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The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law

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The Overlapping of Legal Concepts a Legal Realist Approach to the Classification of Private Law THE OVERLAPPING OF LEGAL CONCEPTS A LEGAL REALIST APPROACH TO THE CLASSIFICATION OF PRIVATE LAW by DAVID SALMONS A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Birmingham Law School College of Arts and Law University of Birmingham Summer 2011 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT The main aim of this research is two-fold; firstly, these chapters will seek to demonstrate the unreliability of theoretical or abstract approaches to legal reasoning in describing the law. Secondly, rather than merely providing a deconstruction of previous attempts to classify private law, the chapters attempt to construct an overlapping approach to classification. This represents a new way of classifying private law, which builds on the foundations of the lessons of legal realism and explains how classification can accommodate overlaps to assist in identifying the core elements of private law reasoning. Following the realist tradition, the thesis argues for narrower formulations of the concepts of property, contract and tort. It is then argued that within these narrower concepts, the law is made more predictable and clearer. Importantly, adopting the overlapping analysis, we can explain the areas that we have removed from property, contract and tort as overlaps with these core concepts. The purpose is to recognise that legal concepts can be best understood as links between facts and judicial decision making, and the best way to achieve this is to reject discrete categorisation and, instead, to recognise the overlapping of legal concepts. Dedication In loving memory of my Nan, Lilly Durack and my brother, Laith Salmons. Acknowledgments I would like to thank in particular the following people for their help and support during the time of writing this thesis: firstly, Ralph Cunnington, who inspired me to write this thesis and who encouraged me to pursue my postgraduate studies; secondly, my mother and father; thirdly, my loving wife, Astrid Sanders, for being so patient and for your guidance. Thank you also to the members of staff at Birmingham Law School and to Birmingham Law School for the Postgraduate Teaching Assistantship programme which made this thesis possible. It has been my pleasure to be at the University of Birmingham for eight very happy years, both as an undergraduate and postgraduate student. Chapter 1: Classifying Private Law 15 1. Introduction 15 2. The Role of Classification 16 3. The Nature of the Project: To Reject the Exclusivity of Categories 19 Stifling Flexibility 22 Legal Tradition 23 4. The Foundations 25 5. Scope of the work 28 6. The Structure 30 7. Conclusion 32 Chapter 2: Methodological and Philosophical Foundations of Private Law Classifcations 34 1. Introduction 34 2. Legal Interpretivism in General 35 3. Birks and the classification of the private law 37 Birks’ Critique of the private law 37 Fourfold Classification 39 Discrete Categorisation 40 No Room for Property 43 The theory behind Birks’ taxonomy 44 An Exercise in Description 44 The prescriptive element of Birks’ approach to taxonomy 46 Criticisms of Birks’ Methodology 49 Rewriting history 49 Simplicity and Logic 50 Classification as a Scientific Exercise 53 A Question of Semantics 56 Concluding Remarks 57 4. Weinrib, Formalism and Corrective Justice 59 Weinrib’s Approach 59 5. Classification as a Descriptive Exercise 62 6. Conclusion 64 Chapter 3: Legal Realism, Conceptualism and Classification 67 1. Introduction 67 2. Descriptive and Prescriptive Elements in Legal Classification 68 3. Realism Re-Assessed 72 Fact-Scepticism 73 Rule-Scepticism 74 Dagan’s Realism 76 4. Realism and Determinacy of Legal Rules 77 Indeterminacy of Legal Rules 78 Determinacy of Legal Rules under a Functional Approach 79 5. A Realist Approach to Conceptualism 83 The Importance of Social Reality 84 6. Concepts as Links between Facts and Outcomes 85 7. Dynamism of the Legal System 87 8. Overlaps 87 9. Conclusion 89 Chapter 4: A Legal Framework for Private Law 90 1. A Three-Fold Classification of Private Law 90 2. The Law of Property 92 Property as a Nebulous Concept 94 Exclusion, Transferability and Excludability 95 Rights against the Rest of the World 96 Bundle of Rights 99 Redefining the Unity of Property 100 Property as Direct Control of Tangible Things 101 Title 101 Direct Control 103 The Requirement of Corporeal Things 104 Explaining the Importance of Tangible Things 106 Measures Applied by the Courts 108 Why Property is distinct from Equitable Interests 108 Intellectual Property 111 Conclusion on the Concept of Property 113 3. Contract 114 The Unity of ‘Contract’ 115 Promises and Contract 117 Reliance and Contract 119 An Agreement between the Parties 121 Defining Agreement 121 