LAW OF OBLIGATIONS AND LEGAL REMEDIES Second Edition CP Cavendish Publishing Limited London • Sydney LAW OF OBLIGATIONS AND LEGAL REMEDIES Second Edition Geoffrey Samuel MA, LLB, PhD (Cantab) Dr (Maastricht) Professor of Law, Kent Law School University of Kent at Canterbury CP Cavendish Publishing Limited London • Sydney Second edition first published in Great Britain 2001 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com © Samuel, G 2001 First edition 1996 Second edition 2001 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, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher. British Library Cataloguing in Publication Data Samuel, Geoffrey, 1947– Law of Obligations and Legal Remedies – 2nd ed 1 Obligations (Law) – England 2 Obligations (Law) – Wales 3 Remedies (Law) – England 4 Remedies (Law) – Wales I Title II Obligations and legal remedies 346.4'2'02 ISBN 1 85941 566 0 Printed and bound in Great Britain PREFACE TO THE FIRST EDITION This book is, in some respects, a re-orientated version of our monograph Contractual and non-contractual obligations in English law published by Ars Aequi Libri in the Netherlands in 1992 (published also in a student edition: The English law of obligations in comparative context, 1991). However it is much more than a second edition of this work in that it has been extensively rewritten for the English market so as to develop topics, themes and ideas only briefly touched upon in 1992. Thus remedies and certain procedural questions have been expanded to almost half the book and there are more focused chapters on history, method, theory, and harmonisation. Much of the discussion of Dutch law will appear, at a later date, in a Continental edition which will not only cover the European law of obligations but will maintain the 1992 objective of describing English law from the position of a jurist trained in the Continental tradition. Yet, that said, the book maintains a comparative flavour: the English law of obligations and remedies is placed, as far as possible, in the structural context of the codes and there are continual references to the question, and problems, concerning harmonisation of private law within the European Union. On a more practical note, the book is designed to complement the Cavendish Sourcebook on Obligations and Legal Remedies published last year. We are most grateful to Cavendish not just for their enthusiasm in respect to our vision of the law of obligations, but for the cheerful and helpful way they go about publishing. It is most refreshing. Thanks also to those friends, colleagues and family who have, as usual, proved so supportive. The footnotes will go some way in locating the influences on this book, but they are not definitive and we are thus conscious that there may be unjust omissions. Finally we are sensitive to the (justified) calls by one or two colleagues for a new set of standards in comparative law and in legal epistemology (theory of knowledge). It would be idle to claim that this book meets these standards, yet we hope that those who use the book as a means of gaining knowledge of the English law of obligations will be sympathetic to the aim of pushing outwards from a survey of the source material towards something beyond the idea that legal knowledge consists of learning rules and principles. Geoffrey Samuel Lancaster University Jac Rinkes Rijksuniversiteit Limburg May 1996 v PREFACE TO THE SECOND EDITION This second edition sees an important change. Jac Rinkes, who was responsible in the original version of this book (published in The Netherlands) for the Dutch and German law input, is no longer involved. The Cavendish edition saw a reorientation towards English law and for this second edition most of the updating has, obviously, focused on the common law. Jac’s influence and input remains, however, in a number of direct and indirect ways. I should therefore like to acknowledge that this book owes its existence to his encouragement and contribution. Despite the reorientation, the basic aim of the book remains the same. This aim is to present English law from, wherever feasible, the position of a jurist trained in the Roman and later civilian tradition. In addition, there are some other characteristics that this second Cavendish edition maintains. In particular, the emphasis on remedies, on legal reasoning and on some of the theoretical considerations underpinning comparative law. Updating is, of course, the most important priority of any new edition, but it needs to be