Roman Law Moderations A Roman Introduction to Private Law Law

Roman Law Moderations A Roman Introduction to Private Law Law Faculty webpage entry Roman Law Moderations A Roman Introduction to Private Law This subject is an introduction to legal concepts and legal thought, which for centuries have been directly influenced by Roman Law. The course therefore shows where many of the ideas which we take for granted have come from. The course is based on primary materials, the set texts from Gaius (second century AD) and Justinian (sixth century AD). The texts are studied in translation. No Latin is needed, nor is Latin an advantage. Contact with primary materials is one of the great merits of the study of law. It allows the mind to form its own judgments, freed from second-hand opinions. The course has four sections: I. Sources of Law and the Scheme of the Institutes; II. Property; III. Obligations (A) Contract (B) Delict (Tort); IV. Influence of Roman Law. Handbook entry Roman Law Moderations A Roman Introduction to Private Law This subject is an introduction to legal concepts and legal thought, which for centuries have been directly influenced by Roman Law. The course therefore shows where many of the ideas which we take for granted have come from. The course is based on primary materials, the set texts from Gaius (second century AD) and Justinian (sixth century AD). The texts are studied in translation. No Latin is needed, nor is Latin an advantage. Contact with primary materials is one of the great merits of the study of law. It allows the mind to form its own judgments, freed from second-hand opinions. The course has four sections: I. Sources of Law and the Scheme of the Institutes; II. Property; III. Obligations (A) Contract (B) Delict (Tort); IV. Influence of Roman Law. There are lecture courses on each section, on the first two sections and the last section in Michaelmas Term and on the third section in Hilary Term. There are also tutorials arranged by your college tutor. Within this structure it is possible to introduce most of the principal concepts and distinctions which are still of importance in modern law. The two great categories, property and obligations, comprehend most of the private law encountered in ordinary life and legal practice. The first and last sections provide an opportunity to see how enormously influential the Institutes and the Digest have 1 been in the western legal tradition and introduce, from a comparative perspective, the principal kinds of law-making, namely legislation and interpretation. Syllabus. (i) The structure of the Institutes, to be studied in connection with Gaius, Institutes 1.8; 2.1-2 and 12-14; 3.88 and 91 and Justinian, Institutes 1.1; 2.1 pr.; 2.2; and 3.13. Sources of Roman Law, to be studied in connection with Gaius, Institutes 1.1-7 and Justinian, Institutes 1.2. (ii) Property to be studied in connection with Gaius, Institutes II. 1-33, 40-51, 65-79, and Justinian, Institutes II. 1-6. (iii) Contract (but not quasi contract) to be studied in connection with Gaius, Institutes III. 88-162 (omitting 94-127, 151-154b, 157-160), and Justinian, Institutes III. 13-26 (omitting 15.2-7, 1620, 23.4-5, 25.4-8, 26.7, 26.9-12). (iv) Delict (but not quasi-delict), to be studied in connection with Gaius, Institutes III. 182-225, Justinian, Institutes IV. 1-4; (iv) Influence of Roman Law: an assessment of the dissemination and impact of classical Roman Law, especially the institutional scheme, on the European ius commune, the English common law, and the French and German codification movements. Candidates will be required to answer questions on the prescribed texts from the Institutes of Gaius and Justinian in English translation. The texts and translations used will be those of F de Zulueta (Institutes of Gaius) and T C Sandars (Institutes of Justinian), or such other translations as are prescribed. Teaching Convention The following convention is intended to explain and in some important ways to restrict the subject as defined above. Structure of the Institutes & Influence of Roman Law. Questions on the arrangement of the Institutes will expect candidates to be aware of the fact that modern codes and overview literature all to a greater or less extent embody the institutional scheme. Candidates will be expected to have some knowledge of the codification movement, sufficient to allow them to understand that codification, although the best known feature of modern civilian systems, was not previously characteristic of Roman Law and that the reputation of Roman Law for “system” long rested solely on the Institutes. However, questions will not be asked which require knowledge of the detail of the modern codes. One of the most important things an introductory Roman Law course can do is to lay out the civilian overview of the law and allow this to serve as a reference point for the organisation of later law, whether modern civilian or common law. The course therefore aims to provide an early introduction to comparative methodologies. Tutors will at discretion wish to highlight comparisons between the institutions and doctrines of Roman law and English law. Contract. The teaching will illustrate the tension between the law of contract as the law of a list of deals and the law of contract as the law of a single general principle. To that theme can conveniently be attached the consideration of writing and other formalities. Questions will be asked on the emergence in Roman Law of a list of nominate contracts rather than a general law of contract, on the definition of the figures in that list and their fourfold classification, on the extent to which the gaps between them were filled, on the role of writing and other formalities, and on the difference between contracts tried according to “strict law” and those tried according to the standard of good faith. Questions will not be asked directly on other aspects of 2 the law of contract, hence not on implied terms, vitiating factors, or measure of damages. In relation to the distinction between strict law and good faith candidates should nonetheless be able to illustrate the role of good faith in the generation of implied obligations. Quasi-Contract and Quasi-Delict. No texts are set on these topics and questions will not be asked directly on them. In answering questions on the structure of the Institutes in general and of the law of obligations in particular candidates should know of the existence of and be able to take account of these categories. Meaning of “questions will not be asked”. Where these conventions say that questions will not be asked, they mean to exclude all forms of question, whether of the essay, problem or gobbet kind. Form of the Examination. Subject to anything that may be said in the moderators’ edict, candidates will be required to answer four questions in three hours and will be required to answer one question, and one question only, of the kind which asks for comment on extracts from the set texts (gobbet questions). Candidates will be given a choice from two such questions each of which will require comment on two extracts from a choice of four. Teaching strength Tutoring strength: Permanent fellows: John Cartwright, Christ Church Mindy Chen Wishart Merton [from Oct 2006] Peter Clarke, Jesus Jamie Edelman, Keble [from Oct 2006] Joshua Getzler, St Hugh’s Paula Giliker, St Hilda’s Louise Gullifer, Harris Manchester Mike Macnair, St Hugh’s Helen Scott, St Catherine’s Roger Smith, Magdalen College fellows, fixed term fellows: Eric Descheemaker, St Catherine’s Birke Haecker, All Souls [GTA] Jeffrey Hackney, Wadham Paola Nebbia, St Hilda’s Graduates: Emily Coates, BA BCL, now on Oxford LPC course and teaching for Corpus Christi Vanessa Mak, MJur, now DPhil student There are also weekenders teaching for some colleges, eg Worcester 3 Lecturing strength: New Regius professor Stefan Vogenauer, BNC – Contract Joshua Getzler, St Hugh’s – Sources, Influence, Property Helen Scott, Trinity – Delict Eric Descheemaker, St Catherine’s – Property Backup lecturers: John Cartwright, Christ Church Mike Macnair, St Hugh’s Examiners: Main examiners John Cartwright Peter Clarke Joshua Getzler Jeffrey Hackney Mike Macnair Potential examiners Jamie Edelman Louise Gullifer Helen Scott We have a number of Roman Law teachers in non-permanent posts who could conceivably help with examining if there was a shortfall due to some emergency eg illness. However, in view of the numbers of examiners available it does not look like we will need to consider this. 4 Core Reading List for Roman Law Mods In this list the following abbreviations are used: Nicholas = B Nicholas An Introduction to Roman Law (OUP Oxford 1969) Jolowicz and Nicholas = HF Jolowicz and B Nicholas Historical Introduction to the Study of Roman Law (3rd edition CUP Cambridge 1972) Buckland and McNair = FH Lawson (ed) WW Buckland and AD McNair Roman Law and Common Law (2nd edition CUP Cambridge 1952) For occasional reference in relation to points of difficulty all students will need to be told of the existence of: P Stein (ed) WW Buckland, Textbook of Roman Law (3rd edition CUP Cambridge 1963). Core list only a guide It is not right or possible to lay down one obligatory list. So long as they respect the need not to increase the burden on the students and do not include matter which would be accessible only to students with Latin, tutors must be free to repackage the material. It is not a very good idea to cumulate books which operate at much the same level, but some may prefer to replace the recommended secondary reading with Borkowski’s Textbook on Roman Law or Thomas’s Textbook of Roman Law. Again, some may prefer to break the list up into smaller units. And so on. Thirteen units There are thirteen units on this list. It will be evident that they are not meant to correspond to weeks. Nor does the list suppose that every tutor will choose to cover every unit. It is in the nature of the first unit to recur in part at the beginning of property and of obligations and, one step further down, at the beginning of contract and delict. A seven week course might comprise six linked pairs of topics plus a single topic, perhaps with some reductions of the volume contained in each pairing; or five linked pairs and two singles. This would leave a week for revision. A sample tutorial reading guide from Dr Mike Macnair based on the core reading list is appended, showing one way in which the course may be taught in seven weeks, leaving a week for revision. Quantification The reading on this list, apart from the set texts, averages out at 36 pages per unit. If one taught two units per tutorial, the students who used only this core list would on average be reading approximately 72 pages plus about 10 pages of translated primary material. We do not overlook the fact that the page is not a stable measure. 5 1 The Corpus Iuris and the Structure of the Institutes G.1.8 G.2.1-2 and 12-14 G.3.88 and 91 J.1.1 J.2.1 pr and 2.2 J.3.13 Nicholas 38-60 P Birks and G McLeod Justinian’s Institutes, Translated with an Introduction (Duckworth London 1987) 7-26 Questions 1 2 Does Roman law deserve its reputation for intellectual orderliness? What place in the Corpus Iuris did the Institutes occupy and with what original purpose? How did Gaius solve the problem of presenting the law other than as list of topics? Where was the list to be found which he sought to order and of what kind was it? 3 2 Sources of Law G.1.1-7 J.1.2. Nicholas 14-59 Jolowicz and Nicholas 86-107, 353-380 Buckland and McNair 1-22 Questions 1 2 How should one distinguish a legislative from an interpretative source of law? Should the urban praetor be counted as an interpretative or a legislative source or tertium quid? How was the function of authoritative interpretation discharged during the first life of Roman law? And how is it in English law? What was a rescript? Were rescripts functionally identical with the responses of the jurists? Trace the sequence of legislative sources under the republic, principate and dominate. Can any parallels be drawn with English parliamentary legislation? 6 3 4 5 3 Property I: Alienation and Vindication of Corporeal Things Mancipatio G.2.14a–17, 22–23 In Iure Cessio G.2.24–27 Traditio G.2.18–21 J.2.1.40-46 Transfer Defective for Informality G.2.40–41 Transfer defective because ‘nemo dat quod non habet’ G.2.43 Security of transactions: imperfect transfers cured by usucapion G.2.41-51 J.2.6 Vindication and Publician Action G.4.36 Nicholas 116-130 P Birks ‘The Roman Law Concept of Dominium and the Idea of Absolute Ownership’ [1985] Acta Juridica 1, 3-7, 29-31 Questions 1 What was the position in AD 200 of a person who received informally a thing which could only be transferred formally? In particular, what was his position (a) two years after the transfer, (b) two months after the transfer. Your answer should take into account two situations: (i) where a vindicatio was brought against him, and (ii) where he himself needed to vindicate it? Would it make any difference to your answer if his opponent was in all these cases the person who could prove that he was the owner at civil law? 2 In the previous question, for ‘who received informally a thing which could only be transferred formally’ read ‘who took a conveyance of a thing from a non-owner’. 3 A wants to make a gift to B of a huge statue of Mars which is currently on long loan to a municipality. He also wants B to keep for himself a painting which he had previously lent to him. B lives several days’ journey away. A is of the view that it must be possible to complete these transactions in writing. Advise him. 7 4 Property II: Types of res; Original Acquisition of Corporeal Things A What can be owned G.2.1-17, 22, 27 J.2.1.pr-10, 2.2 B Finding, Taking, Making, Picking Occupation G.2.66-69 J. 2.1.12-18 J.2.1.22 Treasure Trove J.2.1.39 New Things: Artificial (Specification) G.2.79 J.2.1.25 New Things: Natural (Separation and Harvesting) J.2.1.35–37 J.2.1.19 C Merging and Mixing Mergers (Accession) G.2.70-78 J.2.1.20-26, 29-34 Mixtures J.2.1.27 Nicholas 130-140 Questions 1 How would classical Roman law apply to these situations: (a) While cleaning a chimney of A’s house B finds a diamond ring which A opines must have been dropped into the chimney by a jackdaw. (b) Using a metal detector C discovers a gold bracelet eight inches below the surface of a public park. 2 What are the practical consequences of the difference between the rule for granular mixtures and the rule for fluid mixtures? 3 D, a sculptor who had been commissioned to produce a marble bas-relief for the country villa of a politician, mistakenly used E’s marble and fixed the finished work to the wrong villa. The fixing was done by removing the plaster, by fixing metal pins ten inches long into the wall and by remaking the plaster around the edges of the work. F, the owner of the building, will not allow it to be removed. Advise D. 8 5 Property III: Ownership and Possession; Protection of Possession Precedents for numerous interdicts stood in the praetor’s edict. As you read about the protection of possession you will need to know the wording of the two most important ones. Gaius deals with interdicts in remarkable detail, but you need not read his account unless the subject particularly catches your interest (G.4.139-160). In relation to land, the principal interdict was ‘As you now possess’ which ran thus: ‘As you now possess that land which is the subject of this claim, discounting any possession which as between you is held secretly, by force, or at will, with that possession I forbid any forceful interference.’ In relation to moveables the equivalent was the interdict ‘With whichever party’: ‘With whichever party this slave the subject of this claim has been for the greater part of this year, discounting such time when as between the two parties he was there secretly, by force, or at will, to prevent that party from taking him away I forbid the use of any force.’ Nicholas 108-115, 153-157 Buckland and McNair 62-102 Questions 1 Colloquially ‘my possessions’ are the things I own, but it is as true today as it was for Ulpian that ‘Property has nothing in common with possession’ (D.41.2.12.1). What proof can be offered of the truth of Ulpian’s dictum? What fact situations serve to illustrate that possession is not merely a matter of observable fact? Why was possession, even wrongful possession, protected by the praetor? 2 3 9 6 Property IV: Incorporeal Things: Limited Interests and Servitudes Incorporeal things G.2.14 J.2.2 Praedial Servitudes J.2.3. G.2.29, 31 Usufruct G.2.14 G.2.30–33 J.2.4; 2.5; 2.6 Nicholas 140-149 Buckland and McNair 127-142 Questions 1 Obligations and servitudes are both incorporeal things. Why do we regard the latter as property in the strict sense but the former not? A wants a right of way over B’s land. He is willing to pay a substantial sum. Should he make clear from the outset whether he wants to cross the land with animals and vehicles? How will you ensure that what he gets is a servitude and not merely a contractual licence? C has just received a usufruct of a farm under the will of an uncle. C’s nephew D is owner of the farm, subject to the usufruct. C dislikes D and has been heard to say that he intends to strip the farm of every use and fruit that he can find. Will the law permit him to do that? How much can we learn about a society from the types of property rights that it recognises? Discuss with reference to all topics you have covered in Property. 2 3 4 10 7 Obligations: Nature and Classification of Obligations This unit revisits and extends unit 1 above. G.3.88-91 J.3.13 R Zimmermann The Law of Obligations: Roman Foundations of the Civilian Tradition (OUP Oxford 1996) 1-33 P Birks ‘Definition and Division: A Meditation on Institutes 3.13' in P Birks (ed) The Classification of Obligations (OUP Oxford 1997) 1-35 Questions 1 What is the metaphor latent in the word ‘obligation’? 2 What is the difference between the law of property and the law of obligations? 3 What is the relationship between ‘right in personam’ and ‘obligation’? 4 Contract and tort (= delict = wrong) divide the law of obligations by reference to the events from which obligations arise. Is that two-fold classification exhaustive? Did Gaius think it was? 5 If English lawyers distinguishes between obligations at common law and obligations in equity (or between legal obligations and equitable obligations) what kind of classification are they making? What is the Roman equivalent? 6 Debt is a category of obligations based on the content of the obligation, what the obligee is required to do. A classification by content necessarily cuts across a classification by causative event, and both cut across a classification by jurisdictional origin. Can you think of other classifications of obligations? 11 8 Contract I: Definitions, Gaps, and Gap-Filling A Four Categories of Nominate Contract G.3.89 (cf G.3.182) J.3.13.2 (cf J.4.1 pr) B Nominate Contractual Islands in a Non-Contractual Sea G.3.90-94 G.3.128-150 G.3.155-156, 161-162 J.3.14 J.3.15 pr-1 J.3.21 J.3.22 J.3.23 pr-3 J.3.24 J.3.25 pr-3, 9 J.3.26 pr-6, 8, 13 Nicholas 165-176, 182-196, 205-206 Jolowicz and Nicholas 509-512 T Weir (tr) K Zweigert and H Kötz An Introduction to Comparative Law (3rd edition OUP Oxford 1998) 389-399 Questions 1 How many nominate contracts were there? Examine the lines between (a) the different kinds of loan, (b) sale and hire, and (c) hire, mandate and deposit. 2 ‘The more precisely the law library defined the nominate contracts the more clearly appeared the need to cover the gaps between them.’ What illustrations of this process can be found in the Institutes? 3 Like the English deed, the Roman stipulation was more a mode of contracting than a kind of contract. To what extent could it serve to fill the gaps between the other nominate contracts? (See also units 9 and 10 below.) 4 All modern jurisdictions, while recognizing that each nominate contract is to certain extent a law unto itself, operate a general law of contract. The nominate contracts are features in the contractual landscape rather than contractual islands in a noncontractual sea. To what extent and by what means did Roman law approach this modern position? 12 9 Contract II: Writing and Other Formal Requirements G.3.92-96, 128-134 J.3.15 pr-1 J.3.21 J.3.23 pr Nicholas 193-198 Nicholas and Jolowicz 279-284, 414-420, 509-511 F de Zulueta The Roman Law of Sale (OUP Oxford 1945) 21-25 Sir Guenter Treitel The Law of Contract (11th edition Sweet & Maxwell London 2003) *161-165 Questions 1 What is a ‘formal requirement’? What goals are served by formality? Can you think of any formalities in English law to compare to those in Roman law? What was the formal requirement in classical law for a valid stipulation? Under the Roman law of contract was there any time or context in which writing was regarded as dispositive, as opposed to merely evidentiary? To what extent, if any, did Justinian abolish the consensual contract of sale? 2 3 4 13 10 Contract III: Bona Fides and Strictum Ius The formula which took issues for trial sometimes made good faith the standard upon which the judge was to proceed. This was true of all four consensual contracts and three of the real contracts. For example, the formula for the action brought by a buyer – the action on a purchase – ran thus: Let Titius be judge. Whereas Aulus Agerius bought the slave the subject of this suit from Numerius Negidius, which purchase is the matter of this claim, whatever on that account Numerius Negidius ought to gave to or do for Aulus Agerius in good faith, for the value of that in money let the judge condemn Numerius Negidius; if it does not appear let him absolve. The effect of this was to allow the judge, and more importantly the jurists, to determine what the implications of good faith were for each kind of contract. What English lawyers think of as terms implied by law could thus be built on this foundation. Nicholas 163-4 F de Zulueta The Roman Law of Sale (OUP Oxford 1945) 8-9 Jolowicz and Nicholas 211-215 Questions 1 People engaged in commerce rely on a mix of express terms and terms implied by law. In the light of the actions to which stipulation gave rise, could it have facilitated that pattern of reliance? 2 Illustrate from the contract of sale the p rincipal benefits derived from founding trials on good faith rather than strict law. 14 11 Delict I: Wrongs Protecting Wealth Introduction Nicholas, 207–211 Buckland and McNair 338-350 A Furtum (Theft) G.182-208 J.4.1 Nicholas 211-215 B Rapina (Violent Theft and Danage) G.3.209 J.4.2 Nicholas 215 C Damnum Iniuria (Wrongful Loss) G.3.210-219 Nicholas, 218–222 Questions 1 What is the difference between crime and tort? Is the Roman law of delict the former or the latter? Draft a definition of furtum adding explanatory notes on each of its elements. Gaius says that a person can be liable to the action for theft who has not himself committed theft. Explain. A’s peacock lands on a road adjacent to his land. B who is riding his horse furiously along the road cannot avoid it. The peacock is killed under the hooves of the horse. Advise A. Would you advice differ if, frightened by the horse, the peacock had taken flight into the wheels of an on-coming carriage? At what points did the praetor widen the scope of the delict of wrongful loss? Why was there such an incremental growth in liability? How much would a claimant recover in an action under the lex Aquilia? 2 3 4 5 6 15 12 Delict II: Protecting ‘Personhood’ Iniuria G.3.220-225 J.4.4 Nicholas 215-217 Zimmermann (unit 7 above) 1050-1062 P Birks ‘Harassment and Hubris: The Right to an Equality of Respect’ (1997) 32 Irish Jurist 1, 5-14 Questions 1 The word ‘iniuria’ is made from the negative prefix ‘in-‘ (cf in English ‘inattentive’, ‘inescapable’) and the word for ‘law’ or ‘right’ which is ‘ius, iuris’ (cf ‘jurisprudence’= iuris prudentia = learning in the law). Compare its different specializations in the two delicts ‘damnum iniuria’ and ‘iniuria’. What specializations has the English ‘trespass’ undergone? 