Contract LawPub Date : 2020-10-28DOI: 10.1017/9781108393959.029
J. Davis, A. Stewart
{"title":"Illegality and public policy","authors":"J. Davis, A. Stewart","doi":"10.1017/9781108393959.029","DOIUrl":"https://doi.org/10.1017/9781108393959.029","url":null,"abstract":"","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129533896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/HE/9780198701989.003.0004
Ewan Mckendrick
{"title":"4. Uncertain and Incomplete Agreements","authors":"Ewan Mckendrick","doi":"10.1093/HE/9780198701989.003.0004","DOIUrl":"https://doi.org/10.1093/HE/9780198701989.003.0004","url":null,"abstract":"The parties to agreements sometimes express themselves in terms that are vague, incomplete, or uncertain. The courts have experienced considerable difficulty in deciding whether or not an agreement has been expressed in a form that is sufficiently certain for them to enforce. On the one hand, judges generally do not wish to be seen to be making the contract for the parties, and on the other hand, are reluctant to deny legal effect to an agreement that the parties have apparently accepted as valid and binding. The result has been a degree of tension in the case-law. This chapter examines two groups of cases. The first group consists of cases in which it was held that the agreement was too uncertain or too vague to be enforced, while the second comprises a number of cases in which the courts have concluded that the agreement was valid and binding.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"15 6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122366896","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/he/9780198855293.003.0001
Ewan Mckendrick
{"title":"1. Introduction","authors":"Ewan Mckendrick","doi":"10.1093/he/9780198855293.003.0001","DOIUrl":"https://doi.org/10.1093/he/9780198855293.003.0001","url":null,"abstract":"This introductory chapter begins by setting out the book’s three principal aims: to provide an exposition of the rules that make up the law of contract, to explore the law of contract in its transactional context, and to explore English contract law from a transnational and comparative perspective. The discussions then turn to the scope of the law of contracts; the growth in the use of standard form contracts and the increasing complexity of the form and the content of modern contracts; transnational contract law; and conflicting policies that underpin the law of contract.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"51 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127683937","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/HE/9780198701989.003.0002
Ewan Mckendrick
{"title":"2. Agreement: Objective or Subjective?","authors":"Ewan Mckendrick","doi":"10.1093/HE/9780198701989.003.0002","DOIUrl":"https://doi.org/10.1093/HE/9780198701989.003.0002","url":null,"abstract":"This chapter discusses the approach adopted by the courts when seeking to ascertain the intention of the parties to a contract. The general rule is that the existence and content of an agreement are questions that must be answered by reference to the intention of the parties, objectively ascertained. Two leading cases are presented that consider the scope of the objective test, namely Smith v. Hughes (1871) LR 6 QB 597 and Centrovincial Estates plc v. Merchant Investors Assurance Company Ltd [1983] Com LR 158. The discussion then turns to the case where one party attempts to ‘snap up’ an offer which he knew that the offeror did not intend, and the case where one party was at fault in failing to notice that the other party’s offer contained a mistake, or he was himself responsible for inducing that mistake in the other party. The chapter concludes that it is not necessary to resort to a subjective approach in order to explain these cases; they can be analysed in terms consistent with the objective test which is generally applied by the courts.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127078521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/he/9780198855293.003.0023
Ewan McKendrick
{"title":"23. Damages","authors":"Ewan McKendrick","doi":"10.1093/he/9780198855293.003.0023","DOIUrl":"https://doi.org/10.1093/he/9780198855293.003.0023","url":null,"abstract":"This chapter examines the entitlement of a claimant to recover damages in respect of a breach of contract committed by the defendant, and is organized as follows. Section 2 discusses the different measures of damages that can be awarded, while Section 3 analyses the performance interest. Section 4 examines the circumstances in which a claimant can seek damages based on his ‘reliance’ losses rather than his performance interest, while Section 5 discusses the circumstances in which damages may be awarded to protect the claimant’s ‘restitution’ interest. Section 6 examines the entitlement of a claimant to recover damages in respect of non-pecuniary losses, particularly ‘mental distress’. Section 7 considers the general rule that damages are assessed as at the date of breach and the exceptions to that rule, while Section 8 considers the various doctrines which the courts use in order to keep liability within acceptable bounds. These include remoteness, mitigation, and contributory negligence. Section 9 examines the circumstances in which a claimant can recover what is known as ‘negotiating damages’ or the defendant can be ordered to account to a claimant for the profits that he has made from his breach of contract. Section 10 looks at the possibility that exemplary damages might play a role in breach of contract cases. The chapter concludes, in Sections 11 and 12, with a discussion of agreed damages clauses (and related clauses) and their legal regulation.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116942945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/he/9780198701989.003.0022
