In chapter 8 we discussed the defects of consent, whereas here we shall dive deeper into the effects of defects in general. Before doing so, we need to lay the foundations by which to evaluate the legal impact of each defect on civil and commercial contracts. It will be recalled that under the civil law tradition, contracts are predicated on three general pillars, namely: (i) consent, consisting of offer, acceptance and intention to be legally bound; (ii) subject-matter; and (iii) cause. In addition there might, but not necessarily, exist two further requirements (special pillars), namely: (iv) form and (v) delivery.

It is only recently that the EPO’s Boards of Appeal have had to deal with appeals relating to the surge of AI based inventions. In doing so the Boards of Appeal have adopted a gradualist approach, adapting the extensive EPO case law relating to the patentability of computer programs ‘as such’ and applying it to AI inventions. The most recent change to the Guidelines indicates the EPO’s willingness to adapt to technological developments and to refine its approach to patentability of inventions involving AI, while at the same time taking a firm line against patenting non-technical inventions.

This chapter concentrates on the three certainties. Every private express trust must satisfy the three certainties in order to be valid. The three certainties are: intention, subject matter and objects and each are dealt with in detail. Certainty of intention depends on showing that the settlor intended to create a trust. Sometimes the words used will be regarded as precatory in which case the y will be regarded as showing a moral obligation only. There must also be certainty as to what property forms the subject matter of the trust. There are two key aspects of certainty of objects evidential and conceptual certainty. Conceptual certainty is necessary for all types of trust but evidential certainty is only needed for fixed trusts. The test for certainty of objects in a discretionary trust has been subject to much debate but today the test is the given postulant test which is the same test as applied for powers. It must be possible to say with certainty whether any person falls within or without the class. The test for a gift subject to a condition precedent is a lower test and the gift will survive if it can be said with certainty that one person falls within the class.

As discussed in Part I, there is increasing international consensus that it is unfair and unjust for parent corporations to receive the immense financial benefits derived from operations of subsidiaries or affiliates while being able to avoid liability when those wholly owned subsidiaries engage in human rights violations, even if the parent corporation is not directly at fault. Indeed, it is clear that the doctrine of limited liability, as applied to corporate parents, should be reconsidered – at least in circumstances such as high-risk industries operating within fragile or high-risk countries where remedies for serious torts are probably unavailable within the legal system of the subsidiary’s domicile.

To the elemental question of what is the nature of intellectual property, the conventional answer is that it is ‘intangible’ and hence has no physical existence. This is because, it is said, there is a fundamental dichotomy between the immaterial subject matter that is protected by an IP right and its embodiment in some material object. This chapter revisits the elemental question and comes to the conclusion that the conventional view mis-states the position. In particular, while it is true that IP laws recognise something like the tangible/intangible duality, properly understood the rights granted by those laws do not attach to the immaterial subject matter; rather, they attach to the material object in which the subject matter is embodied. More specifically, while the class of things in respect of which IP protection may be granted includes intangibles, it also includes tangibles. Moreover, the things in that class are material – in that they are perceptible by a human sense.