The national populism of the Brexit movement builds up its political worldview on the basis of an ethnocentric myth of continuous homogeneous British nationhood. This was a construct of the imagination that included nostalgia for lost British empire. It was tightly bound up with the Brexiters’ concept of ‘the people’, which brought into their campaign rhetoric the idea of ‘the will of the people’ and ‘the mandate of the people’, as well as ideas from social contract theory. ‘The will of the people’ was a phrase that ran throughout Brexitspeak, deployed by the ex-Remainer Theresa May and ardent Leavers alike, and backed up by the populist press. Brexitspeakers knew what the people’s will was, by implication at least. And the claim that this ‘will’ gave the government an unquestionable mandate followed automatically, despite the narrow margin by which the Leavers had won, and despite the fact that before it the result had been defined as ‘advisory’ only. There was also the question of who precisely constituted ‘the people’ at the referendum, for there were important groups of potential voters who were excluded by the Brexiter-influenced Referendum Act.

Australian courts may grant ‘reasonable fee’ awards where defendants have used certain property or infringed certain rights in a tortious manner. ‘Reasonable fee’ refers to a method of calculating a monetary award for a wrong; namely, where the court awards the objectively ascertained fee that the parties would have agreed upon for permitting the defendant’s conduct. Reasonable fee awards may be made in various forms, including through an award of compensation, in an action for money had and received through ‘waiver of tort’, as ‘restitutionary damages’, or under Lord Cairns’ Act in lieu of an injunction. They are generally awarded for common law causes of action. As discussed in this chapter, the rationale for reasonable fee damages is highly contested. In previous editions of this book, we conceptualised reasonable fee awards as being gain-based and discussed them in the chapter on gain-based relief. The latest cases from the apex courts of the United Kingdom and Singapore suggest that reasonable fee awards are an instance of ‘substitutive compensation’. It remains to be seen whether Australian courts will adopt this approach.

The concept of ‘remedy’ used in this chapter encompasses a court order replicating a preexisting right, not a response to civil wrongdoing. Restitutionary remedies responding to unjust enrichment differ from remedies responding to a wrong (breach of contract, tort, or equitable wrong). As noted in Ch 1, they do not fit easily into a division between the primary right and the secondary remedy. It is for this reason that the cause of action and the remedy overlap, and they are notoriously difficult to untangle. Discussions of restitutionary remedies inevitably turn into discussions of the cause of action.

This chapter considers self-help remedies, which involve the plaintiff making good her own rights without the intervention of the judiciary. The focus of this book is on remedies that are awarded pursuant to a judicial order. However, an exclusive consideration of judicial remedies would ignore the fact that most disputes are settled outside the courts and that most parties prefer non-judicial settlements. It may be queried whether self-help remedies are really remedies in the strict sense of the word. They do not involve a court order; instead, the court gives permission to a plaintiff to act in a particular way. Nevertheless, in a broader sense, the plaintiff is allowed to redress her grievance by vindicating her own rights. By allowing a plaintiff to redress her rights in this way, the law affirms and reinforces the importance of certain interests. As noted in Ch 13, Varuhas has observed that the interests protected by vindicatory awards are often associated with the torts actionable per se.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

In this chapter, we consider exemplary damages and aggravated damages, remedies with a strong vindicatory flavour, as recognised by the High Court of Australia in Lewis v Australian Capital Territory.

Exemplary damages vindicate the plaintiff’s interests, but also explicitly punish the defendant for the wrong in question. Punishment is not commonly recognised as a central aim of private law. Some commentators have argued that it should not be part of private law. However, exemplary damages are said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong. Such damages also perform a vindicatory function. The fact that the law punishes a defendant for the manner of his interference with the plaintiff’s interests signals the importance of those interests.

Chapter 11 focuses on ancient ‘contracts’, with specific reference to commerce, property and other economic activities for which there is relevant evidence. The chapter begins with urbanization in southern Mesopotamia in the fourth millennium bce, bringing together archaeological, material and written evidence in order to introduce a broad working idea of ‘contracts’. The next section moves on to a discussion of technical ancient terms and concepts, noting the ‘considerable terminological instability in the common English translations of the original terms’. The following section turns to ‘contracts’ between states, whilst the next develops a comparative analysis of ‘oaths in interpersonal agreements’. The following two sections analyse specific questions surrounding the use of writing and ’the contract of sale’, noting that there is surviving evidence for the use of (different forms of) contacts of sale across every ancient legal system. The chapter concludes by drawing together a set of generalized conceptions of ‘contract’ and briefly suggesting that long-distance trade - among other factors - may lie behind some of the similarities - for example the use of seals - evident across the extant ancient evidence.

Equality and equal treatment are the principal purpose of WTO law. However, that purpose is accomplished in varying conditions, which make it difficult to regularly attain the consistency and coherence that an egalitarian and obligatory conception of the law assumes. Consequently, this chapter proceeds to demonstrate how WTO law is focused secondarily on fairness and corrective justice and how this focus begets a subordinate emphasis in law on rights, which in turn gives rise to a contractual structure that is retrospectively oriented and reasoned inductively. It also demonstrates how various features of WTO law like the non-violation cause of action and implementation are consistent with such a rights-based ethos.

The author explores how consent functions as commitment, content, and constitution for international agreements. He argues that consent constructs all forms of international commitment. Consent elucidates an agreement’s contents – what the agreement ‘is’ in terms of scope and substance. Consent can also function as a constitution – delimiting not only ‘primary’ rules encapsulated by an agreement’s existence and contents, but ‘secondary rules’ determining who can make agreements, how they must do so, and ways to recognize, adjust, and end them. For all these functions, consent remains an under-examined and undifferentiated concept. Today, almost any of consent’s functions can be established by almost any formal or informal means. Alongside existing proposals (presumptions/defaults and content-based criteria), this chapter proposes that international law should pursue more – and different – formalities for consent. Having different forms of consent follow its different functions may, according to the author, improve the efficacy of consent and with it the efficacy of international agreements overall.

