Contractual Penalties in Australia and the United Kingdom
Federation Press (Verlag)
978-1-76002-214-3 (ISBN)
- Titel nicht im Sortiment
- Artikel merken
/n
a detailed and accessible guide as to how the penalties doctrine operates in practice, taking account of the growing body of case law following the landmark decisions in Andrews v Australia and New Zealand Banking Group Ltd; Paciocco v Australia and New Zealand Banking Group Ltd; Cavendish Square Holding BV v Makdessi; and ParkingEye Ltd v Beavis;
/n
a historical overview of the key developments in the law of penalties from the 14th century to the present day which links historical analysis with modern debates concerning the scope of the penalties doctrine;
/n
a clear overview of the potential underlying reasons for the law of penalties in both England and Australia which accounts for the key divergences between the jurisdictions;
/n
a comprehensive comparative analysis between the English and Australian penalties doctrines, showing sharp divergences between the approaches adopted in these two jurisdictions notwithstanding that the jurisdictions share a common historical starting point; and
/n
a quick reference guide to assist legal practitioners in identifying potentially contentious issues that may arise from the application of the penalties doctrine.
/n
/nFrom the Foreword by the Hon Justice James Edelman, High Court of Australia/n"The detailed doctrinal and philosophical analysis in Contractual Penalties in Australia and the United Kingdom makes it a book for scholars who want to understand the historical, conceptual, and moral foundations of the prohibition against contractual penalties. But its clear and concise style and its chapters and sections concerning the practical application of a doctrine based upon slippery foundations also make it essential reading for all commercial lawyers in Australia and England."
Foreword by the Hon Justice James Edelman, High Court of Australia - click "Foreword" to download this free as a previewAcknowledgments Table of Cases Table of Statutes
1. Introduction
I Central Arguments and Aims of this Book II Methodology and Scope
2. History
From the 14th Century to the Foundations of the Modern Law
I The Hard Law of the Conditional Bond II Early Common Law Authorities III First Stage of Development c.1480: The Prevention of Double Recovery on a Simple Bond IV Second Stage of Development c.1601: The Equitable Restraint of Common Law Rights in Cases of Accident, Mistake, Hardship, Trifling Default and Fraud V Third Stage of Development c.1660: Security or Collateral Rights and the Foundations of the Modern Law VI Fourth Stage of Development c.1800: The Parties' Purported Intentions VII Fifth Stage of Development: The Decline of the Intention- Based Approach in the Early 20th Century and the Decision in Dunlop Pneumatic Tyre Co VIII Summary
3. Two Approaches
The Australian Security Rights Approach and the English Secondary Rights Approach
I Removing the Breach of Contract Requirement and the Decision in Andrews II The Australian Security Rights Approach: Legal History III The Australian Security Rights Approach: Policy and Morality IV Three Objections to the Australian Penalties Doctrine V The English Secondary Rights Approach: Preserving a Legally Imposed Regime Remedying Breach of Contract VI Summary
4. Other Justifications for the Penalties Doctrine
Asssessing the Rest of the Arguments
I The Penalties Doctrine Does Not Preserve Economically Efficient Outcomes II The Penalties Doctrine Does Not Simply Prevent Deterrence III The Penalties Doctrine Is Not About Preventing The Creation of Perverse Contractual Incentives IV The Penalties Doctrine Is Not About Preserving B's Liberty of Action V The Penalties Doctrine Is Not About Alleviating Deficiencies In Contractual Risk Calculations and Bargaining Positions VI The Penalties Doctrine Is Not About Preserving Substantive Contractual Fairness
5. Engagement
First Stage of Analysis: Does the Impugned Clause Attract the Operation of the Penalties Doctrine?
I Threshold Test Under Australian Law: Is the Impugned Agreed Remedy A Security Right? II Threshold Test Under English Law: Is the Impugned Agreed Remedy A Secondary Right?
6. Punishment
Second Stage of Analysis: Determining Whether an Impugned Clause is Punitive
I Recent Developments II Seven Principles III Justifying the Legitimate Interest Standard
7. Remedies
Third Stage of Analysis: Remedial Consequences When a Clause is a Penalty
I Restatement of the Australian Position: Remedial Consequences of a Finding that a Clause is Penal II Restatement of the English Position: Remedial Consequences of a Finding that a Clause is Penal III Agreed Remedies, Penalties and Potential Limits on Recovery
8. Interplay Between Legal Rules
I Does the Australian Penalties Doctrine Consist of Two Distinct Rules or a Unified Rule? II Relief Against Penalties in the Context of Deposit Clauses III The Relationship Between Forfeiture and Penalties
9. Conclusions
10. A Codified Guide to the Penalties Doctrine
A Restatement of the Australian Penalties Doctrine A Restatement of the English Penalties Doctrine
Index
| Erscheinungsdatum | 21.10.2019 |
|---|---|
| Verlagsort | Annandale, NSW |
| Sprache | englisch |
| Themenwelt | Recht / Steuern ► Allgemeines / Lexika |
| Recht / Steuern ► EU / Internationales Recht | |
| Recht / Steuern ► Privatrecht / Bürgerliches Recht ► Zivilverfahrensrecht | |
| ISBN-10 | 1-76002-214-4 / 1760022144 |
| ISBN-13 | 978-1-76002-214-3 / 9781760022143 |
| Zustand | Neuware |
| Informationen gemäß Produktsicherheitsverordnung (GPSR) | |
| Haben Sie eine Frage zum Produkt? |
aus dem Bereich
