Nicholas McBride, ‘Private Law at the Crossroads: Is There a Right Way Forward?’

This paper forms the third part of a loose ‘trilogy’ of papers presented at successive Obligations conferences.

In this paper I consider three different approaches that the courts could take in deciding a ‘crossroads’ case where the law is uncertain or unsettled: they could pursue the way of integrity (developing the law in a way that is consistent with the shape of the settled law), or the way of simplicity (developing the law so as to promote one value or goal, such as protecting independence or maximising wealth), or the way of pragmatism (developing the law in a way that will make things ‘go best’ in future). I argue that the courts should adopt the way of pragmatism, by showing that adopting that such an approach is both workable and justifiable. In order to show the workability of the pragmatic approach, I set out a number of principles that a pragmatic court would seek to give effect to in deciding a ‘crossroads’ case and show how those principles would apply to determine a number of vexed issues in the realm of private law: (1) the recovery of mistaken payments; (2) the recovery of compensation under the rule in Rylands v Fletcher; (3) the recovery of compensation from an employer whose employee has committed a tort that is connected in some way with the the work the employee is employed to do; (4) the recovery of compensation for loss that has been suffered as a result of a breach of statutory duty. In order to show the justifiability of the pragmatic approach, I consider and reject seven different objections that might be made to adopting the pragmatic approach to deciding ‘crossroads’ cases.

I hope that this paper and the other two papers in the trilogy will eventually form the basis of a book, to be called The Humanity of Private Law.

McBride, Nicholas, Private Law at the Crossroads: Is There a Right Way Forward? (August 20, 2014). Obligations VII (at Hong Kong University, in 2014, on the theme of ‘Divergence and Convergence in Private Law’).

First posted 2014-08-22 06:56:39

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