The Chinese Civil Code, approved on 28 May 2021, is an important code for several reasons: it is a synthesis of the Roman legal system, a privileged place collecting institutions and dogmatic systems through categories, institutes and principles that provides a careful and balanced synthesis of the matter it regulates. Besides the well-known and peculiar concepts of the civil law system encompassed by the Chinese Civil Code, socialism with Chinese characteristics and custom as source of law in the absence of statutory provisions set the Code between past and future with its own identity and the ability to adapt to the continuous and future changes of the surrounding reality. The only certainty in this continuous evolution of the surrounding reality, is that the Code belongs and is open to the system in a process of continuous and mutual enhancement and complementarity. The typical and distinctive patterns of Roman tradition are endorsed and combined with Chinese legal tradition for their interpretative value, both individually and in the context of the Code as a whole, to give certainty and solidity to a regulatory system meant to last over time.

Of particular concern in the literature on business is the importance of trust and the disabling consequences of broken trust on business partnerships. Chapter 3 draws on extensive interviews in exploring the issue of trust, and reports novel findings which lead to new theoretical formulations. It has been central in sociological understanding that embeddedness in social and business exchanges generates and maintains interpersonal trust. Should opportunistic behaviour or violation of trust occur it is routinely assumed that such breaches would be exposed or punished, including reputation loss and exclusion from future exchange opportunities. What is less explored is that breaches of trust in many instances may not lead to disclosure of such a behaviour or termination of exchange relationships. Chapter 3 expands our understanding of broken trust. It identifies and explores mechanisms which operate in avoidance of confrontation, exposure and retaliation in instances of breaches of trust and also strategies employed by entrepreneurs in continuation of exchange relationships with violators of trust. The chapter examines underexplored aspects of the complexity and dynamics of business exchange relations and points to a rethinking of trust and social exchange.

The chapter considers four aspects of the law of contractual interpretation in France that were affected by the reforms of the French Civil Code in 2016. It looks at the dichotomy between the subjective and objective approaches to interpretation, the codification of the dénaturation power of the Cour de cassation, the relationship between interprétation créatrice and interprétation explicative, and the application of the contra proferentem rule in the context of the interpretation of standard-form contracts. The innovations in the reforms are an improvement on the previous set of rules on interpretation. Whilst some controversies remain, the new principles address several of the long-running debates that were live before the reforms. They also bring a more modern and international approach to French contract law, which in part can be attributed to the extent to which the drafters were inspired by and drew upon a number of the international contract law instruments.

A deeply contentious judicial debate over the enforcement of contracts for the sale or hire of enslaved people erupted as one of legal Reconstruction’s central battles. This chapter explains the doctrinal approaches favored by judges, analyzes their underlying legal rationales, and explores the consequences of choosing one rationale over the others. It argues that a fundamental disagreement about the meaning of the Thirteenth Amendment caused the judicial discord. The outcome of that disgreement – the enforcement of contracts – permanently weakened the power and potential of the Thirteenth Amendment.

I begin with an account of the fundamental aims of Hegel’s ‘science of right’ so as to show how his account of property faces two key challenges: justifying the concept of property and any specific form of it, on the one hand, and integrating property into the system of right, which includes subordinating it to any higher moments of right, on the other. I then turn to Hegel’s argument for private property. I distinguish between two interpretations of his argument: the ‘embodiment’ interpretation and the ‘recognition’ interpretation. I identify serious problems with the first interpretation and then argue for a version of the second one that entails the type of triadic model of the concept of property developed by Fichte and already implicit in Kant’s Rechtslehre. I show that this triadic model, and thus Hegel’s full argument for private property, becomes explicit only at the stage of contract. Next, I discuss how Hegel seeks to integrate private property into ethical life, and I argue that the idea of ethical life is, in fact, more compatible with some form of common or collective property because this form of property is more expressive of this idea.

Fiduciary relationships arise in equity’s exclusive jurisdiction and are relationships to which equity grants particular protection. Fiduciary obligations are owed by the fiduciary to identified others or a group of people, often described as the principal of the obligation or, somewhat confusingly, the beneficiary to whom the obligation is owed. In broad terms, the core obligation of a fiduciary is undivided loyalty. The fiduciary must act exclusively in the interests of the beneficiary. This obligation is not unbounded; for example, fiduciary obligations may be limited by time or the nature of the activities giving rise to the obligation in question. Fiduciary obligations thus exist within a defined scope. Additionally, not all of the obligations owed by the fiduciary to the beneficiary will be fiduciary obligations. For example, a trustee may be required to exercise a degree of care when making investment decisions, but this obligation is not fiduciary in nature.

All dispositions that are intended to transfer property, such as contracts, gifts, trusts and wills, must be clearly defined if they are to be legally effective. In the event of a dispute, a court may have to ascertain whether the property owner intended to dispose of her property and, if so, on what terms. In some cases, the court may have to determine the identity, or identities, of the recipients of the property, or the quantum of property transferred. A recipient of property will need to know if the transfer constitutes a gift, a loan or a trust. All trusts, whether or not they also have to satisfy writing requirements, must be sufficiently certain in order to be enforceable. The certainty requirements for trusts are more demanding than for contracts because trusts can affect the rights of parties who did not agree to, or participate in, its creation. These parties may include the beneficiaries and third parties who do business with the trustee.