Monthly Archives: January, 2024
Eliza Mik, ‘Deconstructing Smart Contracts’
ABSTRACT The current narrative proliferates misconceptions and incorrect nomenclature. Intent on forcing smart contracts into the analytical framework of conventional contracts, it glosses over doctrinal and conceptual difficulties, including the fact that computer programs cannot be agreements. The unfortunate terminology, if taken literally, places smart contracts in a category that they do not belong to. […]
Yehonatan Givati and Yotam Kaplan, ‘A New Theory of Impossibility, Impracticability, and Frustration’
ABSTRACT Contract law offers three closely related excuse doctrines: impossibility, commercial impracticability, and frustration of purpose. These doctrines, which allow courts to release parties from their contractual obligations under extreme and unforeseeable circumstances, were central to contract disputes in the aftermath of the COVID-19 pandemic. Yet despite their importance, and despite decades of scholarly attention, […]
Liam Cronan, ‘And the Heirs of His Trust Corpus: How the Fee Tail and Historical Limitations on Perpetuities Can Inform the Law of Perpetual Trusts’
ABSTRACT The fee tail, common recoveries to convert a fee tail to fee simple, and strict settlements to preserve family control of land are today regarded, if at all, as relics of legal history. Yet, these long obsolete facets of the common law demonstrate earlier solutions to a problem that is again posed today. Trust […]
Rory Gillis, ‘The Limits of Legal Substance: Tax Avoidance and Equitable Remedies after Collins Family Trust’
ABSTRACT In Canada (Attorney General) v Collins Family Trust (2022), a majority of the Supreme Court of Canada held that taxpayers may not use the equitable remedies of recission and rectification to retroactively undo or correct transactions that lead to unanticipated tax liability. While the Supreme Court’s decision departs from the leading common law precedent […]
Luke Broadway, ‘Butler-Sloss v The Charity Commission: ESG investment guidance in need of elaboration’
ABSTRACT In Butler-Sloss v The Charity Commission the High Court granted the trustees of environmental protection charities permission to enact a policy that excluded investments incompatible with the Paris Climate Agreement. Though a sound conclusion, the court’s reasoning, when taken alongside the policy proposed by the claimant charities, generates investment guidance that is unsuited for […]
Symposium: Niall Whitty’s Unjustified Enrichment (Edinburgh Law Review)
Unjustified Enrichment in Scotland: the Last Sixty Years (Niall R Whitty) The Role of Reasons in the Law of Unjustified Enrichment (Daniel Visser) Undue Transfer under Error (the Condictio Indebiti) (Helen Scott) Comparative Observations on the Consequences of Illegality (Jacques du Plessis) The Unwinding of Failed Contracts (Sonja Meier) ———————–€€€€€€€€€€€€€€€€€€€€€€€———————– Edinburgh Law Review volume 26 […]
Jonathan Brown, ‘Medical Intervention and Incapax Patients: The Place of Negotiorum Gestio within Law’s “Fundamental Structural Language”’
INTRODUCTION In 2017, Professor Martin Hogg published a magisterial monograph on the subject of Obligations: Law and Language. From the outset of that work, the author notes that the words used by the parties to obligational relationships – even obligational relationships which are constituted ex voluntate – do not need to, and indeed do not […]
João Pedro Quintais and others, ‘Copyright Content Moderation in the EU: An Interdisciplinary Mapping Analysis’
ABSTRACT This report is part of the reCreating Europe project and describes the results of the research carried out in the context of Work Package 6 on the mapping of the EU legal framework and intermediaries’ practices on copyright content moderation. The Report addresses the following main research question: how can we map the impact […]
Katharine Kemp, ‘Australia’s Forgotten Privacy Principle: Why Common “Enrichment” of Customer Data for Profiling and Targeting is Unlawful’
ABSTRACT Many companies are not satisfied with collecting only the personal information that customers provide during a transaction or sign-up, or even the additional personal information they collect about the customer’s activities on the company’s own website or app. Instead, there is a common practice of companies adding to the profiles they compile on each […]
Blair Druhan Bullock and Joni Hersch, ‘The Impact of Banning Confidential Settlements on Discrimination Dispute Resolution’
ABSTRACT The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop ‘secret settlements’ […]