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46 results

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The Transformation of European Private Law
  • Harmonisation, Consolidation, Codification or Chaos?
  • Edited by James Devenney, Mel Kenny
  • Published online:
    05 October 2013
    Print publication:
    24 October 2013
  • This book emanates from a duo-colloquium which explored the Europeanisation of private law in the context of efforts to consolidate the consumer acquis, the Draft Common Frame of Reference, the appointment of an Expert Group on a Common Frame of Reference in the area of European contract law, the passage of the Consumer Rights Directive and the proposed Common European Sales Law. This book, with fully updated contributions, critically reflects on whether the process of Europeanisation, which has shaped private law in the EU Member States, has now reached a significant turning point in its development, a point of punctuated equilibrium. Written by a team of leading authors, the topics covered will be of concern in all European legal systems and beyond.

  • 17 - Re-Examining Damages for Fraudulent Misrepresentation

  • from Part VI - Misrepresentation, Breach, and Remedies
  • Edited by Larry A. DiMatteo, University of Florida, Qi Zhou, University of Sheffield, Severine Saintier, University of Sheffield, Keith Rowley, University of Nevada, Las Vegas
  • Book:
    Commercial Contract Law
    Published online:
    05 February 2013
    Print publication:
    31 January 2013, pp 416-433

  • Summary

    This chapter will examine the assessment of damages for fraudulent misrepresentation in England and Wales. In so doing it will explore the nature of the damages awarded in such cases, highlighting the punitive and deterrent objectives inherent in such awards. The aim of the chapter is not to argue whether or not private law is the correct forum for punishing individuals. Rather the aim is to argue that, at times, judicial attitudes toward damages for fraudulent misrepresentation are “over-zealous”; and that, if punishment is appropriate in this arena, a much more measured approach needs to be adopted. The chapter will argue that the current law can grossly over-compensate the claimant whilst punishing the defendant in a disproportionate manner. The chapter will also make suggestions for the reform of this area of law.

    A policy of imposing more stringent remedies on an intentional wrongdoer serves two purposes. First it serves a deterrent purpose in discouraging fraud.... Secondly, as between the fraudster and the innocent party, moral considerations militate in favour of requiring the fraudster to bear the risk of misfortunes directly caused by his fraud. I make no apology for referring to moral considerations. The law and morality are inextricably interwoven. To a large extent the law is simply formulated and declared morality. And, as Oliver Wendell Holmes, The Common Law (ed. M. De W. Howe), p. 106, observed, the very notion of deceit with its overtones of wickedness is drawn from the moral world.

    Smith New Court Securities v. Scrimgeour Vickers (1997) A.C. 254 at 282 per Lord Steyn

Consumer Credit, Debt and Investment in Europe
  • Edited by James Devenney, Mel Kenny
  • Published online:
    05 August 2012
    Print publication:
    12 July 2012
  • Produced under the auspices of an EU-funded Marie Curie research programme, this volume analyses vulnerability in European private law and scrutinises consumer protection in credit and investments in the context of the recent turmoil in financial markets and EU harmonisation initiatives in the area. It explores key issues such as responsible lending, the disclosure of information, consumer confidence, the regulation of consumer investment services and the protection of bank depositors. The chapters emanate from the 'Consumer Protection in Europe: Theory and Practice' duo colloquium which explored consumer protection in Europe in its theoretical and practical dimensions. These topics are even more relevant today given the passage of the Consumer Rights Directive, the appointment of an Expert Group on a common frame of reference, the Green Paper on European Contract Law and the ongoing deliberations surrounding the Common European Sales Law.

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