emphasised again that this book is not designed as a detailed textbook on contract, tort and restitution. The European dimension, with its carefully structured approach to liability, is the starting point and this structure is used to try to give the common law student an overview of what is now being increasingly called the ‘law of obligations’. It is an impressionist work rather than a Canaletto. Many thanks to those who have been so supportive of the first edition and the approach adopted. Kevin Gray, Pierre Legrand, Mark van Hoecke, Colin Turpin, John Bell, Horatia Muir-Watt, Bernard Rudden, Stephen Waddams and of course Jac Rinkes deserve a special mention. I should also like to thank the law faculties of Paris II, especially Professor Louis Vogel, and Nancy for their frequent invitations to teach and to research. The invitation to become Professor associé, once again, at Paris II has given me, and continues to give me, the opportunity to experience life at first hand in a civilian law faculty. The experience is invaluable for a common lawyer and hopefully is reflected in the pages that follow. One might add that the interest in France in the common law tradition, and now, at Paris in particular, in comparative law is becoming particularly stimulating. This second edition has been completed with the civil law, as well as the common law, student in mind. Geoffrey Samuel Kent Law School December 2000 vi CONTENTS Preface to the First Edition v Preface to the Second Edition vi Table of Cases xiii Table of Statutes xli Table of Statutory Instruments xlv Table of International Legislation xlvi General Abbreviations xlviii Reference Abbreviations li PRELIMINARY REMARKS liii 1 GENERAL INTRODUCTION 1 1 THE NOTION OF A LAW OF OBLIGATIONS 1 2 THE ENGLISH LAW OF OBLIGATIONS 11 3 OBLIGATIONS AND LEGAL REASONING 18 4 OBLIGATIONS AND COMPARATIVE LEGAL METHOD 21 5 OBLIGATIONS AS A FORM OF LEGAL KNOWLEDGE 23 6 EUROPEAN UNION LAW 25 7 THEORY AND PRACTICE 27 8 GENERAL THEORY OF OBLIGATIONS 34 PART I THE LAW OF ACTIONS 2 PROCEDURAL AND SUBSTANTIVE QUESTIONS 39 1 SUBSTANTIVE LAW AND PROCEDURE 39 2 PUBLIC AND PRIVATE LAW REMEDIES 40 3 THE ROLE OF THE PARTIES AND THE JUDGE 45 vii Law of Obligations and Legal Remedies 4 BURDEN OF PROOF 49 5 QUESTIONS OF FACT AND QUESTIONS OF LAW 53 6 LEGISLATION 56 7 PARTIES 60 8 STATUS 62 9 THE RIGHT TO SUE 65 10 THE RIGHT NOT TO BE SUED 70 3 THE INSTITUTIONAL BACKGROUND 75 1 LEGAL KNOWLEDGE 75 2 METHODOLOGY 79 3 CONCEPTS AND CATEGORIES 83 4 CIVILIAN AND ENGLISH LEGAL SCIENCE 99 4 REMEDIES (1) – INTRODUCTION 113 1 INSTITUTIONS AND RULES 113 2 REMEDIES AND INTERESTS 117 3 INTERESTS AND OBLIGATIONS 119 4 CLASSIFICATION OF REMEDIES 122 5 MONETARY REMEDIES 124 6 SELF-HELP REMEDIES 136 7 DECLARATION 139 8 COMPARATIVE REFLECTIONS 139 5 REMEDIES (2) – NON-MONETARY REMEDIES 143 1 COMMON LAW AND EQUITY 143 2 RECTIFICATION IN EQUITY 149 3 RESCISSION IN EQUITY 150 viii Contents 4 INJUNCTIONS AND SPECIFIC PERFORMANCE 152 5 SUBROGATION 165 6 REMEDIES (3) – DAMAGES 175 1 DAMAGE AND DAMAGES 175 2 COMPENSATION ACTIONS 177 3 DAMAGES AND INTERESTS 182 4 ECONOMIC INTERESTS 195 5 NON-COMPENSATORY DAMAGES 204 6 DAMAGES AND BEHAVIOUR 207 7 CAUSATION 211 1 ROLE OF FAULT 211 2 LIMITING DAMAGES 215 3 FACTUAL CAUSATION 219 4 REMOTENESS OF DAMAGE 227 5 CAUSATION AND DAMAGES 234 6 CAUSATION AND UNLAWFUL BEHAVIOUR 238 7 CAUSATION AND NON-MONETARY REMEDIES 245 PART II THE LAW OF OBLIGATIONS 8 INTRODUCTION TO CONTRACTUAL AND NON-CONTRACTUAL OBLIGATIONS 249 1 OBLIGATIONS AS A CATEGORY 249 2 CONTENT OF AN OBLIGATION 254 3 SUBJECTIVE ACTS AND OBJECTIVE FACTS 256 ix Law of Obligations and Legal Remedies 4 OBLIGATIONS AND EXTERNAL CLASSIFICATIONS 264 5 CONTRACTUAL OBLIGATIONS 279 6 THE PROVINCE OF THE LAW OF CONTRACT 292 9 THE FORMATION OF A CONTRACT 297 1 THE ESSENTIAL REQUIREMENTS OF A CONTRACT 297 2 OFFER AND ACCEPTANCE 299 3 CONSIDERATION 307 4 PRE-CONTRACTUAL LIABILITY 314 5 INTENTION TO CREATE LEGAL RELATIONS 316 6 VITIATING FACTORS 317 7 MISREPRESENTATION 324 8 MISTAKE 328 9 FRAUD 334 10 DURESS 335 11 RESTITUTION PROBLEMS 337 12 CONCLUDING REMARKS 338 10 NON-PERFORMANCE OF A CONTRACTUAL OBLIGATION 341 1 CONTRACTUAL REMEDIES AND CONTRACTUAL RIGHTS 341 2 BREACH OF A PRE-CONTRACTUAL OBLIGATION 343 3 THE CONTENTS OF A CONTRACT 345 4 EXCLUSION AND LIMITATION CLAUSES 354 5 DEBT CLAUSES 360 6 IMPLIED TERMS 362 7 PRIVITY OF CONTRACT 364 x Contents 8 DISCHARGING CONTRACTUAL OBLIGATIONS 367 9 NON-PERFORMANCE AND THE LAW OF REMEDIES 380 11 NON-CONTRACTUAL OBLIGATIONS (1) – LAW OF