1. Introduction and fundamental themes

2018 ◽  
Author(s):  
Paul S. Davies
Keyword(s):  
Economic Efficiency ◽  
Common Law ◽  
Contract Law ◽  
Private Law ◽  
Freedom Of Contract ◽  
Will Theory ◽  
First Time

This introductory chapter provides a brief overview of the fundamental elements of what constitutes a contract. It discusses undertakings or promises, deeds, written and oral promises, bargains, and bilateral and unilateral contracts. It concludes by examining some general themes in contract law to which reference will be made throughout the present title. These include freedom of contract, will theory, economic efficiency, objectivity in contract law, common law and equity, contract law within private law, and international influences on contract law. The outline provided in this chapter is necessarily brief; although some of the themes may seem a little difficult in the abstract, students approaching this subject for the first time should not be troubled. The concepts will become familiar and more easily understood through concrete examples provided in later chapters.

1. Introduction and fundamental themes

2021 ◽  
pp. 1-11
Author(s):  
Paul S. Davies
Keyword(s):  
Economic Efficiency ◽  
Common Law ◽  
Contract Law ◽  
Private Law ◽  
Freedom Of Contract ◽  
Will Theory ◽  
First Time

This introductory chapter provides a brief overview of the fundamental elements of what constitutes a contract. It discusses undertakings or promises, deeds, written and oral promises, bargains, and bilateral and unilateral contracts. It concludes by examining some general themes in contract law to which reference will be made throughout the present title. These include freedom of contract, will theory, economic efficiency, objectivity in contract law, common law and equity, contract law within private law, and international influences on contract law. The outline provided in this chapter is necessarily brief; although some of the themes may seem a little difficult in the abstract, students approaching this subject for the first time should not be troubled. The concepts will become familiar and more easily understood through concrete examples provided in later chapters.

Contract Law Theory and The Concept of ‘Ownership’

2021 ◽  
Vol 17 (2) ◽  
pp. 142-156
Author(s):  
Jan Felix Hoffmann
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Property Law ◽  
Private Law ◽  
The Past ◽  
Fundamental Distinction

Abstract Contract law and property law are traditionally viewed to be two separate fields of private law shaped by different principles. Over the past years a theory of contract law thoroughly drawing on the concept of “ownership” has been promoted by common law scholars. It leads at its core to the conclusion that the distinction between absolute and relative rights is irrelevant inter partes and that, therefore, a theoretical division between contract and property cannot be strictly maintained. This touches upon the fundamental distinction between absolute and relative rights raising the question why a contract does not automatically lead to an absolute right with regard to the substance of the promised performance.

The Proportionality Puzzle in Contract Law: A Challenge for Private Law Theory?

2020 ◽  
Vol 33 (1) ◽  
pp. 215-244
Author(s):  
Zhong Xing Tan
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Public Law ◽  
Private Law ◽  
Top Down ◽  
Bottom Up ◽  
Internal Logic ◽  
Pragmatic Justification ◽  
Internal Rationality

This article explores the emerging use of the proportionality concept in the contract law of the Anglo-common law world, first to understand its internal logic, and secondly, to situate its invocation within private law theory. What are judges doing when they appeal to “proportionality”?, and what does this say about the ideology of adjudication? I draw insights from the use of proportionality in other domains, in particular public law, to uncover its internal rationality as a means-ends rationality review coupled with a process of balancing competing considerations, which I illustrate with reference to the illegality, penalty, and cost of cure doctrines. I argue that proportionality reflects a method of pragmatic justification, expressing an aspiration towards a structured and transparent mode of argumentation that is anti-formal and anti-ideological, focusing from the bottom-up on contextual considerations, and occupying a distinct space against existing theories in private law driven, for instance, by “top-down”? rights-based ideologies or critical and communitarian perspectives.

Illegal Earnings

2018 ◽  
Vol 9 (1) ◽  
pp. 54-80
Author(s):  
James Goudkamp ◽  
Lorenz König
Keyword(s):  
United Kingdom ◽  
Common Law ◽  
Tort Law ◽  
Contract Law ◽  
Private Law ◽  
The United Kingdom ◽  
Considerable Promise ◽  
The Subject ◽  
The Common ◽  
The Law

AbstractThis article addresses the principles of tort law that govern claims in respect of lost illegal earnings. It focuses on common law jurisdictions (and the law in the United Kingdom in particular) where such claims, despite apparently being commonplace, have been largely ignored by academics. It describes the existing law and calls in aid in this regard a four-fold taxonomy of cases. The article then turns attention to how claims in respect of lost illegal earnings ought to be decided. At this juncture, the article looks to ideas emanating from German tort law, which has developed a highly sophisticated jurisprudence on the subject of illegal earnings. The German approach, stated simply, requires tort law to defer to rules in other departments of private law. If, for example, contract law would not protect an interest that a claimant has in a particular transaction by reason of the transaction being tainted with illegality, tort law will not allow a claimant indirectly to obtain the benefits of that transaction via a claim for lost illegal earnings. It is argued that the German solution holds considerable promise and merits consideration as a serious alternative to the significantly more complicated principles that the common law courts have developed, which principles currently lack any thoroughgoing rationalisation.

