chapter  2
Interests and persons. Persons (personae) have interests and these are given expression as part of personality itself. Accordingly, children have their own interests which can be used to trump those of others (see, for example, CC, Art 388–2) and all humans might be said to have interests that are both subjective (reputation, dignity and the like: for example, CC, Art 16– 3) and objective (Airedale NHS v Bland [1993] AC 789; In re S, p 281). Indeed, each person has his own mass of interests (CC, Arts 117, 232). What makes them particularly valuable as a legal notion is that interest can become a means of giving expression to a ‘person’ who has not as yet been endowed with physical or legal existence. Thus, one can talk of the interests of unborn children or even future generations (see p 32). One might observe, in this respect, how ‘best interests’ assumed a central mediating role, with a supposedly moral dimension, in the Tony Bland case (Airedale, above). The judges constructed a ‘virtual’ fact in turning the unconscious Bland into a non-persona (like an unborn child) whose best Interest’ then acted as the object of the legal decision (cf Py, La mort et le droit, 1997, PUF, pp 27–29). One can also use interest to give a class of persons such as the family (CC, Arts 220–1, 264–1), consumers, or more fragmented groups with an interest thus endowing them with a kind of legal personality (Jolowicz [1983] CLJ 222). Legal (corporate) persons have ‘commercial interests’ which can act as the object of legal protection, although this may give rise to conflict with other interests, if not rights. 3 Public interest. Private interests are often contrasted with the general or the public interest. Thus imprévision in French contract law differs as between public and private law contracts since the courts must take account of the ‘general interest’ when deciding a problem of public law (CE 30.3.1916; D 1916.3.25). Often, cases can be made to turn on the conflict between public and private interests and when this happens, the notion of an interest becomes a means of giving expression to the community vis à vis the individual (see, for example, Miller v Jackson, above). Public interest can also be used to give expression to certain constitutional ‘rights’ or, indeed, as a reason for limiting such ‘rights’ (see, for example, Camelot plc v Centaur Communications Ltd [1999] QB 124). 4 Property interests. Interest can also attach to the res. Thus, in English land law, ‘rights’ in land belonging to another are expressed in terms of interests and different kinds of losses can be analysed via different types of interest. For example, damages in English contract law are said to protect three different types of interest—expectation, reliance and restitution (Surrey CC v Bredero Homes Ltd, below, p 295). And in tort law, some argue that the whole objective of this category can be reduced to protecting interests of one kind or another (see, for example, Cane, Tort Law and Economic Interests, 2nd edn, 1996, OUP). Interest can be seen as the empirical foundation of a ‘right’ and, although it cannot obviously be synonymous with such a normative concept, interest is often used as
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