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English Private Law ENGLISH PRIVATE LAW ENGLISH PRIVATE LAW second edition Edited by Professor Andrew Burrows St Hugh’s College Oxford 1 1 Great Clarendon Street, Oxford ox2 6dp Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Athens Auckland Bangkok Bogotá Buenos Aires Calcutta Cape Town Chennai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Paris São Paulo Shanghai Singapore Taipei Tokyo Toronto Warsaw with associated companies in Berlin Ibadan Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York First edition published by Oxford University Press 2000 Second edition published by Oxford University Press 2007 © Oxford University Press 2007 The moral rights of the author have been asserted Database right Oxford University Press (maker) Crown copyright material is reproduced with the permission of the Controller of Her Majesty’s Stationery Offi ce All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquiror British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Data available Typeset by Cepha Imaging Private Ltd, Bangalore, India Printed in Great Britain on acid-free paper by Legoprint S.p.A. ISBN 978–0–19–922794–5 1 3 5 7 9 10 8 6 4 2 In Memory of Peter Birks 1941–2004 EDITOR Professor Andrew Burrows QC FBA St Hugh’s College Oxford CONTRIBUTORS Mr Neil Andrews Professor Mark Freedland FBA Clare College Cambridge St John’s College Oxford Professor John Armour Professor Richard Hooley Oriel College Oxford King’s College London Professor John Bell QC FBA Professor Roger Kerridge Pembroke College Cambridge University of Bristol Professor Michael Bridge Professor Ewan McKendrick London School of Economics Lady Margaret Hall Oxford Professor Adrian Briggs Professor Charles Mitchell St Edmund Hall Oxford King’s College London Professor Malcolm Clarke Professor Norman Palmer St John’s College Cambridge King’s College London Professor William Cornish QC FBA Professor Francis Reynolds QC FBA Magdalene College Cambridge Worcester College Oxford Dr Stephen Cretney QC FBA Professor Lionel Smith All Souls College Oxford McGill University Montreal Mr John Davies Mr William Swadling Brasenose College Oxford Brasenose College Oxford Dr James Edelman Professor Sir Guenter Treitel QC FBA Keble College Oxford All Souls College Oxford CONTENTS—SUMMARY Preface xxix Introduction xxxi Table of Cases xxxv Table of Legislation, Treaties and Conventions cci I SOURCES OF LAW 1. Sources of Law 3 John Bell II THE LAW OF PERSONS 2. Family 49 Stephen Cretney 3. Companies and Other Associations 149 John Armour III THE LAW OF PROPERTY 4. Property: General Principles 219 William Swadling 5. Security 403 Lionel Smith 6. Intellectual Property 497 William Cornish 7. Succession 545 Roger Kerridge IV THE LAW OF OBLIGATIONS 8. Contract: In General 623 Sir Guenter Treitel vii Contents—Summary 9. Agency 793 Francis Reynolds 10. Sale of Goods 857 Ewan McKendrick 11. Carriage of Goods by Sea 901 Francis Reynolds 12. Carriage of Goods by Air and Land 949 Malcolm Clarke 13. Insurance 981 Malcolm Clarke 14. Banking 1029 Richard Hooley 15. Employment 1081 Mark Freedland 16. Bailment 1131 Norman Palmer 17. Torts and Equitable Wrongs 1185 James Edelman and John Davies 18. Unjust Enrichment 1331 Charles Mitchell V LITIGATION 19. Insolvency 1443 Michael Bridge 20 Private International Law 1527 Adrian Briggs 21. Judicial Remedies 1617 Andrew Burrows 22. Civil Procedure 1705 Neil Andrews Index 1783 viii CONTENTS Preface xxix Introduction xxxi Table of Cases xxxv Table of Legislation, Treaties and Conventions cci I SOURCES OF LAW 1. Sources of Law A. Introduction 1.01 B. The Hierarchy of Norms 1.04 (1) European Union Law 1.05 (2) The European Convention on Human Rights 1.11 (3) The Constitution 1.15 (4) The Common Law 1.21 (5) Custom 1.24 C. Statutes and Their Interpretation 1.25 (1) The Nature of Statutes 1.25 (2) What are Judges Trying to Find Out? 1.31 (3) Where do Judges Look? 1.40 (4) Research to Discover the Purpose 1.47 (5) Sources which may be Consulted 1.50 (6) Presumptions of Interpretation 1.57 D. Precedent 1.61 (1) What is ‘Precedent’? 1.62 (2) What does ‘Precedent’ Involve? 