Chaim,
It will be no easier to respond to your
inquiry now that it was to your theological one!
I hope that this comment is useful.
The Supreme Court of Canada has recently
done some interesting (and odd) things with the traditional common law third
party beneficiary rule. Though no one has said so yet (though some have come
close, see, e.g., Finch J.A. in Laing Property Corp. v. All Seasons
Display Inc, (2000), 190 D.L.R. (4th) 1, 79 B.C.L.R. (3d) 199, 6 B.L.R. (3d)
206, 21 C.C.L.I. (3d) 92, Leave to appeal refused, [2001] S.C.C.A. No. 523)), I
think that Canada has moved much closer to the United States position. We don’t
talk about "intended beneficiaries" but will enforce a third party claim when
the parties "intended" the third party to have one.
Thus in London Drugs Limited v.
Kuehne & Nagel International Ltd., [1992] 3 S.C.R. 299, 97 D.L.R. (4th)
261, [1993] 1 W.W.R. 1, [1992] S.C.J. No. 84, and Fraser River Pile &
Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108, 176 D.L.R. (4th)
257, third parties were protected. In London Drugs, negligent employees
were protected from a claim by their employer’s customer. In Fraser
River, a charterer was protected from a claim by the owner’s insurer (under
its rights of subrogation) when the insurance policy taken out by the owner gave
protection to the charterer, a third
party. These cases followed the earlier decision of Commonwealth
Construction Co. v. Imperial Oil Ltd., [1978] 1 S.C.R. 317, 69 D.L.R. (3d)
558. The intervening decision in Greenwood Shopping Plaza v. Beattie,
[1980] 2 S.C.R. 228, 111 D.L.R. (3d) 257, was unsatisfactorily distinguished in
London Drugs, though
the Court in Greenwood Shopping Plaza had ignored its own recent decision
in Commonwealth Construction!
In short,
I don't think that we need anything like the English
legislation.
The Supreme Court, in my opinion, made a
hash of the law of punitive damages in Whiten v. Pilot Insurance Co.,
[2002] 1 S.C.R. 595, 209 D.L.R. (4th) 257, though it may be drawing back in
its more recent cases in Fidler v. Sun Life Assurance Co. of Canada,
[2006] S.C.R. 3, 271 D.L.R. (4th) 1, and Keays v. Honda Canada Inc., 2008
SCC 39, 294 D.L.R. (4th) 577.
I shall not go into the Canadian law of
damages for pure economic loss in tort or that of the remedial constructive
trust, but the picture is not pretty. The law of
damage for breach of contract also seems to be moving in an odd direction, as
illustrated by the two cases I have just mentioned.
Angela
Dear Chaim and
colleagues;
One example comes
to mind at the moment- in the area of Intellectual Property, my
impression is that the US courts have been willing to recognise a "right of
personality" which protects the use of the image of a famous figure (I think
there was a case involving the Three Stooges a few years ago in
California), whereas the commonwealth courts continue to resist this
development. In our courts a famous figure whose image is used in a deceptive or
misleading way (eg to imply or assert sponsorship or support when this is
untrue) may have a remedy (either statutory or for "passing off"), but there is
no general remedy simply for "misappropriation" of the image of
someone.
Regards
Neil
F
Neil Foster
Senior Lecturer, LLB Program Convenor
Newcastle Law School
Faculty of
Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW
2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921
6931
>>> Chaim Saiman <Saiman@law.villanova.edu> 12/12/08 9:23
>>>
Dear Obligationists
Since the law and theology discussion
ended in a big thud, I'll return to issues more traditionally associated with
this forum. :)
In essence am looking for a rough catalogue of major
differences in US vs. Commonwealth substantive law private. My basic sense
is that (for the period 1930- 1980), American law was significantly more
expansionary (liberal) than the law of Commonwealth jurisdictions.
Moreover, even in places where Commonwealth law expanded: (i) the US was likely
to do so earlier and, (ii) US law was more likely to change via judicial
development whereas CW countries may have relied more heavily on the
legitimization of legislation (EG. the third party beneficiaries legislation in
UK vs. American common law development in this area). In short, US courts were
far quicker to give up on the technicalities of the common law (e.g. privity)
that traditionally constrained the expansion of liability.
Here are a few
examples that come to mind.
1. The Allen v. Flood / Tuttle v.
Buck debate regarding prima facie torts recently discussed in OBG v.
Allan.
2. Debate over whether promissory estopple/Restatement Contracts
§ 90 can be used as a cause of action, and related, whether there is any
difference between the various forms of estopple.
3. Theories of
"enterprise" or "market share" liability in tort that elide difficult questions
of causation in the mass tort context. These had their heyday here in the 60's
and 70's, and my sense is that they were never accepted in much of the
Commonwealth.
4. Doctrine of equitable subordination in bankruptcy
which allows a court to move creditors up and down the priority chain. This
doctrine was developed by US courts without statutory authorization---but is now
codified in the Bankruptcy Code. I've heard that this is far more controversial
in CW.
5. The doctrine of oppression in corporate law and whether
majority shareholders owe any fiduciary duties towards the minority. My sense is
that US courts (rather than legislation) are more willing to find rights that
protect minority shareholders from than in the CW. This seems limited to the
close corporation context.
[While In reality, of course, the differences
are far more likely to be relative than absolute, but I don't think that changes
the basic premise underlying this email. ]
Basically, I am looking
for any other examples, counterexamples, scholarship that addresses the question
comparatively or explores these questions within the national/
intra-commonwealth perspective. Real property examples similarly welcomed,
and most importantly, feel free to plug your own work!!
Thanks
much,
Chaim
Chaim Saiman
Assistant Professor
Villanova
Law School
610.519.3296
saiman@law.villanova.edu
view my research at
http://ssrn.com/author=549545