Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

Have you bought a haunted house? Who you gonna call?

| 4 Comments
| Contract

Ghostbusters poster (element) via WikipediaFirst, in the context of the formation of contracts, a misrepresentation is a false statement of fact made by one party, which causes another party to enter into the contract, and which gives that latter party the right to set the contract aside. So, if you were spooked enough to ask whether the house was haunted, and if the sellers were skeptical enough to say that it wasn’t, and if a court were to find that it was in fact haunted, then you would be able to set the contract aside for misrepresentation.

Second, whilst there is no general duty of disclosure, particular duties of disclosure can – exceptionally – arise; in such cases, a material non-disclosure by one party, which causes another party to enter into the contract, gives that latter party the right to set the contract aside. So, even if you didn’t ask whether the house was haunted, but if a court were to find that it was, that the sellers knew about it, that they chose not to tell you about it, and that they should have done, then you would be able to set the contract aside for this material non-disclosure.

Of course, both of these hypotheticals turn on the fact that the court would find as a fact that the house was haunted.…

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Only in California – breach of contract and unjust enrichment

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| Contract, Restitution

Carrie Prejean via the BBC websiteBy Meredith R Miller on ContractsProf Blog, a story that needs no further commentary:

Was Carrie Prejean Unjustly Enriched? (Nudge Nudge Wink Wink)

You’ll undoubtedly recall that, back in May, we mentioned that Miss California USA (aka Donald Trump) might terminate then-Miss California Carrie Prejean for breach of contract; Prejean was in fact de-crowned, and she sued the pageant organizers for a whole host of things, including discrimination based on her anti-gay marriage stance and violation of her privacy when a representative acknowledged publicly that she had breast implants. The franchise wasted no time with a countersuit and, according to CNN, one of the claims seeks to recover some $5000 the pageant organizers loaned Prejean for the breast implant surgery – pursuant to an oral agreement between the parties.

Some stories, even contracts profs can’t make up. This ugly tale of caution is one of them.

Update (12 November 2009): the case has settled, but controversy continues to follow her.…

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Does the Irish Constitution prescribe a wall between Church and State?

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| Human Rights

Image of mass cards, via Clerical Whispers blogThomas Jefferson wrote that the First Amendment to the US Constitution erected “a wall of separation between Church & State”. This doctrine of the separation of church and state is taken to work both ways: a secular government should not establish or endow a formal state religion, and religious exercise should be free of state interference. The Irish provisions on this issue are contained in Article 44 of Bunreacht na hÉireann (the Irish Constitution):

1. The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

2.1° Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

2° The State guarantees not to endow any religion.

3° The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status. …

Section 99 of the Charities Act, 2009 (pdf) raises many questions for this Article. It provides

(1) A person who sells a Mass card other than pursuant to an arrangement with a recognised person shall be guilty of an offence. …

(3) In this section … “Mass card” means a card or other printed material that indicates, or
purports to indicate, that the Holy Sacrifice of the Mass … will be offered …

[and] “recognised person” means (a) a bishop … or (b) a provincial of an order of priests … [of the Holy Catholic Apostolic and Roman] Church …

In yesterday’s Irish Times, David Kenny – who is working on a PhD the place of religion in the Irish Constitution in the School of Law, Trinity College Dublin – considers the various issues that have arisen in a current challenge to the constitutionality of section 99:

Judgment expected soon on challenge to Mass card regulations

The High Court recently devoted four days to a case which explored the extent to which a particular religious practice could receive protection from the State.

…

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The evolution of man lawyers

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| General

Among his many accomplishments, Alex Steuart Williams – with Graham Francis Defries – draws and writes the weekly Queen’s Counsel cartoon column in the Times. Williams has just released a new book of cartoons, 101 Ways to Leave the Law. From his website, a typical observation concerning the evolution of man lawyers:


The evolution of lawyers, by Alex Williams



Suggestions welcome as to where scruffy, messy academic lawyers fit in to this picture.…

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The Internet never forgets

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| Privacy

Cover of I remember this one time, at BarCamp Dublin, I went to Darren Barefoot’s presentation, and he said

Things live forever on the web … the internet never forgets.

