The availability of proprietary restitution in cases of mistaken payments

This article is concerned with the availability of “proprietary restitution” in cases of mistaken payments. It is argued that the mistake of the claimant is an insufficient justification for proprietary restitution, however a close analysis of the case law demonstrates that the presence of additional factors can justify the availability of proprietary restitution in specific circumstances. The basis of proprietary restitution is to be found in the breach of a duty which arises separately from the claim for unjust enrichment. The significant contribution of this article is the analysis that knowledge merely creates a duty to maintain the fund until restitution is made, and that knowledge cannot establish the breach of this duty. Importantly, breach of this duty is established by a second condition which is demonstrated by the wilful misconduct of the recipient. It is this conduct which justifies the imposition of the constructive trust. By adopting this analysis, the proprietary claim in the context of mistaken transfers can be classified as forming part of the law of wrongs, rather than the law of unjust enrichment.

Environmental liabilities in insolvency:an area ripe for reform?

Purpose: The paper examines the question whether legislative reform is the ‘silver bullet’ for the problems generated by the failure of a company which is exposed to claims arising from the non-fulfilment of its environmental obligations. The limited capacity of the United Kingdom insolvency regime to facilitate the fulfilment of a debtor company's environmental obligations is often illustrated with reference to some significant judicial decisions. However, no real picture has emerged of the frequency with which these issues arise, based on which firm proposals for reform could be advanced. This paper argues that greater regard should be paid to existing mechanisms which provide a means of enabling insolvency risks to be managed or minimised, as these point towards the scope for these issues to be resolved through the environmental protection framework rather than through reliance on company and/or insolvency law. Design/methodology/approach: Research was conducted into the statutory and non-statutory regulations (such as statutory guidance), and case law principles, which underpin the treatment of the claims against an insolvent (or potentially insolvent) company resulting from its environmental activities. This included research into policies which have a bearing on this area, developed through governmental and civic consultations and studies. Findings: The paper concludes that the likelihood of a case for legislative reform being made out is weak, and the focus should accordingly shift to strengthening the effectiveness of existing law, policy and practice. Originality/value: This paper is the first (in the United Kingdom context) to challenge the perceived need for reform in this area, engaging with recent examples of such corporate failures and the impact of recent legislative and policy developments.

Size frequency distributions of the florid prion protein aggregates in variant Creutzfeldt-Jakob disease follow a power-law function

The objective was to test the hypothesis that the size frequency distributions of the prion protein (PrP) plaques in cases of variant Creutzfeldt-Jakob disease (vCJD) follow a power-law function. The design was a retrospective neuropathological study. The patients were 11 cases of clinically and neuropathologically verified vCJD. Size distributions of the diffuse and florid-type plaques were measured in several areas of the cerebral cortex and hippocampus from each case and a power-law function fitted to each distribution. The size distributions of the florid and diffuse plaques were fitted successfully by a powerlaw function in 100% and 42% of brain areas investigated respectively. Processes of aggregation/disaggregation may be more important than surface diffusion in the pathogenesis of the florid plaques. By contrast, surface diffusion may be a more significant factor in the development of the diffuse plaques. © Springer-Verlag Italia 2006.

The law and finance of share repurchases in Europe

This article analyses the impact of the EU market abuse law on share repurchases. We find that the Member States' previous rules differed considerably, and therefore it can be said that the Regulation on share repurchases has provided uniformity as to the availability of a safe harbour for share repurchases. The picture, however, gets more difficult to assess if we consider our findings on the actual effect of the law. Our results do not confirm a “simple law and finance story“ according to which market participants would have just reacted as expected by the new legal rules. Rather, it seems to be the case that the value of legal certainty and the positive signal of common legal rules have also had an impact on the propensity to repurchase own stock.

Employment law:an introduction for HR and business students

The Aston Centre for Human Resources (ACHR) was created at Aston Business School, Aston University, in February 2006. The mission of the Centre is both to inform and influence practice through conducting high quality, challenging research in order to extend the existing theoretical frameworks and to develop new and relevant conceptual models to represent and guide the changing realities facing businesses and the people they employ in the 21st century. * Students studying an Employment Law module on a HR or general business degree, whether undergraduate or postgraduate. * Students taking the Employment Law elective on the CIPD's Professional Development Scheme (PDS). * Students studying Employee Relations or Diversity. This new edition has been thoroughly updated, and includes expanded coverage of the impact of EU Law, and Discrimination Law including ageism, sexual orientation, religious belief, harassment and disability. The text is ideal text for those business students on undergraduate and postgraduate courses who are taking a first module in Employment Law. It covers a comprehensive range of topics enabling students to gain a solid understanding of the key principles of the subject. The engaging, authoritative writing style and range of learning features make this a refreshingly accessible and student-friendly read. Each chapter includes summaries of topical and relevant cases, direction to key sources of legal information and suggestions for further reading whilst covering the CIPD’s standards for the Employment Law elective on the Professional Development Scheme (PDS). This text includes a range of case studies, tasks and examples to consolidate learning and includes a brand new section on Employment Law study skills to help students get to grips with how to access and read law reports, understand the sources of the law, find and use up-to-date legal information (particularly websites) and how to prepare for exams and written assignments.