2 No text attempts a definition of the delict iniuria. Buckland says that it is conduct insulting in intention and effect, but that is certainly inexact. Others have written of attacks on dignity or ‘personhood’. ‘An iniuria is committed when ...’ Can you finish that sentence satisfactorily? 3 A and B conduct a prolonged conversation in the Bodleian law library. C’s work is seriously disrupted. In the end he yells at them to shut up. A and B shrug off his complaint and go on talking. C abandons the attempt to study. Applying the Roman rules, have A and B committed a tort? If so, exactly when was the tort complete? 4 Were the damages which were awarded for iniuria compensatory or were they governed by some other goal? 16 13 Influence of Roman Law Bracton, De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England, attributed to Henry of Bratton, c. 1210-1268, ed. G Woodbine and SE Thorne, Harvard University Press, 1968-1977), vol. II, 22-29 W Blackstone, Commentaries on the Law of England (1st edn, Clarendon Press, 17659), vol. I, 63- 83 (skim) The institutional structure of the French Code Civil (CC) can be seen at the table of contents at http://www.legifrance.gouv.fr/html/codes_traduits/code_civil_somA.htm. The institutional structure of the German Civil Code (BGB)can be seen at the table of contents at http://www.hull.ac.uk/php/lastcb/bgbengl.htm. The persistence of ‘particular contracts’ such as sale is a notable inheritance from Roman law recurring in the modern European codes. See BGB provisions on sale ss 433 ff (in their current form) at http://www.iuscomp.org/gla/. The CC equivalents Arts 1582 ff are at http://www.legifrance.gouv.fr/html/codes_traduits/code_civil_textA.htm#CHAPTER %20I%20-%20OF%20THE%20NATURE%20AND%20FORM%20OF%20SALES D Ibbetson, ‘“The Law of Business Rome”: Foundations of the Anglo-American Tort of Negligence’ [1999] Current Legal Problems 74 JQ Whitman, “Long Live the Hatred of Roman Law!” Rechtsgeschichte 2 (2003): 4057 and SSRN http://papers.ssrn.com/sol3/papers.cfm?abstract_id=383761 or/ JQ Whitman, The Legacy of Roman Law in the German Romantic Era (Princeton, 1990) ch 5 K Zweigert and H Kötz An Introduction to Comparative Law (3rd edition OUP Oxford 1998) 90-93, 144-148 P Stein Roman Law in European History (CUP Cambridge 1999) chapter 5, especially 114-115 and 119-123 RH Helmholz, ‘Continental Law and Common Law: Historical Strangers or Companions?’ [1990] Duke LJ 1207 Questions 1 Can a case be made for numbering the Institutes amongst the most important books ever written? 2 Was the influence of Roman law in continental Europe and in England affected by different attitudes to liberty and the authority of the state? 3 Savigny wrote of a ‘Chinese wall’ separating the English common law from the civilian systems. Is this a misleading metaphor? 17 Appendix 1 Glossary of Latin Terms Two useful glossaries of Roman Law terms are available: 1. One compiled by Mr Jeffrey Hackney, to be supplied. 2. One accompanying Borkowski and du Plessis, Textbook on Roman Law 3rd edn OUP, at: http://www.oup.com/uk/booksites/content/0199276072/resources/glossary/borkowski _v5.htm http://www.oup.com/uk/booksites/content/0199276072/resources/glossary/latinterms. pdf ------------------------------------- Appendix 2 Outline Timeline of Roman legal & political history [attached] ------------------------------------- Appendix 3 Sample Tutorial Reading Guide, laying out course in seven weeks [attached] 18 FHS European Human Rights Law Christopher McCrudden Introduction This is a proposal, which draws from several existing courses in other law schools in the United Kingdom, for the establishment of an FHS course in European Human Rights Law. The course would aim to give substantive consideration to the developments and operation of the European Convention on Human Rights in the context of British law in particular. Consideration would be given to both the theory and practice of human rights law in the specific regional context of Europe. The objective of the course is to provide a thorough grounding in the application of the European Convention on Human Rights. Content of the course The effective incorporation into U.K. law of the European Convention on Human Rights by the enactment of the Human Rights Act 1998, the increasing impact on human rights of EC/EU law, particularly under the new EU Charter of Fundamental Rights, the increasing numbers of cases coming before our courts raising civil liberties and human rights issues, and the limited opportunities for the study of this subject in Law Moderations, combine to make the study of a full option course on human rights in the Law Final Honours School a high priority. The primary aim is to introduce students to the substance of Convention rights and to their interpretation and enforcement, including the relevant jurisprudence of the European Court on Human Rights. This would include an analysis of general principles as well as broad themes relating to freedom of expression, the prohibition of torture, interpretation, the use of permissible limitations and derogations. Other European conventions and institutions will be referred to when relevant. Whereas some existing courses endeavour to convey the impact of the Human Rights Act on their subjects, no existing course covers comprehensively the effects of incorporation upon as significant a range of U.K. civil liberties. There is no single course in the current undergraduate law degree in which the legal protection of individual freedoms and human rights is taught as a single coherent subject. This is an omission that this proposal seeks to rectify. At a time when human rights have come to be of central importance within U.K. law, students should have the opportunity to study this topic in Oxford. Aims of the course By the end of the course, the students should be familiar with and able to apply the relevant provisions of the Human Rights Act and the ECHR to practical problems concerning a range of the rights and liberties. They will have a comprehension of the role and significance of human rights theory in Europe, and a knowledge and understanding of the European Human Rights system as a whole and the place of the Convention in that system. They will have been exposed to an analysis of the institutional procedural requirements for bringing human rights claims under the ECHR. Students should also have a sound understanding of the significance of human rights and civil liberties, and their theoretical dimensions. Teaching and Examining strength We are fortunate that several members of the Faculty have a keen interest in teaching this subject. The following nine members of the Faculty have already expressed a willingness to lecture and/or examine this course, and most of them could also provide tutorial teaching. Mr. N. Bamforth Dr. D. Sarooshi Dr. C. Donnelly Dr. L. Lazarus Dr. B. Goold Dr. A. Young Professor C. McCrudden Professor P. Craig Professor A. Ashworth Library resources The Law Library already has an extensive collection of relevant materials on European Convention law and jurisprudence, and on domestic civil liberties materials, often with multiple copies. Much of the relevant material is also available via the University’s electronic resources or the Internet. Summary Syllabus Week 1: • Idea of human rights: What are human rights? Conceptual issues: negative and positive rights; civil and political; socio-economic rights. ‘Three generations’ of human rights. • Their foundations, including the concept of dignity. The three pillars supporting the human rights edifice: universality, indivisibility, solidarity. • Human Rights and Democracy • Human rights in different cultural contexts. Universality versus regionalism in rights protection. Week 2: • An overview of the main (other than the ECHR) international human rights treaties & institutions. The path to European human rights law. Poking holes in the doctrine of state sovereignty. Humanitarian law. The protection of minorities. Development of the United Nations System. • Development of the Council of Europe; History of the development of the ECHR. Original institutional machinery and its