamatory
statement referred to the claimant
Defamation
Statement was published to a third

party.
Defences
• Trust (burden on defendant to establish truth).
• Honest opinion (must be an opinion and a basis for the

opinion must be provided).
• Privilege (parliamentary or judicial privilege).

Three types:
1. Private: unlawful interference with a

person’s use or enjoyment of land, or a
right connected to the land
Nuisance 2. Public: materially affects reasonable

comfort and convenience of a significant
number of citizens within a locale or
neighbourhood.
3. Statutory; operation by statute e.g.

Environmental Protection Act 1990.
Private Nuisance
3 Physical injury to land (e.g., by flooding

or noxious fumes)
forms:
Substantial interfere with the enjoyment
of land (e.g., smells, dust, noise).
Encroachment on neighbour land (e.g.,
spreading roots, overhanging branches).
The Rule in
Rylands v. Fletcher (1868) LR 3 HL 330
Strict liability private nuisance.
Strict liability imposes liability even absent negligence or

intent.
Rylands v Fletcher (1868) LR 3 HL 330
In Rylands v Fletcher (1868) LR 3 HL 330, the defendants

employed independent contractors to construct a reservoir on
their land. The contractors found disused mines when digging but
failed to seal them properly. They filled the reservoir with water.
As a result, water flooded through the mineshafts into the
plaintiff’s mines on the adjoining property. The plaintiff secured a
verdict at Liverpool Assizes. The Court of Exchequer Chamber held
the defendant liable and the House of Lords affirmed their
decision.
The Elements of the Rule in Rylands v Fletcher
• The defendant voluntarily brought something onto their land

• That ‘something’ was not naturally on the property (not
ordinary use)
• Something likely to do mischief
• The actual escape of a dangerous substance
An element of foreseeability of damage has been added to the rule:

Cambridge Water Co. v. Eastern Counties Leather Plc [1994] 2 A.C. 264.
Thank you!
Torts (Part II)
Criminal Law (Part I)

In the first part of the Class we will briefly discuss some more
torts (after a quick recap on negligence) and then we will
begin our discussion of the criminal law with a focus on
homicide and self-defence.
Objectives:
1. Attain knowledge of certain torts apart from
Today’s negligence.
2. Develop an understanding of the elements of a
Session crime with a focus on the crime of murder.
3. Demonstrate interaction of Common Law and
Statute in regard to the crime of murder and the
defence of self-defence.
4. Discuss law reform and the Common Law.
The Tort of Negligence
A Recap
Elements of Negligence
Duty of Care
Negligence Breach
Causation
The Duty of Care – Modern Test
1. Is there a closely analogous

precedent?
Duty of Care
Caparo v. Dickman [1990]
2. If no closely analogous
precedent, does the situation
have the ‘necessary ingredients’?
The ‘Necessary Ingredients’
the damage must be
foreseeable
there must be a proximate

Indicia only relationship between the
parties
it must be fair, just and

reasonable for the court to
impose a duty of care.
Breach of the Duty of Care
• Conduct must fall below the standard of care required

in all the circumstances
• It is an objective standard: the standard of a reasonable

person in the defendant’s circumstances
Factors Relevant to Standard of Care
The Standard
of Care -
Factors
Burden of Social utility of

Foreseeability Magnitude of Common
taking defendant’s
of harm the risk: practice
precautions: conduct
The likelihood cost and

of harm practicality
Seriousness of
the
consequences
Causation
Factual cause (‘But for’ test)
Causation
If the cause, is damage too
remote? (the ‘kind of
damage’ must be
foreseeable) ‘kind of damage’
must be foreseeable
Torts Part II -
Other Torts
Trespass
Defamation
Nuisance
Trespass can take 3 forms:
1. Trespass to the person
Trespass 2. Trespass to land
3. Trespass to goods
Common Characteristics
• Committed intentionally.
• Cause immediate and direct harm.
• Actionable per se – without proof of damage (but

damage will impact amount awarded).
Trespass to the Person
Trespass to the person includes:
• Battery
• Assault
• False Imprisonment
Battery
Intentional application of force
Immediate bodily contact
Direct injury
Assault Assault is the fear of battery.
Involves:
• Reasonable apprehension of harm
• Defendant intended claimant to

apprehend use of immediate and
direct force against her
Trespass to Property
1. Direct and unjustifiable interference
2. Intentional act of entry (but not necessarily

intentional trespass)
3. Claimant must have exclusive possession of the

property)
Protects reputation of the claimant.
2 types
1. Libel: takes a permanent form such

as a written article or photograph.
Defamation
2. Slander: spoken words
(temporary).
Partly Common Law and partly statutory.

Causes or likely to cause harm
to reputation
A reasonable person would

Elements of understand that the
Defamation defamatory statement
referred to the claimant
Statement was published to a

third party.
Defences to Defamation
• Truth (burden on defendant to establish truth).
• Honest opinion (must be an opinion and a basis for the

opinion must be provided).
• Privilege (parliamentary or judicial privilege).

Three types:
1. Private: unlawful interference with a

person’s use or enjoyment of land, or a
right connected to the land.
Nuisance 2. Public: materially affects reasonable
comfort and convenience of a significant
number of citizens within a locale or
neighbourhood.
3. Statutory: operation by statute e.g.
Environmental Protection Act 1990.
Private Nuisance
3 Physical injury to land (e.g., by flooding

or noxious fumes)
forms:
Substantial interfere with the enjoyment
of land (e.g., smells, dust, noise).
Encroachment on neighbour land (e.g.,
spreading roots, overhanging branches).
The Rule in
Rylands v. Fletcher (1868) LR 3 HL 330
Strict liability private nuisance.
Strict liability imposes liability even absent negligence or

intent.
Rylands v Fletcher (1868) LR 3 HL 330
In Rylands v Fletcher (1868) LR 3 HL 330, the defendants

employed independent contractors to construct a reservoir on
their land. The contractors found disused mines when digging but
failed to seal them properly. They filled the reservoir with water.
As a result, water flooded through the mineshafts into the
plaintiff’s mines on the adjoining property. The defendant was
liable.
The Elements of the Rule in Rylands v Fletcher
• The defendant voluntarily brought something onto their land.

• That ‘something’ was not naturally on the property (not
ordinary use).
• Something likely to do mischief.
• The actual escape of a dangerous substance.
An element of foreseeability of damage has been added to the rule:

Cambridge Water Co. v. Eastern Counties Leather Plc [1994] 2 A.C. 264.
The Criminal Law:
Homicide and Self-Defence
•V = Victim
•D = Defendant
•R or Regina (or Rex) = the
Definitions Crown (Regina or Rex
mean "queen" or "king" in
latin)
Note: all emphasis is added

• Homicide means the killing of another
human being.
• A person is dead if she or he is irreversibly

‘brain dead’ – the determination of brain
death is left to medical doctors.
Malcherrek and Steel (1981) 73 Cr
Homicide App R 173.
• To shorten life by days is to equally cause

death as shortening a life by years – any
hastening of death is murder (may be an
issue with regard to palliative care).
Homicide may be lawful or unlawful.
Lawful and Unlawful Homicide includes

Unlawful • Murder
Homicide • Manslaughter
Lawful homicide
e.g. Lawful Self-defence – where fatal
force was utilized to defend oneself.
Death must be caused by the act or omission of one or more persons.
To amount to a homicide the Defendant’s act or omission caused the

death of another: there must be a causal link between the act or
omission and death.
Must be a substantial cause of death but does not have to be the sole
or main cause of death.
It must be more than a minimal, negligible or trivial contribution the

death.
R v HM Coroner for Inner London ex parte Douglas-Williams [1999] 1 All ER 344.
Causation (I)
Causation (II)
General test is whether Defendant’s conduct accelerated victim’s

death – it does not matter that merely ‘hastened’ victim’s death.
R v. Dyson (1909) 1 Cr App R 13.
‘But for’ test is starting point – would the consequence of the act
or omission have occurred but for defendant’s conduct (would
she or he have died when they did).
Novus Actus Interveniens
Novus Actus A defendant has not caused death if
Interveniens there was an intervening act -- novus
actus interveniens -- sufficient to
break the chain of causation between
original action and death.
Intervening act must be such that it
supplants the prior act to become sole
legal cause for the purpose of criminal
Intervening liability.
Acts or R. Wallace (Berlinah) [2018] EWCA Crim 690
R v. Kennedy (Simon) [2008- Crim. L. R. 222.
Omissions
May be intervening act of a third
party, an act of the victim or an
unforeseeable natural event,
sometimes called an ‘act of God’.
Intervening Acts of a Third Party
Third party interventions will not break the chain of

causation unless the act was free, deliberate,
informed, voluntary act, which was not reasonably
foreseeable by a reasonable person.
Intervening Acts of a Third Party -- Police
R v Pagett (1983) 76 Cr App R 279
D had armed himself with a shot gun and took a pregnant woman hostage in a block of flats. The police
besieged the building, calling on him to come out, which he eventually did, holding the woman in front of
him as a human shield. D fired at the police officers who returned fire, striking and killing the woman. D was
cause of death, the reasonable actions of a third party, by way of self-defence, could not be regarded as a
novus actus interveniens.
“There can, . . ., be no doubt that a reasonable act performed for the purpose of self-preservation,
being of course itself an act caused by the accused’s own act, does not operate as a novus actus
interveniens… for present purposes, we can see no distinction in principle between an attempt to escape
the consequences of the accused’s act, and a response which takes the form of self-defence against the
act of the accused causes the death of a third party, we can see no reason in principle why the act of
self-defence, being an involuntary act caused by the act of the accused, should relieve the accused from
criminal responsibility fort the death of the third party .”
R v Pagett (1983) 76 Cr App R 279
“There can, . . ., be no doubt that a reasonable act performed for the

purpose of self-preservation, being of course itself an act caused by the
accused’s own act, does not operate as a novus actus interveniens… for
present purposes, we can see no distinction in principle between an
attempt to escape the consequences of the accused’s act, and a response
which takes the form of self-defence against the act of the accused
causes the death of a third party, we can see no reason in principle why
the act of self-defence, being an involuntary act caused by the act of the
accused, should relieve the accused from criminal responsibility fort the
death of the third party .”
Intervening Conduct of the Victim – Escape Cases
If victim dies attempting to escape the defendant, defendant will remain the cause of death if V’s
response to D’s conduct is reasonably foreseeable or a natural result of her or his conduct.
The victim’s conduct must be such that no reasonable person could have foreseen the victim’s
conduct or otherwise within the range of responses of which might be anticipated in the victim’s
situation.
R. v Roberts (1972) 56 Cr App R 95

R v Corbett [1996] Crim LR 594
R v Majoram [2000] Crim LR 372
Intervening Conduct of Victim – Refusal of Treatment
R v Blaue (1975) 61 Cr App R 271.

D had stabbed V who was a Jehovah’s Witness. V needed an immediate blood transfusion but
refused because it was against her religious beliefs. V died.
D appealed on the ground that V’s refusal of treatment had broken the chain of causation.
The court held that he had to take his victim as he found her, meaning not just her physical
condition but also her religious belief.
“It has long been the policy of the law that those who use violence on other people must
take their victims as they find them. This in our judgment means the whole man, not just
the physical man. It does not lie in the mouth of the assailant to say that his victim’s
religious beliefs which inhibited him from accepting certain kinds of treatment were
unreasonable .”
Intervening Medical Treatment (I)
The courts are reluctant, as a matter of policy, to permit D to escape liability

on the basis of V receiving inadequate treatment.
Death resulting from any normal medical treatment employed to as a result

of the criminal injury will be regarded as caused by the criminal injury.
Causation question is whether the acts for which the D was responsible
significantly contributed to V’s death.
R v Warburton and Hubberstry (2006) EWCA Crim. 627
R v Flaherty (2004) All Er (D) 202 (March).
Intervening Medical Treatment (II)
R v Smith (1959) 2 QB 35
D had been involved in a fight with V, a fellow soldier, during the course of which he had
stabbed V several times with a bayonet, which results in V being taken to a medical post
where he had died approximately one hour later. On being convicted of murder D contend
that the chain of causation between the stabbing and the death had been broken by the
way in which V had been treated, in particular the fact that he had been handled roughly
whilst being carried to the medical post, and that there had been a delay in providing V with
treatment because of the number of the other cases being dealt with.
“…only if it can be said that the original wounding is merely the setting in which another
cause operates can it be said that the death did not result from the wound.”
But Palpably Wrong Intervening Medical Treatment
Only in the most extraordinary case will

normal medical treatment designed to repair
the harm done by the attack be regarded as
the cause of death.
R v. Cheshire (1991) 3 All ER 670.
Palpably Wrong Intervening Medical
Treatment
For instance, ‘palpably wrong’ medical treatment will break the chain of causation.
R v Jordan (1956) 40 Cr App R 152.

D had stabbed V, who was admitted to hospital, where he died. D was convicted of
murder, but appealed when new evidence came to light that, whilst in hospital, V
had been given a drug to which he was allergic. The conviction was quashed on the
ground that the medical treatment had been “palpably wrong”; with the result that
it broke the chain of causation between the stabbing and the death.
“ . . . treatment [was] probably wrong and [produced] the symptoms discovered
at the post mortem examination which were the direct and immediate cause of
death, namely, the pneumonia from the conditions of oedema which was
found.”
Murder:
Mens Rea - The Mental Element
Murder involves either the
1. intention to cause death, or

Intention and
Murder 2. intention to cause grievous
bodily harm.
Murder includes the intention to cause grievous bodily
harm (‘GBH’).
GBH is "really serious" harm.

DPP v Smith [1960] 3 W.L.R. 546.
The harm does not have to be either permanent or

Intention to dangerous and that ultimately, the assessment of harm
done is a matter for the jury, applying contemporary
Cause GBH social standards.
Golding [2014] EWCA Crim 889.
GBH includes:
• Life-changing injuries
• significant or sustained medical treatment (for
instance, intensive care or a blood transfusion)
D is liable for murder not only if he or she kills intentionally
but also if he or she kills while intentionally inflicting harm
which the jury considers to have been serious.
D intentionally punches V in the face. The punch breaks

V’s nose and causes V to fall to the ground. It has been
held that a jury is entitled to find that an intentional
punch breaking someone’s nose involves the intentional
GBH infliction of ‘serious’ harm. In falling, V hits his or her
head on the curb causing a massive and fatal brain
haemorrhage. This would be murder if the jury decided
that the harm that D intended the punch to cause (the
broken nose) can be described as ‘serious’.
See UK Law Commission, Murder, Manslaughter and Infanticide, (Law

Com. No. 304), 2006
Intention and Attempted Murder
Attempted murder requires the existence of an intention to kill.
An intention to only cause grievous bodily harm is insufficient for

attempted murder.
R v Grimwood (1962) 3 All ER 285.
The requisite intention to kill can be inferred by the circumstances.

R v Walker and Hayles (1990) 90 Cr App R 226.
Intention is Subjective
The necessary intention exists if the defendant:
• feels sure that death, or serious bodily injury, is a

virtual certainty as a result of the defendant’s
actions, and
• the defendant appreciated that this was the case.

• Complete Defence: Self-Defence –
acquittal
Defences to
Murder • Partial defences: Voluntary
Manslaughter
SELF-DEFENCE
A complete defence to murder – that is not guilty.

