Efnisyfirlit

• Cover
• Title Page
• Preface
• Contents
• List of Abbreviations
• Table of Cases
• Table of Legislation
• Part I: An Introduction to the Common Law
• 1. The ‘Common Law’
• I. The ‘Common Law’ of England
• 1. Meanings of ‘Common Law’
• 2. Common Law and Equity
• 3. Common Law and Civil Law
• II. Common Law Systems Around the World
• 1. The Range of the Common Law
• 2. Differences Between Common Law Systems
• 3. Some General Features of the Common Law Systems
• 2. Finding the Law
• I. The Sources of Law
• 1. Legal Reasoning in the Common Law: Where Shall We Begin?
• 2. Legislation and Case-Law as Sources of Law
• II. The Judge as Interpreter and as Law-Maker
• 1. Different Judicial Approaches to the Different Sources
• 2. The ‘Binding’ Force of Case-Law: The Doctrine of Precedent
• (a) Case-Law as an Authority
• (b) Case-Law as Binding
• (c) The Rules of Precedent in English Law
• (d) Understanding the Case-Law in the Light of the Doctrine of Precedent
• 3. The Interpretation of Legislative Texts
• (a) The Basic Test: Applying the Normal, Objective Meaning of the Words of the Statute
• (b) Some General Principles and Presumptions of Interpretation
• (c) Interpretation of European Law and Compliance with the European Convention on Human Rights
• (d) The Relevance of the Context of the Statute at the Time of its Enactment
• (e) The Court Does Not Generally Reason Beyond the Statute
• 4. Reasoning from the Cases in the Common Law
• (a) The Judge Develops the Common Law and Does Not Simply Declare it
• (b) Reasoning in the Common Law
• (c) An Illustration of Common Law Reasoning: Donoghue v Stevenson and its Aftermath
• III. English Statutory Drafting
• 1. The General Style of Statutory Drafting in England
• 2. An Illustration: The Contracts (Rights of Third Parties) Act 1999
• Part II: The Law of Contract
• 3. Introduction to the English Law of Contract
• I. The Place of Contract in Private Law
• 1. Contract within the Law of Obligations
• 2. Contract and Tort
• 3. Contract and Property
• II. A General Law of Contract: The Place of ‘Special’ Contracts
• 1. ‘General’ and ‘Special’: A Different Starting-Point
• 2. The (Limited) Role of ‘Special Contracts’ in English Law
• (a) Formation of the Contract
• (b) The Terms of the Contract
• (c) Remedies
• (d) Significance of the Adoption of a General Rule Rather than ‘Special’ Contracts in English Law
• III. Some General Features and Some Fundamental Starting-Points
• 1. The Role of ‘Good Faith’
• 2. Objectivity, Reasonableness and Reliance
• 3. The Significance of the ‘Intentions of the Parties’
• 4. Contract as an Economic Instrument: Contractual Freedom, Certainty and the Commercial Model of Contracting
• 5. Contract Drafting in the Common Law
• IV. English Contract Law in a European Context
• 4. The Negotiations for a Contract
• I. The Starting Point: No General Duty between Negotiating Parties
• 1. The General Approach
• 2. No General Duty Because of a Reluctance to Use General Principles?
• 3. Difficulties in Defining the Duty?