development over time. • The existing institutions: The European Court of Human Rights and the Committee of Ministers. Their composition. Their role and powers. • Major features of the ECHR (including Protocols, Derogations, Reservations, General Limits on Rights). • Relationship between the ECHR and other elements of the Council of Europe human rights system, including the European conventions on torture, socio-economic rights, and national minorities. Other major human rights elements in Council of Europe: Role of the Council of Europe High Commissioner for Human Rights and the Vienna Commission. • The other Europes and human rights: European Community Law and the ECHR; Role of the OSCE Week 3: • An Introduction to the European Court of Human Rights. Powers of the Court. Who and under what conditions can bring cases to Strasbourg? The functioning of the Court. European Court of Human Rights procedures and admissibility. The Bringing of an Application; Admissibility Proceedings. Consideration of the Merits of a Case. Proceedings Before the Court. Remedies. • Enforcing the Court’s Judgments: How are judgments of the ECHR enforced? How effective is the system of enforcement? The Role of the Committee of Ministers. Week 4: • International and European human rights law in English law. Enforcement Through National Courts; • International law background; implementation of treaties in British law; role of customary international law in British law Week 5: • Human Rights Act • Challenges to legislation, challenges to the acts of public authorities; challenges to the common law. • Right to an Effective Remedy; Enforcement of ECHR in the United Kingdom through Parliament. Role of Human Rights Commission. Week 6: • Articles 2 and 3 ECHR • Right to Life. What is protected under Article 2 and Protocol 6 of the ECHR? Abolition of the Death Penalty. Abortion. Euthanasia. Extra-judicial intentional killings by state agents. Effect on domestic law. Week 7: • Article 6 ECHR and its effect on the civil and criminal process, including right of access to court; the notion of a “criminal charge” and dealing with conflicting rights Alternatives to Weeks 6 and 7: The choice of which particular rights to include will depend in part on teaching interest and expertise. There are several alternatives that might be included: • Freedom from Torture and ill treatment. What qualifies as ‘torture’, ‘inhuman’ or ‘degrading’ treatment under Article 3? Can European countries send a person to a nonEuropean country where he risks such treatment? The role of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Or • Right to Respect for Privacy. The Right to Private and Family Life. Law as a reflection of social values, norms and moral standards. How have the concepts of private and family life evolved in Europe in the last decades? Could the drafters of the Convention have foreseen that in the 90’s the Court would be examining under this heading issues such as homosexuality, transsexuality and the expulsion of second-generation immigrants? Or • Freedom from Discrimination. Types of discrimination. Difficulties enforcing antidiscrimination provisions. Features of Article 14 of the ECHR. The Article 14 ‘test’. The importance of Protocol 12. The Framework Convention for the Protection of National Minorities Detailed Syllabus and Reading Lists: Draft EUROPEAN HUMAN RIGHTS LAW General Reading Feldman, Civil Liberties and Human Rights in England and Wales, Oxford University Press Foster Human Rights and Civil Liberties Harris, O'Boyle and Warbrick, Law of the European Convention on Human Rights Jacobs and White, The European Convention on Human Rights Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights Wadham and Mountfield, Blackstone's Guide to the Human Rights Act 1998 Simpson, Human Rights and the End of Empire Gomien, Harris and Zwaak, Law and Practice of the ECHR and the ESC (Council of Europe) 1996 J.G. Merrills, The Development of International law by the European Court on Human Rights, 1988 WEEK 1: HUMAN RIGHTS THEORY AND PRACTICE: AN INTRODUCTION 1. Nature and limits of human rights Donnelly, J. Universal Human Rights in Theory and Practice, 2nd edition (extracts) J. Waldron (ed.), Theories of Rights (particular chapters) S. Lukes, Five Fables About Human Rights, in S. Shute and S. Hurley (eds), On Human Rights, 20-40 D Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed) chap 1 2. Universalism and cultural relativism Samuel Huntington, ‘The Clash of Civilizations?’ Foreign Affairs (Summer 1993): 22-29 Daniel A. Bell, ‘The East Asian Challenge to Human Rights: Reflections on an EastWest Dialogue’, 18 H.R.Q. 641 (1996) Dianne Otto, ‘Rethinking the “Universality” of Human Rights Law’, 29 Columbia Human Rights Law Review 1 (1997) HJ Steiner and P Alston International Human Rights in Context (2nd edn Oxford University Press 2000) chap 5 3. Content of human rights: Political and civil rights, Economic, social and cultural rights Henry Shue, Basic Rights (2nd ed. 1996) HJ Steiner; and P Alston International Human Rights in Context (2nd edn Oxford University Press 2000) chaps 3 and 4 4. Different Mechanisms for Enforcement Jeremy Waldron, "A Right-Based Critique of Constitutional Rights," Oxford Journal of Legal Studies 13 (1993) D. G. Barnum, J. L. Sullivan and M. Sunkin, ‘Constitutional and Cultural Underpinnings of Political Freedom in Britain and the United States,’ 12 Oxford Journal of Human Rights 363-367 (1992) Buergenthal, Thomas (1997) `The Normative and Institutional Evolution of International Human Rights` in Human Rights Quarterly, vol. 19 5. Role of courts R Dworkin Taking Rights Seriously (Duckworth 1977) Introduction and chapters 10-11 J Waldron Law and Disagreement (Oxford University Press 1999) T Campbell KD Ewing and A Tomkins (eds) Sceptical Essays on Human Rights (Oxford University Press 2001) selected chapters Week 2: OVERVIEW OF THE INTERNATIONAL AND EUROPEAN HUMAN RIGHTS SYSTEMS 1. Brief history of development of human rights R. P. Claud, The Classical Model of Human Rights Development, in R. P. Claud, Comparative Human Rights, 6-42 2. International Human Rights Treaties and Bodies Office of the UN High Commissioner for Human Rights See International Covenant on Civil & Political Rights, the UN Human Rights Committee, and the Committee’s General Comments. Other treaties & treaty-based committees (e.g. Committee on Economic, Social, & Cultural Rights) ECOSOC, and the UN Commission on Human Rights International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, Articles 1-28, 41 Optional Protocol to the International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc, A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976 3. European Human Rights Systems Council of Europe: The Council of Europe and Human Rights, http://www.humanrights.coe.int/aware/gb/publi/materials/377.pdf Study Guide “European Systems of Human Rights Protection”, http://www.hrea.org/courses/9E/documents/european-systems-guide.pdf (a) Civil and political rights: The European Convention for the Protection of Human Rights and Fundamental Freedoms European Convention on Human Rights and Fundamental Freedoms, http://www.echr.coe.int/Convention/webConvenENG.pdf Donna Gomien, Short Guide to the European Convention on Human Rights, Council of Europe, 2002, pp. 1-121, http://www.coe.int/T/E/Human_rights/hinf(2002)5eng.pdf (b) Torture: The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and related documents, http://www.cpt.coe.int/en/docsref.htm Council of Europe: About the Committee for the Prevention of Torture (CPT), http://www.cpt.coe.int/en/about.htm The APT Handbook on the European Committee for the Prevention of Torture, (Brochure 3, Mandate and Composition of the CPT, pp.1-48, and Brochure 6, The CPT's standards regarding prisoners) 13th General Report on the CPT’s Activities, http://www.cpt.coe.int/en/annual/rep-13.htm (c) Economic, social and cultural rights: The European Social Charter European Social Charter – the texts, http://www.coe.int/T/E/Human_Rights/Esc/2_General_Presentation/text.asp#TopOfPage