Privacy, Property and Personality: Civil Law Perspectives on Commercial Appropriation by Huw Beverley‐Smith, Ansgar Ohly and Agnes Lucas‐Schloetter

Publication Date01 January 2007
AuthorGillian Black
regarded as a core part of ¢duciaryobligation and that assimilationwith remedial
principles applicablei n cases of common law wrongdoing may upset the delicate
wayin which deterrent policies areset in relationships of trust.The inference tobe
drawn from Burrows’ arguments in chapter 15 is that these distinctive deterrent
policies can be accommodated by makingexemplarydamages availablein equity;
but in Getzler’s view, this would undermine the zero tolerance (‘broken
windows’) approach to the policing of such relationships by unduly restricting
¢duciaries’ incentives to take care.Whilst this point appears to have some force,
there are, I would have thought, questions about the extent to which merely neg-
ligent mishandling of trust assets can actually be deterred,’ which gives added
weight, in my respectful opinion, to the views of Professor Hayton in chapter
11, where it is argued, contra Getzler and Heydon, that there is ‘all the di¡erence
in the world’ between the rules which should apply to determine the conse-
quences of a breach of a trustee’s primary obligations of loyalty and ¢delity to
the terms of a trust, and cases of its negligent mismanagement. In Chapter 16,
Professor McInnes providesus with further, interesting insights into the potential
of the accounting remedy for dealing not simply with cases of equitable wrong-
doing, but also fordeterring cynical torts.
There can be no doubt that this book re¢nes and rede¢nes the debate about
fusion in commercial law and beyond. It is fascinating throughout, not least
because of the di⁄culty and intensity of the controversies that it addresses. Its
price is an unfortunate deterrent to readers with modest pockets, but the editors
are to be congratulated for theirachievement in bringingtogether in one place so
many distinguished and diametrically opposed views on the role of equity and
law in modern commerce.Given the heatof past exchangeson the topic of fusion,
we might defensibly have thought that this was simply not possible. It is truly
gratifying to see that it is and that the energyof the fusion debate can be harnessed
to such productive ends.
Kit Barker
Huw Beverley-Smith, Ansgar Ohly and Agnes Lucas-Schloetter,Privacy, Property
and Personality: Civil Law Perspectives on Commercial Appropriation,
Cambridge: Cambridge University Press, 2005, 284 pp, hb d48.00.
The law may recognise state borders but celebrities generally do not. David
Beckham’s fame stretches from Manchester to Japan, while Catherine ZetaJones,
Michael Schumacher and Tom Cruise are instantly recognisable around the
world. The universal culture ofcelebrity and famethrows intosharp relief the lack
of a universal response to the legal problems generated by that culture.While the
problems generated by fame and its commercial exploitation are similar in all
Universityof Queensland.
r2007 The Authors.Journal Compilation r2007 The Modern Law Review Limited.
(2007) 70(1)MLR 161^174

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