The article examines the different roles played by private and public intergenerational support obligations in England and France, assesses their impact on elderly people and their carers and suggests possible ways in which the law might be used to alleviate some of the difficulties.

This paper explores the circumstances in which a change in the land register should be stigmatised as a mistake and thereby introduce the discretionary power to correct it. Recognising the importance of clarifying the concept of mistake, due to its role in controlling the reliability of the register, the paper reviews and rejects various possible determinants for mistake. It proposes an account of mistake which rests on a set of rigid legal constructs about entitlement and registration and which pays respect to various traditional attributes of property.

The conception of moral responsibility, as Williams describes it, focuses on the “voluntary”. The voluntary, as applied to action, is to be defined roughly as “A does X intentionally and in a normal state of mind“. We have, he argues, good reason to use this conception for certain purposes—in particular, to use it in the context of criminal punishment for the purpose of determining who justifiably may be punished. However, this reason is not to be found either within the conception of moral responsibility itself, or within an understanding of what punishment is or should do: that is, this conception does not guarantee or require its own application; nor do the familiar accounts of punishment (as, e.g., deterrence or retribution) require that punishments be imposed only for voluntary wrongdoings. Rather, Williams asserts, we should follow H.L.A. Hart in founding the argument for moral responsibility on the value of political freedom: if citizens “should be able to conduct their affairs so far as possible without the state's power being unpredictably directed against them”, then punishments “should be applied to [and only to] voluntary agents”.

Over two centuries ago, in the first reported case of its kind, Lord Hardwicke held the “committee-men” or directors of the Charitable Corporation guilty of “breaches of trust,” for which they had to account to the corporation. The concept of the director as a trustee persists through the cases and the textbooks to this day, but its origin is ill-explained and its modern relevance imperfectly understood. Why is the director called a trustee? Is it because he once was a trustee in the full technical sense? In what respects does the position of a director resemble, and in what respects does it differ from that of a trustee? How far has the law acknowledged these differences? Is the law, in so far as it is based on trust principles, adequate to ensure the proper discharge by directors of their responsibilities?

This article proposes a new framework for determining the availability of proprietary remedies for breach of the fiduciary duty of loyalty. It examines the alternative and conflicting arguments put forward in the leading cases, and suggests that they fail to justify their conclusions, either under- or over-estimating the incidence of proprietary relief for fiduciary disloyalty. These shortcomings appear to be the result of inappropriate reliance on familiar equitable formulae, in particular the routine equitable duty to account, the seemingly inescapable maxim that “equity treats as done that which ought to be done”, and the potent rules of tracing.

The article focuses on whether, when considering whether to award cost of cure damages, the courts take account of what the injured promisee to a breach of contract does, or intends to do, with his damages award, and whether or not they should take account of it. This issue has given rise to divergent approaches and some confusion in the cases. The article seeks to shed new light on the issue and considers possible ways of resolving the confusion.

MWB Business Exchange Centres Ltd. v Rock Advertising Ltd. [2016] EWCA Civ 553 deals with a number of important issues concerning variation of contracts. Rock occupied as licensee premises managed by MWB. In August 2011, Rock decided to expand its business, and entered into a written agreement with MWB for larger premises for 12 months beginning 1 November 2011. The licence fee was agreed to be £3,500 per month for the first three months, and then £4,433.34 from 1 February 2012. Unfortunately, Rock's business was not as successful as hoped and, by late February 2012, it had incurred arrears of over £12,000. MWB gave notice purporting to terminate the agreement, but the parties then orally agreed to reschedule the licence fee payments due from February to October 2012: Rock would pay less than the originally agreed amount for the first few months, but after that would pay more, with the result that the arrears would be cleared by the end of the year. Pursuant to this agreement, Rock paid £3,500 to MWB, which was the first instalment due in accordance with the revised payment schedule. However, MWB subsequently changed its mind and sued for the arrears. MWB presented two arguments why Rock could not rely upon the oral variation. First, MWB pointed to an anti-oral variation clause in the written contract. Second, MWB relied upon Foakes v Beer (1884) 9 App. Cas. 605 for the proposition that the variation was not supported by consideration. Both arguments failed before a unanimous Court of Appeal (Arden, Kitchin and McCombe L.JJ.).

The anticipatory reasonable adjustment duty, introduced by the Disability Discrimination Act 1995 and now found in the Equality Act 2010, has been hailed as an innovative and proactive tool for embedding disability equality in services and public functions. Despite important successes, the duty has had a surprisingly low profile in academic scholarship and has struggled to fulfil its practical potential. We seek to understand how this has happened, identifying a range of factors that may operate as blockages to the success of the duty. Whilst these factors are interrelated, we group them under three main headings – visibility, uncertainty and enforcement. We reflect critically on whether, and if so how, relevant blockages can be tackled to enable the duty to embed disability equality more effectively within services and public functions and whether new supplementary measures (particularly concerning accessibility) are also needed.

