Private Law

Edited by Ori Herstein (King's College London, Hebrew University of Jerusalem)
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  1. Of the Honey and the Sting - Reflections on Remedies and the Draft Civil Code (in Hebrew).Yehuda Adar - unknown
    The section named "Remedies for Breach of an Obligation" in the official draft of the new Israeli Civil Code represents a bold attempt to unify the various laws concerning civil remedies into a unified and coherent "Law of Remedies". This section is intended to apply to violations of civil obligations generally, including torts and breaches of contract. The article provides a theoretical perspective on the law of remedies through which the author offers a critical analysis of the remedies section in (...)
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  2. Australian Torts Law, [Book Review].John Alati - 2013 - Ethos: Official Publication of the Law Society of the Australian Capital Territory 229:37.
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  3. The Structure of Aggravated and Exemplary Damages.Allan Beever - 2003 - Oxford Journal of Legal Studies 23 (1):87-110.
    This article explores aggravated and exemplary damages in terms of their structure. It argues that the awards are distinguishable and once they have been appropriately analysed it can be seen that aggravated damages have a secure foundation in the private law and are importantly different from other compensatory awards. The article then argues that many of the reasons given in favour of exemplary damages are not consistent with the structure of that award. The article concludes by insisting that exemplary damages (...)
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  4. Problems of Liability for Breach of a Preliminary Agreement.Dangutė Ambrasienė & Indrė Kryžiūtė - 2012 - Jurisprudence 19 (2):561-583.
    Due to its specificity, the legal institute of preliminary agreement poses a number of questions. This pre-contractual agreement is not yet a contract. Therefore, the form and scope of legal protection will not be the same as that guaranteed to contracting parties. However, the European legal systems would claim that the relationships between the parties during pre-contractual negotiations have to be regulated and protected by the law. The first part of this article deals with the legal nature of pre-contractual liability: (...)
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  5. American Tort Law in Crisis.P. S. Atiyah - 1987 - Oxford Journal of Legal Studies 7 (2):279-301.
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  6. Accident Law for Egalitarians.Ronen Avraham & Issa Kohler-Hausmann - 2006 - Legal Theory 12 (3):181-224.
    This paper questions the fairness of our current tort-law regime and the philosophical underpinnings advanced in its defense, a theory known as corrective justice. Fairness requires that the moral equality and responsibility of persons be respected in social interactions and institutions. The concept of luck has been used by many egalitarians as a way of giving content to fairness by differentiating between those benefits and burdens that result from informed choice and those that result from fate or fortune. We argue (...)
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  7. Contract as Procedural Justice.Aditi Bagchi - 2015 - Jurisprudence 7 (1):47-84.
    The premise of contract law is that the redistribution of entitlements that results from contract is justified by the process of agreement. But theories of contract differ importantly on how and when voluntary exchange justifies a resorting of entitlements. Pure theories regard the principles of contract as essentially derivative from some aspect of the principle of autonomy; contracting parties’ intent to assume legal obligation is in principle necessary and sufficient for its enforcement. Perfect theories do not view contract as self-justifying (...)
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  8. Disciplinary Liability as a Background for Dismissal of Employees in Lithuania.Tomas Bagdanskis - 2011 - Jurisprudence 18 (4):1485-1500.
    This article discusses the problematic aspects relating to the employee dismissal based on application of the disciplinary liability. It contains analysis of two grounds for termination of the employment contract without any previous notice: 1) imposing several disciplinary sanctions upon the employee in the course of twelve months, and 2) the employee has only one breach of labour discipline but a gross one. The article is based on legal acts and judgements of Judicial Assemblies of the Civil Division of the (...)
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  9. Application of Different Types of Employment Contracts in Lithuania – Related Heoretical and Practical Problems.Tomas Bagdanskis & Rasa Macijauskienė - 2012 - Jurisprudence 19 (1):249-267.
    The article discusses theoretical and practical issues one may face when applying various types of employment contracts, refers to specific legal relations governed by Labour Code standards, and raises issues that would help to solve the existing troubles. Last decades as globalization processes were gaining pace, and market economy conditions changed, labour and production organization models were undergoing transformation. The more complex people’s social relationships are, the greater is the need to regulate these relationships, i. e. to adopt legislation that (...)
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  10. Problems of Introduction of Flexibility Into Lithuanian Labour Law.Tomas Bagdanskis & Justinas Usonis - 2011 - Jurisprudence 18 (2):595-612.
