This chapter outlines the action of passing off. It discusses whether goodwill is a thing (the metaphysical question) and whether passing off enables businesses to own goodwill (the conceptual question).

This chapter considers how investigative deceptions fit into the traditional rationales for protecting free speech, and offers guidance on where the law is likely to evolve on these questions.

This chapter considers how investigative deceptions fit into the traditional rationales for protecting free speech, and offers guidance on where the law is likely to evolve on these questions.

In an ideal world, people who enter into contracts would choose to enter the contract, and agree to its terms, because they have accurate and comprehensive information on which to base their decision. This chapter will first explain when a contract may be invalid, because one or both parties entered into the contract under some sort of misapprehension, or on the basis of misinformation. We will look at mistake (mutual mistake, unilateral mistake and common mistake) and misrepresentation. We will also briefly explain the old action ‘non est factum’ (‘not my deed’) and the remedy of rectification. Second, the chapter will explore when a contract may be invalid because of ‘unfair’ conduct by one of the parties – for example, where one party (Party A) enters an agreement because another party (Party B) subjected A to undue pressure (duress or undue influence); or because the conduct of B is so ‘unconscientious’ or the contract is able to be set aside in equity for unconscionable conduct.

Insurance is a concept most people are familiar with. The majority of us insure at least one item of property that we own, such as our home and our car. Some of us also insure our health, the trips we take, or even our own lives. The idea of insurance is to transfer the risk of something bad happening to ourselves or our property to somebody else (the insurer). In this chapter, we will first discuss the general concept of insurance before looking at the relevant regulatory framework. The chapter then discusses the various features of an insurance contract before explaining the process for making such a contract. The key duties of utmost good faith and disclosure are then examined, followed by the principle of misrepresentation and the effects it has on an insurance contract. Finally, the chapter considers the basic principles of interpretation that apply to insurance contracts, along with the remedies available to the parties when things go wrong.

This chapter examines the relationship betweenprivate ordering/self-regulation and national contract law rules. It assesses the impact that private ordering exerts upon national contract law, with particular reference to the legal response to the ISDA Master Agreement. The chapter also examines aspects of market-specific regulation in the United Kingdom. Many areas traditionally covered by common law rules, such as the control of unfair terms in contract, are now the preserve of regulators such as the Financial Conduct Authority (FCA) and the Competition and Markets Authority. In addition to the activities of regulators, enforcement of consumer contract law can be undertaken by a range of organisations and dispute resolution services provided by private entities or through various ADR schemes. There are often significant divergences between the regulatory approach to contract enforcement and the applicable contract law rules on the issue. To illustrate this, the FCA review of the mis-selling of interest rate hedging products to ‘unsophisticated’ customers is contrasted with case law on misrepresentation covering the corresponding scenario under the common law.

The preceding chapter showed the piecemeal nature of regulatory protections for participants in the derivatives markets and explained how it has been justified on the basis that an alternative means of redress is available, namely private claims for mis-selling based upon ‘contract and negligence’. This chapter explores the reality of this type of private law claim. The argument focuses on those claims that are typically deployed by participants in the OTC derivatives markets and on the patterns that emerge from these mis-selling cases. The next chapter considers the related topic of contractual defences relied upon in this context. Together, these two chapters demonstrate why there have been so few successful mis-selling claims and question the assumptions behind the prevailing regulatory scheme.

Chapter 4 examines the idea of the ‘forgotten army’. Whether in the Middle East or Macedonia, soldiers during the war were absolutely certain that their part in the conflict – their suffering, as explored in Chapter 1, and their contribution to the wider war effort, such as the liberation of Palestine or Mesopotamia, as shown in Chapter 3 – had gone unnoticed by the home front. In some ways worse was their fear that those at home had badly misrepresented the war outside the Western Front, recognising the only ‘real’ war as the one being fought in France and Flanders while those in the Middle East and Macedonia were on a ‘picnic’. Again, the Western Front was foremost in the minds of soldiers away from it. This fear became more serious in the war’s final two months, as soldiers in the British Salonika Force (BSF), alongside their French, Greek, and Serbian allies, forced the surrender of Bulgaria, while the Egyptian Expeditionary Force’s (EEF) northwards drive to Aleppo knocked out the Ottomans. In both cases, soldiers in Macedonia and the Middle East argued that it was their campaign that had set in motion the downfall of the Central Powers and, ultimately, the armistice with Germany and an end to the war.