• 4. The Relationship between Negotiating Parties is Adversarial; The Allocation of Risk in Negotiations
• 5. Negotiations ‘Subject to Contract’
• 6. No General Duty of Disclosure
• 7. Breaking off Negotiations is Not a Tort
• 8. No General Liability Based on Estoppel
• II. Particular Liabilities Arising During the Negotiations
• 1. Particular Liabilities Rather than General Duties
• 2. Misrepresentation: Remedies in Tort
• 3. Contractual Liability in the Precontractual Phase
• (a) Express Contracts: Options, Rights of Pre-emption, Lock-out Agreements and ‘Letters of Intent’
• (b) Implied Contracts: Duties to Consider Tenders
• (c) Implied Duty to Maintain Offer of Unilateral Contract
• 4. Unjust Enrichment
• 5. Breach of Confidence
• 5. Formation of the Contract: Contract as ‘Agreement’
• I. The Meaning of ‘Agreement’: The ‘Objective Test’
• 1. An ‘Agreement’ Requires Communication between the Parties
• 2. ‘Objectivity’ and ‘Subjectivity’
• 3. Arguments in Relation to the Different Approaches
• 4. The ‘Objective’ Test in English Law
• 5. The Objective Test in Context in the English Law of Contract
• II. The Mechanisms of Contract Formation: The Rules of Offer and Acceptance
• 1. ‘Offer and Acceptance’ as a Rule
• (a) Problems and Benefits of the ‘Offer and Acceptance’ Analysis
• (b) Rejection of the ‘Offer and Acceptance’ Analysis by Lord Denning
• (c) Insistence on the ‘Offer and Acceptance’ Analysis by the House of Lords
• (d) ‘Offer and Acceptance’ is Normally a Rule
• 2. The Particular Rules of ‘Offer and Acceptance’
• (a) Offer
• (b) Termination of Offer by the Offeror or the Offeree
• (c) Acceptance
• (d) Time and Place of Acceptance
• 3. Unresolved Negotiations: ‘Battles of Forms’
• III. Minimum Content and Certainty
• 1. An Agreement (and the Offer) Must Be Complete
• 2. An Agreement (and the Offer) Must Be Certain
• 6. Form, Consideration and Intention
• I. Formality in the Formation of Contracts
• 1. Specific Formalities for Specific Contracts
• 2. A General Formality: The Deed
• 3. The Avoidance of Formalities
• II. The Doctrine of Consideration
• 1. Consideration: The Basic Principle
• 2. Consideration: Particular Rules
• (a) Consideration is provided by B when he does, or promises to do, something at A’s request
• (b) Consideration involves B doing or promising something which is to his detriment and/or to A’s benefit
• (c) For B’s promise or act to be consideration it must have some (economic) value
• (d) B’s promise or act must be done at the same time as A’s promise: ‘past consideration’ is insufficient
• (e) An act done, or promise made, by B which he is already under a contractual obligation to perform in favour of a third party can be good consideration
• (f) An act done, or promise made, by B which he is already under a contractual obligation to perform in favour of A, or which he has a legal obligation to perform, cannot be good consideration, unless A obtains some additional benefit
• (g) Part-payment of a debt is not consideration for the release of the balance
• III. Promissory Estoppel
• 1. The Core Principle of Estoppel: Reliance on a Representation
• 2. The Modern Development of Promissory Estoppel in English Law
• 3. The Elements of Promissory Estoppel in English Law
• (a) The Doctrine is Limited to the Variation of an Existing Contract, in the Absence of Fresh Consideration
• (b) The Representation
• (c) The Representee Must Have Relied on the Representation—Altered His Position
• (d) The Representor Can Revoke His Promise: Estoppel is Normally Only Temporary
• (e) The Representation May Be Irrevocable
• (f) Promissory Estoppel Does Not Create New Rights—It is a ‘Shield’ Not a ‘Sword’
• 4. The Relationship between Consideration and Estoppel: Differences within the Common Law, and Possible Developments in England
• IV. Contractual Intention
• 1. The Role of the Parties’ ‘Intentions’ in the Formation of a Contract
• 2. ‘Intention to Create Legal Relations’
• 7. Vitiating Factors: Void, Voidable and Unenforceable Contracts
• I. The Vitiating Factors in English Law; Void and Voidable Contracts
• 1. An Overview of the Vitiating Factors
• 2. ‘Void’ and ‘Voidable’ Contracts
• 3. The Range of Remedies for the Vitiating Factors
• II. Mistake
• 1. Different Ways of Categorising Mistakes
• 2. Mistakes About the Terms of the Contract
• (a) Mistake in the Formation of a Contract
• (b) Written Contracts: Rectification for Mistake
• (c) Written Contracts: Non Est Factum
• 3. Mistakes About the Identity of the Other Party
• (a) Identity is Not Normally of Determining Significance