(1) The use of force must be necessary.
Elements of (2) The degree of force must be reasonable.
Self-Defence (3) The defendant must be acting in order

to defend himself or another or property.
Two separate legal sources:
Self-Defence:
• Common Law
Sources of • Statute
Law
A source of complication
and confusion.
The Codification of the Common Law
Criminal Law Act 1967, Martin (Anthony) [2001] EWCA Crim

s. 3 2245
1971 2008
1967 2001
Criminal Justice and Immigration

R v. Palmer, 1971 AC 814 Act 2008, s. 76 (as enacted)
At Common Law a person has a
defence if he or she is honestly
defending him or herself or
another from an attack -- using
Common Law Self- reasonable (that is
Defence proportionate) force.
Section 3 (codification of the Common Law):
(1) A person may use such force as is reasonable in the circumstances in the
prevention of crime, or in effecting or assisting in the lawful arrest of offenders or
suspected offenders crime, or in effecting or assisting in the lawful arrest of
offenders or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) above shall replace the rules of the Common Law on the question
when force used for a purpose mentioned in the subsection is justified by that
purpose.
Note: section 3 only applies if a ‘crime’ is involved – technically it does not apply to Self-
Defence against children or mentally incapacitated because they cannot commit a crime –
then only Common Law applies. But same rules apply.
Criminal Law Act 1967

Self-defence is a complete
defence – results in an acquittal.
But force which is excessive or
disproportionate to the needs of
the occasion is unreasonable
Excessive Force force.
Excessive then guilty of murder
absent provocation or other
factors.
But Subjective Honest belief that the force is not
Element excessive:
added Palmer v R, 1971 AC 814
Privy Council decision of a Jamaican case.
D and two brothers went to purchase ‘ganja’ from a
drug dealer’s house. D brought a shotgun with him.
Instead of paying for the ganja D and his associates
decided to run away.
Leading Case - A number of locals pursued D to reclaim the
Palmer v R marijuana, and may have been carrying sticks and
were perhaps throwing stones.
1971 AC 814 D fired a number of times at the pursuers ultimately
killing one of them.
At trial D was convicted and sentenced to death. D
appealed on the basis of self-defence and argued
that if excessive force was used he should only be
convicted of manslaughter.
The Privy Council dismissed his appeal.
Whether reasonable
Reasonable Force force is used is objective.
Honest Belief: Strong presumption that action honestly thought to be
necessary is not disproportionate:
Presumption
Palmer v R 1971 AC 814:
that force is "If there has been an attack so that self defence is
reasonably necessary, it will be recognised that a person
not excessive defending himself cannot weigh to a nicety the exact
measure of his defensive action. If the jury thought that that
in a moment of unexpected anguish a person attacked had
only done what he honestly and instinctively thought
necessary, that would be the most potent evidence that only
reasonable defensive action had been taken ...”
Martin In Martin, the D was being burgled
(Anthony) by two intruders. D fired three
[2001] EWCA shots from his 12-gauge shotgun
Crim 2245. killing one of the intruders and
wounding the other.
It appeared that the burglars
offered no threat of violence to
Martin but conflicting evidence.
Martin: Honest but Mistaken Belief
Lord Woolf CJ:
‘In judging whether the defendant had only used reasonable force, the
jury has to take into account all the circumstances, including the
situation as the defendant honestly believes it to be at the time, when he
was defending himself. It does not matter if the defendant was mistaken
in his belief as long as his belief was genuine.
Jury found that the three shots was an unreasonable amount of force.
Section 76 of Criminal Justice and Immigration Act 2008
(as enacted) codified and put a gloss on the Common
Law of self-defence to include developments articulated
primarily in Palmer.
Criminal Justice and Immigration Act 2008

Explanatory Notes to Criminal Justice and Immigration
Act 2008
Section 76 provides a gloss on the Common Law of self-defence and the defences provided by section 3(1) of
the Criminal Law Act 1967 and section 3(1) of the Criminal Law Act (Northern Ireland) 1967, which relate to the
use of force in the prevention of crime or making an arrest. It is intended to improve understanding of the
practical application of these areas of the law. It uses elements of case law to illustrate how the defence
operates. It does not change the current test that allows the use of reasonable force.
In line with the case law, notably from the leading case of Palmer v R [1971] A.C. 814, the defence will be
available to a person if he honestly believed it was necessary to use force and if the degree of force used was
not disproportionate in the circumstances as he viewed them.
The section reaffirms that a person who uses force is to be judged on the basis of the circumstances as he
perceived them, that in the heat of the moment he will not be expected to have judged exactly what action
was called for, and that a degree of latitude may be given to a person who only did what he honestly and
instinctively thought was necessary. A defendant is entitled to have his actions judged on the basis of his view
of the facts as he honestly believed them to be, even if that belief was mistaken.
The Subjective Element
The circumstances are based on the facts as the accused honestly believed them to
be:
76(3) The question whether the degree of force used by D was reasonable in
the circumstances is to be decided by reference to the circumstances
as D believed them to be, . . .
Honestly and Instinctively
Criminal Justice and Immigration Act 2008, s. 76
(7):
In deciding [whether the degree of force was reasonable] the following
considerations are to be taken into account . . . -
(a)that a person acting for a legitimate purpose may not be able to weigh
to a nicety the exact measure of any necessary action; and
(b)that evidence of a person's having only done what the person honestly
and instinctively thought was necessary for a legitimate purpose
constitutes strong evidence that only reasonable action was taken by
that person for that purpose.
What if D’s Belief is Wrong?
If D’s belief is honest but wrong then not guilty of murder even if unreasonable belief.
76 (4) If D claims to have held a particular belief as regards

the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is
relevant to the question whether D genuinely
held it; but
(b) if it is determined that D did genuinely hold it, D
is entitled to rely on it for the purposes of
subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable
one to have made.
Criminal Law (Part II)
Equity and Trusts (Part I)

We will continue with our discussion of murder and focus on
the defences of self-defence and provocation. We will then
begin to review the fundamentals of trust law.
Objectives:
• Develop knowledge of defences to murder.
• Understand distinction of partial defence of
provocation and complete defence of self-defence.
Today’s • Demonstrate interaction of Common Law and Statute

in regard to the crime of murder and the defences of
Session self-defence and provocation. Discuss law reform and
the Common Law.
• To develop a basic understanding of the different types
of trusts and be able to distinguish between them.
• To establish a basic comprehension of the terminology
used in English trust law.
Criminal Law (Part II)
Homicide Continued:
Grossly Disproportionate Force
Provocation
First: A Recap
Murder and Self-defence

The
Elements of
Murder
Act or Omission Must Cause Death
Factual cause (‘But for’ test) of

death (brain death sufficient)-
conduct accelerated victim’s death.
Causation
Substantial cause of death
(more than minimal, negligible
or trivial but does not have to
be the sole or main cause of
death). amage’ must be
foreseeable
Intervening Acts Can Break Chain of
Causation (but unusual) Third party interventions: only break chain of
causation if free, deliberate, informed, voluntary
act, which was not reasonably foreseeable by a
reasonable person.
Intervening Acts Victim dies attempting to escape: conduct must

be such that no reasonable person could have
foreseen the victim’s conduct or otherwise within
(only break chain of causation if D’s conduct is the range of responses of which might be
mere setting for the death) anticipated in the victim’s situation.
Victim refusal to accept treatment on Religious

grounds: does not break the chain of causation
Intervening Medical Treatment
Medical Treatment that is provided

in the normal course of treatment
does not break the chain of
causation
Medical Treatment
Only palpably wrong treatment
breaks chain of causation
The Mental Element of Murder
1. To Kill
Intention
2. Inflict GBH (serious
bodily harm)
Intention is Subjective
The necessary intention exists if the defendant:
• feels sure that death, or serious bodily injury, is a

virtual certainty as a result of the defendant’s
actions, and
• the defendant appreciated that this was the case.

Self-Defence
is a
Complete
Defence
Elements of Self-Defence
The use of force be reasonable in the

circumstances
The circumstances are the
Self-Defence circumstances that D honestly and

genuinely (even if wrongly) believed
them to be.
Reasonable force is force that is not

disproportionate (but Householder
Cases)
Grossly Disproportionate
Force
The Householder Cases

Disproportionate Force before 2013
Before 2013 the Criminal Justice and Immigration Act 2008

provided that :
76(6) The degree of force used by D is not to be regarded
as having been reasonable in the circumstances as D
believed them to be if it was disproportionate in the
circumstances.
This was a restatement of the Common Law.
Between 1990 and 2005, there were 11
prosecutions of householders for using
force against intruders, and nearly all of
The those were the use of disproportionate
force inflicted after the threat had receded.
Prosecution of
In any event, the British media were
Householders sympathetic to householders who used
force against burglars or trespassers.
Most famous case was Martin (Anthony)
[2001] EWCA Crim 2245.
Law Reform by Media
A 2010 poll for The Sunday Telegraph suggested that 79 per cent of all voters
would support changing the legal test from ‘reasonable force’ to ‘grossly
disproportionate’ force.
Priti Patel, Conservative MP, in The Sunday Telegraph (8 September 2012)
stated that:
Homeowners must be allowed to use force to defend themselves, their
family and property from burglars. It is the burglar who is in the wrong for
violating the home of their victim and families need greater legal
protection so they can be confident defending themselves.
It’s time the criminal justice system stopped treating criminals like victims
and victims like criminals.
Grossly Disproportionate Force and the Householder
Crime and Courts Act 2013 further amended the Criminal Justice and
Immigration Act 2008.
Inserted:
(5A)In a householder case, the degree of force used by D
is not to be regarded as having been reasonable in the
circumstances as D believed them to be if it was grossly
disproportionate in those circumstances.
Interpreting Legislation
Explanatory Notes and Ministry Circulars
The Explanatory notes to the amendment of the Criminal Justice and
Immigration Act 2008 states that:
‘ . . . the use of disproportionate force can be regarded as reasonable in the

circumstances as the accused believed them to be when householders are
acting to protect themselves or others from trespassers in their homes. The
use of grossly disproportionate force would still not be permitted.’
Explanatory Notes
‘ . . . it could be reasonable for
householders to use disproportionate
force to defend themselves from
burglars in their homes.’
Not ‘shall’ or ‘will’!

BUT
Explanatory Notes to the Crime and Courts
Act 2013, para 488 (emphasis added).
‘The provision is designed to give householders greater
latitude in terrifying or extreme situations where they may not
be thinking clearly about the precise level of force that is
necessary to deal with the threat faced.’
According to a Ministry of Justice Circular 2013/02 (para. 11).
Ministry of Justice Circular

‘The effect of s. 76(5A) is not to give
householders carte blanche in the degree of
force they use against intruders in self-
defence. A jury must ultimately determine
BUT whether the householder’s action was
reasonable in the circumstances as he
believed them to be.’
Ministry of Justice Circular 2013/02 (para. 11).
The Wording of the Statute and Intention=Confusion
Suggested that pursuant to the Statute householders can

use:
• reasonable force,
• unreasonable force,
• disproportionate force, and
• excessive force,
But not grossly disproportionate force.

The V entered D’s premises
Denby Collins v. intending to burgle the home. D –
Secretary of a very big man - put him in a
State for Justice headlock resulting in asphyxiation
and death.
[2016] EWHC
33 The Court held that the test is not
whether the force used was
proportionate, disproportionate,
or grossly disproportionate - it is
whether it was reasonable.
Collins: Proportionality and Reasonableness
Section 76(5A), excludes grossly disproportionate force from being

reasonable in householder cases, but says nothing about whether force
that is not grossly disproportionate is reasonable.
The reasonableness of disproportionate force depends on various factors,

including the proportionality of the force to the envisaged threat.
According to the Court, ‘[t]his represents no more than a refinement to the

Common Law on self-defence.’ (para. 34).
Legislation Endorsed Palmer?
‘What is clear, therefore, is that s. 76(5A) provides emphasis to

the full ambit of the Palmer direction now the subject of statutory
endorsement in s. 76(7). That is to say, in deciding whether the
degree of force was reasonable, it is necessary to take into
account the fact that a person acting in self-defence may not be
able to weigh to a nicety the exact measure of any necessary
action; and that evidence of a person having only done what he
honestly and instinctively thought necessary to defend himself
constitutes potent evidence that the force was reasonable.’
The Interpretation of the Legislation
‘ . . . properly construed, provides emphasis to the

requirement to consider all the circumstances permitting
a degree of force to be used on an intruder in householder
cases which is reasonable in all the circumstances
(whether that degree of force was disproportionate or
less than disproportionate). In particular, it does not alter
the test to permit, in all circumstances, the use of
disproportionate force . . .’
According to Blackstone’s
‘…The new provision merely affects the interpretation of
“(un)reasonable in the circumstances” so that force is not
by law automatically unreasonable in householder cases
simply because it is disproportionate provided it is not
grossly disproportionate.’
‘To summarise, on a proper construction of s. 76(5A), its
true meaning and effect is:
i) Whether the degree of force used in any case is
reasonable is to be considered by reference to the
circumstances as the defendant believed them to be
(the Common Law and s. 76(3));
The Collins ii) A householder is not regarded as having acted
reasonably in the circumstances if the degree of force
Summary of used was grossly disproportionate (s. 76(5A));
iii) A degree of force that went completely over the top
the Law prima facie would be grossly disproportionate;
iv) However, a householder may or may not be
regarded as having acted reasonably in the
circumstances if the degree of force used was
disproportionate.’
Para 33.
See also, R v. Ray [2017] EWCA Crim 1391.

The Common Law Reiterated?
‘. . . a householder may or may not be regarded as

having acted reasonably in the circumstances if
the degree of force used was disproportionate.’
A Duty to Retreat?
At Common Law D required to take any safe avenue of retreat, but today D
does not have a ‘duty to retreat’, it is only a factor in the reasonableness of
the use of force. Criminal Justice and Immigration Act 2008 (s. 76(6)).
This means that it must have been reasonable for the defendant to use force,
rather than escape from the threat in some way. In other words if the
defendant could have escaped from the threat peacefully but unreasonably
failed to do so then he will not be able to use the defence.
R v Bird (1985) 81 Cr App R 110.
Pre-emptive Strike
There is no rule in law to say that a person must

wait to be struck first before they may defend
themselves.
R v Deana, (1909) 2 Cr App R 75.
Revenge
The mere fact that a defendant went somewhere to

exact revenge from the victim did not of itself rule out
the possibility that in any violence that ensued, self
defence was necessarily unavailable as defence.
R v Rashford [2005] EWCA Crim 3377
Starting the Fight
But where the defendant initially sought the confrontation:

...A man who is attacked or believes that he is about to be attacked may
use such force as is both necessary and reasonable in order to defend
himself. If that is what he does then he acts lawfully.
It follows that a man who starts the violence, the aggressor, cannot rely
upon self-defence to render his actions lawful. Of course during a fight a
man will not only strike blows, but will defend himself by warding off
blows from his opponent, but if he started the fight, if he volunteered for
it, such actions are not lawful, they are unlawful acts of violence.
• R v Balogun [2000] 1 Archbold News 3
• Voluntary manslaughter – killing
perpetuated with an intent to kill or
cause grievous bodily harm where
legally recognized extenuating
circumstances to reduce charge of
murder to manslaughter.
Manslaughter
• Involuntary manslaughter – no
intent to kill or cause GBH but, e.g.
reckless or gross negligence,
commission of certain dangerous
criminal acts.
Voluntary Manslaughter
Partial defences to murder reduce the offence of murder

to an act of voluntary manslaughter.
• Diminished Responsibility (abnormal mental

functioning)
• Loss of Control (Provocation)
• Killing in pursuance of a suicide pact.
Coroners and Justice Act 2009, s. 54.
Three elements:
Partial 1. Loss of control

Defence - Loss 2. Qualifying trigger
3. a person of D's sex and age, with a
of Control normal degree of tolerance and self-
restraint and in the circumstances of D,
might have reacted in the same or in a
similar way to D.
Only available as to a defence to murder.

