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This book is a study of doctrinal and methodological divergence in the common law of obligations. It explores particular departures from the common law mainstream and the causes and effects of those departures. Some divergences can be justified on the basis of a need to adapt the common law of contract, torts, equity and restitution to local circumstances, or to bring them into conformity with local values. More commonly, however, doctrinal or methodological divergence simply reflects different approaches to common problems, or different views as to what justice or policy requires in particular circumstances. In some instances divergent methodologies lead to substantially the same results, while in others particular causes of action, defences, immunities or remedies recognised in one jurisdiction but not another undoubtedly produce different outcomes. Such cases raise interesting questions as to whether ultimate appellate courts should be slow to abandon principles that remain well accepted throughout the common law world, or cautious about taking a uniquely divergent path.

The chapters in this book were originally presented at the Seventh Biennial Conference on the Law of Obligations held in Hong Kong in July 2014. A separate collection, entitled The Common Law of Obligations: Divergence and Unity (ISBN: 9781782256564), is also being published. Overall, the volume is of the same high quality of its predecessors in the Obligation series. -- NICHOLAS J. MCBRIDE * The Cambridge Law Journal *

Divergences in Private Law

1. Why Diverge?

Andrew Robertson and Michael Tilbury

2. Proximity: Divergence and Unity

Andrew Robertson

3. Canada's Common Law, Quebec's Civil Law and the Threshold of Actionable: Mental Harm Following Tortious Conduct

Louise Belanger-Hardy

4. 'Pure Economic Loss' and Defective Buildings

Sarah Green and Paul S Davies

5. Divergence and Convergence in the Tort of Public Nuisance

JW Neyers

6. Defamation on the Internet

Robert Ribeiro

7. Convergence and Divergence: The Law of Non-Delegable Duties in Australia and the United Kingdom

Neil Foster

8. The Scope of the Rule Against Contractual Penalties: A New Divergence

Sirko Harder

9. Rights Restricting Remedies

Robert Stevens

10. The Methods and Madness of Unjust Enrichment

Zoe Sinel

11. Recovery of Non-Gratuitously Conferred Benefit Under Section 70 of the Indian Contract Act 1872

Alvin W-L See

12. Revisiting Canada's Approach to Fiduciary Relationships

Erika Chamberlain

13. The Presumptions of Resulting Trust and Advancement Under Singapore Law: Localisation, Nationalism and Beyond

Man Yip

14. Divergence in the Australian and English Law of Undue Influence: Vacillation or Variance?

Robyn Honey

15. Whose Conscience? Unconscionability in the Common Law of Obligations

Graham Virgo

16. Form and Substance in Equitable Remedies

Stephen A Smith