Anne Theodore Briggs: Waking Sleeping Beauty: The Revised European Social Charter, Human Rights Brief, Volume 7 Issue 2, 2000, http://www.wcl.american.edu/hrbrief/07/2walking.cfm (d) Minority rights: The Framework Convention for the Protection of National Minorities European Framework Convention for the Protection of National Minorities, http://conventions.coe.int/Treaty/en/Treaties/Html/157.htm Council of Europe: Council of Europe Activities in the Field of Protection of National Minorities, 16 July 2004, http://www.coe.int/T/E/human_rights/minorities/1._GENERAL_PRESENTATION/PDF _Overview%20E.pdf (e) Council of Europe High Commissioner for Human Rights Mandate of the Commissioner for Human Rights, http://www.coe.int/T/f/commissaire_d.h/unit%E9_de_communication/Commissaire/Man dat/Resolution(1999)50_E.asp#TopOfPage Annual Report of the Commissioner 2003, http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/Documents/By_series/ Annual_Reports/index.asp#TopOfPage (f) EC and the ECHR EU Charter of Fundamental Rights Council of Europe, Study of Technical and Legal Issues of a Possible EC/EU Accession to the European Convention on Human Rights, Report adopted by the Steering Committee for Human Rights (CDDH) at its 53rd meeting (25-28 June 2002) Week 3: FUNCTIONS AND METHODS OF THE EUROPEAN COURT OF HUMAN RIGHTS • An Introduction to the European Court of Human Rights. Powers of the Court. Who and under what conditions can bring cases to Strasbourg? The functioning of the Court. European Court of Human Rights procedures and admissibility. The Bringing of an Application; Admissibility Proceedings. Consideration of the Merits of a Case. Proceedings Before the Court. Remedies. • Enforcing the Court’s Judgments: How are judgments of the ECHR enforced? How effective is the system of enforcement? The Role of the Committee of Ministers. • Approach to interpretation by the Court. Basic concepts: teleological interpretation, margin of appreciation, proportionality Donna Gomien, Short Guide to the European Convention on Human Rights, Council of Europe, 2002, pp. 1-121, http://www.coe.int/T/E/Human_rights/hinf(2002)5eng.pdf Council of Europe, Committee of Ministers: Declaration on “Guaranteeing the long-term effectiveness of the European Court of Human Rights”,15 May 2003, http://cm.coe.int/stat/E/Public/2003/adopted_texts/declarations/dec- 15052003.htm [To be completed] Week 4: INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW IN ENGLISH LAW 1. The International Law Background Essential Reading Shaw, International Law (5th ed., 2003), Chapters 4, 6 OR Evans (ed.) International Law (2003), Chapters 13, 24 Harris, Cases and Materials on International Law (6th ed, 2004) Chapters 3, 9 OR Dixon & McCorquodale, Cases and Materials on International Law, (4th ed., 2003), Chapters 4, 6. Recommended Reading Higgins, Problems and Process: International Law and How We Use It, (1994), Chapter 12. Collier, “Is International Law Really Part of the Law of England?”, (1989) 38 ICLQ 924 Further Reading Oppenheim’s International Law, Vol. 1 (9th ed., Jennings & Watts eds.), pp. 52-70, 74-86. Warbrick , “International Law in English Courts – Recent Cases”, (2003) 52 ICLQ 815. 2. Treaties 1. The principle of non-justiciability of treaties. Treaties only create rights and duties in UK law if they have been transformed or enacted by Parliament. Parlement Belge (1879) 4 PD 129 Maclaine Watson v. Dept of Trade and Industry, [1989] 3 All ER 523; 81 ILR 671 2. Statutes which incorporate treaties are to be interpreted using the international law principles of treaty interpretation. Fothergill v. Monarch Airlines Ltd [1980] 2 All ER 696. Semco Salvage v. Lancer Navigation [1997] 1 All ER 502. Vienna Convention on the Law of Treaties 3. The presumption that ambiguous legislation is to be interpreted so as not to conflict with the UK’s international obligations. Salomon v. Commissioners of Customs and Excise [1967] 2 QB 116 4. To what extent should a Statute that confers a discretionary power on an administrative authority be interpreted so as to require that the discretion is exercised in a manner in conformity with the UK’s (human rights) international obligations? R. v. Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC. 696 5. Treaties and the common law – Can (or should) treaties be taken into account in the development of the common law? To what extent should judges be bound to exercise their power to develop the common law or to fashion remedies in a manner that gives effect to the UK’s treaty or other international obligations? Derbyshire County Council v. Times Newspaper Ltd [1992] 3 WLR 28 (CA). 6. Treaties and the principle of legitimate expectation John Junior Higgs and Another. Appellants v. Minister of National Security and Others [2000] 2 A.C. 228 (PC). Fisher Appellant v. Minister of Public Safety and Immigration and Others (No. 2) [2000] 1 A.C. 434 (PC): 7. However, note the development of substantive (and not merely procedural) legitimate expectation in English public law: R. v North and East Devon HA ex parte Coughlan [2001] Q.B. 213 (a case not dealing with treaties). 3. Customary International Law O’Keefe, “Customary International Crimes in English Courts”, (2001) 72 BYIL 293 1. The doctrine of incorporation is now very firmly adopted by the courts with respect to customary international law. Trendtex Trading Corp v. Central Bank of Nigeria [1977] QB 529 Maclaine Watson v. Dept of Trade and Industry, [1988] 3 WLR 1033; 80 ILR 49 2. Statutes prevail over customary international law. Mortensen v. Peters (1906) 8 F (J) 93 3. Human Rights as part of customary international law in proceedings before English Courts. R. v. Bow Street Metropolitan Stipendiary Magistrate and others ex parte Pinochet , [1999] 2 All ER 99. Week 5: EUROPEAN CONVENTION AND ENGLISH LAW: HUMAN RIGHTS ACT 1998 **Human Rights Act 1998 * Feldman, Civil Liberties and Human Rights in England and Wales (2nd ed., 2002), 77112. *Leigh and Lustgarten (1999) 58 CLJ 509 Irvine “The Impact of the Human Rights Act: Parliament, Courts and the Executive” [2003] PL 308 1. Challenges to Legislation Human Rights Act 1998, sections 2,3,4,10 and 19 R. v. A (No 2) [2001] 1 AC 45 R. v. Lambert [2002] 2 AC 545 International Transport Roth GmbH v. Secretary of State for the Home Department [2002] 3 WLR 344 In re S (Minors) (Implementation of Care Plan) [2002] 2 AC 291 Bellinger. v. Bellinger [2003] UKHL 21 Grosz, Beatson, Duffy, pp. 28-52 Craig 2001 LQR 589 Stafford v. United Kingdom (2002) 35 E.H.R.R. 32 R (Anderson) v. Secretary of State for the Home Department [2002] 4 All E.R. 1089 Criminal Justice Act 2003, s. 269 Amos (2004) 67 MLR 108 2. Challenges to the acts of public authorities Alconbury [2001] 2 All ER 929 Daly [2001] 2 WLR 1622 Poplar Housing and Regeneration Community Association Ltd v. Donoghue [2001] QB 48, 70-71 R (Prolife) v. BBC [2003] 2 WLR 1403 Edwards 2002 MLR 859 3. Challenges to the common law A v. United Kingdom (1999) 27 E.H.R.R. 611 R v. H. [2002] 1 Cr App R 59 Rogers [2002] Crim.L.R. 98 Douglas and Zeta-Jones v. Hello! [2001] QB 697 Campbell v. MGN Ltd [2004] UKHL 22 4. Human Rights Commissions and Parliament Spencer and Bynoe A Human Rights Commission (London: IPPR, 1998) chapter 3. Feldman, “Parliamentary Scrutiny of Legislation and Human Rights” [2002] Public Law 323. Klug, Starmer and Weir The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom (London: Routledge, 1996) chapter 3. Blackburn, “A Parliamentary Committee on Human Rights” in Constitutional Reform (London: Longman, 1998). Joint Committee on Human Rights, The Case for a Human Rights Commission, Sixth Report HL 67-I, March 2003. Week 6: ARTICLES 2 AND 3 EUROPEAN CONVENTION ON HUMAN RIGHTS Article 2 and the jurisprudence of the European Court of Human Rights Scope of the obligation Osman v UK (1998) 29 E.H.R.R. 245 Keenan v UK (2001) EHRR 38 Procedural obligation to hold effective official investigation into alleged breaches of Arts. 2 Edwards v United Kingdom (2002) 12 BHRC 190 Jordan v UK (Application no. 24746/94) The impact