The Loss of Control
Subjective test – had D lost self-control.
‘D’s loss of ability to maintain his actions in accordance with

considered judgment or [where] he [or she] had lost normal
powers of reasoning.’
Jewell [2014] EWCA Crim 414, [24]
D so angry unable to restrain themself.

The Objective Standard
Partial defence only applies if:
. . . a person of D's sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of D, might have reacted in the same or in a
similar way to D.
s. 54(1)(c)
The reference to “the circumstances of D” is a reference to all of D's circumstances

but D’s circumstances relating to her general capacity for tolerance and self-
restraint are to be excluded.
Under Common Law, to invoke the defence of
provocation the loss of control must have been
sudden.
Coroners and Justice Act 2009 amended the

Delayed Loss Common Law.
of Control
Section 54(2) provides that ‘it does not matter
whether or not the loss of control was sudden.’
Adopted to address cases of Battered Woman’s

Syndrome.
See, A-G- for Jersey v. Holley [2005] 2 AC 580.
Explanatory Notes
Under the existing Common Law partial defence of provocation, the
courts have held that the loss of self-control must be sudden. Case law
has developed over time to the effect that the partial defence might
still apply though where there was a delay between the provocative
incident and the killing. The length of time between the incident and
the killing does however affect whether there is sufficient evidence of a
loss of self-control for the judge to leave the issue to the jury, and how
readily a jury accepts that the defendant had indeed lost his or her self-
control at the time of the killing. Although subsection (2) in the new
partial defence makes clear that it is not a requirement for the new
partial defence that the loss of self control be sudden, it will remain
open, as at present, for the judge (in deciding whether to leave the
defence to the jury) and the jury (in determining whether the killing
did in fact result from a loss of self-control and whether the other
aspects of the partial defence are satisfied) to take into account any
delay between a relevant incident and the killing.
Second Element – Qualifying Trigger
s. 54 Meaning of “qualifying trigger”

…
(3) … D's loss of self-control was attributable to D's fear of serious violence from V
against D or another identified person.
(4) … D's loss of self-control was attributable to a thing or things done or said (or both)
which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
‘Fear of Serious Violence’
(3) … D's loss of self-control was attributable to D's fear of serious violence from V
against D or another identified person.
May be utilized when D using excessive force in self-defence.
But does not apply where D:
• acted in a considered desire for revenge (s. 54(4)), or
• intended that his actions would provide him with excuse or opportunity to
use violence.
Sense of Being Seriously Wronged by Things Done and
Said
… D's loss of self-control was attributable to a thing or things

done or said (or both) which—
(a) constituted circumstances of an extremely grave
character, and
(b) caused D to have a justifiable sense of being seriously
wronged.
Must be attributable to things done or
Both Grave said of both:
and Seriously
Wronged • An extremely grave character
and
• resulting in a sense of being
seriously wronged.
Objective and Subjective Test
Whether D has a sense of being seriously wronged is a subjective

test assessed with reference to D’s own perceptions.
But
Whether the circumstances were of an extremely grave

character is objective.
Exclusions
54(6) In determining whether a loss of self-control had a

qualifying trigger—
(a) D's fear of serious violence is to be disregarded to the extent
that it was caused by a thing which D incited to be done or
said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is
not justifiable if D incited the thing to be done or said for the
purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity
is to be disregarded.
Killings without intention to kill or cause GBH.
1. Constructive manslaughter – killing in the commission
of a felony.
2. Manslaughter by gross negligence (negligence
Involuntary demonstrating an egregious disregard for the life and
safety of others).
Manslaughter 3. Corporate manslaughter – Corporate Manslaughter
and Corporate Homicide Act 2007.
4. Reckless manslaughter (usually within the ambit of
grossly negligent manslaughter).
The English Common Law of Homicide has developed
over more than 500 years but it has been subject to a
raft of piecemeal legislation over the course of the last
century:
Legislation Infanticide Act 1938

Homicide Act 1957
and the Murder (Abolition of Death Penalty) Act 1965
Criminal Justice Act 1967
Common Law Criminal Justice Act 2003
Criminal Justice and Immigration Act 2008
Coroners and Justice Act 2009
Crime and Courts Act 2013
The interaction of the Common Law and legislation
has resulted in rules of uncertain content.
Rules have been frequently altered so that they
now can not be stated with any certainty or clarity.
Legislative reforms are dated and have been
overtaken by other legal changes.
The law strains to accommodate changing and
Law Reform deepening understandings of the nature and
degree of criminal fault.
• UK Law Commission, Murder, Manslaughter and
Infanticide, (LAW COM No 304), 2006
The UK Law Commission has recommended codifying
the law in regard to intent murder:
We recommend that there should be a new
Homicide Act for England and Wales. The new Act
should replace the Homicide Act 1957. The new Act
should, for the first time, provide clear and
comprehensive definitions of the homicide offences
and the partial defences. In addition, the new Act
Codification? should extend the full defence of duress to the
offences of first degree and second degree murder
and attempted murder, and improve the procedure
for dealing with infanticide cases.
UK Law Commission, Murder, Manslaughter And Infanticide
(LAW COM No 304), 2006
The End of Death!
Equity and Trusts
Part I: An Introduction to Trust Law
Part I - Trusts
The Trust is a
Product of
Initially conceived for property owners
Equity
The • When a property owner (the ‘settlor’)
Traditional • conveyed land (‘trust property’)
Elements of a • to another (‘trustee’)
Trust • for the benefit of another, usually family
(the ‘beneficiaries’).
Definition: ‘Section 1
For the purposes of this Convention, the term trust refers to the
Recognition of legal relationship created – inter vivos* or on death – by a
person, the settlor, when assets have been placed under the
Trusts Act control of a trustee for the benefit of a beneficiary or for a
specified purpose.’
1987
Inter vivos is a Latin phrase which means “while alive” or

“between the living.” This phrase is primarily used in property
law and refers to various legal actions taken by a given person
while still alive, such as giving gifts, creating trusts, or conveying
property.
Public Trusts
Charitable Uses Act 1601.
Charitable trusts are public trusts which benefit the public as a whole in a number of
specified ways such as the relief of poverty, the advancement of education, the propagation
of religion and other purposes which are beneficial to society within the spirit and
intendment of the preamble to the
The Charities Act 2011 creates a fairly detailed list of charitable purposes. This Act creates a
statutory definition of charities for the first time in English law.
Private Trusts
Private trusts exist for the benefit of persons,

or benefit a narrow section of the public, for
instance a gift on trust for the education of
the children of the settlor.
Private Trusts
Express
Resulting Constructive Statutory
(fixed/discretionary)
Express Trusts
(a) the assets constitute a separate fund and are
not a part of the trustee’s own estate;
(b) title to the trust assets stands in the name of
The the trustee or in the name of another person
on behalf of the trustee;
Characteristics (c) the trustee has the power and the duty, in
of an Express respect of which he is accountable, to
• manage, employ or dispose of the assets
Trust in accordance with the terms of the trust
and
• the special duties imposed upon him by
law.
The Settlor’s Role
The ‘settlor’ is the creator of an express trust and decides:

• the form that the trust property may take,
• the interests of the beneficiaries,
• the identity of the beneficiaries,
• the persons who will be appointed trustees,
• and the terms of the trust.
The settlor is the author of the trust but once the trust is created, the settlor,
in the capacity as settlor, loses all control or interest in the trust property.
Creating an Express Trust
A settlor who wishes to create an express trust is required to adopt either of the following
methods:
(a) a self-declaration of trust; or
(b) a transfer of property to the trustees, subject to a direction to hold upon trust for
the beneficiaries.
Milroy v Lord [1862] 31 LJ Ch 798, HC.
The Trustee’s Role
The trustee (or trustees) bears the responsibility of

controlling and managing the trust property solely for the
benefit of the beneficiaries.
The trustee is the representative of the trust.
Trustee’s are not entitled to be paid for their services as

trustees, in the absence of authority.
The Responsibility of the Trustee
The trustee’s responsibility is treated as giving rise

to a fiduciary relationship.
The characteristics of a fiduciary
relationship are a relationship of
confidence, trustworthiness to act for the
benefit of the beneficiary and a duty not to
act for his (the trustee’s) own advantage.
Owing to the opportunities to abuse their
A fiduciary position the rules of equity were
relationship formulated to impose a collection of strict
and rigorous duties on the trustees.
Trustees are liable in their personal
capacity for mismanaging the trust funds
and in extreme cases may be made
bankrupt, should they neglect their duties.
The Role of the Beneficiaries
Beneficiaries may:
• compel the due administration of the trust and are entitled to sue the
trustees and any third party for damages for breach of trust.
• trace the trust property in the hands of third parties to recover the trust
property that was wrongly transferred.
• assign the whole or part of such interest to others.
• terminate the trust by directing the trustees to transfer the legal title to
them, provided that they have attained the age of majority, and are
compos mentis (mentally sound) and absolutely entitled to the trust
property.
The trustee’s interest in the trust
property is a legal interest which comes
with the right to control the property in
compliance with the law.
This refers to a right that attaches to the
relevant property to such an extent that
it is enforceable against the world.
Legal Interests
The legal owner cannot be deprived of
his rights to the property by the fraud of
some third person.
Equitable Interests
The beneficiaries own of the equitable interest in the

trust property.
Moreover, the equitable interest is inviolable against
everyone, except the bona fide transferee of the legal
estate for value without notice of the equitable interest.
Express
Trusts
Discretionary
Fixed Trust
Trust
A fixed trust is one where the beneficiaries have settled and
Express Trusts identifiable interests in the property which they are entitled
to enjoy and protect.
- Fixed trusts
For example:
On trust for A for life, remainder to B absolutely. A
enjoys the interest or income for as long as he lives,
whereas B has a vested interest in the capital or the
entire property subject to A’s interest.
Discretionary trust: the trustees are given a duty to
Express Trusts exercise their discretion in order to distribute the
- Discretionary property in favour of a selected group of persons.
The beneficiaries do not have an individual interest
trusts in the property but have only a hope (‘spes’) of
acquiring an interest in the property, prior to the
exercise of the discretion by the trustees.
A ‘For a period of 21 years from the date of the transfer to
hold on trust to apply the income to such of the settlor’s
Discretionary children as the trustees may decide in their absolute
discretion.’ The settlor’s child or children do not have an
Trust: an interest in the property before the exercise of the
discretion by the trustees, but each potential beneficiary
Example has a standing to sue the trustees for breach of trust in
the event of the trustees improperly exercising their
fiduciary duties.
See Mohamed Ramjohn, Unlocking Equity and Trusts
(Routledge, 5th ed., 2015)
Types of
Discretionary
trust
Discretionary trusts may
be ‘exhaustive’ or ‘non-
exhaustive’.
An ‘exhaustive’
discretionary trust is one
where the trustees are
‘Exhaustive’ required to distribute the
income and/or capital to
Discretionary the objects.
Trust The trustees are given a

discretion to select which
objects may benefit and
the ‘quantum’ of the
benefit.
A ‘non-exhaustive’
discretionary trust is one
where the trustees are not
‘Non- required to distribute the
entirety of the income
Exhaustive’ and/or capital but may
retain or accumulate the
Discretionary relevant property at their
discretion.
Trust
The settlor gives the
trustees the discretion to
distribute the income or
retain it as they feel
appropriate.
‘Non-Exhaustive’ Discretionary Trust: an Example
A settlor transfers £50,000 to trustees, T1 and T2, upon trust to distribute the
income in their discretion in favour of the settlor’s children, A, B and C, as
the trustees may decide in their absolute discretion. At this stage this is an
exhaustive discretionary trust of the income in favour of the children of the
settlor. But if the settlor had inserted in the trust instrument a power to
accumulate the income in the trustees’ discretion, the trust would become
non-exhaustive with regard to the income.
Purpose of Express Trust
asset protection from third-party creditors,
Trusts provide flexibility and control in asset distribution,
can to create a marriage settlement for the benefit of the parties to a marriage and their children,
provide: streamlined asset management upon incapacitation and death,
Fiscal advantage by tax planning,
control/protect beneficiaries from themselves,
minimize probate expenses,
assistance for individuals with special needs without jeopardizing eligibility for public assistance benefits,
to provide for secret beneficiaries after the death of the testator.

Statutory Trusts
Statutory trusts are created by Parliament in special circumstances.

For example:
The Administration of Estates Act 1925 (as amended) created a
statutory trust for the benefit of the deceased’s heirs.
Section 33 of the Trustee Act 1925 created a protective trust, namely
a determinable life interest in favour of the principal beneficiary
coupled with a discretionary trust in favour of a specified class of
objects, including the principal beneficiary, on the occurrence of the
determining event.
Implied Trusts
Resulting and Constructive Trusts

A resulting trust is implied by the court in
favour of the settlor/transferor or his
estate, if she is dead. Such trusts arise by
virtue of the unexpressed or implied
intention of the settlor or testator.
The settlor or his estate becomes the
Resulting beneficial owner under the resulting trust
when no other suitable claimants can be
Trusts found. It is as though the settlor has
retained a residual interest in the property,
albeit one that is implied or created by the
courts.
The trust is created as a result of defective
drafting.
Resulting
Trusts
Presumed Automatic
Resulting Trust Resulting Trust
A presumed ‘resulting trust’ is a trust created
by a courts in accordance with the presumed
intention of the settlor.
The settlor or his estate is presumed to be the
equitable owner.
Presumed It is a rebuttable presumption.
Resulting The ‘presumed’ resulting trust arises, in the
Trusts absence of evidence to the contrary, when
property is purchased in the name of another,
or property is voluntarily transferred to
another.
For example:
B purchases shares and directs the vendor to transfer the
shares (the legal title) in the name of T. T is presumed to
hold the shares on trust for B (the equitable interest).
‘Automatic’ resulting trusts arise where the
beneficial interest in respect of the transfer
of property remains undisposed of – that is,
there is a surplus of trust funds left over
Automatic after the trust purpose has been achieved.
Resulting Trust
Such trusts are created in order to fill a gap
in ownership.
Automatic
Resulting Trust:
An Example
A surplus of trust funds is
left over after the
testator’s pet, the sole
beneficiary, dies. This
surplus is held on resulting
trust for the testator’s
estate.
See, Re Vandervell’s
Trusts (No 2) [1974] 1 All
ER 47 (per Megarry J.)
• A ‘constructive trust’ is one created by the
courts in the interests of justice and
conscience.
• Whenever a trustee abuses the
Constructive confidence of the settlor by realising an
unauthorised profit derived from trust
Trusts property, that profit is held on
constructive trust for the beneficiaries.
• The constructive trust extends beyond
express trustees and may be utilized as a
remedy for a breach of fiduciary duties.
Equity and Trusts (Part II)

• To appreciate the nature of a fiduciary
relationship.
• To understand the development of the equitable
remedies of a duty to account and the
Objectives constructive trust.
Trust Concepts
A Recap
Express Trust: The Basics
Settlor – creates trust by transferring legal title in
Trust property to a separate fund
Trustee holds trust property on trust
for Beneficiaries
The Trustee has the Legal Interest
in the Trust Property.
Equitable
Versus Legal The Beneficiaries have an
Interests Equitable Interest in the Trust
Property.
The trustee’s interest in the trust property is legal:
It is a right that attaches to the relevant property to
such an extent that it is enforceable against the world
and the legal owner (the trustee) cannot be deprived
of their rights to the property by the fraud of some
Legal and third person.
Equitable
A beneficiary’s interest in the trust property is
Interests equitable:
It is a personal right. This means that the beneficiary
has the right to compel the trustee to perform their
duties in accordance with the law and may pursue a
claim against the trustee personally.
The equitable interest is inviolable against everyone,

except the bona fide purchaser of the legal estate for
value without notice of the equitable interest.
Implied Trusts
Resulting and Constructive Trusts