Ewan Mckendrick
{"title":"22. Breach of Contract and Termination","authors":"Ewan Mckendrick","doi":"10.1093/he/9780198701989.003.0022","DOIUrl":"https://doi.org/10.1093/he/9780198701989.003.0022","url":null,"abstract":"This chapter begins with a definition of ‘breach of contract’ and then outlines the circumstances in which a breach of contract gives to the innocent party a right to terminate further performance of the contract. These include breach of a condition and breach of an intermediate term where the consequences of the breach are sufficiently serious. The chapter also considers the problems that can arise in deciding the status of a term which has not been classified by the parties as a condition, a warranty, or an intermediate term. It examines termination clauses and the significance attached to the good faith of the party who is alleged to have repudiated the contract. The chapter includes a brief comparison of English law with the Vienna Convention on Contracts for the International Sale of Goods and with the Principles of European Contract Law, and also addresses the question of whether an innocent party is obligated to exercise its right to terminate further performance of the contract, and considers the loss of the right to terminate. It concludes with a discussion of the law of anticipatory breach of contract.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"166 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121292363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/HE/9780198701989.003.0008
Ewan Mckendrick
{"title":"8. The Terms of the Contract","authors":"Ewan Mckendrick","doi":"10.1093/HE/9780198701989.003.0008","DOIUrl":"https://doi.org/10.1093/HE/9780198701989.003.0008","url":null,"abstract":"A contract is composed of terms, the number of which depends upon the importance of the transaction. The terms of the contract are of great significance to the parties because they define their rights and liabilities. This chapter examines two preliminary issues, the first of which relates to the identification of the terms of the contract. How do the courts decide what is and what is not a term of the contract? The second issue concerns the entitlement of the parties to lead evidence of terms not to be found in their written contract. Where the parties take the time, trouble, and expense of reducing their agreement to writing, are they still entitled to adduce evidence of terms other than those found in the written document, or is the written document the sole source of the terms of their contract?","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125534231","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/HE/9780198701989.003.0009
Ewan Mckendrick
{"title":"9. Incorporation of Terms","authors":"Ewan Mckendrick","doi":"10.1093/HE/9780198701989.003.0009","DOIUrl":"https://doi.org/10.1093/HE/9780198701989.003.0009","url":null,"abstract":"This chapter discusses the incorporation of terms into a contract. Three principal options are available to ensure the incorporation of terms, the first of which is to make sure that the other party to the contract signs the document that contains all the relevant terms. A party is generally bound by terms he has signed, whether or not he has read them. The second option is to take reasonable steps to bring the terms to the notice of the other party. In order to be effective the notice must have been given at or before the time of contracting, in a document that was intended to have contractual effect, and reasonable steps must have been taken to bring the terms to the attention of the other party. The third option is incorporation by course of dealing or by custom. In order to constitute a ‘course of dealing’ there must have been a series of transactions between the parties that was both ‘consistent’ and ‘regular’.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131031105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Contract LawPub Date : 2020-05-27DOI: 10.1093/HE/9780198701989.003.0005
Ewan Mckendrick
{"title":"5. Consideration and Promissory Estoppel","authors":"Ewan Mckendrick","doi":"10.1093/HE/9780198701989.003.0005","DOIUrl":"https://doi.org/10.1093/HE/9780198701989.003.0005","url":null,"abstract":"The doctrine of consideration is one feature of English contract law that readily distinguishes it from the law of contract in civilian jurisdictions. Its essence is that a promisee cannot enforce a promise unless he has given or promised to give something in exchange for the promise, or unless the promisor has obtained (or been promised) something in return. In other words, there must have been a bargain between the parties. This chapter analyses the current scope of the doctrine of consideration, particularly the rule that consideration must be sufficient but need not be adequate; the pre-existing duty rule and the question whether a promise to pay, or part payment of a debt, is good consideration for the discharge of the entire deb; and the rule that past consideration is not good consideration. It also examines the role of promissory estoppel in contract cases. An estoppel gives (at least limited) effect to a promise that would otherwise be unenforceable, thus the effect of an estoppel may be to supplement, or even supplant, the doctrine of consideration. The chapter concludes with a brief discussion of the future of the doctrine of consideration and, in particular, draws on the critique of consideration developed by Professor Atiyah.","PeriodicalId":207231,"journal":{"name":"Contract Law","volume":"35 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130266247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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