    The problems of introduction of flexible work arrangements into Lithuanian labour law are analysed in the paper. Since 1990-ies Lithuania started making huge changes in its economy moving from planned (Soviet) to modern market economy. Together with these changes the employment relationship started to change as well. But after 20 years of development we still see a lack of modern view towards flexible work arrangements in labour laws. The problems of introduction of flexibility into Lithuanian employment relationship are discussed with (...)
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  11. Problems of Qualifying an Employment Relationship and Undeclared Work in Lithuania.Tomas Bagdanskis & Justinas Usonis - 2011 - Jurisprudence 18 (3):1101-1122.
    The research analyses the grounds for separation of employment relationship and independent contractors in civil relationship as it is established in legal provisions and court practice of the Republic of Lithuania. Firstly, criteria for separation of civil and labour legal relationship are analysed. Secondly, Lithuanian judicial practice is examined. Since employment contracts are closely related to undeclared work, thirdly, practise of recognizing of undeclared work is used as criteria for identification of employment relationship. The criteria of illegal and undeclared work (...)
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  12. Termination of an Employment Contract Upon Unilateral Notice of an Employee in Lithuania.Tomas Bagdanskis & Justinas Usonis - 2010 - Jurisprudence 119 (1):211-226.
    The theoretical aspects and practical application of the termination of an employment contract upon an employee’s notice are analyzed in the paper. An employee can terminate an employment contract by his/her notice either without specifying any reason or due to some serious reasons. The problems of the regulation of the grounds for the exipiry of an employment contract are discussed and analyzed by comparison with the corresponding regulations in other European countries. Rulings of the Supreme Court of the Republic of (...)
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  13. Review Article. Can the Economic Torts Be Unified?R. Bagshaw - 1998 - Oxford Journal of Legal Studies 18 (4):729-740.
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  14. Non-Contractual Liability Arising Out of Damage Caused to Another.Bar Christian von - unknown
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  15. The Effect of Change in Circumstances on the Performance of Contract.Egidijus Baranauskas & Paulius Zapolskis - 2009 - Jurisprudence 118 (4):197-216.
    The authors of this article use systemic, comparative and historical methods to review the most representative legal systems – rench, English and German – and analyse how these legal systems deal with the effects of change in circumstances on the performance of a contract. The authors also discuss solutions adopted by scholar groups working on supranational contract law (soft law) instruments, namely, UNIDROIT Principles of International Commercial Contracts and Principles of European Contract Law, stressing that these sets of principles have (...)
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  16. Responsibility for Gain: Unjust Factors or Absence of Legal Ground? Starting Points in Unjust Enrichment Law.Kit Barker - unknown
    This piece engages a basic question about legal responsibility for gains in the common law: are the gains we make at the expense of others something we need to justify, or something which we are presumptively entitled to keep? The answer to this question holds key implications for the current debate as to whether English law should retain an approach to unjust enrichment reasoning based on a plaintiff proving defined “unjust factors”, or switch to civilian-style reasoning, which is based on (...)
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  17. Centripetal Force: The Law of Unjust Enrichment Restated in England and Wales.Kit Barker - 2014 - Oxford Journal of Legal Studies 34 (1):155-179.
    Restatements of the law are usually considered a uniquely American phenomenon, explained by the complexities and uncertainties of a multi-jurisdictional common law system. They have also been subject to the accusation from legal realists that they are misleading, conservative and formalistic exercises. This review interrogates the role of the restatement in a jurisdiction with a singular common law tradition, focusing on Andrew Burrows’ recent Restatement of the English law of Unjust Enrichment. It compares and contrasts his restatement with previous American (...)
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  18. ‘Damages Without Loss’: Can Hohfeld Help?Kit Barker - 2014 - Oxford Journal of Legal Studies 34 (4):631-658.
    This article addresses a still unsolved puzzle in private law regarding the proper explanation of cases in which courts make substantial awards of damages to claimants whose rights have been infringed, but who appear to have suffered no factual loss in consequence of the infringement. The paradigm examples tend to involve awards of ‘user’, license fee or ‘hypothetical bargain’ damages in cases involving interference with property rights. It suggests that existing explanations of such cases are all unsatisfactory in one or (...)
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  19. Theorising Unjust Enrichment Law Being Realist (Ic)?Kit Barker - 2006 - Oxford Journal of Legal Studies 26 (3):609-626.
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  20. Wielding Occam's Razor: Pruning Strategies for Economic Loss.Kit Barker - 2006 - Oxford Journal of Legal Studies 26 (2):289-302.
