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.

Brownsword, R and Howells, G, ‘The implementation of the EC Directive on Unfair Terms in Consumer Contracts – some unresolved questions’ [1995] JBL 243. Brownsword, R, Howells, G and Wilhelmsson, T (eds), Welfarism in Contract, 1994, Aldershot: Dartmouth. Burrows, A, (ed), Essays on the Law of Restitution, 1991, Oxford: Clarendon. Burrows, A, The Law of Restitution, 1993, London: Butterworths. Burrows, A, Understanding the Law of Obligations, 1998, Oxford: Hart. Burrows, A, ‘Free acceptance and the law of restitution’ (1988) 104 LQR 576. Carr, C, ‘Lloyd’s Bank Ltd v Bundy’ (1975) 38 MLR 463. Cheshire, G, Fifoot, C and Furmston, M, Law of Contract, 13th edn, 1996, London: Butterworths/Tolley. Chitty (Guest, AG (ed)), Contracts: General Principles, 27th edn, 1994, London: Sweet & Maxwell. Coase, R, ‘The problem of social cost’ (1960) 3 Journal of Law and Economics 1. Collins, H, Law of Contract, 3rd edn, 1997, London: Butterworths. Collins, H, ‘Good faith in European contract law’ (1994) OJLS 229. Cooke, PJ and Oughton, DW, The Common Law of Obligations, 3rd edn, 2000, London: Butterworths. Coote, B, Exception Clauses, 1964, London: Sweet & Maxwell. Coote, B, ‘The Unfair Contract Terms Act 1977’ (1978) 41 MLR 312. De Lacey, J, ‘Selling in the course of a business under the Sale of Goods Act 1979’ (1999) 62 MLR 776. Dean, M, ‘Unfair contract terms – the European approach’ (1993) 56 MLR 581. Duffy, P, ‘Unfair terms and the draft EC Directive’ (1993) JBL 67. Evans, A, ‘The Anglo-American mailing rule’ (1966) 15 ICLQ 553. Fehlberg, B, ‘The husband, the bank, the wife and her signature – the sequel’ (1996) 59 MLR 675.

1995 ◽  
pp. 808-808
Keyword(s):  
Law And Economics ◽  
Common Law ◽  
Contract Law ◽  
Good Faith ◽  
European Contract ◽  
Consumer Contracts ◽  
The Common ◽  
The Law ◽  
Anglo American ◽  
Unfair Terms

Contract Law in Practice

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Case Law ◽  
Detailed Examination ◽  
Contract Law ◽  
Good Faith ◽  
Fair Dealing ◽  
Freedom Of Contract ◽  
Compensation Principle ◽  
The Common ◽  
English Law

This book is a detailed examination of the general doctrines of English law of contract. Cases are analysed precisely, providing quick access to the major authoritative passages in the leading judgments. The coverage is comprehensive. It focuses on English law, but it also provides analysis of assistance throughout the Common Law family of legal systems. It provides up-to-date examination of case law developments. There are nearly fifty ‘evaluation’ sections which provide comment on controversial or unclear topics. Six major principles are identified: Freedom of Contract; Objectivity; the Contractual Bond Principle; Estoppel; Good Faith and Fair Dealing; the Compensation Principle.

The Law of Contract

2018 ◽  
Author(s):  
Eva Steiner
Keyword(s):  
Common Law ◽  
World Market ◽  
Contract Law ◽  
The State ◽  
Legal Certainty ◽  
Philosophical Foundations ◽  
The Common ◽  
The Law

This chapter examines the law of contract in France and discusses the milestone reform of French contract law. While this new legislation introduces a fresh equilibrium between the contracting parties and enhances accessibility and legal certainty in contract, it does not radically change the state of the law in this area. In addition, it does not strongly impact the traditional philosophical foundations of the law of contract. The reform, in short, looks more like a tidying up operation rather than a far-reaching transformation of the law. Therefore, the chapter argues that it is questionable whether the new law, which was also intended to increase France's attractiveness against the background of a world market dominated by the Common Law, will keep its promise.