A resulting trust is implied by the court in
favour of the settlor/transferor or their
estate.
Resulting
Such trusts arise by virtue of the
Trusts unexpressed or implied intention of the
settlor or testator.
Resulting
Trusts
Presumed Automatic
Resulting Trust Resulting Trust
Presumed Resulting Trusts
A presumed ‘resulting trust’ is a trust created by a courts

in accordance with the presumed intention of the settlor.
The settlor or their estate is presumed to be the

equitable owner.
It is a rebuttable presumption.
Property Purchased in the Name of Another
The ‘presumed’ resulting trust arises, in the absence of evidence

to the contrary, when property is purchased in the name of
another, or property is voluntarily transferred to another.
For example:
B purchases shares and directs the vendor to transfer the
shares (the legal title) in the name of T.
T is presumed to hold the shares on trust for B (the equitable
interest).
‘Automatic’ resulting trusts arise where the
beneficial interest in respect of the transfer
of property remains undisposed of – that is,
there is a surplus of trust funds left over
after the trust purpose has been achieved –
Automatic a residual interest.
Resulting Trust
Such trusts are created in order to fill a gap
in ownership.
The Residual Interest
The settlor or their estate becomes the beneficial owner of any
residual interest under the resulting trust when no other suitable
claimants can be found.
It is as though the settlor has retained a residual interest in the
property, albeit one that is implied or created by the courts.
The trust is created as a result of defective drafting – e.g. when a will

does not provide for the distribution of the all the deceased’s assets.
A surplus of trust
funds is left over
Automatic after the testator’s
pet, the sole
Resulting beneficiary, dies.
Trust: An This surplus is held
Example on resulting trust
for the testator’s
estate.
See, Re Vandervell’s
Trusts (No 2) [1974] 1 All
ER 47 (per Megarry J.)
Part II – Fiduciary Duties
and Constructive Trusts
A ‘constructive trust’ is one
Constructive created by the courts in the
Trusts interests of justice and
conscience.
Abuse of Confidence/Breach of Fiduciary Duties
• Whenever a trustee abuses the confidence of the settlor

by realising an unauthorised profit derived from trust
property, that profit is held on constructive trust for the
beneficiaries.
• The constructive trust extends beyond express trustees
and may be utilized as a remedy for a breach of
fiduciary duties.
• A fiduciary relationship is a creation of
equity.
• Historically, fiduciary relationships were
drawn by analogy from express trust
Fiduciary relationship where one person holds
Relationships property on behalf of another.
• Developed to apply to analogous
relationship of inherent trust and
confidence.
• Requires high standards of conduct.
Trustees as Fiduciaries
• Trustees are ‘Fiduciaries’.

• They are in a fiduciary relationship with the
beneficiaries of the trust.
• Fiduciaries and fiduciary relationships are not
limited to trusts.
Definitions:
• The person who has a fiduciary duty is called the

fiduciary.
• The person to whom the duty is owed is called the

principal or the beneficiary.
A fiduciary relationship arises where one
The Concept party has assumed to act in relation to the
of a Fiduciary property or affairs of another.
Relationship White v Jones, [1995] 2 A.C. 706
A Fiduciary A ‘fiduciary is someone who has undertaken to
Relationship – act for or on behalf of another in a particular
matter in circumstances which give rise to
Acting On relationship of trust and confidence.’
Behalf of
Another Bristol and West Building Society v Mothew, [1998]
Ch 1 (per Millett LJ)
Approved in FHR European Ventures LLP v Cedar

Capital Partners LLC [2014] UKSC 45, [2015] AC 250,
para 5.
Factors
A court will undertaking by the fiduciary to act for or on behalf of
find a another to procure the best terms for that person,
fiduciary
relationship
reliance by the principal that the fiduciary will act in
if an
their best interest, and
element of:
vulnerability that the fiduciary may be in a position

to negatively affect the interests of that other person.
An Objective Inquiry
‘The inquiry, is an objective one involving the normative question

whether the nature of the relationship is such that one party is
entitled to repose trust and confidence in the other.’
Al Nehayan v. Kent [2018] EWHC 333 (Comm)(per Leggat, J.),

para. 163.
Automatic Fiduciary Relationships
Fiduciary relationships include but are not limited to:

• Lawyer and client
• Principal and agent
• Company directors and company (pursuant to
Companies Act)
The courts will decide whether the
relationship ought to be classified as
fiduciary on the basis of particular
circumstances.
Other
Fiduciary The following have been held to be
Relationships fiduciaries:
• professional advisers
• bank managers
• mortgagees
• doctors
Fiduciary Duties
Duty of Loyalty and Good Faith

• The distinguishing obligation of a
fiduciary is the obligation of loyalty.
• The principal is entitled to the single-

minded loyalty of their fiduciary.
The Duty of • The essential idea is that a person in
Loyalty such a position is not permitted to use
their position for their own private
advantage but is required to act
unselfishly in what they perceive to be
the best interests of their principal.
Fiduciary Duties reflect the defining characteristics of
the fiduciary.
• A fiduciary must act in good faith;
• A fiduciary must not make a profit out of their

trust;
Duty of Good • A fiduciary must not place themself in a

position where their duty and their interest
Faith may conflict;
• A fiduciary may not act for their own benefit or

the benefit of a third person without the
informed consent of the principal.
Bristol and West Building Society v Mothew [1998]
The Duty of Loyalty is often said to comprise 2
rules: the ‘no conflict’ rule and the ‘no profit’ rule.
• The ‘No Profit’ rule: an agent must not make

a profit out of their trust.
‘No Conflict’ • The ‘No Conflict’ rule: an agent must not

place themself in a position in which their
duty and interest may conflict.
and ‘No Profit’
These rules are distinct but overlap. Boardman v
Phipps [1967] 2 AC 46, 123.
The • To preclude the fiduciary from being
Objectives of swayed by considerations of
personal interest.
the Rules
• To preclude the fiduciary from
actually misusing their position for
their personal advantage.
Chan v. Zacharia, (1984) 154 CLR 178, 198 (Deane, J.);
Approved in Don King Productions Inc. v. Warren [2000]
Ch. 291 (CA) at [40], and in Ultraframe (UK) Ltd. v Fielding
[2005] EWHC 1638 (Ch) at [1305] (Lewison J.).
The Remedies
• A duty to account: equitable
for a Breach of compensation.
Fiduciary
Duties
• The imposition of a constructive
trust.
Equitable Compensation & Constructive Trust
Equitable Compensation Constructive Trust

A personal monetary remedy The wrongfully obtained money is
available for loss flowing from held on trust for the beneficiary.
equitable wrongs such as breach It is a proprietary remedy.
of trust, breach of fiduciary
duty and breach of confidence.
The purpose of equitable
compensation is to compensate
the applicant for its loss.
Why is the Distinction Important?
1. If the fiduciary becomes insolvent, a proprietary claim would

effectively give the principal priority over the agent’s unsecured
creditors, whereas the principal would only rank equally, with other
unsecured creditors if they only have a claim for compensation.
2. If the principal has a proprietary claim to the profit precipitated
from the breach by virtue of a constructive trust, they can trace and
follow it in equity, whereas a principal with a right only to equitable
compensation cannot trace it.
See, FHR European Ventures LLP v Cedar Capital Partners LLC
The No-Conflict Rule
Bristol and West Building Society
v Mothew
[1998] Ch 1 (per Millett LJ)

The Facts
• Lawyer acted for both the purchasers and mortgage provider (lender).
• The lender knew and was formally informed that lawyer was acting for
both parties.
• The loan (£59,000) was provided to the lawyer who then provided it to
vendor on behalf of purchaser in completion of transaction.
• Lawyer held funds on trust for building society until completion of the
transaction when funds applied to purchase.
• Lawyer failed to disclose existence of second mortgage.
• Building society (lender) alleged lawyer had committed negligence, breach
of contract and a breach of fiduciary duty.
Note: Judgment divided into Claims at Common Law and Claims in Equity
The Source of Fiduciary Relationships: Equity
The source of a fiduciary duty is to be found in equity rather than the

common law.
‘The common law and equity each developed the duty of care, but
they did so independently of each other and the standard of care
required is not always the same. But they influenced each other,
and today the substance of the resulting obligations is more
significant than their particular historic origin.’
Bristol and West Building Society v Mothew [1998] Ch 1 (per Millett LJ)
Not Every Breach of Duty is a Breach of
Fiduciary Duty
A "fiduciary duty" are those duties which are peculiar to fiduciaries - Not every
breach of a duty by a fiduciary to a beneficiary is a breach of fiduciary duty.
‘The nature of the obligation determines the nature of the breach. The various
obligations of a fiduciary merely reflect different aspects of their core duties of
loyalty and fidelity. Breach of fiduciary obligation, therefore, connotes disloyalty
or infidelity. Mere incompetence is not enough. A servant who loyally does their
incompetent best for their master is not unfaithful and is not guilty of a breach
of fiduciary duty.’
Bristol and West Building Society v Mothew [1998] Ch 1 (per Millett LJ)
• A fiduciary must act in good faith in
the interests of each and must not
act with the intention of furthering
Good Faith the interests of one principal to the
When Two prejudice of those of the other.
Principals
• Fiduciary must not allow the
performance of their obligations to
one principal to be influenced by
their relationship with the other.
No Conflict
Loyalty in this context means being guided solely by the interests

of the principal and not by any consideration of the fiduciary’s
own interests. To promote such decision-making, fiduciaries are
required to act openly and honestly and must not (without the
informed consent of their principal) place themselves in a
position where their own interests or their duty to another party
may conflict with their duty to pursue the interests of their
principal.
Bristol and West Building Society v Mothew, [1998] Ch 1 (per Millett LJ)
Distinction Between Actual and Potential
Conflicts of Interest
• An actual conflict exists when it would be impossible for the
fiduciary to act in the best interests of both parties. It may also
arise when the fiduciary obtains confidential information
pertaining to one party that may be relevant to its objectives.
• A potential conflict of interest is a situation where an actual

conflict may arise in the future but both parties have the same
objective and it is possible for the fiduciary to act in the best
interests of both parties.
Actual Conflict is a Breach of Fiduciary Duty
• The fiduciary must take care not to find themself in a position

where there is an actual conflict of duty so that they cannot
fulfil their obligations to one principal without failing in their
obligations to the other
• If the fiduciary does, they may have no alternative but to cease
to act for at least one and preferably both principals.
• The fact that the fiduciary cannot fulfil their obligations to one
principal without being in breach of their obligations to the
other will not absolve the fiduciary from liability.
• A fiduciary who acts for two principals with potentially
conflicting interests without the informed consent of both
Potential is in breach of the obligation of undivided loyalty; [she]he
puts her/himself in a position where their duty to one
Conflict and principal may conflict with their duty to the other.
• Failure to attain fully informed consent automatically
Informed constitutes a breach of fiduciary duty where there is a
potential conflict of interest.
Consent
In Mothew v. Bristol & West Building Society, the Lender
‘knew that the Defendant was acting for the purchasers when
it instructed him.
Bank was fully informed of conflict and consented so did not
breach conflict rule.
Two Principals: Mothew v. Bristol & West
Building Society
‘[She]He must serve each as faithfully and loyally as if [she]he were
[her]his only principal. Conduct which is in breach of this duty need not
be dishonest but it must be intentional. An unconscious omission
which happens to benefit one principal at the expense of the other
does not constitute a breach of fiduciary duty, though it may
constitute a breach of the duty of skill and care. This is because the
principle which is in play is that the fiduciary must not be inhibited by
the existence of [her]his other employment from serving the interests
of [her]his principal as faithfully and effectively as if [she]he were the
only employer.’
The No-Profit Rule
Misuse of Position/Bribes & Secret Commissions

Misuse of Position
A director as a fiduciary is in violation of their duty of loyalty to the

company if she takes advantage of an opportunity presented to the
corporation that it would otherwise be interested in but was unable to
take advantage.
That is a fiduciary cannot utilize opportunity acquired “by reason of
and in the course of ” executing the fiduciary role for their own benefit
instead of the principal/beneficiary.
Chan v. Zacharia (1984) 154 CLR 178.
Boardman v. Phipps [1966] UKHL 2.
Regal (Hastings) Ltd v. Gulliver [1942] UKHL 1.
Bribes and Secret Commissions
A ‘bribe’ exists when property is received by a fiduciary in order

to perform a service that betrays the trust bestowed on him by
their principal.
The bribe may exist in the form of money or other property

proffered by a third party to the fiduciary without the knowledge
or approval of the principal.
FHR European Ventures LLP v
Cedar Capital Partners LLC
[2014] UKSC 45, [2015] AC 250

The Facts
• This case concerned a bribe of a fiduciary and whether the bribe money
was held on trust for the principal.
• FHR purchased shares in Monte Carlo Grand Hotel from the Vendor.
• The Defendant (Cedar Capital) acted as a consultant for FHR.
• Cedar also acted as the exclusive broker for the Vendor.
• The Vendor paid Cedar €10million commission on completion of the sale.
• Cedar did not disclose commission to FHR.
• Lower court held that €10m was held in a constructive trust for FHR.
• Where a fiduciary acquires a benefit which came
to their notice as a result of their fiduciary
position, or pursuant to an opportunity which
results from their fiduciary position, the
equitable rule is that the fiduciary is to be
treated as having acquired the benefit on behalf
of their principal, so that it is beneficially owned
by the principal.
The Rule • In such cases, the principal has a proprietary

remedy in addition to their personal remedy
against the fiduciary, and the principal can elect
between the two remedies.
• This is sometimes known as the rule in Keech v

Sandford (1726) Sel Cas Ch 61.
Whether benefit – the bribe or commission
is to be treated as having acquired the
benefit on behalf of their principal, so that
it is beneficially owned by the principal (a
The Issue constructive trust is imposed) and subject
to the Rule, or whether only equitable
compensation should be awarded.
Duty to account
Right of equitable compensation: disgorgement of profit.
Liability rises from mere fact that profit is made – fraud,

dishonesty, absence of bona fides is irrelevant. Regal
(Hastings) Ltd v Gulliver (Note) (1942) [1967] 2 AC 134.
Disgorgement is a personal liability.

The Imposition of a Constructive Trust
A constructive trust is imposed “… simply on the principle that an individual shall not
benefit by their own personal fraud … ”.
McCormick v Grogan (1869) LR 4 HL 82 at 97
A breach of fiduciary duties may be remedied by the imposition of a constructive

trust.
Any benefit a trustee or fiduciary receives, or becomes entitled to receive, by
virtue of their position as a trustee or fiduciary is held on constructive trust for
the beneficiary.
Keech v. Sandford, 7 (1726) Sel. Cas. T. King, 61, 25 E.R. 223.
The decision must be based on:
• legal principle and decided
How to Decide cases,
the Issue? • policy considerations, and
• practicalities.
Precedents Followed & Distinguished
Judge began by summarising the effect of many of the cases which touch on
the issue.
‘[i]It is fair to say that in the majority of the cases identified in the
previous five paragraphs it does not appear to have been in dispute that,
if the recipient of the benefit had received it in breach of their fiduciary
duty to the plaintiff, then [she]he held it on trust for the plaintiff. In other
words, it appears to have been tacitly accepted that the Rule applied, so
that the plaintiff was entitled not merely to an equitable account in
respect of the benefit, but to the beneficial ownership of the benefit.’
Precedents Distinguished/Obiter
Cases that found that only a personal remedy existed were

distinguished and/or other potentially relevant statements were
deemed to be obiter:
The Court concluded that ‘the authorities do not preclude us

adopting the respondents’ case in that they do not represent a
clear and consistent line of authority to the contrary effect.
Indeed, we consider that, taken as a whole, the authorities
favour the respondents’ case.’
Legal Principle and Academic Articles
Court then considered an array of academic articles.

