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Richard Austen-Baker

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Richard Austen-Baker

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Richard Austen-Baker

This chapter considers the nature, purpose and scope of implied terms and considers how they might be categorized. The history of implication of terms, especially in sales, and implication of assumpsit, is considered.

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Richard Austen-Baker

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Franco Ferrari and Clayton P. Gillette

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Gerard McCormack, Andrew Keay and Sarah Brown

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Magnus Strand

This first Chapter of the book presents the passing-on problem and identifies the major legal issues triggered by that problem that are discussed throughout the book. ‘Passing-on’ in this respect is the act of letting harm or loss incurred by a business pass through that business and thereby move on to burden its customers, i.e., the next level of the supply chain. This can be done, knowingly or otherwise, by raising selling prices in response to the harm or loss at issue. The point of departure in this chapter and throughout the book is that the passing-on problem is not a single and coherent legal problem that can be addressed as such, but a set of factual circumstances that gives rise, in turn, to several legal issues that need to be resolved in a consistent manner. Three main legal issues triggered by passing-on are identified: (1) Who in the supply chain will have access to court to bring an action in respect of the initial harm caused? (2) Will those parties be able to demonstrate sufficient proximity (within the meaning of applicable substantive law) to the original harmful act or unjustified transaction, as the case may be, to bring a successful claim? (3) Will a possibility for the claimant to pass on the alleged harm or loss be relevant to the estimation of the award? This chapter further identifies the different parties involved in the passing-on problem and their respective interests, introducing shorthand denominators for those parties that are used in the book. Finally the chapter outlines the various EU law contexts in which passing-on has or could occur, and presents the structure of the presentation to follow in subsequent chapters. Keywords: EU law, private enforcement, damages law, restitution law, passing-on, indirect purchasers
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Magnus Strand

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Gerard McCormack, Andrew Keay and Sarah Brown

Chapter 1 deals with Directors’ liability and disqualification imposed when their company ends up in insolvency. Liability can take various forms across Member States. In some Member States, the duties that directors owe when their company is solvent shift in nature when their company is near to being insolvent or actually insolvent and if directors do not fulfil their duties they can be held liable for breach of duty. In the vast majority of other states, directors are held liable if they do not file for insolvency proceedings within a prescribed period from the point where they know or ought to know that their company is insolvent. In some states, directors may be liable if they do not take action to stop their company’s slide into insolvency or act to prevent its insolvent position worsening. The liability of directors could be civil and/or criminal. There are a number of obstacles to bringing proceedings against miscreant directors. From the data obtained the following are the most frequent: the directors are impecunious and not worth pursuing; proceedings are costly; and the time delay in getting a hearing of proceedings can be substantial. There is some opinion, but far from unanimous, that the difference in approach in Member States can lead to significant problems. All but a couple of Member States have some form of disqualification process for directors and it is generally seen as an important element in the monitoring and control of directors. The approach taken to disqualification differs across the EU, and is reflected in the time periods prescribed for disqualification, the reasons for making a disqualification order and whether there are other consequences, besides disqualification from acting as a director, emanating from the handing down of an order of disqualification. A problem that exists with breaches of duties and disqualification is that neither are clearly seen as fitting within either company law or insolvency law where the directors’ company is in financial difficulty and ends up subject to insolvency proceedings, so they are matters that can ‘fall between the cracks’ as there is confusion in knowing how they should be addressed.
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José Gabilondo

This chapter establishes the foundation for the book’s argument by examining three core questions posed by the 2007–2008 financial crisis. First, what exactly does bank funding encompass? Second, markets already impose capital constraints on all firms so why should governments place additional requirements on how banks fund themselves? Moreover, why should funding regulation target banks given that non-bank intermediaries also play an important role in contemporary credit markets? The 2007–2008 financial crisis provided a laboratory for these questions, which post-crisis regulation has tentatively answered with new standards for bank funding liquidity and capital.