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Exploring Private Law
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Exploring Private Law

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Published Aug 2013 (Cambridge)
ISBN: 9781107617469. Soft Cover, 526 pages.

EDITORS: Elise Bant, University of Melbourne; Matthew Harding, University of Melbourne 

Inspired by recent debate, the purpose of this collection of essays on private law doctrines, remedies and methods is to celebrate and illustrate the contribution that both 'top-down' and 'bottom-up' methods of reasoning make to the development of private law. 

The contributors explore a variety of topical subjects, including judicial approaches to 'top-down' and 'bottom-up' methods; teaching trusts law; the protection of privacy in private law; the development of the law of unjust enrichment; the private law consequences of theft; equity's jurisdiction to relieve against forfeiture; the nature of fiduciary relationships and obligations; the duties of trustees; compensation and disgorgement remedies; partial rescission; the role of unconscionability in proprietary estoppel; and the nature of registered title to land. 

  • Essays from leading private law scholars present original and authoritative contributions on cutting-edge issues in private law 
  • Exploration of important topics in contract, tort, unjust enrichment, equity and trusts, and property/land law, across both common and civil law 
  • Examines the controversy over judicial method in private law in the common law world, an increasingly relevant issue in light of the developing stance of the High Court of Australia against 'top-down' reasoning in private law
    Table of Contents 
    Introduction Elise Bant and Matthew Harding 
    Part I. Method: 
    1. Do top-down and bottom-up reasoning ever meet? Keith Mason 
    2. Internationalisation or isolation: the Australian cul de sac? The case of contract law Paul Finn 
    3. The Australian Law of Restitution: has the High Court lost its way? Andrew Burrows 
    4. Privacy and private law: developing the common law of Australia Michael Tilbury 
    5. Towards legal pragmatism: breach of confidence and the right to privacy Megan Richardson 
    6. Teaching trust law in the twenty-first century Tang Hang Wu 
    Part II. Unjust Enrichment:
    7. The impact of legal culture on the law of unjustified enrichment: the role of reasons Helen Scott and Daniel Visser
    8. Natural obligations and unjust enrichment Mitchell McInnes 
    9. Causality and abstraction in the common law Birke Häcker 
    10. Trust and theft Robert Chambers 
    Part III. Equity and Trusts: 
    11. What is left of equity's relief against forfeiture? Sarah Worthington 
    12. Contracts, fiduciaries and the primacy of the deal Anthony Duggan 
    13. Four fiduciary puzzles James Edelman 
    14. Good faith: what does it mean for fiduciaries and what does it tell us about them? Richard Nolan and Matthew Conaglen 
    15. Trustees' duties to provide information Lusina Ho 
    Part IV. Remedies: 
    16. The measurement of compensation claims against trustees and fiduciaries Lionel Smith 
    17. Substitutability and disgorgement damages in contract Katy Barnett 
    18. Unconscionability and proprietary estoppel remedies Andrew Robertson 
    19. Partial rescission: disentangling the seedlings but not transplanting them Peter Watts 
    20. Of horses and carts: theories of indefeasibility and category errors in the Torrens system Kelvin Low.


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