William Blackstone (1723–1780)

This book explores the use of the doctrine of good faith in the common law when interpreting contracts and resolving disputes. This doctrine is well-accepted in civil law, is reflected in international commercial law, and is a fundamental aspect of private law in the USA. However, its use in the UK is extremely limited. Inconsistent application has given rise to confusion and uncertainty. This apparent antipathy is somewhat hard to fathom, given its previous widespread acceptance in English law. The book explains in depth the history of good faith in English law, and clarifies its current status in English, Australian and international law. It explores the relationship between good faith within contractual relations and the neighbour principle in tort law, and notes the workability of good faith in the commercial context of insurance. This will be welcomed by contract lawyers in both common law and civil law jurisdictions. A subsequent volume will explore how acceptance of good faith in the law might lead to a re-interpretation of existing contract law doctrine.

This case is one of several types of legal claims that occurred due to the bankruptcy of H Shipping, which had a major impact on the shipping industry in South Korea. Among them, there are various issues such as the determination of the governing law for the claim for damages in relation to the termination of the contract due to the commencement of the rehabilitation procedure in time charters, the issue of the claim for the return of residual oil at the time of redemption in time charters, and the issue of the application of off-set under English law. Among the main issues related to this, we will look at the problem of the residual oil return bond according to the time charters’ forms. In the case where the governing law is designated as the English law of a foreign law, it is expected that the issue of off-set will be reviewed. First of all, there are many differences between the use of the NYPE 1946 and 1993 forms and the use of the NYPE 2015 forms. When using the former forms, it is necessary to supplement the ‘rider clause’. Especially, it is necessary to recognize that the residual oil return bond due to the termination of the time charter contract, which is the core of this case, is excluded from the NYPE 1946 form, but is included in the NYPE 2015 form. Next, there is the issue of off-set the termination of the contract under English law. The position of the English and Korean Courts are that set-off under common law and set-off under common law have a substantive nature in the application of set-off under the equitable law. Under English law, the problem of set-off for premature termination lies in the application of set-off under common law and set-off under equitable law. The judgment of the English court and the Korean court is that set-off under the common law is applied because it has a substantive law nature. Although it is a reasonable judgment, when the English law is applied as the governing law, there are cases where the position on the permissible off-set by the cause of the voyage charter party and the time charter party is different in carriage of goods by sea, so additional review is necessary. Based on these results, it is hoped that they will serve as practical references in the future.

Unity, divergence and convergence in the common law of obligations / Andrew Robertson and Michael Tilbury -- The influence of comparative law on the English law of obligations / Andrew Burrows -- Unity, then divergence : the Privy Council, the common law of England and the common law of Canada, Australia and New Zealand / Paul Finn -- A conscious effort to develop a "different" common law of obligations : a possible endeavour? / Goh Yihan -- A common law of tort : is there a European rift in the common law family? / Paula Giliker -- A judicial perspective on the development of common law doctrine in the light of statute law / Anthony Mason -- Public actors and private obligations : a judicial perspective / Sian Elias -- The tort liability of public authorities : a comparative analysis / Peter Cane -- We'll meet again : convergence in the private law treatment of public bodies / Niamh Connolly -- How to have a common private law : the presuppositions of legal conversation / Allan Beever -- The philosophies of the common law and their implications : common law divergences, public authority liability and the future of a common law world / Dan Priel -- Obligations, governance and society : bringing the state back in / TT Arvind -- Divergent evolution in the law of torts : jurisdictional isolation, jurisprudential divergence and explanatory theories / James Gouldkamp and John Murphy -- Common law values : the role of party autonomy in private law / Sarah Worthington

