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It has many times been said that contracts involve assumptions of obligation or liability, but what that means, and what it is that is assumed, have not often been discussed. It is to further such discussion that some of the author's previously published writings around this subject have been brought together in this book. His basic premises are that contractual obligation and liability in this context are two sides to the same coin and that an assumption of one is an assumption of both. Parties are bound not because liability has been imposed upon them by law as a result of their having entere.
It has many times been said that contracts involve assumptions of obligation or liability, but what that means, and what it is that is assumed, have not often been discussed. It is to further such discussion that some of the author's previously published writings around this subject have been brought together in this book. His basic premises are that contractual obligation and liability in this context are two sides to the same coin and that an assumption of one is an assumption of both. Parties are bound not because liability has been imposed upon them by law as a result of their having entered into a contract but because, in the act of assuming, they have imposed it upon themselves. Contract provides a facility the purpose of which is to enable this to be done within the limits prescribed by law. The implication of these premises are much more significant than might be supposed when applied to such areas of contract as formation, consideration, intention to contract, exception clauses, privity and damages. The book concludes with a treatment of the role of assumption in tort. Because of the importance of its subject matter and its wide-ranging treatment, this book should appeal not only to teachers and postgraduate students of contract but also to practitioners in the field and to anyone else with an interest in contract theory.
This second collection of Brian Coote's previously published writings is for the most part a follow-up to his Contract as Assumption (Hart Publishing, 2010). Part of the theme of that collection was that in a bilateral contract the obligations of the parties, both primary and secondary, are those which at formation they have each assumed, that is, have taken upon themselves. Being exchanged at the point of formation, these assumptions constitute the consideration. The institution of contract provides a facility the purpose of which is to enable the parties thereby to bind themselves to legal (contractual) obligation. This emphasis on what happens at formation has prompted the inclusion of several of the papers in this collection. These focus on intention, offer and acceptance, the qualification of primary and secondary obligations whether express or implied, agency, and the effect of illegality on pre-existing rights. Falling outside this group are two pieces respectively on chance and the burden of proof and on impecuniosity, in each case in tort as well as in contract. The collection ends with the author's valedictory lecture, “Contract – an Underview”. In this paper, delivered on his retirement from the University of Auckland, he summed up his thinking on Contract. It is now for the first time given general currency.
This Article explores the normative foundations of the rules governing mutual mistake, impossibility, impracticability, and frustration and studies their doctrinal implications. These familiar doctrines, which make contracts voidable or excusable whenever they are grounded on a shared basic assumption that failed, puzzle commentators and courts. We claim that the key to properly understanding their role and interpret their doctrinal elements lies in appreciating the core principles of a genuinely liberal - that is: autonomy-enhancing - contract law. The rules that delineate the scope of these doctrines are guided by liberal contract's commitment to ensure that promisors' future selves are not unacceptably encumbered. The rules that regulate these doctrines, in turn, follow liberal contract's principles of proactive facilitation and relational justice. Together, these rules exemplify both the power of the liberal foundation of modern contract law and the subtlety of its doctrinal workings.
Legal thinkers typically justify contract law on the basis of economics or promissory morality. But Peter Benson takes another approach. He argues that contract is best explained as a transfer of rights governed by a conception of justice. The result is a comprehensive theory of contract law congruent with Rawlsian liberalism.
Part I. The Role of Consent: 1. Transatlantic perspectives: fundamental themes and debates Larry A. DiMatteo, Qi Zhou and Séverine Saintier 2. Competing theories of contract: an emerging consensus? Martin A. Hogg 3. Contracts, courts and the construction of consent Tom W. Joo 4. Are mortgage contracts promises? Curtis Bridgeman Part II. Normative Views of Contract: 5. Naturalistic contract Peter A. Alces 6. Contract in a networked world Roger Brownsword 7. Contract, transactions, and equity T.T. Arvind Part III. Contract Design and Good Faith: 8. Reasonability in contract design Nancy S. Kim 9. Managing change in uncertain times: relational view of good faith Zoe Ollerenshaw Part IV. Implied Terms and Interpretation: 10. Implied terms in English contract law Richard Austen-Baker 11. Contract interpretation: judicial rule, not party choice Juliet Kostritsky Part V. Policing Contracting Behavior: 12. The paradox of the French method of calculating the compensation of commercial agents and the importance of conceptualising the remedial scheme under Directive 86/653 Séverine Saintier 13. Unconscionability in American contract law Chuck Knapp 14. Unfair terms in comparative perspective: software contracts Jean Braucher 15. (D)CFR initiative and consumer unfair terms Mel Kenny Part VI. Misrepresentation, Breach and Remedies: 16. Remedies for misrepresentation: an integrated system David Capper 17. Re-examining damages for fraudulent misrepresentation James Devenney 18. Remedies for documentary breaches: English law and the CISG Djakhongir Saidov Part VII. Harmonizing Contract Law: 19. Harmonisation European contract law: default and mandatory rules Qi Zhou 20. Harmonization and its discontents: a critique of the transaction cost argument for a European contract law David Campbell and Roger Halson 21. Europeanisation of contract law and the proposed common European sales law Hector MacQueen 22. Harmonization of international sales law Larry A. DiMatteo.
Contract law allows parties to set their own rules within constraints. It provides a set of default rules and if the parties do not like them, they can change them. Rethinking Contract Law and Contract Design explores various long-standing contract doc
'Contract as Promise' is a study of the foundations and structure of contract law. It has both theoretical and pedagogic purposes. It moves from trust to promise to the nuts and bolts of contract law. The author shows that contract law has an underlying unifying moral and practical structure. This second edition retains the original text, and includes a new Preface. It also includes a lengthy postscript that takes account of scholarly and practical developments in the field over the last thirty years, especially the large and rich law and economics literature.
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