by Sabrina Nanchahal*
(2020) Oxford U Comparative L Forum 3 at ouclf.law.ox.ac.uk | How to cite
Despite extensive litigation concerning restitution claims against the tax authority in the English courts, the role and parameters of the change of position defence have not been satisfactorily established in this context. German law provides a clear example of how these issues can be addressed within a public law restitution framework. This article explores the conceptual basis for the German position before turning to the current English framework. An analysis of the application of the defence according to unjust enrichment principles emphasises the practical and conceptual difficulties the English courts have faced in such claims. In light of these issues, two alternative potential developments of the defence are examined with the aim of achieving a conceptually cohesive common law restitution framework.
by Albrecht Cordes*
(2020) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite
Almost simultaneously, at the end of the 13th century, maritime laws were being written down all around Europe. This invites a synchronic comparative study. This paper compares three areas of maritime law of varying levels of abstraction: jettison, seamen’s labour law, and common decision-making before and during the voyage. The outcome, as in any comparison, is differences and similarities – differences in the degree of the lord’s (king’s, duke’s) influence, who, for instance, ordered the presence of a ship notary on Mediterranean seafaring. The maritime laws less influenced by the heavy hand of the state abound in casuistic details, evidently being the product of the process of negotiations – negotiations which included the seamen, an influential and forthright group indeed. Despite all the natural differences within the vast space between Norway and the Mediterranean, the challenges posed by the characteristics of seafaring in general are quite similar. The solutions, however, differ greatly and bristle with creativity and variety. The maritime law of the 13th century looks like a gigantic legal laboratory in which experiments were conducted continuously. Tendencies towards a stronger unification and implementation of specific solutions only cropped up in the following century.
Seafarers throwing their riches into the sea in order to save themselves. Illustration from the manuscript ‘Li ars d’amour, de vertu et de boneurté’, Flanders, end of 13th. c., fol. 88v. Royal Library of Belgium, manuscript n. 9543.
by Johannes Ungerer*
(2020) Oxford U Comparative L Forum 1 at ouclf.law.ox.ac.uk | How to cite
The Coronavirus pandemic poses unprecedented challenges to private legal relations. These challenges demand that States provide measures that go beyond traditional private law responses such as force majeure, material adverse change or frustration. Enacting moratoria is among the steps which have been undertaken by the United Kingdom and Germany to provide necessary ‘breathing space’, and is the subject of this comparative paper.
The paper will begin by looking at the general modifications in private law that have been made in response to the Coronavirus pandemic. This will be followed by an analysis of tenancies, which have been given special protection by legislators. Finally, the consequences for borrowers are addressed. The purpose of this paper is to inform about the recent legislative actions taken. This might not only be instructive for their evaluation and future amendment, but also for questions arising in cross-border settings.