The article analyzes the doctrine of hardship in the contract law of Ukraine, France, Germany, England. The grounds for modify ing or terminating the contract due to a hardship are analyzed. A comparative analysis of the court ’ s powers to modify the contract in connection with a hardship is carried out . In French civil law the doctrine of l’imprévision covers all situations in which a party’s contractual obligations have become harder and more onerous to perform because of an unforeseen event posterior to the conclusion of the contract. The conception of hardship was introduced to Ukrainian Civil Code in 2004 for provide the contractual parties to overcome the negative impact of a change of circumstances that was unforeseeable at the time of the conclusion of the contract and renders performance excessively onerous for one of them . This provision is aimed, on the one hand, to restore the balance of interests in contractual relations and to reduce risks, and on the other hand, to keep the contract, as far as possible, preference given to the adaptation of the contract over its termination. Unfortunately, the case law indicates difficulty in implementing the provision of hardship. In English law doctrine is formed the concept of frustration. The only remedy for frustration in common law is termination of the contract; and termination is permanent – English law does not recognize partial frustration nor temporary frustration. German doctrine of hardship has been conceptualized into three aspects requiring a change of circumstances, the parties would not have concluded the contract if they had been aware of this change, and it would not be equitable for one party to deny the other party any amendment of the contract. German approach has been adopted in many harmonization projects and international instruments of contract law, in particular Principles on European Contract Law, Draft Common Frame of Reference, UNIDROIT Principles of International Commercial Contracts. In French, English and Germany law is established three different approaches to cases of contractual impossibility as an exception to pacta sunt servanda: contractual parties are not discharge unless performance has become impossible; as exception for impossibility to some cases; or as separate exception. The main problem nowadays is the lack of definition of “ significant change of circumstances ” in Ukrainian legislation and case law. Such a rule seems to increase legal uncertainty as the criteria of its implementation are vague and have not yet been firmly and precisely defined by case law. In most cases, the courts do not recognize the change of circumstances referred to by the party as significant. Ukrainian c ivil law doctrine defines “ significant change of circumstances ” as change of circumstances that did not depend on the will of parties and was the result of certain actions from the outside; and contains four features: was unforeseeable at the time of the conclusion of the contract, its duration and inevitability, arise without fault of the parties. The law of many states and international soft law gives courts power to modify or terminate the contract in case of change in circumstances. French Civil Code not contains certain grounds in the event of change in circumstances to modify or terminate the contract. They are the same as in case of contract modification or termination by parties. In contrast, Ukrainian legislator decreases significantly judicial intervention in contractual relations. The power of Ukrainian courts to modify the contract is based on the general principles of contractual freedom, if parties in contractual terms lay down modification the contract in case of change in circumstances that was unforeseeable at the time of the conclusion of the contract renders performance excessively onerous for a party.

Ansel Adams, the celebrated pioneer of landscape photography, observed that ‘not everybody trusts paintings but people believe photographs’. Whereas a painting is subjective, a photograph is accepted almost axiomatically as an accurate depiction of reality, and society’s faith in photography’s veracity has continued through its evolution to film and digital media. Indeed, when referring to the speed of frames shown in motion pictures, French filmmaker Jean-Luc Godard expressed that while ‘photography is truth, cinema is truth twenty-four times per second’. Even as photographers and film studios continue to push the boundaries of visual arts through Photoshop and computer-generated special effects, the public has largely been capable of appreciating the distinction between the fanciful from the factual and the artistic from the authentic. The deepfake video now challenges this paradigm and does so on an unprecedented scale. Some early commentary out of California1 suggests sui generis laws to address deepfakes are not necessary because existing legal doctrines are sufficient if applied correctly. This assertion is supported by the fact that California explicitly recognizes an individual’s legal right to control and commodify the expression of their image. As courts in the UK do not recognize such a right, one may query whether an individual can protect herself against a malicious deepfake under English law.2 From this question stems the idea that the ‘Golden State’ of California may be able to provide a ‘golden’ standard for image rights in the age of the deepfake. While comparisons between American and English image rights are not new, the novelty of deepfake technology warrants a renewed analysis. Furthermore, this article offers a departure from many others on the subject because it measures English laws against those of California specifically, rather than a survey of laws across several American states.