Total recall online is now a common trope, and one which forms the starting point of Viktor Mayer-Schönberger‘s provocative new book Delete: The Virtue of Forgetting in the Digital Age (Princeton University Press, 2009). Your privacy is gone, and you don’t know what you’ve lost till it’s too late. Two years ago, Dan Solove warned in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press, 2007) that a permanent online chronicle of our private lives could mean that the freedom of the internet makes us less free. Now, for the “future that is forever unforgiving because it is unforgetting”, Mayer-Schönberger proposes the remedy of induced forgetting for the internet’s elephantine memory …

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Steep rain

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| General

Image of a watercolour painting 'Rain over Mountain' by Australian artist Prakash BandekarOne Irish politician recently appealed to another not to do anything “precipitous“.

Interesting appeal, but did the appealing (well, actually, unappealing) politician really mean that?

The Compact Oxford English Dictionary provides:

precipitous
/prisippitss/
• adjective 1 dangerously high or steep. 2 (of a change in a condition or situation) sudden and dramatic. 3 hasty; precipitate.

and

precipitate

• verb /prisippitayt/ 1 cause (something bad) to happen unexpectedly or prematurely. 2 cause to move suddenly and with force. 3 Chemistry cause (a substance) to be deposited in solid form from a solution. 4 cause (moisture or dust) to be deposited from the atmosphere or from a vapour or suspension.

• adjective /prisippitt/ done, acting, or occurring suddenly or without careful consideration.

• noun /prisippitayt, -tt/ Chemistry a substance precipitated from a solution.

Unsurprisingly, the late William Safire (whose special gift was in conveying his pleasure in ruminating about language) clarified that precipitous (“steep”) and is not a synonym for precipitate (”abrupt, rash, headlong”). It is one of the Common Errors in English Usage identified by Paul Brians:

Both of these adjectives are based on the image of plunging over the brink of a precipice, but “precipitate” emphasizes the suddenness of the plunge, “precipitous,” the steepness of it.

…

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More practice needed in legal education

| 1 Comment
| law school, Legal Education

Larry Donnelly, NUI Galway, via their websiteThe title of this post comes from the headline in an interesting and provocative article by Larry Donnelly of NUI Galway (pictured left) in Monday’s Irish Times. His core argument is that the preparation of students for law practice should play a greater role in legal education in Ireland:

Historically, law study at third-level institutions in Ireland and in other common law jurisdictions was theory-based and took place exclusively in lecture halls. Law, however, is both an academic and a vocational discipline. Accordingly, law schools in every other common law jurisdiction have embraced the role of practice in legal education, but Irish law schools still lag far behind.

I entirely agree. Clinical and experiential learning centers on providing students with hands-on opportunities to understand how the law works in the real world. Along with the legal skills traditionally taught by law schools (legal research, legal analysis, and sometimes the ability to engage with policy and theoretical literature), the modern law degree should also seek to inculcate written and oral communication skills, interview skills, team-work, legal drafting, negotiation, advocacy, case management and practice management. 2007 saw the foundation of two very exciting Law Schools committed to this appraoch. The School of Law in the University of York began life with a bang, offering a completely progressive, clinical and experiential undergraduate curriculum, with problem-based learning modules centred on what they call the student law firm.…

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Subrogation and unjust enrichment – hunting the snark

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| High Court of Australia, Restitution, Subrogation

The Hunting of the SnarkThe Hunting of the Snark is a nonsense poem written by Lewis Carroll subtitled An Agony in 8 Fits. In Fit 6, the Barrister dreams that the eponymous Snark serves as counsel for the defence, finds the verdict as the jury, and passes sentence as the judge. Perhaps it is fitting then to observe that, by way of update to yesterday’s post about Bofinger v Kingsway Group Limited (2009) 239 CLR 269, [2009] HCA 44 (13 October 2009), Legal Eagle on SkepticLawyer characterises the judgment as “yet another snark at unjust enrichment”. True, but reaffirming a light approach to the “unifying legal concept” of unjust enrichment is not necessarily a bad thing, even if the tone is indeed unnecessarily snarky. She does concede that, “to give the High Court credit where credit is due, it gives reasoned arguments for rejecting the Banque Financière decision (see Banque Financière de la Cité v Parc (Battersea) Ltd [1999] 1 AC 221; [1998] UKHL 7 (26 February 1998)). It would sound quite reasonable if it weren’t for the usual snark beforehand” (given my views in my earlier post, it’s no surprise that I agree with her here). Her snark is that the Court does not provide similarly reasoned arguments for what she sees as negative knee-jerk responses to unjust enrichment reasoning.…

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