Form and Substance in the Law of Obligations

"The chapters in this book were originally presented at the Ninth Biennial Conference on the Law of Obligations, which was co-hosted by Melbourne Law School and the Faculty of Law at the University of Oxford and held in Melbourne in July 2018. They explore the relationship between form and substance in the law of obligations. The volume builds on the rich tradition of legal thought that deploys these concepts to inform our understanding of the common law. The essays offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law". Acknowledgements Contents Contributors Table of Cases Table of Legislation 1. Between Form and Substance I. False Appearance and Inner Truth II. Rules and Reasons III. Conclusion 2. Form and Substance: Fictions and Judicial Power I. Introduction II. Different Meanings of Form and Substance III. Fictions IV. Fictions as to the Role of the Courts in Relation to Common Law and Statutes V. Fictions in the Law of Unjust Enrichment VI. Fictions in the Law of Contract VII. Conclusion 3. ‘Substance Over Form’: Has the Pendulum Swung Too Far? I. Introduction II. Content Over Name III. Legal Substance Over Factual Appearance IV. Economic Substance Over Legal Form V. ‘Substantivism’ Over (Doctrinal) Formalism VI. A Comparative Epilogue: Function Over Form 4. Form, Substance and Recharacterisation I. Introduction II. The Nature of Recharacterisation III. Formal and Substantive Reasoning IV. Recharacterisation Techniques V. Tenancy Agreements VI. Employment Agreements VII. Trusts VIII. Financing Arrangements IX. Conclusion 5. In Defence of Formalism I. Form and Substance Arguments II. Forms of Action III. Form of Transaction IV. Form vs Substance Disguising Substance vs Substance V. Conclusion 6. Private Law and the Form of Reasons I. Form Before Substance II. Rights and Powers, Duties and Liabilities III. Right-Shaped Reasons IV. Other Kinds of Reasons V. Lack of Reason and Restitution VI. Australian Conservatism, English Radicalism 7. The Formality of Contractual Obligation I. Form and Substance II. Consideration and Form III. Interpretive Constraints IV. The Formality of Contractual Obligation V. Form as Instrument VI. Conclusion 8. Two Forms of Formalism I. Introduction II. Conceptualism and Doctrinalism III. Conceptual Legal Autonomy IV. Doctrinal Legal Autonomy V. Conclusion 9. Form and Substance in Equity I. Introduction II. Substance and Form in Equity: An Initial Example III. Trusts and Third Parties IV. Mistaken, But Valid, Transfers of Rights V. Equitable Estoppel VI. Conclusion 10. Modern Equity – At the Edge of Formal Reasoning? I. Introduction II. Symptoms III. Causes IV. Renewal V. Conclusion 11. The Form and Substance of Equitable Estoppel I. The Core Principle of Equitable Estoppel II. Is Promissory Estoppel Distinct? III. Does ‘Promissory Estoppel’ Itself Encompass Distinct Principles? IV. Is a Promise Required in Some Categories But Not Others? V. Do All Estoppel by Acquiescence Cases Fall within the Core Principle? VI. Conclusion 12. Trends in Tort Law: Bad Form and Addictive Substance? I. Introduction II. Opening Formalities III. Duty of Care IV. Actionable Damage V. Vicarious Liability VI. Institutional Implications for the Courts and the Common Law VII. Conclusions 13. Form and Substance in the Tort of Deceit I. Introduction II. The Conventional English Conception of Deceit III. Conceptual and Coherence Problems with the Conventional Understanding IV. The Conventional Understanding and Problems of Fit V. A Right to Decision-making Autonomy? VI. Rights and Deceit: A Different View VII. Conclusion 14. Form and Substance in the Law of Punitive Damages I. Introduction II. England III. Australia IV. The United States V. Canada VI. Conclusion 15. Statute Law in the Law of Obligations: Dimensions of Form and Substance I. Statute Treated as Judge-made Law II. Judge-made Law Treated as Statutes III. Statutes Co-existing with Judge-made Law IV. Conclusion 16. Interpretive Formalism in the Law of Obligations: Thirty Years after Form and Substance I. Introduction II. Trends in Interpretive Methodology III. Constructive Trusts in Bankruptcy IV. Legislative Authorisation of Equitable Relief V. Conclusion 17. Misrepresentation, Misleading Conduct and Statute through the Lens of Form and Substance I. Introduction II. Form and Substance in Legislation and General Law III. The English Statutory Response to Misleading Conduct IV. Australia V. The Approaches Compared VI. Conclusion 18. Form and Substance: Three Observations on the State of Debate I. The Distinction(s) II. The Rise of a ‘New’ Formalism III. Hohfeld Resurrected – A Limited Reconciliation Index "This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law."--Sobrecoberta "This volume explores the relationship between form and substance in the law of obligations. It builds on the rich tradition of legal thought that deploys the concepts of form and substance to inform our understanding of the common law. The essays in this collection offer multiple conceptions of form and substance and cover an array of private law subjects, scholarly approaches and jurisdictions. The collection makes it clear that the interplay between form and substance is a key element of the dynamism that characterises this area of the law."--Book jacket