Like in most Western countries, the legal system in Israel is constantly evolving. Israel is a mixed jurisdiction in many respects. Historically, during the time of the Ottoman Empire, the land of Israel was ruled by Turkish law, which was followed by British law during the time of the British Mandate. Today, Israel’s legal system still reflects a mixture of civil law and common law. This mixture is evident, for example, in the combination of codified law and precedent-based law. Several areas of the law were codified, at the time of the British Mandate, in ordinances that remain binding today. However, these ordinances were supplemented and widely interpreted in Israel’s case law, and an “Israeli common law” was created. Today, legislative efforts are being made to codify this new common law. The mixed nature of substantive law in Israel is also illustrated by Israel's constitutional regime. While Israel has no formal constitution, it has a partial bill of rights (the basic laws) enacted by its parliament. In 1995, the Israeli Supreme Court decided, referring to American constitutional law, that it had the authority to invalidate “unconstitutional laws”. In its decision, the Supreme Court relied on a limitation clause, included in the new basic laws and inspired by the Canadian Charter of Rights and Freedoms. Since then, the Israeli Supreme Court has developed a number of constitutional rights from these basic laws, influenced by both the American concept of liberty and the European concept of human dignity. Finally, comparative law plays an important role in Israeli case law. While British common law no longer binds the Israeli judiciary, judges have wide discretion to use comparative law in their decisions. When relevant, referring to foreign law may be of great assistance to a judge by providing inspiration in a difficult case. Utilizing many different sources of law may help to create harmony between various jurisdictions, especially in times of increasing globalization.

Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment

The Colour of Copyright

The emergence of Islamic finance in the United Kingdom (‘UK’) has rendered it a remarkable alternative to conventional finance. The following paper studies how the English and Welsh courts interpret and apply Shariah-based Islamic finance principles under English law. The paper takes the view that Islamic finance arrangements and the Shariah principles that inspire them are capable of being conveyed through their conventional counterparts under English finance law, insofar as doing so does not contravene English law. The focal points enshrined under this paper are: [1] the means through which Islamic finance arrangements are interpreted and applied under English law; [2] the approaches undertaken to honour such Islamic finance principles without contravening English law; and [3] the approach taken when the courts are faced with a conflict of laws. Using legal analysis, this paper finds no one-fit-for-all method for the English and Welsh courts when dealing with Islamic finance cases. However, the unanimous principle is that Islamic finance arrangements will never be treated exceptionally to their conventional counterparts.

Having established in a broad comparative survey what caused the preponderance of judge, legislator or jurist in Europe, I now intend to return to my starting point, the difference between the English common law and the rest of Europe. The reason why the English judiciary played such an exceptional role has been established, but this fact does not by itself explain why the English common law is so different. One can very well imagine an English, judgemade variant of a common European law. Thus one hears that at the present time the same European Community rules are not interpreted similarly on the Continent and in the United Kingdom. Judges' law in one country and legislators' law in others would normally have produced some differences, but these might have been technical only, without involving the substance of the law. To put it in more concrete terms: one can imagine a situation where the substance of European feudal law remained common to all countries, even if its development in the course of the later Middle Ages was the task of the judiciary in some countries and of the legislature in others. Equally one can imagine that more progressive laws corresponding to an urban and commercial society would have arisen through the action of judges in some countries and of kings and estates in others. The difference between common law and continental law goes much further than that: they were not only developed by different organs, their very substance was different, the one being traditional, native and feudal, the other new, foreign and Roman.

This chapter argues that the law of England and Wales is distinct from the law of Scotland and the law of Northern Ireland. It highlights that the law of England and Wales is a common law system. The chapter then reviews the forms of wills under the law of England and Wales. The Wills Act 1837, as the chapter explains, sets out the statutory formalities for the execution of wills. In general, wills must be in writing and the testator/trix’s signature must be made/acknowledged in the presence of two witnesses, who should sign in the presence of each other and in the presence of the testator/trix. This chapter also considers the intestate succession which is governed by the Administration of Estates Act 1925 (‘the AEA’) as amended. The chapter ultimately concludes by examining the compulsory shares that must be left to any person under the law of England and Wales. It also studies the concept of community of property and how property may be held jointly, either as ‘tenants in common’ or ‘beneficial joint tenants’.

