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BOOK REVIEW - REMEDIES IN CONTRACT AND TORT

REMEDIES IN CONTRACT AND TORT by Donald Harris, Director of the Centre for Socio-Legal Studies, Oxford and Senior Research Fellow at Balliol College, Oxford. Weidenfeld & Nicholson, London (1988, xxxvii and 396 pp., plus 15 pp. Index). Hardback £25; paperback £15.95.
REMEDIES (Commentary and Materials) by Michael Tilbury, LL.B., B.C.L., Senior Lecturer in Law, University of New South Wales, Michael Noone, B.A., LL.B., LL.M., Senior Lecturer in Law, Macquarie University, and Bruce Kercher, B.A., LL.B., LL.M., Senior Lecturer in Law, Macquarie University. Law Book Co. Ltd., Sydney (1988, xxx and 615 pp., plus 20 pp. Index). Hardback Aus. $79.50; paperback Aus. $59.50.
The law of remedies seems to exercise something of a fatal fascination over law publishers and authors. Books by writers of the stature of Street, Ogus, Lawson and Beale have attracted academic praise but have apparently failed to tap a market which would justify further editions. Yet, in spite of the rarity of courses in the subject which could create a readership for such monographs, further attempts are still being made to find success in the area. In addition to the two books here reviewed, the last couple of years has seen the publication of works by Burrows and Treitel.
Harris’ book is an addition to the Law in Context series and, as such, has more ambitious aims than simply to state the law. The Preface tells the reader that the author’s intention is to explain the law of remedies in its social context by the use of several approaches; by drawing on empirical studies as to how the law of remedies actually operates in practice; by emphasizing the use to which legal rules may be put in negotiations which take place outside of the courtroom; and by drawing on the work of the law and economics school of jurisprudence, to obtain an external perspective with which to evaluate the operation of the law. It should be obvious from this that Harris is an academic book. Indeed, it faithfully reflects the interests of modern academic common lawyers. The balance of the discussion shifts significantly according to the topic being dealt with. The contract sections are dominated by the economic perspective (on which the author has much of interest to say), whereas the accident compensation area follows the now conventional approach of giving pride of place to the evidence drawn from empirical studies and brushing aside the economic theories of writers such as Calabresi. Much of the material offered is based upon earlier work of the author and others; however, there is a great advantage in having an overview of the subject in a single volume.
From what has been said, it should be obvious that Harris is not designed to be a book to meet the needs of the lawyer who is looking for a detailed dissection of the minutiae of the case law. The authors of Kemp & Kemp and McGregor have nothing to fear from it. Instead, it offers its reader a very clearly presented overview of the subject and of its working. It is a book for the interested casual reader and for the good undergraduate seeking a new perspective on a topic. The book is very welcome on these terms even if one may doubt whether these categories of reader will buy it in sufficient numbers to make it a commercial success.
It remains to be asked whether there is any advantage in treating common law remedies as a subject in its own right as opposed to a part of contract or tort. Does this treatment offer more than an opportunity to discuss the relevant topics in greater depth than would be possible in the context of a contract or tort text? Harris, if anything, raises doubts as to the viability of a combined subject. The contract/tort divide cuts through the centre of the book, both physically and in the approach adopted.
Tilbury, Noone and Kercher is a book of a different tradition. It is a collection of cases, materials and commentary explicitly aimed at students studying remedies courses in Australian law schools. Its scope is different from that of Harris. Contractual and tortious remedies are presented alongside each other and restitutionary remedies and those private law remedies which are used in relation to public law issues fall within its purview. This text

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