Each potential outcome – for and against the imposition of a constructive
trust over bribes and secret commissions – ‘have their supporters and
detractors’.
It is not possible to identify any plainly right or plainly wrong answer to the
issue of the extent of the Rule, as a matter of pure legal authority.
There can clearly be different views as to what requirements have to be
satisfied before a proprietary interest is created.
Arguments Based on Practicality
‘Clarity and simplicity are highly desirable qualities in the

law. Subtle distinctions are sometimes inevitable, but in
the present case . . . there is no plainly right answer, and,
accordingly, in the absence of any other good reason, it
would seem right to opt for the simple answer.’
Policy
Policy considerations also support the case that bribes and secret
commissions received by a fiduciary should be treated as the
property of their principal, rather than merely giving rise to a
claim for equitable compensation:
• bribery is an evil practice which threatens the foundations of
any civilised society,
• secret commissions are also objectionable as they inevitably
tend to undermine trust in the commercial world.
A Constructive Trust Was Imposed
Where the a fiduciary acquired a benefit on behalf of their principal, the

equitable rule is that she/he is to be treated as having so that it is
beneficially owned by the principal.
FHR European Ventures LLP v Cedar Capital Partners LLC [2014] UKSC 45, [2014] 3 W.L.R. 5, para 7.
A constructive trust is the avoidance, by equity, of the consequences of

unconscionable conduct, with respect to trust property, and in relation to (at
least one) beneficiary.
Fiduciary Duties and
Constructive Trusts
A Brief Recap
A Fiduciary Relationship: An Objective Inquiry
Fiduciary acts on behalf of

Principal
Fiduciary relationship
Principal is Entitled to have
Trust and Confidence in
Fiduciary
Fiduciary Duties – A Duty of Loyalty
No Conflict Rule
Duty of
Loyalty/Good Faith
No Profit Rule
Remedies for a Breach of Fiduciary Duty
Equitable
Compensation
Breach of
Fiduciary Duty
Constructive Trust
Equity and Trusts (Part II)
Land Law (Part I)

• To appreciate the nature of a fiduciary
relationship.
• To understand the development of the equitable
remedies of a duty to account ant the
constructive trust.
• To develop a basic understanding of the different
types of interests in land and be able to
distinguish between them.
Objectives • Attain a basic knowledge of leases and landlord’s
obligations.
• Understand nature of land ownership and co-
ownerships.
A Fiduciary A ‘fiduciary is someone who has undertaken to
Relationship – act for or on behalf of another in a particular
matter in circumstances which give rise to
Acting On relationship of trust and confidence.’
Behalf of
Another Bristol and West Building Society v Mothew, [1998]
Approved in FHR European Ventures LLP v Cedar

Capital Partners LLC [2014] UKSC 45, [2015] AC 250,
para 5.
Other Automatic (Per Se) Fiduciary Relationships
Fiduciary relationships include but are not limited to:

• Lawyer and client
• Principal and agent
• Company director and company
Factors
A court will undertaking by the fiduciary to act for or on behalf of
find a another to procure the best terms for that person,
fiduciary
relationship
reliance by the principal that the fiduciary will act in
if an
their best interest, and
element of:
vulnerability that the fiduciary may be in a position

to negatively affect the interests of that other person.
Bristol and West Building Society
v Mothew
[1998] Ch 1 (per Millett LJ)

Equitable Compensation & Constructive Trust
Equitable Compensation Constructive Trust

A personal monetary remedy The wrongfully obtained money is
available for loss flowing from held on trust for the beneficiary.
equitable wrongs such as breach It is a proprietary remedy.
of trust, breach of fiduciary
duty and breach of confidence.
The purpose of equitable
compensation is to compensate
the applicant for its loss.
Why is the Distinction Important?
1. If the fiduciary becomes insolvent, a proprietary claim would

effectively give the principal priority over the agent’s unsecured
creditors, whereas the principal would only rank pari equally, with
other unsecured creditors if they only have a claim for
compensation.
2. If the principal has a proprietary claim to the profit precipitated
from the breach by virtue of a constructive trust, they can trace and
follow it in equity, whereas a principal with a right only to equitable
compensation cannot trace it.
See, FHR European Ventures LLP v Cedar Capital Partners LLC
Land Law (I)
Introduction to the Common Law –
Section II, Session 7
Focuses on interests in ‘Land’:
What is Land • ownership
Law? • use
• access
An ‘estate’ in land is a right to
land that confers use or
possession of land either
indefinitely (freehold) or for a
fixed period (leasehold)
In English law, no one owns

Estates in Land land,
but
those who hold a freehold or
leasehold estate are colloquially
known as owners of land.
Two permissible legal estates in land akin to
ownership.
Law of Property Act 1925, s 1
The only estates in land which are capable of
subsisting or of being conveyed or created at
Legal Estates law are—
in Land (a) An estate in fee simple absolute in
possession [Fee simple or freehold];
(b) A term of years absolute [Leasehold].
These two estates in land can be registered

with their own title.
Freehold: alienable
Fee Simple or right to exclusive
possession forever
Legal Freehold of a piece of land.
Conferred by the landlord
(lessor) on a tenant (lessee).
Key Characteristics:
• Exclusive possession
Leasehold • A certain fixed or periodic
term (the term)
• In consideration of periodic
payments (rent)
Street V. ‘To constitute a tenancy the occupier must be
granted exclusive possession for a fixed or
Mountford periodic term certain in consideration of a
[1985] 2 All premium or periodical payments. The grant
may be express, or may be inferred where the
ER 289 (per owner accepts weekly or other periodical
Lord payments from the occupier.’
Templeman)
The Leasehold Interest – Exclusive Possession
The leasehold interest akin to freehold – exclusive possession but

for only a limited time.
A tenant is ‘able to exercise the rights of an owner of land which
is in the real sense their land, albeit temporarily and subject to
certain restrictions’.
Exclusive possession is the touchstone issue; tenant has right to
deny access to strangers and even landlord (subject to tenancy
agreement).
A lease grants the leaseholder and enforceable right in the
property.
The Label of the Relationship
The label the parties give to their agreement (lease or licence) is

not determinative: it is the terms, content and nature of the
agreement that determines whether it is a licence or a lease.
Antonaides v. Villiers [1990] 1 AC 417 (per Lord Templeman): ‘a
cat does not become a dog because the parties have agreed to
call it a dog.’
Accordingly, parties cannot contract out of their legal stateatus

and agree to render the rights of a tenant to be anything less than
an ordinary tenant.
Street V. Mountford [1985] 2 All ER 289 (per Lord Templeman)
Lease: A Fixed or Periodic Term
An ascertainable period must be included in the lease.
Terms conditional on the happening of an event (e.g

Australia winning the World Cup) is not valid.
If no exclusive possession simply a
licence.
Licence Licensees may have a right to

Distinguished occupation (e.g. students in university
accommodation or residents in a care
from a Lease home) but no right to exclude others.
Mehta v. Royal Bank of Scotland
(2000) 32 HLR 45.
It is not a legal interest in land.

‘A licence in connection with land while entitling the
licensee to use the land for the purposes authorised by the
Licence: licence does not create an estate in the land.’
not an Estate Street V. Mountford [1985] 2 All ER 289 (per Lord

Templeman)
in Land
The label the parties give to their agreement (lease or
licence) is not determinative: it is the terms, content and
nature of the agreement that determines whether it is a
licence or a lease.
• Quiet enjoyment
Implied • Covenant against derogation from
the grant
Obligations of • Repair, maintenance and general
the Landlord amenity
Quiet enjoyment
Landlord has a duty not to interfere physically with

tenant’s expected use of the land, or to interfere
substantially with tenant’s enjoyment of the land).
• Southwark LBC v. Mills [1999] 3 WLR 939
Covenant against derogation from the grant
That is landlord cannot engage in conduct

inconsistent with the purpose of the lease or
undermines the exercise of that purpose.
Harmer v. Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch. 200.
Repair, Maintenance and General
Amenity
Implied condition of fitness for human habitation

at commencement of lease.
Smith v. Marrable (1843) 11 M&W 5
But minimal standard only – courts impose only

bare minimum on landlords to repair.
Land Law
Introduction to the Common Law –
Section II, Session 8
Objectives
• To develop a basic understanding of the different types of interests in

land and be able to distinguish between them.
• Attain a basic knowledge of leases and landlord’s obligations.
• Understand nature of land ownership and co-ownerships.
• Develop knowledge and comprehension of principles of registration.

Focuses on interests in ‘Land’:
What is Land • ownership
Law? • use
• access
What is ‘property’?
What is ‘land’?
Fixtures & Chattels

Fixtures and Chattels
• Fixtures: are part of the land and cannot be removed in a

conveyance. They run with the land and belong to the
landowner.
• Chattels: are personal effects of the owner that can be

removed. They are separate from the land and ownership is
independent of who owns the land and do not change hands
when the land is sold.
What is ‘property’ and what is ‘land’.
Section 62 Law of Property Act 1925:

A conveyance of land shall be deemed to include
Fixtures are and shall by virtue of this Act operate to convey,
with the land, all buildings, erections, fixtures,
part of the commons, hedges, ditches, fences, ways, waters,
water-courses, liberties, privileges, easements,
Land rights, and advantages whatsoever, appertaining or
reputed to appertain to the land, or any part thereof,
or, at the time of conveyance, demised, occupied, or
enjoyed with, or reputed or known as part or parcel
of or appurtenant to the land or any part thereof.
Elitestone Ltd v Morris
[1997] 1 WLR 687, HL
The Bungalow
• Case concerned whether or not a bungalow
became part and parcel of the land itself.
• The bungalow rested on its own weight
(unattached) on concrete pillars.
• But it is not a portacabin (photo), or mobile
home.
• The bungalow could not be taken down and
simply reinstalled elsewhere. It could only
be removed by a process of demolition.
Distinguishing between Fixtures and Chattels
1. Degree of annexation – the extent to which object

was annexed to the property.
2. Purpose of annexation: why was the object attached
to the property.
Elitestone Ltd v Morris [1997] 1 WLR 687, HL

Whether an object is sufficiently attached
to the land is case-specific.
The Degree of
Annexation If an object is not bolted or nailed down or
otherwise affixed but rests on its own
weight then it is likely to be a chattel.
If an object is affixed to the land and removal would damage the
object or the surrounding land then it is likely to be deemed a
fixture or part of the land (‘merged with the land’).
‘If a structure can only be enjoyed in situ, and is such that it
cannot be removed in whole or in sections to another site, there
is at least a strong inference that the purpose of placing the
structure on the original site was that it should form part of the
realty at that site, and therefore cease to be a chattel.’
Elitestone Ltd v Morris [1997] 1 WLR 687, HL
Demolition of the Object

If the item viewed objectively is intended to be
permanent and to afford a lasting improvement to
the building, the item is a fixture.
If the attachment is temporary and is no more than is

necessary for the item to be used and enjoyed, then
it is a chattel.
The Purpose Elitestone Ltd v Morris [1997] 1 WLR 687, HL
of Annexation Whether the installation of the object would in

ordinary circumstances have been intended to be a
permanent accretion to, or improvement of, the land
or if it is only a temporary addition to the building or
landscape.
Botham v. TSB Bank Plc. (1997) 73 P. & C.R. D1.
The two tests are applied but the
overriding objective or purpose of the
Paramount item will likely be definitive.
Test - The
What is the dominant purpose is a
Overriding question of fact.
Purpose
Berkley v Poulett [1976] EWCA Civ
1 Court of Appeal
Hamp v. Bygrove (1983) 266 E.G.

720.
Object or Purpose of Annexation is the Key
Berkley v Poulett [1976] EWCA Civ 1 Court of Appeal (Scarman L.J.)

The disputed items consisted of several valuable paintings which were set
into oak panelling, a large marble statue of a Greek athlete which weighed
half a tonne and rested on its own weight on a stone plinth on the west
lawn and a large sundial also resting on its own weight outside the south
wing. It was held that he items were chattels.
Scarman LJ indicated that the purpose of annexation has greater
significance than the degree of annexation. The paintings were affixed for
the better enjoyment of them as paintings and the statue and sundials
were also placed for the better enjoyment as chattels.
Berkley v Poulett [1976] EWCA Civ 1 Court of Appeal (Scarman L.J.)
‘If the purpose of the annexation be for the better

enjoyment of the object itself, it may remain a chattel,
notwithstanding a high degree of physical annexation.
…. so great are the technical skills of affixing and
removing objects to land or buildings that the second test
is more likely than the first to be decisive. Perhaps the
enduring significance of the first test is a reminder that
there must be some degree of physical annexation before
a chattel can be treated as part of the realty.’
Hamp v. Bygrove (1983) 266 E.G. 720.
Several stone garden gnomes and heavy furniture that rested by their own
weight in the garden but were strategically placed to enhance the aesthetic
appeal of the land. Some were removed prior to completion of the sale.
It was held that the first test to be applied was the traditional test with regards
to the degree of annexation to the property and the purpose of this annexation.
However, it was also held that whilst both of the elements in these tests
remained valid, the paramount test in a modern context related to the purpose
of the annexation. This was necessarily a question of fact.
The Garden Gnomes were Fixtures
Court held that stone garden ornaments were fixtures because:

1. the items were all mentioned in the agent’s particulars (the marketing
material);
2. during the negotiations the seller had offered to exclude them and reduce
the price (the suggestion was not followed up but showed that the seller
thought they were part of the property); and
3. seller had authorised his solicitors to state that the ‘garden furniture’ was
included in the sale and the items were still on the land at that time.
Hamp v. Bygrove (1983) 266 E.G. 720.
Examples of Chattels:
• Mobile homes or portacabins (portable buildings).

Wessex Reserved Forest and Cadets Association v.
White [2005] EWCA Civ 1774
• Kitchen appliances resting on their own weight (even though

connected electronically and integrated into the kitchen).
Botham v. TSB Bank Plc. (1997) 73 P. & C.R. D1.
Examples of Fixtures:
• Airconditioning equipment was cut into the walls and bolted into place.
Aircool Installations v. British Telecommunications [1995] C. L.
Y. 821.
• A conservatory on a brick foundation attached to the main dwelling

separated by windows.
Buckland v Butterfield (1820) 129 E.R. 878.
But cf.
A greenhouse that rested on a concrete base was held to be a chattel.
Dean v. Andrews (1985) 135 N.L. J. 728.
Estates in Land
An ‘estate’ in land is a right to
land that confers exclusive
possession of land either:
• indefinitely (freehold), or
Freehold and • fixed period (leasehold)
Leasehold
In English law, no one owns
land,
but
those who hold a freehold or
leasehold estate are colloquially
known as owners of land.
Two permissible legal estates in land akin to
ownership.
Law of Property Act 1925, s 1
The only estates in land which are capable of
subsisting or of being conveyed or created at law
are—
(a) An estate in fee simple absolute in
Legal Estates possession [Fee simple or freehold];
(b) A term of years absolute [Leasehold].
in Land
These two estates in land can be registered
with their own title.
Distinct from legal interests which are lesser

rights which falls short of possession.
Fee Simple or
Legal Freehold
Freehold: alienable right to
exclusive possession forever of
a piece of land.
Leasehold
Conferred by the landlord (lessor) on a tenant (lessee).
Key Characteristics:
• Exclusive possession
• A certain fixed or periodic term (the term)
• In consideration of periodic payments (rent)
Street v. Mountford
[1985] 2 All ER 289
The Facts – the Distinction between a Lease and a
License
• Landowner gave Mrs. Mountford a right to occupy two rooms.

