This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream and the causes and effects of those departures. Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances. In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path.
The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A separate collection, entitled The Common Law of Obligations: Divergence and Unity (ISBN: 9781782256564), is also being published.
Andrew Robertson is Professor of Law and Director of Studies for Private Law at Melbourne Law School in the University of Melbourne. Michael Tilbury is a Professorial Fellow at Melbourne Law School, formerly Kerry Holdings Professor in Private Law at the Faculty of Law in the University of Hong Kong.
1. Why Diverge? Andrew Robertson and Michael Tilbury 2. Proximity: Divergence and Unity Andrew Robertson 3. Canada's Common Law, Quebec's Civil Law and the Threshold of Actionable: Mental Harm Following Tortious Conduct Louise Belanger-Hardy 4. `Pure Economic Loss' and Defective Buildings Sarah Green and Paul S Davies 5. Divergence and Convergence in the Tort of Public Nuisance JW Neyers 6. Defamation on the Internet Robert Ribeiro 7. Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom Neil Foster 8. The Scope of the Rule Against Contractual Penalties: A New Divergence Sirko Harder 9. Rights Restricting Remedies Robert Stevens 10. The Methods and Madness of Unjust Enrichment Zoe Sinel 11. Recovery of Non-Gratuitously Conferred Benefit Under Section 70 of the Indian Contract Act 1872 Alvin W-L See 12. Revisiting Canada's Approach to Fiduciary Relationships Erika Chamberlain 13. The Presumptions of Resulting Trust and Advancement Under Singapore Law: Localisation, Nationalism and Beyond Man Yip 14. Divergence in the Australian and English Law of Undue Influence: Vacillation or Variance? Robyn Honey 15. Whose Conscience? Unconscionability in the Common Law of Obligations Graham Virgo 16. Form and Substance in Equitable Remedies Stephen A Smith