1. Introduction

Contract Law ◽  
2018 ◽  
Author(s):  
Mindy Chen-Wishart
Keyword(s):  
Contract Theory ◽  
Legal Reasoning ◽  
Contract Law ◽  
Private Law ◽  
External Influences

This introductory chapter presents an overview of contract law. It discusses the questions addressed by contract law; sources of contract law and legal reasoning; values reflected in contract law; contract theory; the reach of contract law; contract law’s relationship to other branches of private law; and external influences on English contract law.

scholarly journals The Unjust Enrichment Fallacy And Private Law

2013 ◽  
Vol 26 (1) ◽  
pp. 115-136
Author(s):  
Peter Jaffey
Keyword(s):  
Common Law ◽  
Legal Reasoning ◽  
Contract Law ◽  
Property Law ◽  
Private Law ◽  
Unjust Enrichment ◽  
The Common

The theory of unjust enrichment – the theory supporting the recognition of a doctrinal category of unjust enrichment – has been accepted across much of the common law world. The recognition of a doctrinal category is not just a matter of presentation. It has a role in legal reasoning that reflects the fact that it is based on a particular principle or distinct justification for a claim. The theory of unjust enrichment is misguided because there is no principle or distinct justification common to the various claims that have been gathered together to form the new category. The theory has appeared attractive, it would seem, not because a plausible version of the principle of unjust enrichment has been identified, but because it has appeared impossible to explain these various claims in any other way, in particular as claims in property or contract. This difficulty has arisen, it is suggested, largely as a result of a mistaken analysis of primary and remedial rights. The article explores these issues with respect to contract law and property law.

Principles of Contract Law: Reflection in Labor Legislation

10.12737/2578 ◽  
2014 ◽  
Vol 2 (3) ◽  
pp. 34-41
Author(s):  
Людмила Филющенко ◽  
Lyudmila Filyushchenko
Keyword(s):  
Public Interest ◽  
Contract Law ◽  
Private Law ◽  
Freedom Of Contract ◽  
Labor Legislation ◽  
Private And Public ◽  
Labour Legislation ◽  
Law Regulation

The article explores the reflection of the principles of contract law into a sphere of labour legislation, induced by intensification of private-law regulation. The features and a number of problems of application of the contract law principles (the freedom of contract, the obligation of execution, the invariability of contract terms, and the balance between private and public interest) are uncovered.

Part I Fundamentals, 1 Sources and General Features

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Contract Law ◽  
Good Faith ◽  
The Law

This is an introductory chapter. The case law tradition of English contract law is explained, including the distinction between Common Law and Equity. The requirements of consensus are analysed. There is an overview of modern developments in the law. Doctrinal controversies are listed, with references to parts of the book where ‘Evaluation’ sections provide comment on difficult or uncertain developments or topics. There are forty-nine such ‘Evaluation’ sections, amongst which the author’s discussion of the following topics merits special attention: negotiation agreements [4.35] and [4.42]; the rule in Pinnel’s Case [6.82]; the ‘fiction of fraud’ and the Misrepresentation Act 1967 [11.113]; duress as to person [13.27]; illegitimate (but not unlawful) pressure [13.38]; good faith [19.27]; the White & Carter case [27.66].

1. Introduction to the Study of Contract Law

2021 ◽  
pp. 1-24
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Classical Model ◽  
Contract Law ◽  
Good Faith ◽  
Relational Contracts ◽  
Reasonable Person ◽  
The Law ◽  
Default Rules

This introductory chapter provides an overview of contract law and its application. A contract is an agreement made with intention that it will be legally enforceable. Contract law concerns issues regarding the formation of contracts; the sources, interpretation, and regulation of terms; when a breach takes place and the resulting consequences; and ways to escape a contract through vitiating factors, mistake, or frustration. The parties’ intentions are determined using an objective approach based on the standard of the reasonable person. A lot of contract law can be understood as default rules to apply when the parties have not been clear enough about their intentions. The law of contract also concerns foundational principles and mainly consists of common law rules. Many cases still give effect to the values of the classical model, which is based on the freedom and sanctity of contract, and a view that contracting parties are self-interested. The most significant recent development away from the classical model is the recognition of relational contracts and an implied obligation to act in good faith.

Development of European Contract Law

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Consumer Protection ◽  
Comparative Law ◽  
Contract Law ◽  
European Countries ◽  
Private Law ◽  
European Contract ◽  
Freedom Of Contract ◽  
European Code ◽  
Pros And Cons ◽  
European Contract Law

This chapter examines the historical, economic, and political reasons which have led to the idea of ‘Europeanising’ private law, academic literature, and legal teaching in European countries in pursuit of the eventual creation of European private law. After discussing the functions of comparative law and the different ways in which it could contribute towards setting up a unified European private law, the chapter considers the link between economic order and contract law as well as the adoption of the principle of freedom of contract by all European legal orders. It also discusses the pros and cons of a ‘European Code of Contract Law’ that would harmonise or unify not only the rules on consumer protection but also the non-mandatory ‘dispositive’ contract law.

Sign in / Sign up

Export Citation Format

Share Document