• Payment of £37 per week.
• Subject to termination by 14 days notice.
• Agreement provided Mrs. Mountford with exclusive possession.
• Question was whether the agreement was a licence or a lease.
• If it is a lease, Mrs. Mountford has rights pursuant to Rents Act,
if a licence no rights pursuant to Rents Act.
Exclusive ‘To constitute a tenancy the occupier must be
granted exclusive possession for a fixed or
Possession periodic term certain in consideration of a
or premium or periodical payments. The grant
may be express, or may be inferred where the
Fixed or owner accepts weekly or other periodical
Periodic Term payments from the occupier.’
Street v. Mountford [1985] 2 All ER 289 (per Lord
Templeman)
Lease: A Fixed or Periodic Term
An ascertainable period must be included in the lease.
A term conditional on the happening of an event (e.g

Australia winning the World Cup) do not validly create a
lease.
The Leasehold Interest – Exclusive Possession
The leasehold interest akin to freehold – exclusive possession but

for only a limited time.
A tenant is ‘able to exercise the rights of an owner of land which is in the

real sense [their] land, albeit temporarily and subject to certain
restrictions’.
Street v. Mountford [1985] 2 All ER 289 (per Lord Templeman)
Exclusive Possession is Definitive
Exclusive possession is the touchstone issue.
Tenant has right to deny access to strangers and even landlord

(subject to tenancy agreement).
A lease grants the leaseholder an enforceable right in the

property.
If no exclusive possession simply a
licence.
Licence Licensees may have a right to

Distinguished occupation (e.g. students in university
from a Lease accommodation or residents in a care
home) but no right to exclude others.
Mehta v. Royal Bank of Scotland (2000) 32 HLR
45.
It is not a legal interest in land.

Licence:
not an Estate in Land
‘A licence in connection with land while entitling the

licensee to use the land for the purposes authorised by
the licence does not create an estate in the land.’
Street v. Mountford [1985] 2 All ER 289 (per Lord Templeman)
The Label of the Relationship
The label the parties give to their agreement (lease or licence) is

not determinative: it is the terms, content and nature of the
agreement that determines whether it is a licence or a lease.
Antonaides v. Villiers [1990] 1 AC 417 (per Lord Templeman): ‘a
cat does not become a dog because the parties have agreed to
call it a dog.’
Contracting Out of a Legal Estate
Parties cannot contract out of their legal status and agree to render the
rights of a tenant to be anything less than an ordinary tenant.
Words alone do not suffice. Parties cannot turn a tenancy into a

licence merely by calling it one. The circumstances and the conduct of
the parties show that what was intended was that the occupier
should be granted exclusive possession at a rent for a term with a
corresponding interest in the land which created a tenancy.
` Street v. Mountford [1985] 2 All ER 289 (per Lord Templeman)
• Quiet enjoyment
Implied • Covenant against derogation from
the grant
Obligations of • Repair, maintenance and general
the Landlord amenity
Quiet Enjoyment
Landlord has a duty not to interfere physically with

tenant’s expected use of the land, or to interfere
substantially with tenant’s enjoyment of the land).
Southwark LBC v. Mills [1999] 3 WLR 939
Covenant Against Derogation from the Grant
That is landlord cannot engage in conduct

inconsistent with the purpose of the lease or
undermines the exercise of that purpose.
Harmer v. Jumbil (Nigeria) Tin Areas Ltd [1921] 1 Ch. 200.
Repair, Maintenance and General
Amenity
Implied condition of fitness for human habitation

at commencement of lease.
Smith v. Marrable (1843) 11 M&W 5
But minimal standard only – courts impose only

bare minimum on landlords to repair.
Ownership of Land
Sole Ownership and Multiple Owners

Two forms of co-
Co-Ownership of an ownership:
Estate in Land 1. joint tenancy
2. tenancy in common
A Joint Tenancy necessarily
requires the ‘four unities’:
1. Possession
2. Interest
3. Title
Joint Tenancy 4. Time
A. G. Securities v. Vaughan
[1990] 1 A.C. 417
Joint Tenancy: Possession
Each joint tenant enjoys possession of all the land.

No joint tenant can section off part of the land to the exclusion of
other joint tenants.
For example:
A tenancy where the co-tenants have the exclusive possession
of separate bedrooms is not a joint tenancy.
A. G. Securities v. Vaughan [1990] 1 A.C. 417
Joint Tenancy: Interest
Each joint tenant is wholly entitled to the whole.
The interest of each joint tenant is exactly the same as to

extent, interest and duration (thus no one tenant can act
by herself to, for instance, surrender a lease).
Joint Tenancy: Title
Each joint tenant derives their title from the same

instrument.
Joint Tenancy: Time
Each joint tenant’s interest must have vested

at the same time.
Joint Tenancy: Survivorship
The distinguishing feature of the joint tenancy is the

operation of survivorship on the death of a joint tenant.
The right of survivorship provides that upon the death of one

of the joint tenants the estate automatically passes to the
survivor/s.
No part of the land enters the deceased joint tenant’s estate.

No right to survivorship – each share
is defined, finite and fixed.
Tenancies in
Common Only one unity required: unity of
possession - shared right to possess
the land.
Tenants in common hold ‘undivided shares’
• Tenants in common hold what are described as ‘undivided shares’

in the land analogous to a company.
• Tenants in common have a separate interest which can be

alienated or bequeathed.
• But the interest is not assigned to any portion of the land – if

separate and distinct units of land then separate ownership.
Quiet Possession of Tenants in Common
Each tenant in common has right to quiet enjoyment and no

tenant in common can exclude other tenants in common or
demarcate boundaries.
Bull v. Bull [1955] 1 QB 234.
Thus, no trespass between tenants-in-common.

Jacob v Seward (1872) LR 5 HL 464.
A right which permits use of land owned by
another.
Easements can be positive or negative rights.
Positive Right – right holder is allowed to

exercise on another’s land.
Easements
Negative right – a right of the right holder to
prevent the landowner from acting in a
certain manner.
Dominant and Servient Tenements
• There must be a dominate and a servient tenement.

• Easements benefit the landowner by providing access – the
‘dominant tenement’ - over the property of the other
landowner - the ‘servient tenement’.
• An easement must ‘accommodate’ or benefit the dominant
tenement.
• The dominant and servient tenement owners must be different
persons.
Examples of Easements
The right of the owner of the dominant tenement to
cross over the land of the servient tenement owner.
Easements can be
created in three ways:
Creation of 1. Grant/Reservation
Easements 2. Implication
3. Prescription
Express Grant/Reservation
Easements created by express grant or reservation must be made

by deed to be legal.
Law of Property Act 1925, s. 52(1)
Easements can also be expressly created by statue (e.g. for public

utility companies to supply electricity and gas). In such cases no
need for property to be neighbouring.
By Implication
Easements may be implied into a conveyance.
• Easements of Necessity
• Easements of Common Intention
• Quasi Easements
Easements of Necessity - Examples
• Right of way to access a public road

• Right of access for maintenance
• Right for proper drainage
• Right to receive light
Adealon International Corporation Pty Ltd. v.
Merton LBC
[2007] EWCA Civ 362
Easements of Necessity
An owner of land cannot possibly exercise their rights

without the presence of an easement.
Not sufficient that use of alleged servient land is

convenient or even reasonably necessary for the
proper enjoyment of the alleged dominant tenement.
Adealon International Corporation Pty Ltd. v. Merton LBC [2007] EWCA Civ 362.
Easements of Common Intention
An easement may be implied to give effect to a prior understanding of

the parties.
An easement is capable of being implied to give effect to the common

intention of the parties as to the use of the dominant tenement if:
1. the parties have a shared intention that the land will be used in
some definite and particular way; and
2. the easement is necessary to give effect to that intended use.

The Common Intention
The intentions of the parties are to be ascertained from the terms
of the conveyance, the position on the ground and the
communications passing between the parties.
Donovan and another v Rana and another [2014] EWCA Civ 99.
Quasi-Easements
An easement over a subdivision of land that entitles the right

holders to exercise the same rights over the subdivided land that
the grantor (the land developer) held over the same land.
Wheeldon v. Burrows (1879) LR 12 Ch D 31.
• The right should have been discoverable,

• reasonably necessary, and
• exercised prior to and up to date of transfer.
Wheeler v. JJ Saunders Ltd [1995] 3 WLR 466.
The Claimant of the easement must for at least 20
years:
1. User as of right: The use must be without force,
without secrecy and without permission.
2. Use by or on behalf of a freehold owner against
another freehold owner.
Easement by 3. Use must be continuous: The use need not be
Prescription constant but long, unexplained periods of non-use
will prevent an easement from arising.
4. The right claimed must be one that could have
been lawfully granted: If the right could not have
been lawfully granted by deed, it cannot be
acquired by prescription.
Profit à prendre
A right to remove the products of
natural growth from someone else’s
land; a common example is a right to
cut turf, or to take game or fish. It
can also be something grown on the
land such as timber or grass (which
can be taken by grazing livestock).
Davidbena, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-
Possession of land for at least 12
years without the permission of
the owner.
An adverse possessor acquires a

freehold estate in the land from
the time he or she enters adverse
Prescription/ possession.
Adverse Possession But Land Registration Act (2002)
makes it more likely that a
registered proprietor will be able
to prevent an application for
adverse possession of their land
being completed.
Land Registration Act (2002) is the
primary statute that governs land
registration.
Registered
Land It provides for the registration of
legal estates and legal interests.
The estates in land which can be
Registration of registered are:
Legal Estates
in Land 1. freehold estates, and
2. leasehold estates which have a
term of more than seven years
remaining.
1. The “mirror principle” that the register
should provide an accurate and complete
reflection of property rights in relation to
a piece of land.
The Principles 2. The “curtain principle” that a curtain
of Land should be drawn across the register so
Registration that purchasers are not required to look
behind the register.
3. The “insurance principle” that those who
suffer loss when the register is found to
be incorrect should be entitled to an
indemnity.
Compulsory Registration
Registration is compulsory for freehold titles and for leases of

more than seven years’ duration upon the occurrence of:
1. a transfer,
2. the creation or transfer of a lease for a term of more
than seven years,
3. A first mortgage.
This means that anything giving rise to the transfer of ownership
of land or property must be completed by formal registration.
Failure to Register
Any transfer of Land that fails to register the land is automatically

void.
Land Registration Act (2002), s. 7(1):

‘If the requirement of registration is not complied with, the
transfer, grant or creation becomes void as regards the
transfer, grant or creation of a legal estate.’
Unregistered land is any land which
does not have a record of title in the
Land Registry.
Title is proved by title deeds, which

prove the history of title over property
Unregistered and are ‘the essential indicia of title’.
Land Sen v. Headley [1991] Ch. 425.
The deed bundle should identity best

‘title’ to the land and purchasers should
look at least 15 years back for ‘good
root of title.’
Priority and Notice
The rules that govern the priority of interests in

unregistered land differ from the rules
governing registered land.
Priority in Registered Land
The general rule that an interest created first in

time will bind, or take priority over, subsequently
granted interests.
Land Registration Act (2002), s. 28.
Exceptions to • Notice of Interest: “an entry in the
register in respect of the burden of an
Priority of interest affecting a registered estate or
charge”. It protects the priority of the
Registered Land: interest on a registered disposition of the
estate under Land Registration Act (2002)
s. 29.
• Overriding interests: are interests that
are not protected in the register but are,
nevertheless binding on anyone who
acquires an interest in the land.
Schedules 1 and 3 to the Land
Registration Act (2002) sets out the
circumstances in which an interest will
override registered dispositions (such as
a proprietary interest belonging to a
person in actual occupation of the land
can be overriding under both schedules).
Priority and Unregistered Land
Generally speaking, in unregistered land, legal rights bind anyone

taking an interest in the land.
Equitable rights will also bind those taking a subsequent interest

in the land, but they do not bind a purchaser in good faith and
for value of a legal estate without notice of the equitable rights
Land Law Basics
A Brief Recap
What merges with the Land?
Degree of
annexation
Fixtures &
Chattels
Purpose of
annexation
Fixtures and Chattels: Paramount Test - The
Overriding Purpose
The two tests are applied but the overriding objective or

purpose of the item will likely be definitive.
What is the dominant purpose is a question of fact.

Estates in Land – Exclusive Possession
Freehold (indefinite period

of exclusive possession)
Estates in Land
Leasehold (fixed or defined
period of exclusive
possession)
Leases v. Licenses
No exclusive possession
Licence
The label of the
relationship is not
definitive
Co-ownership
Right of Survivorship
Joint Tenants
4 Unities: Possession,
Interest, Title, Time
Co-ownership
No Right of
Survivorship
Tenants in Common
Only shared right to
possess the land
Easements
• There must be a dominate and a servient tenement.
• Easements benefit the landowner by providing access – the

‘dominant tenement’ - over the property of the other
landowner - the ‘servient tenement’.
Creation of Easements
Deed Cannot use land without
Express easement
Grant Statute
Shared intention
Necessity
Easement necessary to give
Common
effect to intention
Easement Intention
Implication
s Grants user same usage
Quasi- right as previous owner of
easements land subject to subdivision
20 years continuous use
as of right on freehold
Prescripti
on Right could have been
granted legally
Discussion: The Common Law and Colonialism
Mabo v. Queensland [No 2], [1992] HCA 23.

