This article compares two models of discharge for repudiation. The first – termed the “mirror image model” – has come to the fore only in recent years. It treats the applicable principles as the mirror image of those that govern discharge for failure to perform a contractual term. Under the second model – the “differentiated model” – repudiation is analysed in terms of various criteria that respond to conceptual diversity within the basis for discharge. The two models diverge, at the heart of the repudiation doctrine, when the issue is whether a reasonable person would regard the promisor as having refused to perform the contract. It is argued that the differentiated model is the better model, and also the preferred view of the common law.

For all of the rhetoric about the central place of authors in the copyright scheme, our copyright laws in fact give them little power and less money. Intermediaries own the copyrights, and are able to structure licenses so as to maximise their own revenue while shrinking their pay-outs to authors. Copyright scholars have tended to treat this point superficially, because – as lawyers – we take for granted that copyrights are property; property rights are freely alienable; and the grantee of a property right stands in the shoes of the original holder. I compare the 1710 Statute of Anne, which created statutory copyrights and consolidated them in the hands of publishers and printers, with the 1887 Dawes Act, which served a crucial function in the American divestment of Indian land. I draw from the stories of the two laws the same moral: Constituting something as a freely alienable property right will almost always lead to results mirroring or exacerbating disparities in wealth and bargaining power. The legal dogma surrounding property rights makes it easy for us not to notice.

Disputes involving shared mistakes should be resolved by considering the meaning (explicit and implicit) of the parties’ agreement. There is no room for a free-standing doctrine of mistake. The argument is illustrated by considering three recent decisions on common mistake.

This paper examines the intervention of the law, and the role of the court, in debt restructuring, both in terms of imposing constraints on creditors and in seeking to ameliorate the potential abuses that can arise from such constraints. Three potential forms of abuse are examined: the imposition of a restructuring on dissenting creditors, which introduces the potential for wealth transfers between creditors; the imposition of a moratorium while a restructuring is negotiated, which might lead to misuse of the process by managers wishing to prop up companies which are not viable, or may allow managers of a viable business to “shake off” liabilities that it is capable of servicing; and the facilitation of rescue finance, which raises the potential for new creditors to be preferred at the expense of existing creditors. It is argued that the court's role in protecting creditors from these three forms of potential abuse is vital, although the nature of that role differs according to the form of abuse. Recent debt restructuring reform proposals in both the UK and the EU, which adopt distinct approaches to the role of the court in this process, are examined in the light of this discussion.

The history of commercial law has often been written as if it were merely a product of the common law, disregarding the role played by legislation. The principal exception to this has been work on company law. Until recently, the prevailing view has been that the Companies Acts 1844–62 represented the triumph of the free market and the expulsion of the state from business. But, although these laws did make incorporation easier and granted companies privileges, what this view ignores is that they also imposed regulation, such as obligations to register the company and charges on its assets and to hold shareholder meetings. At the forefront of these legal changes were insurance companies. Yet, in spite of the proliferation of these companies and their role in, for example, the inquiry that led to the 1844 Act, they have been neglected. This may be because, while the successful campaign in 1824 to remove restrictions on access to the marine-insurance market would seem to support the view of legislation driven by free-market ideas, that explanation seems contradicted by the closing of access to the life-assurance market and the imposition of various obligations on life offices in 1870, a time when the liberalisation of company laws seemed at their peak. Neither development can, however, be so easily explained, and both show the effect of fierce divisions within the insurance industry.

The current law relating to the unauthorised dispositions of chattels is an arbitrary and unpredictable mess that has grown up haphazardly and piecemeal. In this connection we need a default rule that is straightforward rational and logical. Such a rule should follow three principles. First there should be a background rule of entrustment, whereby anyone entrusting another with goods takes the risk of subsequent misdealing. Secondly, this rule should apply to all proprietary interests and not simply to ownership. Thirdly, it should be open to exceptions where there is good reason to admit them, for example to accommodate specific schemes covering particular types of security interest.

This article develops a new theoretical framework for understanding consumer contract law, one based on competing ethics of self-interest/reliance and need. It shows how this is a better way of understanding choices as to levels of protection than the traditional “freedom versus fairness” framework. The self-interest/reliance ethic favours rules allowing traders to use processes to escape responsibility for poor quality and harsh outcomes, while the need ethic is concerned with consumer weaknesses and better protects against such outcomes. The article also shows that need-based rules are usually more effective at improving clarity and certainty, and where such rules cause uncertainty, at least as much uncertainty is caused by the alternative self-interest/reliance-based rules.

This article considers how problems in legal historiography can lead to real legal problems, through a case-study of two recent judgments which appear to revolutionise the law on overreaching under section 2(1)(ii) of the Law of Property Act 1925. Their reasoning ignored plain wording in the Act, in a way foreshadowed by problems in the historiography of the 1925 property legislation; and the legislative history shows that the version of overreaching they promote, one with a clear political meaning, was rejected by Parliament. One of these decisions has now been reversed on appeal, but on reasoning so untenable as to invite further challenge; and now two Court of Appeal judgments on overreaching contradict, without even mentioning, two prior Court of Appeal decisions and a decision of the House of Lords. The court should reaffirm the law on overreaching, and academics should develop a new historiography.

Drafters of legislation occupy an important position of constitutional significance, involving the translation of political will into legal form. They help clarify and refine the instructions from politicians and create statutory schemes which are internally coherent and have external coherence with wider legal and constitutional values. They begin the process of disciplining and refining political will through application of constitutional reason, which is then continued at the stage of interpretation of statutes by the courts. Drafters of legislation thus contribute to the formal rule of law values of predictability and certainty and also to more substantive values of fairness and respect for constitutional principles and rights. The better the drafting of legislation, the smoother the integration of democracy and the rule of law and the less need there is for interstitial law-making by judges in the interpretive exercise.