There has been only partial harmonization on the basis of secondary European Union (EU) law both in regard to the substantive and the international insolvency law provisions on close-out netting. In non-harmonized areas, the legal position in the Member States still shows considerable differences. English insolvency law is generally netting-friendly. Apart from the implementation of the European Council Directive 2002/47 on financial collateral arrangements (Financial Collateral Directive),1 English insolvency law generally upholds close-out netting provisions as a matter of principles of case law.2 Moreover, even in the absence of a contractual agreement to this effect, broad rules on statutory, automatic set-off in insolvency are applicable,3 the effects of which are often regarded as equivalent to a close-out netting mechanism.4 In regard to cross-border aspects of insolvency, English law has maintained...

Building on its success and reputation as a leading reference work on the English law and practice of commercial arbitration, this new edition reflects a sea of change within the arbitration field over the past decade. A new, more user-friendly structure takes the reader through each step of the arbitration process from start to finish, whilst retaining the first edition's unique comparative perspectives of arbitration law and practice in other common law and civil law jurisdictions. The book explains the application of provisions under the Arbitration Act 1996, as reformed by the Arbitration Act 2025, and documents the latest institutional rules affecting the arbitration process including the ICC Arbitration Rules 2021, the LCIA Arbitration Rules 2020, and the latest provisions from the Arbitration Act 2025. It provides detailed analysis on the latest legal authorities, including significant developments to the applicable law to the arbitration agreement, the arbitrator's duty of disclosure, and the granting of anti-suit and anti-arbitration injunctions, and discusses the current and potential future impact of wider societal developments such as Brexit and the use of technology and artificial intelligence. The book is an ideal reference point for the judiciary, professionals working in commercial arbitration, and an essential primer for academics, students and researchers looking for comprehensive coverage of English arbitration law and practice with an international comparative perspective.

The relationship between the Bill of Rights in the South African Constitution of 1996 and the common law is analyzed in this paper. "Common law" is understood broadly to include not only the Roman-Dutch law, but also the wide variety of legal sources and traditions which make up South African law, including African tradition, Muslim practice and the English law heritage.
 Firstly an exposition of the chief characteristics of the hybrid system of South African common law is given. It is shown that the common law is not codified; that it is a living and organic system of law constantly under legislative and judicial review; that its sources vary from judicial precedent to civilian authorities, English, indigenous customary and Muslim law; that the style of litigation and adjudication is English rather than Continental in Character and that when a common law rule is modified, it is done retrospectively in conflict with principles of legal certainty.
 Secondly the chief constitutional provisions relating to the relationship between the Constitution and the common law are considered. The supremacy clause (section 2) renders a common law rule which is inconsistent with the Constitution invalid from the date of the Constitution unless a court gives a different ruling in accordance with justice and equity. Courts have the inherent power to develop the common law, but the Constitutional Court may do so only in constitutional matters. Two forms of constitutional normative effects may be distinguished: direct (as in sections 2 and 8(1)) and indirect (as in section 39(2)). In terms of the latter the spirit, purport and objects of the Bill of Rights are to guide the development of the common law.
 Thirdly the interaction between the common law and the Constitution is thoroughly explored with reference to common law rules that are in conflict with the Constitution as well as where the common law already provides protection for the rights provided by the Bill of Rights. These matters are explored with reference to a number of recent judgments of the Constitutional Court, in some of which the common law was effectively developed.
 It is concluded that the firm normative thrust of the Constitution may well prove to be a rich source of principle for the development of the common law and that the flexibility of the common law may facilitate a cross-pollination between it and the Constitution.

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.