ON 18 October 2017, the UK Supreme Court decided Armes v Nottinghamshire County Council [2017] UKSC 60. The Court ruled that a local authority could be vicariously liable for intentional torts committed by foster parents against a child whom the authority had placed in their care. The outcome was not entirely unexpected. Less than two decades ago it would have been inconceivable. After all, isn't it the case that the common law does not recognise a general principle of liability in tort for the acts of third parties? And that in so far as it does, it holds an employer vicariously liable for a tort committed by an employee in the course of their employment? This is a very long way from the facts of Armes.

For a considerable period of time, statutes have existed which require the registration of deeds, third party incumbrances affecting land, or title to the land itself. In general, the sanction for non-compliance with these registration requirements is that a purchaser for valuable consideration takes free from any interest which should have, but has not, been registered. Throughout the period when registration statutes have been in force, however, a tension has existed between literal compliance with them on the one hand, and seeking to read into them general equitable principles on the other. The effect of introducing these principles is to bind a purchaser by notice of an unregistered interest that is not protected in the appropriate manner by registration.

This article explores certain key features of the tort of deceit which, if looked at only superficially, are apt to mislead as to the gist, nature, and province of this tort. In particular, the article addresses three main issues. The first is the way in which the reliance test used in this tort comes apart from a simple (more familiar) test of causation, and why this has important theoretical ramifications. Secondly, the article seeks to reveal the true gist and province of this tort. In this regard, it is argued that it is a mistake – made by many – to suppose that the infliction of economic loss forms the gist of deceit. Instead, it is suggested that the tort is better seen as being rights-based and that, consequently, it ought not to be seen as a specifically economic tort, but rather as one which protects the victim's decision-making autonomy. Lastly, the article unearths the juristic explanation for the curious fact that, in the tort of deceit, the operation of the contributory negligence defence is excluded while the mitigation principle is applied openly. (The incoherence here inheres in the fact that both these principles are animated by the self-same concern: a desire to exclude the recovery of losses that are attributable to an unreasonable lack of self-regard on the part of the claimant.) The juristic explanation I unearth is then subjected to critical analysis in the course of which I suggest that we ought not to confuse explanation with justification. I conclude that there is no sound reason of principle to exclude the operation of the contributory negligence defence in this tort.

Two recent successful appeals to the Privy Council from the Court of Appeal of New Zealand have once again emphasised the importance of proprietary claims in conferring priority in insolvency over the claims of the general creditors of a bankrupt. Attorney-General for Hong Kong v. Reid1 concerned land in New Zealand purchased with the proceeds of bribes accepted by a Hong Kong Public Prosecutor as an inducement to exploit his official position to obstruct the prosecution of certain criminals. The Privy Council imposed a constructive trust where the Court of Appeal of New Zealand had, in accordance with precedent,2 denied one and thus enabled the Government of Hong Kong to recover the land in priority to any other creditors of the Public Prosecutor. In Re Goldcorp Exchange3 concerned the liquidation of a gold-dealer which had offered its purchasers the option of leaving their gold in its custody as “non-allocated bullion”.

The best interests rule – the central fiduciary duty of company directors in a number of common law jurisdictions – encapsulates loyalty between director and company. Its multifaceted nature means that it is employed to impose a number of requirements, as demonstrated in the multi-jurisdictional analysis in this article. Contemporary commentary and cases (such as Moulin Global Eyecare Holdings Ltd. v Mei (2014) 17 HKCFAR 466, recently analysed in this Journal) have, however, doubted the fiduciary classification of the rule. This article defends the rule's fiduciary classification. After examining key facets of the rule, it demonstrates that, although flexible, the rule cannot be stretched to protect stakeholder interests independently of corporate benefit.

Over a hundred years have passed since the Judicature Acts rationalised the law relating to the assignment of choses in action and made it easier for an assignee to enforce his rights. Nowadays the assignability of contractual rights is important in both business and consumer affairs, since credit is commonly obtained on the security of insurance policies, hire-purchase contracts, and traders' and builders' book debts. Yet although the Judicature Acts facilitated these developments they did not deal with the possibility that a contract may expressly prohibit or restrict the assignment of rights arising under it. Many standard form contracts now incorporate a clause to this effect. Where an assignment is made in contravention of such a clause, does the transaction have no effect? If this is the case, non-assignment clauses would seem to pose a serious threat to current lending practices. The courts have had to consider this question in a number of cases and the result is a confusing array of Conflicting views.

