Private law rights and powers of waiver
Private law rights and powers of waiver
An established view in legal philosophy has it that private law rights are waivable—that is, that right-holders are free to give them up. Chapter 15 argues that not all private law rights are waivable and that waivability operates differently in different types of private law rights. The argument uses as a springboard Gardner’s tripartite classification of private law rights. This classification has been first launched to support an analysis of the place of corrective justice in private law and to explicate the extensive discretion of the plaintiff in civil litigation. As this chapter claims, Gardner’s tripartite classification can also serve as a basis for a theory on the waivability of private law rights. The chapter also argues that the conceptualisation of different types of private law rights as clusters of claim-rights and powers or other entitlements supports an argument in favor of the waivability of substantive rights, and the unwaivability or limited waivability of two different types of remedial rights.
Psarras, Haris
09a970ac-0e94-46f3-b19b-f74e6a9974b0
30 March 2023
Psarras, Haris
09a970ac-0e94-46f3-b19b-f74e6a9974b0
Psarras, Haris
(2023)
Private law rights and powers of waiver.
In,
Psarras, Haris and Steel, Sandy
(eds.)
Private Law and Practical Reason: Essays on John Gardner's Private Law Theory.
(Oxford Private Law Theory)
Oxford University Press.
Record type:
Book Section
Abstract
An established view in legal philosophy has it that private law rights are waivable—that is, that right-holders are free to give them up. Chapter 15 argues that not all private law rights are waivable and that waivability operates differently in different types of private law rights. The argument uses as a springboard Gardner’s tripartite classification of private law rights. This classification has been first launched to support an analysis of the place of corrective justice in private law and to explicate the extensive discretion of the plaintiff in civil litigation. As this chapter claims, Gardner’s tripartite classification can also serve as a basis for a theory on the waivability of private law rights. The chapter also argues that the conceptualisation of different types of private law rights as clusters of claim-rights and powers or other entitlements supports an argument in favor of the waivability of substantive rights, and the unwaivability or limited waivability of two different types of remedial rights.
Text
Psarras, Ch. 15, HP&SS (eds), PLPR, OUP
- Accepted Manuscript
Restricted to Repository staff only until 30 March 2025.
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More information
Accepted/In Press date: 2 February 2023
Published date: 30 March 2023
Identifiers
Local EPrints ID: 476307
URI: http://eprints.soton.ac.uk/id/eprint/476307
PURE UUID: 97f6cf74-d396-43c8-91e6-0ed0b5c86ca1
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Date deposited: 19 Apr 2023 16:33
Last modified: 13 Sep 2024 01:58
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Contributors
Editor:
Haris Psarras
Editor:
Sandy Steel
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