Divergences in Private Law

Andrew Robertson, Michael Tilbury

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782256618
• Edition: 1
• Topic: Droit
• Subtopic: Droit des contrats

This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream and the causes and effects of those departures. Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances. In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path. The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A separate collection, entitled The Common Law of Obligations: Divergence and Unity (ISBN: 9781782256564), is also being published.

1

Why Diverge?

ANDREW ROBERTSON AND MICHAEL TILBURY

The common law of obligations, once a unitary body of law, is now an interrelated set of laws operating in different jurisdictions which share a great deal in the way of substantive doctrine, methodology, taxonomy, approaches, philosophies, values, principles and policies. This book studies particular divergences that have occurred within the common law of obligations. These studies offer significant insights into the nature, effects, successes and failures of the deviations in question. Our particular concern in this introductory chapter is with the forces that produce major deviations, and especially the motivations underlying decisions by ultimate appellate courts to strike out on a divergent path.

Some of the most significant causes of divergence are considered in a related volume.¹ Divergence was made possible by the abandonment of the idea of a uniform common law, the establishment of local ultimate appellate courts and the abolition of appeals to the Privy Council in several major common law jurisdictions.² A wide range of factors have led, and continue to lead, courts to act on that possibility, including a concern to exercise independent judgement on difficult issues and a sense of responsibility for developing and perfecting the local common law.³ Departures are also necessitated by the need to adapt the common law to local circumstances, by the direct and indirect effects of local statutes, by constitutional structures and by distinctive local or regional human rights regimes.⁴ Divergence has also been driven by different understandings of the relationship between public and private law, different understandings of the nature and function of private law,⁵ and perhaps even different understandings of the foundations of the authority of the common law.⁶

At the level of particular doctrines, one cause of deviation is a concern that existing rules or principles operate unjustly or fail to achieve relevant policy goals. This is exemplified by the Canadian recognition of fiduciary duties protecting non-economic interests, which is explored by Erika Chamberlain in chapter 12.⁷ The expansion of the scope of fiduciary duties to encompass other interests such as bodily safety and psychological well-being facilitates the granting of remedies with respect to wrongdoing that would not otherwise be redressed, and promotes deterrence in circumstances in which it is necessary to maintain high standards of behaviour. While that divergence involves a radical departure from the traditional fiduciary paradigm, Chamberlain argues that it can be justified by reference to the values underlying fiduciary law. She also suggests that the particular willingness of the Supreme Court of Canada to develop private law in order to address social problems may be explained by the fact that the Court is routinely involved in dealing with controversial social issues under the Charter of Rights and Freedoms.⁸

Perhaps the most widely known instance of divergence between common law systems is the recovery of compensation for pure economic loss in the case of negligently constructed buildings. Sarah Green and Paul Davies regard the real cause of divergence among common law jurisdictions in this area as attributable not so much to the values underlying a particular area of law, but to the more general prioritisation of values by particular legal systems.⁹ Those values may reflect formal or substantive matters. In the context of defective building cases, for example, formal matters centre on the extent to which legislation should determine the law, while substantive issues relate to whether the issue is addressed on the basis of an exclusionary rule that pure economic loss is generally irrecoverable in negligence. The response of English law, while not consistent, is to adopt a pro-defendant exclusionary approach that leaves statute law to address any unfairness caused. In contrast, most other common law systems have opted for a more flexible approach: one that is more sympathetic to plaintiffs, allowing greater room for the judicial development of the law independently of statute. Green and Davies suggest that the English isolation on this issue is attributable to the desire of the English courts to maintain ‘doctrinal order’ and the ‘primacy of contract’, while other common law jurisdictions are more concerned with the ‘realties and merits’ of individual cases. This accords with the thesis that a major reason why Commonwealth jurisdictions wished to see an end to the role of the Privy Council in their respective jurisdictions was because the English version of the common law that the Privy Council espoused was, in the law of obligations, one that was based on traditional doctrines that resulted in injustice in individual cases and failed to reflect appropriate standards of conduct in dealings and relationships.¹⁰

Deviations between the laws of common law jurisdictions may not be aimed at producing different outcomes, but may be motivated by a sense that a different mode of analysis of a particular type of legal problem is simpler, results in greater certainty, is less artificial, or more directly addresses underlying questions of justice or policy. Methodological divergence may also be motivated by a conviction that a mode of analysis followed elsewhere is flawed or inadequate. The divergence taken by Australian law in relation to duty of care analysis—which is explored in chapter 2 of this volume—arose primarily from dissatisfaction with proximity as a tool of analysis, and concern about the way in which that concept had come to be understood and utilised by the Australian courts.¹¹ At the heart of the court’s criticism of proximity is that it can be understood as a rule without content, and therefore as conferring a judicial discretion.¹² Interestingly, the abandonment of proximity and the rejection of the duty frameworks applied in other jurisdictions was not motivated by a conviction that a superior analytical device or a better method or framework had been found, but proceeded in spite of a candid acknowledgement that they had not.