In the opening fragment of Digest 18.1, Paul tells us that Sabinus and Cassius had not required a money price in sale. So long as you could distinguish buyer and seller, they had contended, the mere fact that the buyer paid with goods made no difference, but such a permutatio was sale. Sabinus had appealed to the authority of Homer, who says: ‘From there (i.e., from the ships sent by Euneus from Lemnos) the long-haired Achaeans procured wine, some for bronze, some for gleaming iron, some for hides, some for whole cattle and some for slaves’.

As these verses do not contain the term ‘sale’ at all, they are generally regarded as pointless; and it is held that all Sabinus can have meant to prove by them was that other things than money might be used for trading—a platitude for which he need not have-searched the ancient books. This, however, is doing him an injustice. As a matter of fact, he knew very well why he adduced just this passage. The word χαλκῷ here rendered as ‘for bronze’ was rendered as ‘aere’ by the Romans. Paul, in the very fragment under discussion, says that the Greeks obtained wine ‘aere ferrohominibusque’ One of the meanings of ‘aes’, as indeed of χαλκóς, was ‘money’. (One may think, for example, of ‘aes alienum’.) It was, therefore, possible to ascribe to χαλκῷ in the passage quoted the sense of ‘for money’, instead of ‘for bronze’. Sabinus translated: ‘They procured wine, some for money, some for gleaming iron,’ etc.

A Ford employee named Roberts carelessly drove a forklift truck into Morris, a person employed by Ford's cleaning contractor, Cameron. Morris sued Ford. Ford admitted vicarious liability for Roberts' negligence, and claimed against Cameron under a clause in the cleaning contract whereby Cameron had agreed to indemnify Ford against any loss or liability arising out of the cleaning operation. Cameron conceded liability to Ford under this clause and now sought an indemnity from Roberts, the careless employee of Ford: Morris v Ford Motor Co. [1973] 2 W.L.R. 843. The trial judge upheld Cameron's claim, but the Court of Appeal (Stamp L.J. dissenting) allowed Roberts' appeal on the ground that an implied term in the indemnity clause (or, per Lord Denning M.R., equitable considerations) excluded Cameron's normal right, as indemnitor, to be subrogated to Ford's right of recourse against Roberts, their careless employee, this right of recourse having been held by the House of Lords in Lister v Romford Ice & Cold Storage Co. [1957] A.C. 555 to enure even to the insured employer. Cameron has been granted leave to appeal, so the House of Lords has a good opportunity to reconsider Lister. While, at the technical level, Morris turns on the implications of a contract of indemnity and Lister deals with the implications in a contract of employment, the situation underlying both cases raises basic questions about the interaction of tort and that most familiar of indemnity contracts, insurance.

It is often said that the French system of judicial control of the Administration is one of the best existing today. The French have no difficulty in believing this, and although Common Law jurists have long been influenced by Dicey, who wrote at a time when Administrative Law was different from that which we know today, they, also, are becoming aware of the merits of the work of the French Conseil d'Etat: Professor Hamson is in no small way responsible for this change of attitude. Moreover, the adoption of the French Administrative Law techniques by the European Communities and their introduction, albeit hesitantly, into the Law of International Organisations have also contributed towards increasing its reputation. Yet, at the very moment when it seems to have become an excellent product for export, the merits and the efficacy of French Administrative Law are causing considerable doubts among the French themselves. It has become fashionable to criticise what was unreservedly praised, and one wonders if adulation will give way to systematic denigration. The answer, not surprisingly, is to be found between the two extremes. The French system comprises elements both of strength and of weakness. This lecture is an attempt to evaluate these elements.

Clauses that provided fixed monetary penalties first appeared in English contracts and conveyances in the first decade of the thirteenth century. Rather quickly thereafter penalty clauses came to be used in a wide variety of contracts and conveyances. They were used in (1) agreements over tithes, (2) settlement of disputes, (3) arbitration agreements, (4) agreements to transfer or not to transfer land, (5) marriage property agreements, (6) warranties of title to land, (7) leases, (8) agreements to pay rents and annuities, loans, and in a variety of other transactions. The penalty clause was just another clause in the agreement. At about the middle of the thirteenth century other methods of inserting a penalty clause into an agreement began to be used. A penalty clause could be made part of a recognizance on the plea rolls, the Exchequer rolls, or the Chancery rolls. The recognizance itself could be a penalty to enforce a side agreement. A money bond could serve as a penalty rendered void if the terms of a separate, conditional acquittance were met. A bond or a statute merchant could be given to a third party under an agreement to give the bond or statute merchant to the promisee if the promisor failed to carry out his agreement. By 1348 the penal bond with conditional defeasance endorsed on the back of the bond had been invented.