Justifying Primary Liabilities

Presented by Professor Ben McFarlane, University College London, United Kingdom

The idea explored in this seminar was that if a particular claim takes the form of asserting a primary liability against a defendant (ie, a liability not arising from the commission of a wrong), rather than the form of asserting a pre-exiting duty, then the justifications given for such a claim may be of a distinct and different kind, so that it may be an error, when considering such primary liabilities, to expect them to have the same sort of justification as a claim to assert a primary duty. This idea was explored chiefly in the context of equitable estoppel and unjust enrichment: two areas where there are ongoing and complex debates, in each of English and Australian law, as to the justification of the claim.

Ben McFarlane is currently Professor of Law at University College London. In October 2019 he will take up the Professorship of English Law at the University of Oxford, where he will be a Fellow of St John’s College. He is the author of The Law of Proprietary Estoppel (2014) and The Structure of Property Law (2009), is one of the authors of Land Law: Text, Cases and Materials (1st edn 2010; 2nd edn, 2012), one of the editors of Snell's Equity, and is a co-editor of the recently published Modern Studies in Property Law: Volume X. He is a Senior Fellow at Melbourne Law School, Visiting Professor at the Université Panthéon-Assas Paris II, and is an Academic Member of the Chancery Bar Association and of the Property Bar Association. He was awarded a Philip Leverhulme Prize in 2010.