Situations which are not Agreements 124 Agreement and Contractual Terms 125 The Requirement of Bargain 127 Cases Which Fall Outside Contract 129 Deeds 130 Measure of Damages 131 Expectation Damages 131 Conclusion on the Concept of Contract 133 4. Tort 133 Attempts to Explain Tort as a Unitary Concept 134 Corrective Justice 134 Duties, Rights and Interests 136 Negligence 139 Rejecting the ‘duty’ of care 140 Adopting the Control Device Explanation 142 Omissions 144 Public bodies 144 Employers 145 Social Reality of ‘Negligence’ 147 The Requirement of Carelessness 147 Acts 148 Physical Damage 149 Overlap with Reliance 150 Conclusion 151 5. Identifying a basic Framework for English private law 152 The Overlapping of Legal Concepts 152 3 6. Conclusion 154 Chapter 5: Money Transfers 157 1. Introduction 157 Opposing Theories of Monetary Transfers: Unjust Enrichment and Resulting Trusts 159 Unjust Factors 161 Absence of Basis 164 Money as a type of ‘Property’ 166 2. Money as an Overlap with Property 168 Money 169 Transfers 171 Intangible Money 172 3. Mistaken Payments 172 Carelessness 174 The Nature of the Claim 176 Defences 177 Summary on Mistaken Payments 180 4. The Overlap of Tort, Criminal Offences and Monetary Transfers 181 Overcoming the Tracing Issue 182 Rejecting the ‘Trust’ Explanation 183 Rejecting the Vindication of Property Rights Approach 184 Rejecting the ‘Rescission’ Analysis 186 Recognising the Overlap with Tort and Criminal law 188 Recognising the Overlaps 189 Knowledge and Depriving the Claimant 191 Defences 193 Bona Fide Purchaser 193 Conclusion on the Overlap with Criminal Law 195 5. The Overlap of Money and Property 195 Money in its Tangible Form 195 6. An Overlap of Money and Contract; Conditional Payments 198 Failure of the Agreed Condition 199 Restitution for Mispredictions 200 Total Failure of the Condition 204 Strict Liability 206 7. Conclusion 208 Chapter 6: Reliance 212 1. Introduction 212 The Place of Reliance on the Map 213 2. The Overlap of Reliance and Property 215 Proprietary Estoppel 215 Reliance, Estoppel and Unconscionability 217 Problems with Unconscionability 218 The Two Forms of Proprietary Estoppel 220 Reliance and Causation 222 Why the Distinction is Relevant 224 Two Patterns Which Explain the Role of Communication 227 Reliance-Based Land Claims 230 Detrimental Reliance 231 Our Approach; Overlaps 232 The Overlap of Property and Reliance 233 4 Communication 235 Control; The Property Element 236 Causation 240 Justifying Occupation from a Realist Perspective 241 3. The Overlap of Reliance, Property and Contract 244 Criticisms of the Bargain Approach 245 Communication 246 Bargain 248 Complete Performance 248 Valuable Bargain 251 Causation 253 Justifying the Role of Bargain from a Realist Perspective 257 Summary of the Overlaps in Reliance-Based Claims 258 4. Reliance and Claims for Non-Contractual Services 259 Unjust Enrichment Explanation 261 The Unjust Factor 262 The Enrichment Issue 264 Expanding our concept of Contract 267 The Reliance Approach 270 Agreement 271 Communication 273 Services 274 Causation 275 Payment for Non-Contractual services 276 Justifying this Approach 278 5.Reliance and Carelessness 279 Rejecting Assumption of Responsibility 281 Why Reliance is to be Preferred 285 The Overlapping Element: Carelessness 286 Communication 288 Loss 289 Causation 289 Summary 290 6. Conclusion 291 Chapter 7: The Trust 293 1. Introduction 293 Attempts to Unify the Law of ‘Trusts’ 294 A Proprietary Right 296 The Trust as a ‘Duty-Burdened Right’ 296 Separation of Legal and Equitable Title 298 It is not possible to define ‘trusts’ 300 2. Overlap 1; The Agreement Trust 300 Why we are not Including Declarations of ‘Trust’ 302 Cases Where the Settlor is Deceased 302 Cases Involving Written Documents, Bargain or Reliance 304 The Clarity Achieved by Excluding Declarations 305 The Agreement Trust: An Overlap between Contract and Property 306 Explaining the Factual Requirements of the Agreement Trust 307 The Protection Afforded to Trust Assets 308 Why this Combination of Facts is Legally Significant 309 Summary of the Agreement Trust 310 3. Overlap 2;Control Trusts 311 5 Swadling’s Analysis 311 Chambers’ Unjust Enrichment Analysis 313 The Overlapping Explanation 314 4. Overlap 3; the Bargain Trust 316 Summary on these Overlaps 319 5. Constructive Trusts 320 Unjust Enrichment Analysis 321 Common Intention 322 Expressions of Sharing 324 Financial Contribution 325 Providing a Valuable Contribution to the Family Unit 325 6. Conclusion 327 Chapter 8: Conclusion 329 BIBLIOGRAPHY 335 6 Cases A v Essex County Council [2010] UKSC 33, [2011] 1 AC 280. ............................... 144 Abacus Trust v Barr [2003] EWHC 114 (Ch), [2003] Ch 409. ................................. 309 Agip v Jackson [1990] Ch 265 (Ch). .......................................................................... 182 Agnew v Länsforsäkringsbolagens AB [2001] 1 AC 223 (HL).
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