1.65 (3) What Constitutes a ‘Precedent’? 1.66 (4) Distinguishing 1.78 (5) The Rules of Precedent in Particular Courts 1.80 E. Infl uential Sources of Law 1.100 (1) Treaties 1.101 (2) Doctrinal Legal Writing 1.102 ix Contents II THE LAW OF PERSONS 2. Family A. The Creation of Legal Family Relationships 2.01 (1) Birth 2.02 (2) Adoption 2.10 (3) Marriage 2.24 (4) Civil Partnership 2.45 (5) Cohabitation 2.52 B. The Termination of Legal Family Relationships 2.56 (1) Death 2.56 (2) Adoption 2.60 (3) Divorce and Other ‘Matrimonial Causes’ 2.61 (4) ‘Civil Partnership Causes’ 2.85 C. The Legal Consequences of Family Relationships 2.101 (1) Rights in Respect of Property 2.102 (2) Rights to Protection of the Home and Person 2.120 (3) Rights to Financial Support 2.141 (4) Rights and Duties in Respect of Children 2.161 3. Companies and Other Associations A. Introduction 3.01 (1) The Scope of the Chapter 3.01 (2) Associations in English Law: An Overview 3.02 (3) Legal Personality 3.11 (4) Corporations, Quasi-Corporations, and Unincorporated Bodies 3.29 B. Corporations 3.35 (1) Statutory and Chartered Corporations 3.35 (2) Registered Companies 3.40 (3) Limited Liability Partnerships 3.77 (4) Open-Ended Investment Companies 3.80 (5) Building Societies 3.82 (6) Industrial and Provident Societies 3.88 (7) Community Interest Companies 3.90 (8) European Economic Interest Groupings 3.91 (9) European Public Companies 3.92 C. Quasi-Corporations 3.93 (1) Trade Unions 3.93 (2) Friendly Societies 3.100 x Contents D. Unincorporated Bodies 3.103 (1) Partnerships and Limited Partnerships 3.103 (2) Unincorporated Associations 3.110 (3) Unit Trusts 3.114 (4) Pension Trusts 3.115 III THE LAW OF PROPERTY 4. Property: General Principles A. Introduction 4.01 (1) What is the Law of Property? 4.01 (2) Property Rights and Personal Rights 4.03 (3) Classifi cation 4.13 (4) The Enforcement of Property Rights 4.21 (5) The Contribution of Equity 4.22 B. Property Rights in Respect of Land 4.35 (1) Fees Simple Absolute in Possession 4.37 (2) Leases of Land 4.41 (3) Easements 4.82 (4) Profi ts à Prendre 4.96 (5) Rentcharges 4.97 (6) Restrictive Covenants 4.98 (7) Contracts to Purchase Estates in Land 4.106 (8) Options to Purchase 4.109 (9) The Equity of Redemption 4.111 (10) Charges 4.113 (11) Licences: A Doubtful Case 4.114 C. Property Rights in Respect of Goods 4.129 (1) Title 4.130 (2) Leases of Personalty 4.132 (3) Other Bailments 4.134 (4) Equities of Redemption 4.135 (5) Security Devices 4.136 (6) Other Covenants 4.138 D. Rights Held on Trust 4.140 (1) The Trust 4.141 (2) The Juridical Effect of Placing Rights Behind a Trust 4.145 (3) Why Create a Trust? 4.154 (4) Classifi cation of Trusts 4.157 (5) Declared (Express) Trusts 4.164 (6) Duties of Trustees of Declared Trusts 4.210 xi Contents (7) Powers of Trustees of Declared Trusts 4.227 (8) Trusts for Purposes 4.228 (9) Trusts Arising for Reasons Other than Declarations of Trust 4.293 (10) The Coming to an End of Trusts 4.345 E. Co-ownership 4.352 (1) Types of Co-ownership 4.354 (2) Choosing Between Types of Co-ownership 4.364 (3) Creation of the Different Tenancies 4.366 (4) Severance of Joint Tenancies 4.373 (5) Rights of Co-owners Inter Se 4.383 (6) Statutory Reforms of Co-owned Titles to Land: 1925 4.386 (7) Statutory Reforms of Co-owned Titles to Land: 1996 4.394 (8) Disputes over Co-owned land 4.397 F. Creation of Property Rights 4.398 (1) Consent 4.401 (2) Wrongs 4.406 (3) Unjust Enrichment 4.413 (4) Other Events 4.414 G. Transfer of Property Rights 4.438 (1) Titles to Land 4.439 (2) Titles to Goods 4.449 (3) Disclaimer of Rights 4.461 H. Extinction of Property Rights 4.462 (1) Destruction of the Subject-Matter of the Right 4.463 (2) Lapse of Time 4.469 (3) Satisfaction of Judgment in Conversion 4.478 (4) Inferior Title Sold to Good Faith Purchaser for Value 4.479 (5) Encumbered Title Sold to Good Faith Purchaser for Value 4.485 (6) Obsolete Restrictive Covenants 4.501 (7) Extinction of Easements and Restrictive Covenants where Dominant and Servient Tenements Come into the Same Hands 4.502 (8) Abandonment 4.503 (9) Determination of Leases of Land 4.506 5.
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