Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

The Treatment of Suretyships in the EU: Unhappy Families?

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| Conferences, Lectures, Papers and Workshops, Contract, Restitution

mel-kenny-at-dlw.JPG

All families are happy in the same fashion,
and each family is unhappy in its own way.

Count Leo Tolstoy (1828-1910)
in Anna Karenina (1875-1877)

Banks lend money; but they are averse to the risks of this lending, so they usually require security for the money they lend. One form of security is to get another, creditworthy, person to agree to pay the loan if the borrower fails to do so. This arrangement is called a suretyship, and the person who undertakes to pay if the borrower does not is called a surety.

Do sureties need protection from the borrowers or lenders? For example, if a husband and wife have interests in the family home, and the wife agrees to secure a loan to her husband against her interest in the family home, does a vulnerable wife need protection either from an overbearing husband or an unscrupulous bank here? …

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“The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society”

| 7 Comments
| Freedom of Expression, Irish Law, Irish Society, Media and Communications, prior restraint

Luminarium, Dublin, 15 Jan 2007I have recently commented on this blog that the right to freedom of expression Article 40.6.1(i) has finally got some teeth!?. That process continued today in the Supreme Court, where Fennelly J uttered the line used as the title to this post. …

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Fair Use – Recalibrating the balance in Fair Dealing

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| Copyright, Fair use, Irish Law, James Joyce, Politics

'Scales of Justice', a public domain IP image, via wikipediaThis is a call to arms; or at least, a call for legislation which would radically recast EU copyright law.

Intellectual property law and policy are all about innovation, both encouraging it and protecting its fruits. But these are potentially opposing, perhaps even incompatible, goals: if we reward one innovator with a monopoly over the fruits of the innovation, prohibiting others’ use of those fruits, then we risk preventing the next round of innovation. The challenge to law-makers is to strike the an appropriate balance between reward and innovation, by pitching the length of the monopoly at the right level, both in the breadth of its coverage and the length of its term, beyond which others might also use it.

The story of copyright provides a good example of this dilemma. …

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Refunding unincurred airport taxes and charges

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| Airline charges, Consumer, Contract, Restitution

Small palm tree, via Steve Hedley's restitution siteA payment made on a basis which fails can be recovered. So, if I pay for cigarettes, and the price includes an amount for a tax which is subsequently found unconstitutional, the basis for that excess amount has failed, and I can recover the tax amount that wasn’t due (see Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 (6 December 2001)). It follows that if I book to travel with an airline, and pay their fee plus taxes and charges, but if I then don’t travel, so that the charges are not incurred and the taxes are not due, the basis for those taxes and charges has failed, and I ought to be able to recover them. If the contract between me and the airline contains clauses making them irrecoverable, (or, what amounts to the same thing, imposing disproportionately high administration fees) such clauses are almost certainly unenforceable (on foot of the European Communities (Unfair Terms in Consumer Contracts) Regulations, 1995 (S.I. No. 27 of 1995), the English equivalent of which have recently been applied by the Office of Fair Trading (OFT) against an airline’s terms and conditions).

These musings are prompted by the following story in the Price Watch column in today’s Irish Times (sub req’d):

No guaranteed refund if you don’t take your Ryanair flight

…

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“You can’t fire me; I’ve got tenure!”

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| Academic Freedom, Cinema, television and theatre, Politics, Tenure, Universities

83m.jpgLast night, MGM movies showed the 1984 movie Teachers, about a lawyer who sued her high school for graduating an illiterate pupil. It starred JoBeth Williams as the lawyer; Nick Nolte as the idealistic but frustrated and jaded ageing hippie teacher; and Judd Hirsch as the pragmatic head teacher just trying to get through with the pupils he’s got (for a more recent, also iconic, role, see here (Daithí)). A fine supporting cast included Ralph Macchio (‘wax on, wax off‘) as the tough kid Nolte was trying to reach; Laura Dern as the kid Nolte helps to have an abortion after another teacher gets her pregnant; and Morgan Freeman (with an extraordinary hairstyle almost as much a member of the cast in its own right as Kevin Costner‘s in Robin Hood. Prince of Thieves) as the school’s lawyer. There is a perceptive review here. Among the many Hollywood-sardonicisms in the script, the large, underfunded high school is named for John F Kennedy; and the illiterate graduate (whom we never meet) is called John Calvin(!). The case settled (JoBeth Williams’ boss, William Hill (in the key scene, he is world-weary, wearing a waistcoat, and sitting behind a desk – for all the world as he would appear in TV’s Law & Order) did the deal, much against her wishes).…

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Filibustering the Defamation Bill? Surely not?

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| Cinema, television and theatre, Defamation, Irish Law, Irish Society, Media and Communications, Politics

Poster for 'Mr Smith Goes to Washington' via AOLFilibuster: (noun) an action such as a prolonged speech that obstructs progress in a legislative assembly while not technically contravening the required procedures.

The word originates in words of piracy, such as the French ‘flibustier’, the Spanish ‘filibustero’ and the Dutch ‘vrijbuiter’, all etymologically equivalent to ‘freebooter’. The 1939 movie ‘Mr. Smith Goes to Washington‘, directed by Frank Capra (nominated for two oscars for this movie), stars Jimmy Stewart, in his patented role of a young naif, this time oscar-nominated as a newly elected Junior Senator Jefferson Smith. The climax of the movie is a filibuster staged by Mr Smith in the Senate so that there would be enough time to expose the corruption of his mentor, Senator Joseph Harrison Paine, played by the also oscar-nominated Claude Rains.

I have already commented on the slow progress of the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) and the number of red herrings in the debate, and concluded that it had become increasinlgy unlikely that the Bill would be enacted before the election. Now, from yesterday’s Order of Business in the Seanad (html | pdf to follow | Irish Times report (sub req’d)), a cynical explanation: a filibuster!…

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The Defamation Bill and the art of fugue (though not fudge)

| 4 Comments
| Defamation, Defamation Bill 2006, Freedom of Expression, Irish Law, Media and Communications

JS Bach via jsbach.orgYesterday, 21 March, was not only the Vernal or Spring Equinox, but also the anniversary of the birth, in 1685, of JS Bach (pictured left; see jsbach.org | wikipedia | baroquemusic.org) – composer of the Art of Fugue. It was also the day on which – stop press – during yesterday’s resumed Seanad debate (html | pdf to follow | Irish Times report (sub req’d)) on the Defamation Bill, 2006 (Department of Justice | Oireachtas (pdf)) Minister McDowell denied that he is a “fascist”, and insisted that he is “a liberal and a republican politician”! Whatever about the newspaper comments which provoked these declarations, or even some of the language he himself used in reponse to an effete lefty pinko commentariat? (Senator Norris’s summary of the Minister’s various pronouncements), nevertheless, at least on the issue of defamation, Minister McDowell yesterday once again proved himself on the side of the angels, declining many opportunities to fudge important issues of principle in the Bill.

During the debate, the members of the red herring school of debating were out in force again, …

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