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Contract Law and Contract Practice

Bridging the Gap Between Legal Reasoning and Commercial Expectation

By: Catherine E Mitchell
Media of Contract Law and Contract Practice
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Published: 02-12-2013
Format: PDF eBook (?)
Edition: 1st
Extent: 308
ISBN: 9781782253129
Imprint: Hart Publishing
RRP: £70.20
Online price : £63.18
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About Contract Law and Contract Practice

An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Table Of Contents

1. Introduction: The Relationship between Contract Law and Commercial Expectations
Contexts and Background
The Deficiencies of Classical Contract Law
The Wider Debate: A Contextual and Relational Approach to Contracts
Specific Lines of Enquiry
Defining and Identifying 'Commercial Expectations'
Descriptive Accuracy of the Mismatch Claim
Theoretical Difficulties Posed by the Commercial Expectations Argument
(i) Efficiency and Rights-based Theories
(ii) Relational Contract Theory
The Capacity of Contract Law
(i) The Character and Limits of Legal Regulation
(ii) The Limits of the Socio-legal and Empirical Scholarship
Commercial Agreements, Contracts and Contract Law
2. Understanding Commercial Expectations
What Does an Appeal to Commercial Expectations Mean?
Why do Commercial Expectations Matter?
A More Accurate Picture of the Parties' Agreement
Accordance with the Self-understandings of Participants in the Practice
The Role of Co-operation in Business Dealings
The Perceived Values of Commercial Law
Normative Derivation of Commercial Expectations
Changes in Contracting Practice
The Influence of Transaction Cost Economics
Networks
Umbrella Agreements
Conclusion
3. The Contours and Sources of Commercial Expectations
Empirical Studies of Commercial Contracting Behaviour
Preliminaries
The Use of Legally Enforceable Contracts
The Use of Private Legal Systems
Norms of the Business Relationship
Do Customs Exist?
Legalisation of Immanent Business Norms
Costs of Enforcement
The Role of Trust in the Business Relationship
Conclusion
4. Current Contract Law and Commercial Expectations
Tensions between Law and Commercial Contracting Behaviour
The Significance of the Documents
(i) Differing Frameworks for an Agreement
(ii) Absence of Formalities
Contract Interpretation and Commercial Reasonableness
Contracts and their Contents
The Battle of the Forms
Contracting for Flexible Commitments
Conclusion
5. Commercial Expectations and Theories of Contract Law
Distinguishing Rights-based and Efficiency
Accounts of Promising
Promissory Theories
Main Features
Promissory Theories and Commercial Expectations
Economic Analysis of Contract
Main Features
Economic Analysis and Commercial Expectations
Characteristics of the Contracting Parties
The Efficiency of Social Norms
Contract Modification
Contract Interpretation
A Variable Approach?
Conclusion
6. The Relational Theory of Contract
Characteristics of Relational Analysis of Contracts
Essential Contract Method: Macneil's Common Contract Norms
Significance for the Law of Contract
Relational Legal Reasoning: Initial Difficulties
Neoformalism
Relational Legal Reasoning: Possible Processes
Conclusion
7. Commercial Expectations and Legal Capacity
Relationalism, Contract Law Rules and Common Law Method
Relationalism, Judicial Legitimacy and Judicial Activism
Objectivity
Legal Commitment to the Written Agreement
The Litigation Process
Litigating Parties
Contract Law as a Product
Litigation as a Self-contained Context
Transformation and Legalisation of Norms
Judicial Expertise and Error
Path Dependency and the Characteristics of Legal Regulation
Conclusion
8. Conclusion: Aligning Contract Law and Commercial Expectations
The Binary Divide of Formalism and Contextualism
Methods of Effecting a Relationally Constituted Contract Law
Contextual Interpretation
Case Examples
(i) Conflict between Formal and Informal Norms: RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Productions)
(ii) Interpreting the Agreement as a Unified Scheme: Total Gas Marketing v Arco British
(iii) Avoiding a Doctrine-driven Approach: Durham Tees Valley Airport Ltd v BMIBaby Ltd
Changing Mindset
Contracting In or Contracting Out of Contextualism?
Conclusion

Reviews

“Mitchell's book is a very valuable contribution to our understanding of and thinking about relational contract theory...Her book deserves to be read by every serious student of contract law.” –  Hugh Beale, Journal of Law and Society

“This is a stimulating and highly insightful work, meticulously researched, carefully argued, and both cognisant of and scrupulously fair to counter-argument. It is an important contribution to contract scholarship and deserves to be widely read.” –  Greg Gordon, Edinburgh Law Review

“Ms. Mitchell's scholarship is impressive and the range of material that she has covered means that she has developed a powerful tool for examining the question she has set out to answer.” –  Angela Swan, Counsel, Aird & Berlis LLP, CanadianBusiness LawJournal

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