Significantly less clear is the motivation for the Supreme Court of Canada’s adoption of the civilian ‘absence of juristic reason’ approach to unjust enrichment claims, ostensibly in preference to the ‘unjust factors’ approach more widely followed in common law jurisdictions.¹³ Like the Australian rejection of proximity, its roots seem to lie in a quest for greater guidance or constraint in judicial decision-making, or at least the appearance of greater certainty. It has been suggested that there is not much to be gained by speculating as to why, in his foundational statement of the elements of unjust enrichment, Dickson J stipulated an absence of juristic reason for the enrichment rather than the presence of a factor that made it unjust.¹⁴ Lionel Smith has suggested that Dickson J may have been trying to bring the common law into alignment with the civil law of Quebec, but argued that it is more likely that he was seeking to alleviate concern that the application of the doctrine of unjust enrichment would involve excessive judicial discretion or appeals to individual conscience.¹⁵ This explanation has since been endorsed by the Supreme Court,¹⁶ though McLachlin J has noted that, in contrast with the traditional approach based on fact-specific categories, the unjust factors and absence of basis approaches both provide the flexibility needed to give effect to the equities of the particular case before the court.¹⁷

One of the most significant doctrinal and methodological divergences between common law jurisdictions that now presents itself is the decision of the High Court of Australia in Andrews v Australia and New Zealand Banking Group Ltd.¹⁸ In that decision, which is analysed by Sirko Harder in this volume,¹⁹ the High Court departed from what was then understood to be the law in Australia—and is still understood to be the law in other common law jurisdictions—that the penalty doctrine applies only in cases of breach of contract. Harvey McGregor has written that this is ‘a straightforward, even self-evident, proposition’.²⁰ The High Court’s disagreement with this stems from its understanding of the equitable jurisdiction in respect of penalties, which survived the judicature system, and which was not limited to breach cases, but could be engaged by, for example, the failure of a condition. The classic illustration, to which the Court appealed, was the penal bond with conditional defeasance, a popular method of contracting in early modern times. The Court’s conclusion that there was nothing, in principle, to restrict the doctrine to breach cases has been the subject of intense criticism especially for its failure to provide any justification (other than an historical one) for departing from an existing understanding of the law.²¹ Harder too regards the decision as flawed in its methodology, and argues that it should not be followed in other common law jurisdictions since there are other doctrines of the common law and equity, as well as legislation, that provide means for dealing with unfair contracts. Viewed from the perspective of divergence, the approach in Andrews can be seen as requiring an approach to common law method that reflects a particular Australian (or at least New South Wales) view of equity—one that strives to preserve equity as a distinct and living body of law within the legal system in such a way that the historical continuity of the law is maintained.²² Whether other common law systems will place such emphasis on historical coherence is open to question.

Where the common law is codified, then the reasons for any divergences in that codification are of course a matter for the legislature rather than the courts. Whether and how the legislature has intended divergence from the common law is, however, an extremely important question in the interpretation and application of the statute. An interesting issue considered by Alvin See in chapter 11 is whether a statutory provision expressed in broad terms may be interpreted in light of, and guided by, a common law framework developed elsewhere in the common law world after the statute has come into force.²³ See suggests that it can, and explains how the modern law of unjust enrichment can provide a guiding rationale and a structure for application of section 70 of the Indian Contract Act 1872, while accommodating the dictates of the particular statutory provision.

As noted earlier, the need to adapt the common law to suit local circumstances is an important motivation for divergence. Particular local circumstances may also provide a reason to retain traditional rules in one jurisdiction while the law is modernised in others. While the presumption of advancement and the presumption of a resulting trust are considered to be in decline in English law, those presumptions have recently been reaffirmed in Singaporean law. While the presumption of advancement as between parent and child has been placed on a gender-neutral footing in Singapore, the presumption of advancement between spouses has not. These developments, as well as their motivations and implications, are explored by Man Yip in chapter 13.²⁴ While Mindy Chen-Wishart has argued that Confucian family values may have played a role in the Singaporean divergence in the law of undue influence, Man Yip suggests that ‘Asian family values’ may be a means to an end in the law of resulting trusts, and policy may be the real driver of developments. The gender-specific operation of the presumption of advancement between spouses goes hand in hand with statutory spousal maintenance obligations, which require husbands to maintain wives but not vice versa. Both may be explained on the basis of a national policy of maintaining a gendered division of labou...

Table of contents

• Cover
• Title Page
• Preface
• Table of Contents
• List of Contributors
• Table of Cases
• Table of Legislation
• Table of International Instruments
• 1. Why Diverge?
• 2. Proximity: Divergence and Unity
• 3. Canada’s Common Law, Quebec’s Civil Law and the Threshold of Actionable: Mental Harm Following Tortious Conduct
• 4. ‘Pure Economic Loss’ and Defective Buildings
• 5. Divergence and Convergence in the Tort of Public Nuisance
• 6. Defamation on the Internet
• 7. Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom
• 8. The Scope of the Rule Against Contractual Penalties: A New Divergence
• 9. Rights Restricting Remedies
• 10. The Methods and Madness of Unjust Enrichment
• 11. Recovery of Non-Gratuitously Conferred Benefit Under Section 70 of the Indian Contract Act 1872
• 12. Revisiting Canada’s Approach to Fiduciary Relationships
• 13. The Presumptions of Resulting Trust and Advancement Under Singapore Law: Localisation, Nationalism and Beyond
• 14. Divergence in the Australian and English Law of Undue Influence: Vacillation or Variance?
• 15. Whose Conscience? Unconscionability in the Common Law of Obligations
• 16. Form and Substance in Equitable Remedies
• Index
• Copyright Page