…..
………
…
AUTHOR’S RIGHT
FOCUS:
Understanding the Evolution of Copyright and Author's Rights in Common Law
DERECHOS DE AUTOR (ES)
DIRITTO D’AUTORE (IT)

COPYRIGHT
(common law)
DROITS D'AUTEUR (FR)
URHEBERRECHTE (DE)
DIREITO AUTORAL (PT)
Civil Law
o Copyright is a form of protection provided to authors for their original
intellectual work. This includes creative, artistic and intellectual works
like:
written musical dramatic artistic
o The owner has exclusive rights to reproduce, distribute or perform the

work in public.
o Copyright does not require registration and the owner will have
protection in most countries
o Copyright last for the life of the author + 70 years after death
What is Copyright?
Do you ever wonder why:
o iTunes charges you $1.29 per song?

o videos in You Tube of recent episodes of Game of Thrones are
quickly taken down?
COPYRIGHT!!!
o Copyright is a law that gives creators of media the exclusive

rights to copy, distribute, and mash up the things they create
for a limited time.
o As you work on any assignment that includes creative content

(e.g., images, video, or music) it is good practice to make sure
you are abiding by copyright laws.
Subsistence of copyright
o No formality or registration (in some common law countries

is requested the fixation on tangible medium)
o Notices: © Nicola Lucchi 2023 (not necessary)
o Protection for intellectual creations which are:
• Original (= not copied=new creation)
• Fixation (only in some countries)
• The work must fall within one of the categories of work listed in
the national Copyright Act (closed list system vs Open List)
• Human author
• Expressed in a particular form:
Article 9.2 of TRIPS (WTO Agreement on Trade-Related Aspects of
Intellectual Property Rights):
“Copyright protection shall extend to expressions and not to ideas,
procedures, methods of operation or mathematical concepts as such”
US Requirement of Fixation
• FIXATION
• For a work to be protected in the US, it must meet the criterion of
fixation and be fixed in a “tangible medium of expression.”
• A tangible medium of expression includes any readily perceptible
format, whether formal or informal. As well, it includes a format
from which the work may be perceived only with the assistance
of some device or technology.
• This would include a handwritten letter or a sketched drawing
on a napkin. It would also include a saved document on your
computer’s hard drive or a flash drive, or a recording on a video
camera.
• In some cases a work may not be considered fixed. One example may
be works such as lectures, speeches, addresses and sermons that have
not been written down or recorded in some manner prior to their
presentation.
• The same may be true of an improvised comedy skit, a jam session or
an improvised tune. An unsaved image or text on a computer screen is
not considered fixed. Note that some state copyright laws may protect
non-fixed works in specific circumstances.
IDEA vs EXPRESSION
o Copyright law protects only expression not ideas

o While you are free to report the facts and ideas
embodied in another person’s article or web page,
copyright protects the expression — the combination of
words and structure that expresses the factual
information — but not the facts and ideas themselves.
o We will se some Examples

Copyright is based on the balance between
the rights of the creator and the rights of the
consumer
Copyright grants creators

exclusive rights to make
copies of their works as a
reward for creativity and
also as an incentive for the Consumers have rights to
creation of new works. make reasonable use of a
protected work that also
serves as an incentive for the
creation of new works.
CULTURE ALWAYS BUILDS ON THE PAST

"books talk of books"
• Copyright is considered essential for human creativity,
offering to the authors, holders, performers and producers
some incentives in the form of recognition of the created
work of art as well as economic compensation.
• Copyright protects the authors and holders against

possible infractions, trying to avoid illegal copies or acts of
piracy.
• Copyright protection contributes to intensify the culture,

the entertainment and the knowledge in the entire world
and the importance of copyright protection has increased
at present in the globalized world of Information Society
and with the impact of new information and
communication technologies.
• Utilitarian or reward theory: grant rights to
create incentives for beneficial investments
• Natural rights: persons have natural property
rights in their intellectual creations
• Personality-based: my creation is an extension of
myself
• Unfair enrichment: appropriating someone else’s
work may be unfair
First stage: privileges granted by the king or prince to
publishers, authors etc.
Second stage: end of the privileges systems;

Gutemberg revolution; Introduction of the
modern copyright (Statute of Anne).
Third stage: copyright faces the digital
revolution and need to be recasted finding a
new balance.
• The first parliamentary act on copyright enacted in
1709 in GB:
• Authors for the first time
became right holders.
• The right to copy was limited
in time.
• law prescribed a copyright term
of 14 years, with a possibility of
renewal for another 14
(after: public domain).
The Statute was an influence on copyright law in several other nations, in

particular for British Colonies (United States à 1790 Copyright Act)
FIX
ct TO DUAL NATURE
bje MS PER
u
S TER PET
an d B LE INA and UAL
N A LIE
E
ALI NA
B LE
Exclusive property Right
Moral Right
Economic Right
Droit moral
Droit patrimonial
(Essentially the rights related to reproduction) (The right of publication)
{the right to decide time and place of publication}
Duration of Economic rights

# life of the author plus 70 years for literary, (The right of attribution)
dramatic, musical and artistic works and {the right to be recognized
films as the real author of a work}
# 50 years for sound recordings, broadcasts and
cable programmes (now 70 after
Directive 2011/77/EU) (The right of integrity)
# 25 years for typographical arrangements of {the right to avoid damaging transformation}
published editions
n t io n
ctio s t ra b ol
P ro
te T e rm R eg i Sy m C o s t
none
the
life of the
required in © but use of
author + 50 symbol not
Copyrights expression
years (now
civil law but nil
of an idea required in required for
70 pma) protection
US
Introduction to Common Law
(SPRING 2023)
L2 – History of Copyright Law

Nicola Lucchi
FIX
ct TO DUAL NATURE
bje MS PER
u
S TER PET
N A LIE
E
ALI NA
B LE
Moral Right
Economic Right
Droit moral
Droit patrimonial
(Essentially the rights related to reproduction) (The right of publication)

published editions
…..
………
…
AUTHOR’S RIGHT
o Copyright is a form of protection provided to authors for
their original intellectual work. This includes creative, artistic
and intellectual works like:
written musical dramatic artistic
o The owner has exclusive rights to reproduce, distribute or

perform the work in public.
o Copyright does not require registration and the owner will

have protection in most countries
o Copyright last for the life of the author + 70 years after death
IDEA vs EXPRESSION
o Copyright law protects only expression not ideas

o While you are free to report the facts and ideas
embodied in another person’s article or web page,
copyright protects the expression — the combination of
words and structure that expresses the factual
information — but not the facts and ideas themselves.
o Example: 1, 2, 3
Idea expression dichotomy
Example 1
While the plot, dialogue, images etc of The Matrix movie
are protected by copyright (because these are all
expression of an idea), the idea of a war between
computers and humans, or a virtual reality world being
used as a prison, is not protectable.
Example 2
video by Rihanna performing S&M song. photographer David LaChapelle

LaChapelle claims that scenes in the video
infringe on certain photographs he's taken
copy the "composition, total concept, feel, tone, mood, theme, colours, props, settings,
decors, wardrobe and lighting" of LaChapelle's work.
Example 2
Rihanna vs LaChapelle
Example 3
Chicago Magazine Russian Magazine
Here the specific expression here is different. The idea is obviously copied, but the execution
is different. Is it infringement? And, if so, where is that line between idea and expression?
QUIZ
Does this image remind you of anything?
Are we looking at a copy of an idea or the
expression of an idea?
macy's fashion adv. campaign

COPYRIGHT ACTS
o Primarily national laws e.g. Spanish Copyright

Act (Legislative Royal Decree 1/1996) - US
copyright act of 1976 etc
o International treaties include Berne 1886,

TRIPS 1994, WIPO Copyright Treaty 1996
• harmonisation & mutual protection
o Some EU harmonisation
• First generation: Directives on computer programs,
duration of rights, rental rights, satellite broadcasting,
databases
• Second generation: Directive 2001/29/EC –
Copyright in the Information Society
qInternational level: treatises, agreements and
conventions in order to harmonize the difference between
national systems. WIPO activities.
qEU level: 7 EU Directives focused on copyright matters.
qNational Level
ü adoption of EU Directives and International dispositions
(sometimes in conflict) in order to create a new legislative
enviroment and new legal tools
ü modifications coming from national and internal regulations
Copyright protection now
Berne Convention # More than 100 countries
# Administration by WIPO - Geneva
1886 # Set of minimum rights
TRIPs Trade Related Aspects of

Intellectual Property Rights
1994 # Administration by WTO
WCP/WPPT
# WIPO –Internet Treaties
1996
EU DIRECTIVES # Harmonization of Internal market
National Laws
• The Berne Convention for Protection of Literary & Artistic
Works (1886)
• World Intellectual Property Organization’s (1) Copyright Treaty

(WCT) and (2) Performances and Phonograms Treaty (WPPT)
(1996)
WIPO is U.N. agency that promotes IP protection. The
agency administers multilateral treaties, including Berne and
Paris.
• The Agreement on Trade Related Aspects of Intellectual

Property Rights (TRIPS) : international agreement administered
by the World Trade Organization (WTO) that sets down minimum
standards for many forms of intellectual property.
• 3 Main principles
• National treatments
• Formality-free protection
• Indipendence of protection
DURATION OF PROTECTION (art. 7): Life of the author + 50 years after is death
This duration was extended to 70 years after the death - - - ->

> EU: Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of
protection of copyright and certain related rights (now replaced by Directive
2006/116/EC)
> US: Sonny Bono Copyright Term Extension Act (1998) (amending Sec. 302 of
1976 Copyright Act).
The Berne convention establishes two types of rights
ECONOMIC RIGHTS MORAL RIGHTS
DURATION
Art. 7
Life author + 50 yrs after death – post mortem autoris
Now extended to 70 yrs in EU and US

– Right of reproduction (art. 9)
• Is the basic right which concerns the
making of copies of protected work
– The right of public performance (art. 11)
– The right of broadcasting and communication to the
public by wire, by re-broadcasting or by loudspeaker
or any other similar instrument of the broadcast of
the work (art. 11bis)
– The right of translation (art. 8)
– The right of adaptation (art. 12)
• The right of the author to claim authorship of his
work and to object to any distortion, mutilation,
or other modification, or other derogatory
action in relation to the work which would be
detrimental to his honor or reputation.
• The moral rights are not transferable and not

subject to expiration (they are perpetual !).
• In Continental Europe the droit d’auteur system is
oriented to protect the author (personal right).
• In the common law systems (US, UK..) the moral
rights are lighter: copy-right = user right to make a
copy of the work.
• On October 20, 1988, the U.S. Senate ratified the Berne

Convention Implementation Act, introducing moral rights
protection also in the United States. (differences decreased)
FIX
ct TO DUAL NATURE
bje MS PER
u
S TER PET
N A LIE
E
ALI NA
B LE
Moral Right
Economic Right
Droit patrimonial Droit moral
(The right of publication)

(Essentially the rights related to reproduction)

published editions
©è Civil law vs Common law (1)
LEGAL FRAMEWORK
• Common law systems, such as those found in the

United States, United Kingdom, and Australia, rely on
case law and judicial precedent to interpret and
develop copyright law.
• Civil law systems, have comprehensive and detailed

statutory codes that govern copyright.
CONCEPT OF COPYRIGHT:
• In common law systems, copyright is often viewed as a

bundle of economic rights granted to the creator,
typically for a limited duration.
• Civil law systems, on the other hand, often emphasize

the moral rights of authors, which protect the integrity
and reputation of the work in addition to economic
rights
ORIGINALITY THRESHOLD
• Common law copyright systems generally require a minimal

degree of creativity or originality for a work to be eligible for
copyright protection. (For instance, the US law adopts the
“minimal degree of creativity” test, which was established in the
Feist v. Rural case)
• In civil law systems, the threshold for originality can be higher,

requiring a higher level of creativity or individuality.
While the Berne Convention and other

international copyright regulations do
not require human authorship, many
countries, such as the United States and
those in the European Union, place
importance on the presence of a human-
being as the creator of a work
Feist case test
In Feist v. Rural, the court
ruled that the white pages of
a telephone directory did not
meet the threshold for
copyright protection
because they lacked the
necessary creativity.
The court held that factual

information, such as names,
addresses, and telephone
numbers, does not possess
the originality or creativity
necessary for copyright
protection. The court stated
that copyright protects the
creative choices made in
selecting and arranging the
information, but it does not
extend to the underlying
facts themselves.
Originality standard in EU
• Case C-5/08, Infopaq Int’l A/S v. Danske Dagblades Forening,
2009 E.C.R I-6569 (setting out the EU originality standard for
copyright protection).
• According to the court's ruling, for a work to be eligible for
copyright protection, it must be the author's own intellectual
creation, reflecting the author's personality and involving an
element of originality.
• In particular, The court clarified that originality requires the
work to be the author's own intellectual creation, meaning
that the author must have made free and creative choices in
the creation of the work.
• It stated that originality is characterized by the author's
individuality and expression, and it must manifest an author's
personal touch and creativity.
COPYRIGHT FORMALITIES:
• The Berne Convention has led to a shift towards

automatic protection without formalities in many
countries.
• Civil law countries typically do not require formalities,

such as registration or deposit, for copyright
protection. Copyright is automatically granted upon
the creation of an original work.
• In some common law jurisdictions, registration or
deposit of the work is required to obtain copyright
protection (e.g. US)
COPYRIGHT EXCEPTIONS
(WE WILL SEE THIS BETTER):
• Fair Use/Fair Dealing: Common law systems often have

a doctrine of "fair use" (in the United States) or "fair
dealing" (in the United Kingdom and other
Commonwealth countries), which allows limited use of
copyrighted material without permission for purposes
such as criticism, commentary, or education.
• Civil law systems typically have more restrictive

exceptions and limitations, with specific statutory
provisions governing permitted uses.
It is important to note that these differences are

generalizations, and there can be variations within
common law and civil law systems.
Additionally, the harmonization efforts through

international treaties, such as the Berne Convention and
the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), have led to some convergence
in copyright laws worldwide.
(SPRING 2023)
L3 – Copyright exceptions vs Fair uses

Nicola Lucchi
Copyright Exceptions and Limitations:
The Balancing Act of Rights
• Copyright exceptions and limitations play a vital role in
maintaining a delicate balance between the rights of
creators and the interests of the public.
• By acknowledging that copyright is not an absolute
right, civil law and common law countries ensure that
innovation, creativity, and the public's access to
knowledge can coexist harmoniously.
COMMON LAW CIVIL LAW
FAIR USES/ EXCEPTIONS &

FAIR DEALING LIMITATIONS
<COPYRIGH IS NOT AN ABSOLUT RIGHT>
• To maintain adequate balance between

interests of copyright holders and users, Berne
Conv. allows certain limitations on economic
rights. These are the cases in which protected
work may be used without a prior authorization
and without payment of compensation.
• These limitations are referred to free-uses and
non-voluntary licenses.
Is a test adopted (Berne, WTO TRIPs, 1996 WIPO
treaties, 2001 European Directive) to evaluate the
legitimacy of exceptions and limitations on copyright.
1. SPECIAL CASES
Member States 2. Where the acts do not conflit

may provide for with normal exploitation of the
free reproduction in: work (and)
3. Do not irrationally contrast the

legitimate interest of the author
• Art. 10 – quotations of protected works and
illustration for teaching purposes
n Quotations à works used for commenting, debating,

analyzing, etc
n Educational uses
- Instruction / Teaching (lectures, exams, debates, etc)
- Compilations for teaching / educational use
- School events
n Private Copy/Use à students’ copies?
n Fair Use/Dealing (Common law systems)
n Library uses
• Fair dealing is a limitation and exception to copyright
law which is found in many of the common law
jurisdictions of the Commonwealth of Nations (UK+).
¶ > It enumerated a set of possible defenses against an action for
infringement of an exclusive right of copyrigh.
• US Fair use doctrine is a flexible concept for limitation and

exception to the exclusive right granted by copyright law to the
author of a creative work.
¶ > It permits limited use of copyrighted material without acquiring
permission from the rights holders. E.g.: commentary, personal uses,
criticism, news reporting, research, teaching, reverse engineering, library
archiving and scholarship.
In the U.S., fair uses are based on a set of factors (4) that
courts must take into account to determine a possible
copyright infringement.
Over time, the US courts recognized certain factors that were
useful in determining whether fair use existed in any
particular case. Four of these factors were enumerated in
§107 of the 1976 Act:
1) The purpose and nature of the infringing use, including whether the use
is commercial in nature, or for nonprofit educational purposes;
2) The nature of the copyrighted work;
3) The amount of the copied portion used in relation to the copyrighted
work as a whole; and
4) The effect of the use upon the potential market for or value of the
copyrighted work.
OTHER LIMITS TO COPYRIGHT
• Principle of Exhaustion - according to this principle
(also known as the First Sale doctrine in the United
States), the exclusive right of the author or the rights
holder of the copyrighted work to profit from the creative
work is limited to the first sale of its copies.
– Therefore, anyone who has purchased a copy of the work can dispose of
it by transferring it to third parties without generating additional
royalties for the author from such subsequent transfers.
The principle of exhaustion of the right

precisely states that the first sale (first
sale doctrine) of a copy of the
copyright-protected work exhausts the
author's right to control subsequent
acts of disposal.
• use of whole or part of a protected work without
permission;
• use beyond the scope of a license;
• adapting a creative work without permission
(art rendering, collage, alteration);
• asking another author to recreate the same work
(image, picture or literary work)
Change of medium is an
example of copyright
infringement
Art Rogers, Puppies, 1980 Jeff Koons, String of Puppies, 1998
Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), is a leading U.S. court case on copyright, dealing with
the fair use defense for parody. The United States Court of Appeals for the Second Circuit found
that an artist copying a photograph could be liable for infringement when there was no clear need to
imitate the photograph for parody.
Left, the Andrea Blanch photo that appeared in the August 2000 issue of Allure; right, Jeff Koons, "Niagara" (2000)
The images in question in Blanch v. Koons