of Article 2 on domestic law Tribunals and Inquiries Lord Saville of Newdigate and Ors v Widgery Soldiers (2001) EWCA Civ 2048 (The Times, 21 December 2001) R (Amin) v Secretary of State for the Home Department [2003] UKHL 51) Right to die? R (on the application of Dianne Pretty) v DPP [2002] H.R.L.R 10 Pretty v. the United Kingdom (2002) BHRC 149 NHS Trust A v M, NHS Trust B v H [2000] All ER 801 Confidentiality and horizontal effect of Article 2 Thompson and Venables v News Group Newspapers Ltd [2001] 1 All E.R. 908 Reasons for decisions not to prosecute R v DPP ex parte Manning [2001] QB 330 Article 3: Scope of the obligation Ireland v UK (1978) 2 EHRR 25 D v UK (1997) 24 EHRR 423 Keenan v UK (2001) EHRR 38 Pretty v. the United Kingdom (2002) BHRC 149 Impact of Article 3 on domestic law Asylum and Immigration: X v Secretary of State for the Home Department [2001] 1 W.L.R. 740 Morven Marcia McPherson v Secretary of State [2001] EWCA Civ 1955 R. (on the application of Q) v Secretary of State for the Home Department [2003] H.R.L.R. 21 (Court of Appeal) R. (on the application of S and T) v Secretary of State for the Home Department [2003] U.K.H.R.R. 1321 (Court of Appeal) R. (on the application of Zardasht) v Secretary of State for the Home Department [2004] EWHC 91 R. (on the application of Limbuela) v Secretary of State for the Home Department [2004] EWHC 219 Times, February 9, 2004 Week 7: ARTICLE 6 OF THE ECHR: CIVIL PROCESS AND CRIMINAL PROCESS 1. The Opera tion and Interpretation of Art 6: Civil Process General: Andrews, English Civil Procedure (OUP, 2003): pp. 149-172 Right of effective access to court: Golder v United Kingdom (1979-80) 1 EHRR 524 R v Lord Chancellor, ex p Witham [1998] QB 575 Airey v Ireland (1979-80) 2 EHRR 305 Ashingdane v UK (1985) 7 EHRR 528 Limits to Art 6: Fayed v UK (1994) 18 EHRR 393 Z v UK (2001) BHRC 384; [2001] 2 FLR 612 2. The Operation and Interpretation of Art 6: Criminal Process General: Ashworth and Redmayne, The Criminal Process (OUP, 3rd ed 2005), pp 28-37. ‘Autonomous meaning’ of ‘criminal charge’: Engel v. Netherlands (1979) 1 EHRR 647 Benham v. United Kingdom (1996) 22 EHRR 293 Cf. Clingham v. Kensington and Chelsea LBC [2003] 1 AC 787. Implying rights into Article 6: Edwards v. United Kingdom (1993) 15 EHRR 417 Saunders v. United Kingdom (1997) 23 EHRR 313 Dealing with conflicting rights: Edwards and Lewis v. United Kingdom [2003] Crim.L.R. 891 Doorson v. Netherlands (1996) 22 EHRR 330. Proposal for Optional Course in FHS Jurisprudence “Commercial Leases” This is a proposal for a new undergraduate course to be available to all students taking FHS in Jurisprudence. It will be an optional subject in the final year of study and will be available from the academic year 2007-8. It will build upon the subjects of contract law and land law that will already have been studied by law students. Justification Leases of land underpin much land use in Great Britain. Almost two-thirds of commercial property is leased. This course will examine the legal relationship between the landlord and tenant of commercial property. This relationship reflects not only the outworking of the concept of lease based upon the notion of the lease as an estate in the land and a contract negotiated between two parties, but also wider economic and social policies. So, for example, the relationship between the landlord and tenant of commercial premises will depend largely upon the lease negotiated between them, and these terms will be influenced by the type of property involved, the location of the property, legal advice received, the fiscal consequences of differing lease structures, the state of the economy and other factors. Exploring the legal relationship will, therefore, involve looking at the application of principles of land law and contract law that the student will already have encountered, but also at the factors that help shape the lease negotiated between the parties, and the statutory (and non-statutory) codes that regulate the relationship. The course will therefore enable students to evaluate the legal concepts of estate and contract law as they apply to commercial leases and to understand how these concepts operate in a wider commercial context. In addition, the student will acquire knowledge of how factors outside strict doctrinal legal concepts influence the relationship between contracting parties and learn to question the effectiveness of differing methods of intervention and regulation. Study of statutory provisions will improve the student’s analytic legal skills. Given the importance of commercial leasing to the economy, and to legal practice, the course will provide students with an opportunity to acquire an academic framework to a subject which nearly all practicing lawyers will encounter. The course will furnish students with advanced skills suitable for legal practice by encouraging a critical and reflective engagement with the law on commercial leases. This course will strengthen the Law Faculty’s offering of property law courses and provide the only full optional subject relating to property law. As such it provides an opportunity to apply knowledge in relation to subjects studied earlier in the law degree programme but also to develop and deepen this knowledge by seeing how the core doctrines apply to a particular and specialized area of law. The overall academic aim of the course is to equip the student with an understanding of the legal relationship of landlord and tenant in the context of the letting of commercial property by studying both the legal and extra-legal factors that influence it. In more detail, the course will cover: 1. the nature of leases of commercial property and regulation of business tenancies; 2. the law relating to management issues within commercial leases, with particular reference to rent review, repairing obligations, and user covenants; 3. alienation of commercial leases; 4. the enforcement of leasehold covenants; 5. termination of commercial leases, forfeiture and rights of renewal. Assessment The course will be assessed through the standard three hour examination. This will be a closed book examination in which candidates will be required to answer four questions from a mixture of essay and problem style questions. Resources Staff The course will be taught and examined by Mrs Susan Bright, Mrs Sandi Murdoch, and Mr Oliver Radley-Gardner. Mrs Bright is a Reader in Land Law at Oxford University holding a CUF lectureship, with a Fellowship at New College and she will be the course organiser. Mrs Sandi Murdoch, senior lecturer at Reading University, has extensive teaching and research experience in commercial leases. Mr Oliver Radley-Gardner, Teaching Fellow at Pembroke College and barrister at Falcon Chambers, is an experienced teacher in Oxford University and practises in the field of commercial property. Brief cvs are attached as Annex C. Although only Mrs Bright holds an Oxford University post, the other two postholders will sign a contract to teach and examine the course on an annual basis. If in any year there are insufficient teaching and examining resources available, the course will not run for that academic year. It is also anticipated that the teaching will be supplemented by lectures provided by external lecturers. A number of practising landlord and tenant lawyers have expressed support for the course and a willingness to be involved. Library resources There should be no pressure placed upon library resources by this course. The library already stocks the relevant specialist texts. Much of the material studied will be law reports and statutory material. The policy documents that will be referred to are available within the Oxford library holdings, through the internet or through OXLIP. A statement from the Law Librarian is appended to this proposal. Annex B give a selected bibliography. Demand The number of undergraduate law students taking particular options varies considerably which makes it difficult to predict numbers with any degree of certainty. It is anticipated that this