The Convergence of
Rules and Standards
Frederick Schauer
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Rules and standards, it is ordinarily assumed, function as alternative forms of directive aimed at serving our regulatory or adjudicative goals. This article presents a "convergence hypothesis" in respect of the two forms of directive, namely, that regardless of the form that regulative directives take whether they start out as "rules" or as "standards" there is reason to believe that adaptive behaviour on the part of institutions and individuals entrusted with the interpretation and enforcement of regulative directives will have the effect of pushing "rules" towards "standards", and of pushing "standards" towards "rules", thus in practice collapsing the normal distinction between rules and standards. If this hypothesis is correct, then we may need to rethink the ordinarily assumed importance of the distinction between rules and standards in institutional and regulatory design.
This article is based on a paper delivered at the Legal Research Foundation conference "The Statute: Making and Meaning", held in Auckland in May 2003. Papers and commentaries from that conference will be published in Bigwood (ed), The Statute: Making and Meaning (LexisNexis, forthcoming). The New Zealand Law Review thanks LexisNexis for permission to publish this article here.
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Uncertainties Surrounding Undue Influence: Its Formulation, Application, and Relationship to Other Doctrines
Pauline Ridge |
This article discusses the equitable doctrine of undue influence in the light of the House of Lords' recent decision in Royal Bank of Scotland Plc v Etridge (No 2) [2002] 2 AC 773, and the Privy Council's recent decision in R v Her Majesty's Attorney-General for England and Wales [2003] UKPC 22. It is suggested that there are now two competing formulations of the doctrine discernible in the case law in this area: one viewing presumed undue influence as a contextual application of fiduciary law, the other viewing it as a forensic tool for proving actual wrongdoing. The House of Lords has not justified its current use of the second formulation. Moreover, the Privy Council decision demonstrates that both the content of undue influence and its relationship to similar doctrines are less than well understood. |
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Consideration and the Variation of Contracts
Brian Coote |
The first part of this paper criticises the view, found in Williams v Roffey Bros and Nicholls (Contractors) Ltd [1991] 1 QB 1, that the consideration for an executory bilateral contract of variation consists in the hoped-for benefits that will or may result from performance. The author argues that an executory bilateral contract to vary has to be formed like any other, and that, since consideration is essential to the existence of the contract, it has to be present in the exchange of promises by which the contract is formed. Ex hypothesi, the results of performance come too late. On this thesis, a promise to perform a duty already owed in contract to the promisee is a mere tautology. In the second part, there is a discussion of the New Zealand Court of Appeal's recent decision in Antons Trawling Co Ltd v Smith [2003] 2 NZLR 23, which dispenses with the need for any consideration in contracts of variation. The author concludes that, if a solution does have to be found for the perceived problem of the consideration requirement for variations, the Court of Appeal's solution is the better one, as it leaves the requirement in other contexts still intact. |
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Seminar Report
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The Treaty of Waitangi and Human Rights: Paul Rishworth |
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Reviews
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Constitutional Law: Philip A Joseph
Insurance Law: Neil Campbell
Treaty of Waitangi and Maori Land Law: Ani Mikaere, Nin Tomas and Kerensa Johnston
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2003 PART III
