English Private Law

14968 Pages·2013·26.35 MB·English

by  Andrew Burrows

ENGLISH PRIVATE LAW
ENGLISH PRIVATE LAW
THIRD EDITION
Edited by
PROFESSOR ANDREW BURROWS
All Souls College, Oxford
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University
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Third Edition published in 2013
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In Memory of Peter Birks 1941–2004
EDITOR
Professor Andrew Burrows QC FBA
All Souls College Oxford
CONTRIBUTORS
Professor Neil Andrews
Clare College Cambridge
Professor John Armour
Oriel College Oxford
Professor John Bell QC FBA
Pembroke College Cambridge
Professor Michael Bridge
London School of Economics and National University of Singapore
Professor Adrian Briggs
St Edmund Hall Oxford
Professor Malcolm Clarke
St John’s College Cambridge
Professor William Cornish CMG QC FBA
Magdalene College Cambridge
Mr John Davies
Brasenose College Oxford
Professor Graeme Dinwoodie
St Peter’s College Oxford
Professor Mark Freedland QC FBA
St John’s College Oxford
Professor Jonathan Herring
Exeter College Oxford
Professor Richard Hooley
Kings College London
Professor Roger Kerridge
University of Bristol
Professor Ewan McKendrick
University of Oxford
Professor Charles Mitchell
University College London
Mr Donal Nolan
Worcester College Oxford
Professor Norman Palmer QC CBE FSA
3 Stone Buildings Lincoln’s Inn
Professor Francis Reynolds QC FBA
Worcester College Oxford
Professor Francis Rose
University of Southampton
Professor Lionel Smith
McGill University Montreal
Mr William Swadling
Brasenose College Oxford
PREFACE
The aim of this book is to provide a high-quality overview of the rules and
principles that constitute English private law. Along with its companion volume,
English Public Law, it presents a unique picture of English law that it is hoped
will be of great benefit to practitioners, academics, and students alike.
Moreover, with the increasing emphasis on globalization in legal services, it is
anticipated that foreign lawyers will find these two volumes of invaluable help
in understanding English law, which may otherwise appear to be unstructured
and lacking in principle.
To produce a succinct and yet authoritative overview requires mastery of the
field in question and it is with that in mind that the team of contributors has
been assembled. The authors are acknowledged experts in their respective
subject areas and their brief has been to produce as clear, simple and accurate an
overview as possible of the relevant rules and principles. What one has here,
therefore, is the product of many years of learning in each particular area.
All this was the brainchild of the late Professor Peter Birks, to whom this book
is dedicated. Inspired by the example of Gloag and Henderson’s Law of
Scotland, and with the particular encouragement of the late Lord Rodger of
Earlsferry, Birks’s goal was for this and English Public Law to be on every
English lawyer’s desk as at least a first point of reference. His mark is indelibly
stamped across the whole work not least in the structure which he devised for
this book.
It is worth recalling here that, while seeing the enterprise as following in the
tradition of Gaius’ Institutes and Blackstone’s Commentaries, Birks regarded
the need for a well-organized overview, or map, of English private law as
responding to two particular challenges in the modern practice of law. He
referred to these as ‘stovepipe mentality’ and ‘information overload’. In his
words: There is a constant complaint of ‘stovepipe mentality’. It is an allegation
that practitioners—especially young practitioners, since the complaint is usually
made by senior people—know their law only in the way that many people know
London, as pools of unconnected light into which to emerge from a limited
number of friendly tube stations…The reason why these ‘stovepipe’ lawyers
cannot move confidently from one area of the law to another is that nobody has
shown them the map.1
Later he turned his attention to ‘information overload’: The information
explosion makes the need for the structured Blackstonian approach all the more
urgent. Information can now be accessed more and more rapidly. The
mechanical aspects of the research function are well provided for and constantly
being improved. Meanwhile the structure, which is the software which allows
the brain to keep the mass of information under intellectual control, is being
neglected. While it is becoming ever more essential that lawyers should have a
sound grip on the concepts and principles which hold the law together, that need
is not being met…A high price will be paid if this goes on. Clients will be badly
served. The common law will become incoherent, and it will lose respect. That
unnecessary disaster is what we hope that English Private Law, and its sequel
English Public Law, will help to prevent, by setting out a coherent, economical
account, not only of individual topics, but also of the larger categories of the law
and the way that they fit together and, hence, of the law itself.2
In addition to a thorough updating—and, in some instances, substantial
rewriting—of the chapters for this new edition, some minor gaps in coverage
have been filled (on international sale of goods in chapter 10, regulatory reform
in chapter 14, the horizontal impact of the Human Rights Act 1998 in tort law in
chapter 17, and arbitration in chapter 22).
We are very sorry to lose from the team for this edition, Stephen Cretney, Sir
Guenter Treitel, and James Edelman and thank them for their hard work on
previous editions. We welcome as new authors Jonathan Herring (chapter 2),
Graeme Dinwoodie (as co-author of chapter 6), Francis Rose (chapter 11) and
Donal Nolan (as co-author of chapter 17). Ewan McKendrick, already the author
of chapter 10, has taken over chapter 8.
We would like to thank the team at OUP (Roxanne Selby, David Lewis, and
Fiona Sinclair) for their dedication, skill, and hard work. Fiona Sinclair was
responsible for the early day-today overseeing of the project and we are
especially grateful to her for being so efficient and patient in dealing with the
inevitable complexities of such a multi-authored work. Particular thanks are also
due to Elissa Connor for her excellent copy-editing.
Subject to some minor amendments at proof stage, the law is stated as at 30
January 2013.
Andrew Burrows
Oxford
31 March 2013