Juries are divided into juries of presentment and juries of issue; this paper is concerned with the latter kind, commonly called trial juries. Modern writers are singularly chary of committing themselves to any opinion about juries. The eulogies of Blackstone are definitely unfashionable. The current opinion is perhaps on these lines: jury trial in civil cases is sometimes satisfactory and sometimes most unsatisfactory, and hence the restriction of jury trial has been a wise development; however, there is much to be said for jury trial in criminal cases and (in the past, at least) in cases where the liberty of the subject is concerned. If juries have in the past protected persons against political oppression, and if the conditions under which they did so are still existing or reasonably possible, then we have a point of such importance that it should receive priority in discussion.

The article focuses on the “legitimate interest in performance” requirement which is now at the heart of the new test on penalty clauses but which has been left undefined by the Supreme Court in Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2016]. It seeks to bring clarity to what is meant by “legitimate interest in performance” by examining other areas of the law of remedies for breach of contract where concepts of legitimate interest have featured in the court’s reasoning. It also makes suggestions as to what considerations are or might be relevant in determining whether a contracting party has a legitimate interest in performance, in particular a legitimate interest that goes beyond compensation.

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

This article explores the variation of the standard of care in negligence to favour defendants, an issue of considerable practical significance which has not previously been the subject of systematic analysis. By shining a spotlight on this issue I hope to show that varying the standard of care in this way is a useful technique, which is and could be used in a number of types of case to achieve an appropriate balance between liability and non-liability. I also hope to show that if this technique is employed there are some ways of varying the standard of care which are preferable to others. The structure of the analysis is centred around three core questions. First, to what extent has English negligence law already varied the standard of care to favour defendants? Secondly, if the standard of care is to be varied, how should this be done? And thirdly, when and why might the use of a modified standard of care be desirable?

In a series of recent papers Professor Ronald Dworkin has presented a critique of the legal positivist's analysis of law as typified by the work of H. L. A. Hart. Dworkin argues that the “model of rules” provides an incomplete and inadequate characterisation of the nature of legal argument and judicial reasoning and, hence, of law, by virtue of its failure to recognise that judges are bound, in making decisions, not only by rules, but also by principles which have rather different logical properties.

‘Reprisals’ is a mediaeval term which is first met with in the thirteenth century. Lawyers, who wrote in Latin, knew it as repraesaliae or repressaliae an almost exact rendering of the French représailles and the Italian ripresaglie. They tried hard to identify the usages it represented with practices they knew in the civil law. Especially did they try to identify it with the Roman pigneratio. It was not till the early eighteenth century that the essential uniqueness of reprisals was categorically asserted by Bynkershoek in such forceful terms as “operam ludunt qui rem apud Romanos incognitam Latino vocabulo conantur exprimere.”

Robert Feenstra has argued that, although the conception of the trust—so prominent in English law—is generally unknown in civilian legal systems, one of the major areas in which the trust is used in English law, the dedication of property for public or chari-table purposes, is amply covered in the civilian systems by the concept of the foundation. There are, he says, two foundation concepts, both of which have their origins in post-classical Roman law. As for classical Roman law, he concludes that “the classical Roman jurists did not pay much attention to these foundations,” and that any discussion in the important classical Digest texts is found within the confines of legacy and fideicommissum.

The First concept is that of the “real” or “proper” foundation. The “real” foundation is a legal person, and the main point is the existence of an aggregate of assests devoted to a paticular purpose and provided with an organisation of administrators to give effect to this purpose … The property which has been set aside belong neither to the administrators nor to the persons who benefit from the foundation: it belongs to the foundation itself, seen as an artificial, a juristic person.

There are strong indications, Feenstra suggests, of an historical beginning of this real foundation concept in later Roman law, both in the legal position of the Church after Constantine, where texts speak of property belonging to an ecclesia or a monasterium and in the existence of venerabiles domus, where the “houses” are identified as holding property.

We use doctrines of identification to explain how corporations may commit criminal offences in their own right, but current versions thereof have several shortcomings. Here, I suggest that reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible authority, might remedy these shortcomings. Arguments against the resulting expansion of corporate criminal liability are unconvincing, especially when juxtaposed with the criminal law's response to similar arguments made on behalf of natural persons. This may indicate that we should also moderate the criminal law's harshness towards natural persons.