    The English Court of Appeal is currently faced with three analytically distinct approaches to the question of when one party owes another a duty of care in respect of her economic interests, all of which bear the authority of the House of Lords. Unable to choose between them, it has recently adopted a fourth approach combining which combines them, in the apparent belief that the combination will eradicate any individual deficiencies. Against the background of a recent case, the author argues (...)
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  21. Unjust Enrichment: Containing the Beast.Kit Barker - 1995 - Oxford Journal of Legal Studies 15 (3):457-475.
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  22. Are We Up to Expectations? Solicitors, Beneficiaries and the Tort/ Contract Divide.Kit Barker - 1994 - Oxford Journal of Legal Studies 14 (1):137-150.
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  23. The Justice of Restitution.R. E. Barnett - 1980 - American Journal of Jurisprudence 25 (1):117-132.
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  24. Thoughts on the Divergence of Contract and Promise.Ian Bartrum - 2011 - Canadian Journal of Law and Jurisprudence 24 (1):225-235.
    This essay offers some brief thoughts on Seana Shiffrin’s recent work regarding the divergence of contractual and promissory norms. I conclude that Shiffrin does not do enough to separate and account for the different consequentalist and deontological justifications underlying each institution, and does not do enough to explain how promises give rise to the “moral” duties she posits. I suggest, instead, that the divergence between contract and promise is justified by the different roles each institution plays in our lives, and (...)
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  25. Corrective Justice and Personal Responsibility in Tort Law.Allan Beever - 2008 - Oxford Journal of Legal Studies 28 (3):475-500.
    It is sometimes argued that tort law is, or ought to be understood as, a system of personal responsibility and corrective justice. Moreover, it is often assumed that these notions are identical, or at least compatible. In fact, however, personal responsibility and corrective justice are very different concepts and they produce very different pictures of the law. The article demonstrates this by comparing the way in which personal responsibility and corrective justice deal with three important problems: the presence of non-subjective (...)
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  26. Aristotle on Equity, Law, and Justice.Allan Beever - 2004 - Legal Theory 10 (1):33-50.
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  27. Promises, Trust, and Contract Law.A. J. Bellia - 2002 - American Journal of Jurisprudence 47 (1):25-40.
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  28. ‘Losses in Any Event’ in the Case of Damage to Property.Samuel Beswick - 2015 - Oxford Journal of Legal Studies 35 (4):755-775.
    In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as ‘a firm sub-rule’ that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that (...)
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  29. Roman Private Law, by H. W. Leage. [REVIEW]W. H. Beveridge - 1907 - Ethics 18:525.
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  30. Establishing Liability in War.Camillo Bica - 1997 - Public Affairs Quarterly 11 (3):217-227.
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  31. Exploitative Contracts.Rick Bigwood - 2003 - Oxford University Press.
    In turn, the volume explains how an understanding of these contract law doctrines can be enhanced by a proper conception of exploitation.
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  32. Remedies'.P. Birks & Wrongs Rights - 2000 - Oxford Journal of Legal Studies 1.
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  33. Economic Loss in Tort.W. Bishop - 1982 - Oxford Journal of Legal Studies 2 (1):1-29.
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  34. Book Review:Grounds of Liability: An Introduction to the Philosophy of Law. Alan R. White. [REVIEW]J. H. Bogart - 1987 - Ethics 97 (3):673-.
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  35. Singapore. The Effect of Contract on the Law Governing Claims in Torts and Equity.Andrea Bonomi & Paul Volken - 2009 - In Andrea Bonomi & Paul Volken (eds.), Yearbook of Private International Law: Volume Ix. Sellier de Gruyter.
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  36. Aristotle on Corrective Justice.Thomas C. Brickhouse - 2014 - Journal of Ethics 18 (3):187-205.
    This paper argues against the view favored by many contemporary scholars that corrective justice in the Nicomachean Ethics is essentially compensatory and in favor of a bifunctional account according to which corrective justice aims at equalizing inequalities of both goods and evils resulting from various interactions between persons. Not only does the account defended in this paper better explain the broad array of examples Aristotle provides than does the standard interpretation, it also better fits Aristotle’s general definition of what is (...)
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  37. A Fair Deal at Work.D. Brodie - 1999 - Oxford Journal of Legal Studies 19 (1):83-98.
    For many years the damages available to an employee in a wrongful dismissal action have been somewhat limited. A conservative approach to the question of measure of damages has prevailed and the recoverable heads of damage have been restricted. In particular, damages for injury to feelings and reputation have not been available. The House of Lords decision in Malik v BCCI [1998] AC 20, where the plaintiffs were held to be entitled to compensation for the damage the dismissals caused to (...)
