Reconsidering the Role of Election in Rescission

Bant, Elise

doi:10.1093/ojls/gqs009

Cited by 4 publications

(3 citation statements)

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“…187 Though many scholars would today disagree with the characterisation of the mere equity as a procedural power, there nonetheless exists a consensus that, whatever its exact content, the "equity" is not a vested equitable interest and does not therefore register within the equitable priority rules. 188 Second, a claim to rescind is, in substance, a claim to take a right away from the defendant, assuming that the defendant acquired a right from the original transferee under the voidable transaction. The rescinding-claimant is entitled to either a transfer of the same right in the hands of the thirdparty purchaser, or the delivery-up and cancellation of that right.…”

Section: Third Category Of Bona Fide Purchasementioning

confidence: 99%

WHAT WERE LORD WESTBURY'S INTENTIONS IN PHILLIPS V PHILLIPS? BONA FIDE PURCHASE OF AN EQUITABLE INTEREST

Reilly¹

2021

C.L.J.

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In Phillips v Phillips, Lord Westbury stated that, against a bona fide purchaser faced with an “equity” to rescind, “the Court will not interfere”. This has been interpreted to mean that purchasers of even an equitable interest shall take free of prior equities. Yet the distinction between “equities” and equitable interests has been, and remains, uncertain; some have therefore questioned the intent behind Phillips. This paper shall elucidate Lord Westbury's intentions within their historical context and argues that Phillips offers a coherent, functional explanation of both: (1) the protection given to equity's darling; and (2) how that protection was effected.

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Section: Third Category Of Bona Fide Purchasementioning

confidence: 99%

WHAT WERE LORD WESTBURY'S INTENTIONS IN PHILLIPS V PHILLIPS? BONA FIDE PURCHASE OF AN EQUITABLE INTEREST

Reilly¹

2021

C.L.J.

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“…In all cases, however, the courts postpone the enforcement of the moral duty as a positive equitable obligation to the date of election. 146 Various reasons have been suggested for this postponement, namely that it protects third parties, 147 and avoids any inconsistency between the equitable obligation and the defendant's contractual rights 148 in the meantime.…”

Section: Explanatory Rolementioning

confidence: 99%

The Meaning and Significance of Conscience in Private Law

Agnew¹

2018

C.L.J.

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This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

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“…In this manner, the elective theory establishes a principled framework applicable to the termination of the employment contract which accords with the general precepts of contract law, and functions to ‘accord … maximum protection to [the innocent party's] freedom of choice/autonomy’. The disadvantage of such an approach, however, is that it often fails to coincide with factual reality. Once there has been a repudiatory dismissal or resignation, the employment relationship is over and the employment contract is de facto at an end.…”

Section: Contextualising the Factsmentioning

confidence: 99%

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

Cabrelli¹,

Zahn²

2013

Modern Law Review

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If a party to an employment contract commits a repudiatory dismissal or resignation, it has long been unclear whether the other party has the option either to terminate or affirm the contract (the elective theory) or whether the former's breach operates to bring the contract of employment to an end (the automatic theory). The recent decision of the Supreme Court in Société Générale (London Branch) v Geys has finally resolved this question. By a majority, the Supreme Court held that the elective theory also applies in the context of a wrongful repudiation of the employment contract by express dismissal or resignation. This note examines the significance of Geys in the context of the common law of the contract of employment and evaluates whether a number of related issues surrounding the breach and termination of the employment contract have been resolved.

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Reconsidering the Role of Election in Rescission

Cited by 4 publications

References 0 publications

WHAT WERE LORD WESTBURY'S INTENTIONS IN PHILLIPS V PHILLIPS? BONA FIDE PURCHASE OF AN EQUITABLE INTEREST

WHAT WERE LORD WESTBURY'S INTENTIONS IN PHILLIPS V PHILLIPS? BONA FIDE PURCHASE OF AN EQUITABLE INTEREST

The Meaning and Significance of Conscience in Private Law

The Elective and Automatic Theories of Termination in the Common Law of the Contract of Employment: Conundrum Resolved?

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