Contracts for the Benefit of Third Parties in Japan

2018 ◽  
Author(s):  
Masami Okino
Keyword(s):  
Case Analysis ◽  
Case Law ◽  
Contract Law ◽  
Civil Code ◽  
Third Parties ◽  
Third Party ◽  
German Model ◽  
Recent Debate ◽  
The Law

This chapter discusses the law on third party beneficiaries in Japan; mostly characterized by adherence to the German model that still bears an imprint on Japanese contract law. Thus, there is neither a doctrine of consideration nor any other justification for a general doctrine of privity, and contracts for the benefit of third parties are generally enforceable as a matter of course. Whether an enforceable right on the part of a third party is created is simply a matter of interpretation of the contract which is always made on a case-by-case analysis but there are a number of typical scenarios where the courts normally find the existence (or non-existence) of a contract for the benefit of a third party. In the recent debate on reform of Japanese contract law, wide-ranging suggestions were made for revision of the provisions on contracts for the benefit of third parties in the Japanese Civil Code. However, it turned out that reform in this area was confined to a very limited codification of established case law.

Contract Formation in Hong Kong

2018 ◽  
Author(s):  
Lusina HO
Keyword(s):  
Hong Kong ◽  
Social Context ◽  
Common Law ◽  
General Rule ◽  
Good Faith ◽  
Local Context ◽  
General Duty ◽  
Contract Formation ◽  
Formal Requirement ◽  
The Law

This chapter examines the law on contract formation in Hong Kong which is closely modelled on the English common law but adapts the English solutions to the local context if and when required. The test for ascertaining the parties’ meeting of the minds is objective, the agreement (an offer with a matching acceptance) must be certain, complete, and made with the intention to create legal relations—the latter being presumed to be present in a commercial context and absent in a familial or social context. Offers are freely revocable although the reliance of the offeree is protected in exceptional circumstances. Acceptances become effective as soon as they are dispatched. In the ‘battle of forms’ scenario, the Hong Kong courts follow the traditional ‘last-shot’ rule. There is no general duty to negotiate in good faith, and even agreements to negotiate in good faith are normally unenforceable for lack of certainty. As a general rule, contracts can be validly made without adhering to any formal requirement. Online contracts will normally be valid and enforceable; the formation of such contracts is governed by common law as supplemented by legislation.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

The Coalition's Plan to Regulate Industrial Relations

1993 ◽  
Vol 4 (1) ◽  
pp. 1-26 ◽  
Author(s):  
Braham Dabscheck
Keyword(s):  
Common Law ◽  
Industrial Relations ◽  
Good Faith ◽  
The Common ◽  
Industrial Conflict ◽  
The Law

In October 1992 the federal coalition released Jobsback, a statement of its industrial relations policies. The article situates Jobsback in the context of the evolution of the coalition's industrial relations policies since the Fraser years, outlines its major features, and provides a critique. Jobsback erects a new regulatory schema under a banner of deregulation. Three key elements are contained in Jobsback. They are tribunal avoidance and the use of the common law, legislatively imposed employment rules to ‘aid’ the transition from an award to a non-award system, and enterprise confinement. The article draws attention to the coalition's views concerning industrial conflict, constitutional issues, transitional problems associated with establishing legislatively imposed workplace rules, minima in workplace agreements, the Office of the Employee Advocate, equality before the law and good faith bargaining.

English Foundations of American Law, 1500s–1776

2018 ◽  
pp. 48-74
Author(s):  
John B. Nann ◽  
Morris L. Cohen
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Case Law ◽  
Case Finding ◽  
Colonial Period ◽  
Legal Issue ◽  
Good Case ◽  
American Law ◽  
English Law ◽  
The Law

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

Contract

2005 ◽  
Author(s):  
James Gordley
Keyword(s):  
Twentieth Century ◽  
Legal System ◽  
Common Law ◽  
Contract Law ◽  
Legal Method ◽  
Legal Problems ◽  
Early Twentieth Century ◽  
The Will ◽  
The Law

‘Classical’ contract law was built on a substantive premise about contract law and two premises about legal method. The substantive premise was voluntaristic: the business of contract law is to enforce the will or choice of the parties. The first methodological premise was positivistic: the law is found, implicitly or explicitly, in the decisions of common law judges. The second methodological premise was conceptualistic: the law should be stated in general formulas which can be tested by their coherence. Finally, ‘classical’ contract law reflected an attitude about how best to steer a course — as every legal system must — between strict rules and equitable considerations. Since the early twentieth century, classical contract law has been breaking down. Allegiance to its premises has weakened as has the preference for rigor. At the same time, scholars have found classical law to be inconsistent even in its own terms. Nevertheless, much of it has remained in place faute de mieux while contemporary jurists have tried to see what is really at stake in particular legal problems. This article describes their work.

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