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  38. Enterprise Liability: Justifying Vicarious Liability.Douglas Brodie - 2007 - Oxford Journal of Legal Studies 27 (3):493-508.
    In Lister v Hesley Hall [2002] 1 AC 215 the House of Lords reformed the law on vicarious liability, in the context of a claim arising over the intentional infliction of harm, by introducing the ‘close connection’ test. The immediate catalyst was the desire to facilitate recovery of damages on the part of victims of child abuse. The precise form the revision assumed was derived from two Canadian Supreme Court cases: Bazley v Curry [1999] 174 DLR (4th) 45 and Jacobi (...)
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  39. Professional and Agency Liability for Negligence in Child Protection.Donald C. Bross - 1983 - Journal of Law, Medicine & Ethics 11 (2):71-75.
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  40. Can Franchise Agreements Provide for Relief Against Franchisor Failure in the Context of the Common Law?Jenny Buchan - unknown
    Franchise arrangements are based on a contract between the franchisor and franchisee; the franchise agreement. This paper examines whether franchise agreements, as a genre, can be routinely drafted to provide for relief against franchisor failure for the network’s franchisees. The current regulation of franchise agreements under the common law in Australia is set out. The assumptions that underpin the current law are stated and examined. An investigation of the allocation of risk in franchise agreements, in particular the risk of franchisor (...)
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  41. Toward an Epistemology of ISP Secondary Liability.Dan Burk - 2011 - Philosophy and Technology 24 (4):437-454.
    At common law, contributory infringement for copyright infringement requires "knowledge" of the infringing activity by a direct infringer before secondary liability can attach. In the USA, the "safe harbor" provisions of the Digital Millennium Copyright Act, that shield Internet Service Providers from secondary copyright liability, are concomitantly available only to ISPs that lack the common law knowledge prerequisites for such liability. But this leads to the question of when a juridical corporate entity can be said to have "knowledge" under the (...)
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  42. Beyond 'Capital': A Necessary Corrective and Four Issues for Further Discussion.Al Campbell & Mehmet Ufuk Tutan - 2006 - Historical Materialism 14 (2):95-112.
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  43. Review Article. Corrective Justice and Correlativity in Private Law.P. Cane - 1996 - Oxford Journal of Legal Studies 16 (3):471-488.
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  44. Justice and Justifications for Tort Liability.Peter Cane - 1982 - Oxford Journal of Legal Studies 2 (1):30-62.
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  45. Democratic Distributive Justice, By Ross Zucker.Thomas Casadei - 2002 - Ratio Juris 15 (3):341-346.
  46. Leading a Life of its Own? The Roles of Reasonable Expectation in Contract Law.Catherine Mitchell - 2003 - Oxford Journal of Legal Studies 23 (4):639-665.
    The notion of the ‘reasonable expectations of the parties’ plays an important justificatory role in contract law, yet the notion has not been subjected to any sustained analysis in the contract law literature. This article examines the various roles that reasonable expectation plays in contract law and explores the different understandings of the notion that are revealed. It identifies three possible bases for reasonable expectations—an institutional basis, an empirical basis and a normative basis—and examines how reasonable expectations arguments in contract (...)
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  47. Philosophical Foundations of the Law of Unjust Enrichment.Robert Chambers, Charles Mitchell & J. E. Penner (eds.) - 2009 - Oxford University Press.
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  48. The Doctrine of Laesio Enormis in Lithuanian Contract Law.Tomas Chochrin & Rūta Lazauskaitė - 2015 - Jurisprudence 21 (4):1163.
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  49. Social Purpose of Private Property.Solveiga Cirtautienė & Dalia Vasarienė - 2009 - Jurisprudence 118 (4):105-122.
    Lithuania had a different experience in legal regulation of private property. There were periods when right to private ownership was denied and on the other hand – the periods when right to private ownership was respected and protected. Authors wanted to review today’s status of rights to private property in retrospective. The main purpose of the article is to reveal functions of private property in Lithuania. The article analyzes peculiarities of legal regulation of private property in Lithuania during different stages (...)
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  50. Corrective Vs. Distributive Justice: The Case of Apologies.Andrew I. Cohen - forthcoming - Ethical Theory and Moral Practice:1-15.
    This paper considers the relation of corrective to distributive justice. I discuss the shortfalls of one sort of account that holds these are independent domains of justice. To support a more modest claim that these are sometimes independent domains of justice, I focus instead on the case of apologies. Apologies are sometimes among the measures specified by corrective justice. I argue that the sorts of injustices that apologies can help to correct need not always be departures from ideals specified by (...)
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