option is likely to attract around 15 students. Time tabling It is anticipated that the course will be taught by a combination of lectures/seminars and tutorials. Given that demand for the course is unlikely to be high, it is not anticipated that there will be particular timetabling problems. Financial Consequences for students There should be no adverse financial consequences for students. Literature and internet access is available to students free of charge at the Law Library and in Colleges. Programme specifications The course will be taught by lectures, a seminar and tutorials. The lectures will run for the first 7 weeks of Michaelmas term. Lectures will provide an overview of each topic, with detailed reading being done for the tutorials and seminar. A seminar will be scheduled around week 2/3. Tutorials can be arranged once the first 3 weeks of lectures have been completed. Tutorials can therefore take place mostly during Michaelmas, or split between Michaelmas and Hilary terms. A possible outline of the course is attached as Annex A. Date of the Effect of the Changes The course will be available from the academic year 2007-8. This means that it will first be available to students who matriculate in 2005. As this is an additional optional subject there will be no disadvantage in introducing a further subject. ANNEX A: PROGRAMME OUTLINE Michaelmas Term Lectures Seminar Tutorials: to be arranged flexible starting in week 4 Michaelmas term Week 1 Week 2 Week 3 Week 4 The Shape of Commercial Leases (2) - the commercial property market; - leases: length, introduction to main covenants (implied and express) Protecting the Business Tenant (2) - general policy - LTA 1927 (compensation) - LTA 1954 part II (renewal) - Regulatory Reform order - Code of Practice Covenants: Quiet Enjoyment, NonDerogation and Alterations, Repair and User (2) Covenants: Rent and Rent Review (2) End of week 2: Seminar on Shape of commercial leases and an overview of regulatory policy Property Management 1: Repair Week 5 Alienation (1) and Enforcing Covenants (1) Enforcing Covenants (cont: 1) Termination and renewal: common law, forfeiture and 1954 Act (1) Termination and renewal: common law, forfeiture and 1954 Act (cont, 2) Week 6 Property Management 2: Other Estate Management covenants and remedies Rent Review and Interpretation Issues in Leases Alienation and Enforcing Covenants Week 7 Termination: Common law and forfeiture Renewal and the 1954 Act Week 8 ANNEX B: SELECTED BIBLIOGRAPHY FOR COMMERCIAL LEASES COURSE BOOKS Bright, Landlord and Tenant Law in Context (forthcoming) Clarke & Adam, Rent Reviews and Variable Rents, 3rd ed 1990 Evans & Smith, The Law of Landlord and Tenant, 6th ed, 2002 Fetherstonhaugh and Reynolds, The Handbook of Rent Review Haley, The Statutory Regulation of Business Tenancies, 2000 Hill & Redman’s Law of Landlord and Tenant (looseleaf) Reynolds and Clark, Renewal of Business Tenancies, 2002 Ross, Drafting and Negotiating Commercial Leases, 5 th ed 1998 Tromans, Commercial Leases, 2nd ed, 1996 Woodfall, Landlord and Tenant (looseleaf) LAW COMMISSION PAPERS Law Commission, Covenants restricting dispositions, alterations and Change of User, Law Com No 141, 1985 Law Commission, Responsibility for State and Condition of Property, Law Com No 238 1996 Law Commission, Landlord and Tenant Law: Compensation for Tenant’s Improvements, Law Com No 178, 1989 Law Commission, Business Tenancies, A Periodic Review of the Landlord and Tenant Act 1954 Part II Law Com No 208, 1992 Law Commission Consultation Paper No 174, Termination of tenancies for Tenant Default, 2004 A Code of Practice for Commercial Leases in England and Wales, 2002. Available at www.commercialleasecodeew.co.uk DETR, Monitoring the Code of Practice for Commercial Leases, Interim Report, April 2004 ODPM, Commercial Property leases: options for deterring or outlawing the use of upward only rent review clauses, May 2004 Reading University, Monitoring the 2002 Code of Practice for Commercial Leases, ODPM, March 2005-10-10 House of Commons Trade and Industry Committee, Pub Companies HC 128-1, 21 December 2004 ANNEX C: CVS OF TUTORS SUSAN BRIGHT BA in Jurisprudence, Jesus College Oxford: First Class BCL, Jesus College Oxford: First Class Solicitor: qualified in 1985, and practised as a commercial property lawyer. Present: CUF Lecturer, Oxford and Reader in Land Law, Fellow New College. 2005-7: British Academy Research Readership, to conduct research into landlord and tenant law Books: The Nature of Tenancies, (OUP,1995, with G.Gilbert) (currently updating under sole authorship) Landlord and Tenant Law: edited collection, to be published with Hart Publishing in 2006. Bulletin Editor: Hill & Redman’s Law of Landlord and Tenant Extensive list of publications in field of landlord and tenant law SANDI MURDOCH Present appointment Date of birth Qualifications Senior Lecturer, 1992 – present, School of Law, University of Reading 31st October 1946 LLB Hons (Class 2(1)), 1968 University of Birmingham LLM 1969 University of Birmingham CURRENT TEACHING RESPONSIBILITIES Currently I teach Land Law and Landlord and Tenant on the LLB, BSc Land Management and MSc Real Estate programmes. RECENT PUBLICATIONS Encyclopaedia of Forms and Precedents Butterworths Volume 22 (Business Tenancies) 1996 Changing Lease Structures in Commercial Property Markets. Right Space: Right Price? RICS Research Report Paper 2. RICS. 1998, 51 pp (with N. Crosby). The Contribution of Upward-Only Rent Reviews to the Capital Value of UK Property, Journal of Property Research, 15: 105 - 20. 1998 (with A. Baum and N. Crosby) Monitoring the Code of Practice for Commercial Leases. (with N Crosby) DETR. 2000. Volume 1 pp 1 – 152, Volume 2 pp 1 – 236. The influence of procedure on rent determination in the commercial property market of England and Wales (with N. Crosby) Journal of Property and Investment Finance,Vol 18, No 4 2000, 420 – 444. Basis of rental value for performance measurement systems (with N Crosby) Journal of Property Research, 2001 18(2), 123 –139. UK Commercial Property Lease Structures: Landlord and Tenant Mismatch. (with Neil Crosby and Ginny Gibson (2003). Urban Studies 40(8) 1487-1506. Estate Management Law (with Richard Card and John Murdoch) 6th Edn Butterworths 2003 Encyclopaedia of Forms and Precedents Volume 22(1) (Business Tenancies). (Consulting Editor) 2003 Butterworths. Monitoring the Code of Practice for Commercial Leases 2002. (with N Crosby and C Hughes) 2005 pp 1 – 476 Office of the Deputy Prime Minister London GOVERNMENT ADVISORY WORK Between 2002 and 2004 I was the only academic member of the Sounding Board appointed by the Office of the Deputy Prime Minister to advise on the drafting of the recent reforms to Part II of the Landlord and Tenant Act 1954. I have just (October 2005) been invited by the Office of the Deputy Prime Minister to sit on a panel of experts to advise on both the effectiveness of the recent reforms to Part II of the Landlord and Tenant Act 1954 and on various issues arising out of current legislation affecting commercial leases. OLIVER RADLEY-GARDNER Education 2003-2004 BPP Law School. BVC, Very Competent (5th in Year) 1999 Keble College, Oxford: BA Jurisprudence (Law Studies in Europe: German): First Class 1997-1998 University of Regensburg Academic Posts Held To Date: Torts College Teaching Fellow, Pembroke College, Oxford: Land, Trusts and To Date: Occasional Visiting Researcher, Max Planck Institute for Foreign and Comparative Law, Hamburg To Date: National Reporter to the Trento Common Core Project on Time Limited Interests in Land 2000-2001 Joint Stipendiary Lecturer, Pembroke and Somerville Colleges, Oxford 1999-2000 Research Assistant, Property and Trusts Team, Law Commission Employment 2004 - Date Barrister, Falcon Chambers, specialising in Property and Landlord and Tenant Publications With Hugh Beale, Reinhard Zimmermann and Rainer Schulze, Fundamental Texts on European Private Law (Hart, 2003) Articles in the Conveyancer and OJLS, Case Notes in Web JCLI and LQR, Book Reviews in L.Q.R., E.L.R, ZEuP.