Textbook on contract law

Jill Poole's immensely popular Textbook on Contract Law has been guiding students through contract law for many years. The accessible writing style and focus on key principles and developments in contract law make this text a favourite with students and lecturers alike. The author places the law of contract clearly within its wider context before proceeding to provide detailed yet accessible treatment of all the key areas encountered when studying contract law. Key features: · Key points, illustrative examples and questions encourage a deeper understanding of the central facts and issues · Each chapter begins with a summary of key issues, providing an overview of key themes and points of law, and concludes with suggestions for further reading, guiding you towards the most relevant texts and articles · An attractive page design highlights headings, case summaries, case extracts and a variety of learning features, making navigation through the text easy Fully supported by an Online Resource Centre, which provides: Student Resources Regular updates on new legislation, cases, and other important developments Guidance on answering questions in contract law Self-test questions and answers linked with Casebook on Contract Law Lecturer Resources A test bank of 300 multiple choice questions with answers and feedback

Missing people and their property:the case for interim administration

Puts the case for reform of the law to allow for the administration of the estate of a missing person in the interim period between their disappearance and any later declaration of their presumed of death. Explains why reform is needed. Notes Parliamentary activities relating to the presumption of death and interim administration in the period 2008-12. Highlights Australian and Canadian legislation providing for such interim administration and the Irish Law Commission recommendations for a statutory scheme on administering a missing person's property.

Textbook on contract law

Now in its 12th edition, Jill Poole's immensely popular Textbook on Contract Law has been guiding students through contract law for many years. The accessible writing style and focus on key principles and developments in contract law make this text a favourite with students and lecturers alike. The author places the law of contract clearly within its wider context before proceeding to provide a detailed yet accessible treatment of all the key areas encountered when studying contract law. Key features: -Each chapter begins with a summary of key issues, providing an overview of key themes and points of law, and concludes with suggestions for further reading, guiding you towards the most relevant texts and articles -Key points, illustrative examples and questions encourage a deeper understanding of the central facts and issues -Headings, case summaries and case extract boxes allow for easy navigation through the text

Case Comment : Challenging the validity of leasehold guarantees:undue influence, non-est factum and formality issues

Case: Beardsley Theobalds Retirement Benefit Scheme Trustees v Yardley [2011] EWHC 1380 (QB) (QBD). The recent case of Beardsley Theobalds Retirement Benefit Scheme Trustees v Yardley, nicely illustrates, inter alia, the impact of the contractual defences of undue influence and the plea of non est factum in the context of avoiding liability under leasehold guarantees, within the setting of the landlord and tenant relationship. Additionally, the case also gives us an insight into the possible application of other technical defences relating to the law of formalities for leases. Judgment in this case was handed down on September 30, 2011.

Case Comment : Jones v Kernott:which road to Rome?

Jones v Kernott [2011] UKSC 53 (SC) Stack v Dowden [2007] UKHL 17; [2007] 2 A.C. 432 (HL). Casenote explores the implications of the ruling in Jones v Kernott by the Supreme Court and assesses its implications for English Property Law. Building on the commonwealth experience the casenote calls for the intorduction of a statutory scheme so as to allow courts to reallocate property rights to unmarried cohabitants in the event of relationship breakdown.

O2 v Hutchison 3G comparative advertising:European trade mark law beyond compare?

Legislation: Directive 89/104 on trade marks art.5 Directive 84/450 on misleading advertising Directive 97/55 amending Directive 84/450 concerning misleading advertising so as to include comparative advertising Case: O2 Holdings Ltd v Hutchison 3G UK Ltd (C-533/06) [2008] E.C.R. I-4231 (ECJ (1st Chamber)) *Comms. L. 155 Long, long ago a trade mark allowed a craftsman to be identified and held accountable for shoddy goods. Today in the era of the ‘Lovemark,’1 due to extensive advertising hopes and aspirations a lifestyle can be purchased with a brand. For many products a trademark is no longer merely a badge of origin but has a commercial value of its own. Through advertising an emotional attachment is created in the heart of the consumer for particular brands. Brand owners are determined that the value of this attachment be preserved and protected against any encroachment into the aura that has been painstakingly created. Comparative advertising, the allusive use of a mark, is seen by the owners of such emotive brands as likely to jeopardise the character of the brand that they have so carefully nurtured. As they have invested so heavily in creating their concept these owners want to control its use by others. There is an issue however as to how far this control ought to extend when the image is used in the marketing of a rival's goods or services.

Implementation of pseudo J-integral based Paris’ law for fatigue cracking in asphalt mixtures and pavements

Pavement analysis and design for fatigue cracking involves a number of practical problems like material assessment/screening and performance prediction. A mechanics-aided method can answer these questions with satisfactory accuracy in a convenient way when it is appropriately implemented. This paper presents two techniques to implement the pseudo J-integral based Paris’ law to evaluate and predict fatigue cracking in asphalt mixtures and pavements. The first technique, quasi-elastic simulation, provides a rational and appropriate reference modulus for the pseudo analysis (i.e., viscoelastic to elastic conversion) by making use of the widely used material property: dynamic modulus. The physical significance of the quasi-elastic simulation is clarified. Introduction of this technique facilitates the implementation of the fracture mechanics models as well as continuum damage mechanics models to characterize fatigue cracking in asphalt pavements. The second technique about modeling fracture coefficients of the pseudo J-integral based Paris’ law simplifies the prediction of fatigue cracking without performing fatigue tests. The developed prediction models for the fracture coefficients rely on readily available mixture design properties that directly affect the fatigue performance, including the relaxation modulus, air void content, asphalt binder content, and aggregate gradation. Sufficient data are collected to develop such prediction models and the R2 values are around 0.9. The presented case studies serve as examples to illustrate how the pseudo J-integral based Paris’ law predicts fatigue resistance of asphalt mixtures and assesses fatigue performance of asphalt pavements. Future applications include the estimation of fatigue life of asphalt mixtures/pavements through a distinct criterion that defines fatigue failure by its physical significance.