Here the court ruled that Koons had sufficiently transformed the original
advertisement so as to qualify as a fair use of the original image.
Fair use: parody
Fair use: teaching purposes
Fair use: private copy
Associated Press vs. Fairey: fair use?
Not fair use
Picture The hope
Poster
shot by AP
freelancer Created by
Mannie the street
Garcia artist
Shephard
Fairey
Use of an image without a proper photo «credit»

case ended with a settlement agreement
To sum up: Fair uses
• Criticism and comment
– for example, quoting or excerpting a work in a review or criticism for purposes
of illustration or comment.
• News reporting
– for example, summarizing an address or article, with brief quotations, in a
news report.
• Research and scholarship
– for example, quoting a short passage in a scholarly, scientific, or technical work
for illustration or clarification of the author's observations.
• Nonprofit educational uses
– for example, photocopying of limited portions of written works by teachers for
classroom use.
• Parody
– that is, a work that ridicules another, usually well-known, work by imitating it
in a comic way
The Convertion from Black and
White to Color of a Photo or a
Movie
Plagiarism
copying from someone else's work

without proper acknowledgement
Posting a picture from Google Images
required in order to claim rights
The copyright symbol © is not
Posting an image you found on Google without permission is likely to

be copyright infringement !!!
Downloading music for free from the Internet
Using some digital streaming platforms
Using someone else’s material on
YouTube without permission
o Uploading football matches highlights
o Using a popular song as background to your own video
o Posting frames from TV or movies (in cases inconsistent with parody or

commentary, which is generally considered Fair Use)
Example:
The images from
photographer Sion
Fullana's Instagram
profile were shared
on the official
Spanish Vogue
Instagram account
without any credits
and/or
authorization.
• if it is on the Internet it is in the public domain and
therefore free;
• if there is no copyright notice, I can use the work;
• if I alter the work I do not need permission;
• if I do not profit from it, I can use it;
• if I only use a part of the work I do not need
permission.
Public Domain
• works that are in the public domain can be posted, shared, or
used in anyway, including sold, without asking permission and
without paying any royalty but only crediting the original author
and copyright owner.
• how does a work become part of the public domain?
– works become part of the public domain if their copyright has expired
(after 70 years from the death of the author)
How can you tell if a work is part of the public domain?
The only way to know if a work is part of the public

domain is by searching for a copyright on that work.
Public
Domain
• The classical music sheets are loyalty free, HOWEVER(!!!!) their performances NOT.
• You can hire an orchestra, and record the symphony #7 of Beethoven, but you CANT get an
mp3 of symphony #7, conducted and recorded by somebody else.
• The sheet music could be public domain - however - the performance is under the
performer's copyright protection.
IN THE DIGITAL ENVIRONMENT
SOLUTIONS ADOPTED SO FAR
• Laws during the 1990s and 2000s have been passed to update
copyright law to extend to digital properties found on the Internet.
• e.g. US and EU passed legislations criminalizing the production and
dissemination of technology, devices, or services intended to circumvent
measures (TPM) that control access to copyrighted works.
• United States (1998)
– Digital Millennium Copyright Act
• codified as amended in a new chapter 12 to Title 17 of the
U.S.C. §§ 1201-1205 (2000).
• Europe (2001)
– European Directive 2001/29/EC on the Harmonization of Certain
Aspects of Copyright and Related Rights in the Information Society
• 2001 O.J. (L 167) 10
EU COPYRIGHT DIRECTIVE
“Article 6”
Technical Measures
• Member States shall provide protection against the circumvention of
technical measures
• Members States shall provide legal protection against the removal and
altering of certain electronic rights management information
• Measures to protect exceptions by voluntary agreements, if rights
holder fails to do so the government is entitled to take measures
• Circumvention not allowed if work was made available ‘on demand’ and
agreed contractual terms
29/2001
US DMCA
• In the context of the Digital Millennium Copyright Act (DMCA) in the
United States, the equivalent provision that addresses the protection
of technological protection measures is found in Section 1201.
• Section 1201 of the DMCA is commonly referred to as the "anti-
circumvention" provision and prohibits the circumvention of
technological measures used by copyright owners to control access
to their protected works.
• Under Section 1201 of the DMCA, it is illegal to circumvent TPMs,
manufacture or distribute devices or services primarily designed for
circumvention, or offer information and tools that assist in
circumvention.
CSS
Region coding
NL
Games Consoles
Security measures
NL
E-books readers
copy-protection
measures
NL
Copyright Protection
International
Domestic law protection
EU law
Berne Convention
(1886)
# More than 100 countries
# Administration by WIPO
# Harmonization of # Set of minimum rights
Internal market
Su
Copyright Rules mm
ing
up
(SPRING 2023)
• L4 – Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)
• A&M Records, Inc. c. Napster, Inc., 239 F.3d 1004
Nicola Lucchi
THE BETAMAX CASE
THE BETAMAX CASE
Compensation System for the Distribution on Television
Networks of Copyrighted Programs
Studios
hold the rights for
shows and movies
Compensation System for the Distribution on Television Networks of
Copyrighted Programs
Licenses for
streaming Studios
hold the rights for
shows and movies
Networks
Compensation System for the Distribution on Television Networks
of Copyrighted Programs
Licenses for
streaming Studios
Networks
Free programming
(with embedded advertising)
Public
Licenses
Advertiser For streaming Studios
Networks
Higher prices for

advertised products. Free programming
Public
Advdertiser Licenses
Studios
For streaming
Advertising price
Networks
Higher prices for

Public
Studios
For streaming
Advertising price
Networks License fees
Higher prices for

Public
Studios
For streaming
Advertising price
Higher prices for

Public
VCRs
Cost of VCRs Sony

Studios
For streaming
Advertising price
Higher prices for

Public
VCRs
Cost of VCRs Sony

Studios
For streaming
Advertising price
Higher prices for

Public
VCRs
Cost of VCRs Sony

Studios
For streaming
Advertising price
Higher prices for

Public
VCRs
Cost of VCRs Sony

Studios
For streaming
Advertising price
Higher prices for

Public
VCRs
Cost of VCRs Sony

Studios
For streaming
Advertising price
Higher prices for

advertised products. Free programming ?
Public
VCRs
Cost of VCRs Sony

SONY v. Universal City Studios
The film studios Universal and Disney sued Sony
claiming that:
• (i) the videocassette recorder undermined the
exclusive right of reproduction granted to authors
since the device allowed anyone to copy copyrighted
works when they were broadcasted on video;
• (ii) the production and marketing of the device should
be deemed illegal;
• (iii) Sony should be accused of contributory copyright
infringement for facilitating copyright violations
through the sale of the videocassette recorder.
US Copyright Infringement
U.S. law abstractly recognizes three different types
of liability in cases of copyright infringement:
Direct liability for direct infringement

• Direct responsibility
Contributory liability
•Secondary liability for negligence
Vicarious liability (for unexercised control)
• Indirect responsibility
Contributory Liability
Contributory Liability is established when:

The responsible party, even if not the direct executor of the infringement,
contributes to or induces its occurrence and is aware of it (actual
knowledge) or has reason to be aware of it (reason to know).
In these cases, the rights holder must demonstrate the presence of three
elements:
The occurrence of a direct violation (strict liability)

That the defendant knew or had reason to know about the illicit activity
That the defendant actively participated in the violation, inducing, instigating,
or contributing to its material realization.
BETAMAX
DISTRICT COURT
• No copyright infringement (fair use)
• Non-commercial use
• Free TV broadcasting
• No evidence of market reduction (rather, the possibility of growth)
• No violation as only some users may violate C.
9° CIRCUIT (appeal)
-Use of the VCR does not fall under fair use.
-Main purpose: recording TV broadcasts.
SUPREME COURT
-Sony is not liable either directly or indirectly.
-No evidence of market influence.
-Non-commercial use of copyrighted material is presumptively fair.
-Home recordings meet the requirements of the fair use doctrine.
SONY v. Universal City Studios
• The Supreme Court established that a
company cannot be held responsible for
creating a technology that someone could use
to infringe copyright, as long as that
technology is capable of other lawful uses.
• In other words, if a technological tool allows

for multiple uses, users cannot be denied its
lawful use solely because others might
potentially use it to infringe copyright.
THE NAPSTER CASE
History and evolution
At the beginning (2001) Napster started with these numbers:
• 1.57 million average daily simultaneous users. • 67 million daily
users worldwide.
• After Napster, imitators emerged:
• Gnutella (Morpheus, Audiogalaxy)
• KaZaA (and its affiliated networks on FastTrack)
• BitTorrent
• eDonkey
• WinMX
These made P2P the dominant application for residential Internet
users in terms of broadband usage.
CENTRAL SERVER:
Does not maintain a catalog of available files.
Contains information about all connected computers.
Routes requests and connects users.
No central server to connect to.
No index with addresses;
No company to refer to;
No one to sue.
Effects and Reasons for the Development of P2P:
• The P2P market rapidly developed, becoming one of the

most significant factors in the change of digital content
distribution.
2000/2001
1997, first MP3 player

2001, first Apple iPod player
1990 patent
The absence of legal digital content
For a long time, the only legal way to obtain digital music files for use in MP3 players was by
converting the content of audio CDs into MP3 format.
The entertainment industries took a long time to understand the ongoing change,
and only under the pressure of three emerging factors at the time:
1. The development of peer-to-peer networks.
2. The emergence of new compression technologies (primarily MP3).
3. The rampant piracy and copyright infringement.
The Phenomenon Napster (1999-2001)
1 Napster checks the music
database to see if a particular
song is present on another
A user sends a request to

search for a music track.
2 connected user's computer.
The song is
forwarded directly to
the requester.
4
3
The song is
retrieved
The role of Napster is solely to facilitate file-
sharing. No music tracks are saved on the server.
A&M Records v Napster
• December 1999, several record labels and
music publishers initiated legal proceedings
against Napster in front of the U.S. District
Court of the Ninth Circuit in California,
essentially alleging:
– Violation of copyright through vicarious and

contributory infringement
– Non-compliance with the Copyright Act.
US Copyright Infringement
U.S. law abstractly recognizes three different types
of liability in cases of copyright infringement:
Direct liability for direct infringement

• Direct responsibility
Contributory liability
•Secondary liability for negligence
Vicarious liability (for unexercised control)
• Indirect responsibility
Napster's defense aimed to exclude its own liability by arguing:
1. Considering that the users of the service had non-commercial
purposes but only personal ones.
2. Fair use, asserting that the behaviors of its users were not
directly aimed at copyright infringement.
Two specific justifications for fair use were:
1. Sampling activity: Temporary copies made for the purpose of

pre-purchase listening.
2. Space-shifting: Acquiring digital copies of music tracks already
owned on compact discs.
• On July 26, 2000, the U.S. District Court of the Ninth Circuit in
California rejected all of Napster's defenses and granted a
preliminary injunction in favor of the plaintiffs.
• The court highlighted the commercial nature of the users'
activity because they acquired goods through Napster that
they would otherwise have had to purchase.
• It was determined that Napster users were directly

responsible for copyright infringement (strict liability for
direct infringement). This opened the possibility of
establishing indirect liability on the part of Napster.
• Napster appealed against the preliminary injunction to the Ninth
Circuit Court of Appeals, which granted the appeal for a
temporary stay of the injunction pending further proceedings.
• On February 12, 2001, the Court of Appeals issued its opinion
regarding the appeal against the injunction, affirming many
aspects of the original judgment but requiring the plaintiffs to
identify and request the removal of specific illegally exchanged
sound recordings through the Napster system.
• The case was then remanded to the District Court for
reformulation, and on March 5, 2001, a modified injunction was
issued.
• On June 3, 2002, Napster filed for Chapter 11 bankruptcy
protection.
Differences between Betamax & Napster
Indeed, what initially appeared as a defeat for
turned into a triumph, while what seemed like a
victory led to a defeat.
WHY?
BETAMAX vs NAPSTER
• In the Betamax case, the Court rejected the
arguments of the prosecution:
- ii) because it did not consider the
manufacturers of VCRs capable of actively
monitoring the owners of the VCRs. The only
contact in that case was at the time of sale.
- i) because it recognized significant legal uses
of the VCR.
BETAMAX vs NAPSTER
• In the Napster case, the court rejected Napster's
arguments (particularly that it also facilitated legal
uses) because, unlike Betamax, Napster had knowledge
that illegal material was circulating through its platform
and had the ability to identify and potentially block
those who were infringing copyrights by refusing to
continue providing the service.
• As we have seen, this was not the case with VCR

manufacturers, who ceased their relationships with
buyers at the time of sale.

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INTRODUCTION TO THE

II. Development of substantive areas of common law

‘The legal system of the Hong Kong Special Administrative

Common • It is law based on court decisions rather than

• Simkinseled, CC0, via Wikimedia Commons

• Civil law systems rely primarily on codes and statutes.

Common Law Civil Law

the Common BUT:

Hybrid systems, e.g. civil law or common law overlaid

Customary Law As the term implies, customary law is based

Law the legal system enforced in over 30 countries, particularly

• Enacts • Administers • Interprets

• The Governor General is the Crown’s

The Origins of Paul Brand, ‘The Beginnings of the English Common

-- Reading Paul Brand, ‘The Formation of the English Legal

Ken Lund from Reno, Nevada, USA, CC BY-SA 2.0

Before the • By 600 CE Languages could be divided into 5 groups – Germanic in

UK Historical Association, The Historian, Autumn

King Alfred the

Founder of Oriel College, after a painting in the

Incorporated local customs and local laws enforced by Sheriff.

1066 -- The Often cited as the starting

Domesday Designed to be used by royal

Domesday’s primary concern

Image: By Birmingham 1066-1625, Public Domain,

Henry II most important figure in creation of English

Image: British Library, Detail of an historiated initial 'I'(udex) of a judge.

The Embodied The Rule of Law.

(reissued modified versions in

Image: by unknown, held by The Granger

• To no one will we sell, to no one will we deny, or delay right or justice

As case law became settled became basis of

Precedent demands reports of preceding cases.

‘Year Books’ eventually replaced by named reports

Early Treatise: Henry De Bracton, Laws and Customs

Original with King’s full name and title

Different writs for different claims

Standard writs and standard procedures were all conducive

Publication of Matthew Hale, The History

Introduction to the English approach to Contract

Sessions 1 Session 2 Session 2 Session 3

The requirement of notarisation: Video

▪ Promissory estoppel is only a defence, not a cause of action.

Factors tending to defeat contractual liability and

→ Result: the contract will be void or voidable depending on the case

Rule: A term included in a contract signed by a party is in principle binding on that

Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ 2

It needs to be “regular and consistent” (McCutcheon v David MacBrayne Ltd [1964]

Evolution from a stricter to a slightly less strict / contextual approach

A. Implied terms in law (implied by statute)

See Chitty on Contracts, volume 2,

Sales contracts → Sale of Goods Act 1979 [B2B]

Two main questions:

B2B Contracts: The Unfair Contract Terms Act 1977

B2B Contracts: The Unfair Contract Terms Act 1977 → Void

B2C Contracts: The Consumer Rights Act 2015

B2C Contracts: The Consumer Rights Act 2015

B2C Contracts: The Consumer Rights Act 2015

Session 1 Session 2 Session 2 Session 3