UNDE!STANDING THE LAW OF OBLIGATIONS UNDE!STANDING THE LAW OF OBLIGATIONS ESSAYS ON CONT!ACT, TO!T AND !ESTITUTION AND!EW BU!!OWS, BCL, MA (Oxon), LLM (Harvard) Professor of English Law, University College, London Law Commissioner for England and Wales OXFO!D Hart Publishing Oxford UK Distributed in the United States by Northwestern University Press Colfax, Evanston Illinois – USA Distributed in Australia and New Zealand by Federation Press PO Box , Annandale NSW , Australia Distributed in the Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan B Schoten, Antwerpen Belgium © Andrew Burrows Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, Whitehouse !oad, Oxford, OX PA Telephone: + ( ) or Fax: + ( ) e-mail:
[email protected] British Library Cataloguing in Publication Data Data Available ISBN – – – (cloth) Typeset in pt Bembo by Hope Services (Abingdon) Ltd. Printed in Great Britain on acid-free paper by Biddles Ltd., Guildford and King’s Lynn For Charlotte Contents Foreword Table of Cases Table of Statutes and Supra-national Legislation . Dividing the Law of Obligations . Solving the Problem of Concurrent Liability Postscript to Essay . Understanding the Law of !estitution: A Map Through the Thicket . Free Acceptance and the Law of !estitution . !estitution: Where do We Go From Here? . In Defence of Tort . Legislative !eform of !emedies for Breach of Contract . Improving Contract and Tort: the View from the Law Commission Index ix xi xxii Foreword This collection of essays explores issues that are of central importance in understanding the law of obligations. Each has a wide-ranging focus and, taken together, it is hoped that they provide the reader with a clear and stimulating guide to the present shape and likely future development of the law of obligations. I have long held the belief that, in understanding the law of obligations, one should distinguish contract, tort, and restitution, while recognising concurrent liability between them. Essays and directly examine that belief. Essay explains modifications in my thinking since the article I wrote on the same theme in the Law Quarterly !eview. Essay is an edited version of my inaugural lecture at UCL delivered on November (and published in ( ) CLP ).1 The postscript to essay deals with two questions that are briefly touched on in that essay but merit more detailed consideration. Essays – look at various aspects of the newly-recognised law of restitution, including likely future developments. They are lightlyupdated versions of articles published at ( ) UQLJ ,2 ( ) LQ! ,3 and ( ) CLP 4 respectively. Versions of essay were presented to a conference on Equity, !estitution and the Banking Lawyer at Bond University on July ; to a staff seminar at the University of Queensland on August ; to members of the Australian Banking Law Association in Melbourne on August and in Sydney on September ; and to Freehills, Sydney, on September . A version of essay was presented to the Cambridge meeting of the SPTL !estitution Group in September . Essay was delivered in the series “Law and Opinion at th