• (b) A Mistake of Identity Prevents the Formation of the Contract
• 4. Mistakes About the Subject-Matter
• (a) The ‘Subject-Matter’
• (b) Unilateral Mistake
• (c) Common (Shared) Mistake
• III. Misrepresentation and Non-disclosure
• 1. Misrepresentation Contrasted with Mistake
• 2. The Range of Remedies for Misrepresentation
• 3. Rescission of the Contract
• 4. Damages in Tort
• 5. Damages under Section 2(1) of the Misrepresentation Act 1967
• 6. Right to Redress under the Consumer Protection from Unfair Trading Regulations 2008
• 7. Remedies for Breach of Contract
• 8. Choosing between the Remedies
• 9. Exclusion of Remedies for Misrepresentation
• 10. Non-disclosure
• IV. Duress, Undue Influence and Unconscionable Bargains
• 1. Pressure and Abuse of Position
• 2. Duress
• 3. Undue Influence
• 4. Unconscionable Bargains
• V. Capacity
• VI. Illegality and Public Policy
• 8. Finding the Terms of the Contract
• I. The ‘Terms’ of a Contract
• II. Finding and Interpreting the Express Terms
• 1. Contracts Not Reduced to Writing
• (a) Finding the Terms
• (b) Interpreting the Terms
• 2. Written Contracts
• (a) Finding the Terms
• (b) Interpreting the Terms
• III. Implied Terms
• 1. Obvious Terms; Regular and Customary Terms
• 2. Terms Necessary to Give the Contract ‘Business Efficacy’
• 3. Particular Terms in Particular Types of Contract
• (a) Terms Implied at Common Law
• (b) Terms Implied by Statute
• 4. The Exclusion of Implied Terms: Drafting Styles in the Common Law
• 9. Controlling the Content of the Contract: ‘Unfair’ Contracts
• I. Indirect Controls over the ‘Fairness’ of the Contract
• 1. Procedural and Substantive Unfairness
• 2. Judicial Controls over Unfair Terms: Incorporation and Construction
• (a) Incorporation of the Term
• (b) Interpretation of the Term: Construction Contra Proferentem
• II. Direct Controls over the ‘Fairness’ of the Contract
• 1. Control by the Common Law
• 2. Control by Statute
• (a) Exclusion and Limitation Clauses in Non-consumer Contracts: The Unfair Contract Terms Act 1977
• (b) Exclusion and Restriction of Liability for Misrepresentation by Clauses in Non-consumer Contracts: Section 3 of the Misrepresentation Act 1967
• (c) Exclusion and Limitation Clauses in Consumer Contracts: The Consumer Rights Act 2015
• (d) Unfair Terms in Consumer Contracts: Part 2 of the Consumer Rights Act 2015
• (e) Other Statutory Controls over Particular Types of Term
• 10. Who has the Benefit of the Contract? Who is Bound by the Contract?
• I. Who is a ‘Party’ to the Contract? The Doctrine of Privity of Contract
• 1. A Party to the Agreement or to the Bargain?
• 2. The Link between Privity and Consideration: Tweddle v Atkinson
• 3. Development of Judicial Attitudes to the Doctrine of Privity During the Twentieth Century
• II. Avoiding the Doctrine of Privity
• 1. Creating Rights for the Third Party
• (a) Make the Third Party a Party
• (b) Trusts
• (c) Assignment
• (d) Agency
• (e) Tort
• (f) Property Law
• (g) Third-Party Rights by Statute
• 2. Enforcement of the Contract by the Promisee for the Benefit of a Third Party
• (a) The Problem: The Loss is Suffered by the Third Party
• (b) Specific Performance
• (c) Damages Calculated to Cover the Third Party’s Losses
• III. Reform by the Contracts (Rights of Third Parties) Act 1999
• 1. The Law Commission’s Proposals for Reform
• 2. The Contracts (Rights of Third Parties) Act 1999
• (a) Which Contracts are Covered?
• (b) In what Circumstances does a Third Party Acquire the Right to Enforce a Term?
• (c) Parties can Always Contract out of the Act Expressly
• (d) What Rights does the Third Party Acquire?
• (e) The Act also Applies to Exemption Clauses
• (f) Can the Third Party’s Right to Enforce be Taken Away by the Contracting Parties?
• (g) The Position of the Promisor
• (h) The Position of the Promisee
• (i) Interaction of the Act with Other Remedies for Third-Party Losses
• 3. Interaction of the Doctrines of Privity of Contract and Consideration after the 1999 Act
• IV. Assignment and Novation of Contractual Rights and Duties
• 1. Assignment
• (a) Assignment is of Only the Benefit, Not the Burden
• (b) Legal and Equitable Assignments
• (c) Rights Which are Capable of Assignment
• (d) The Effect of a Valid Assignment
• 2. Novation
• 11. Change of Circumstances
• I. The Doctrine of Frustration
• 1. Development of the Doctrine of Frustration
• 2. Application of the Test for Frustration
• 3. Consequences of Frustration
• II. Using Contract Terms to Anticipate Changes of Circumstances
• 12. Remedies for Breach of Contract
• I. ‘Breach of Contract’
• 1. What is a Breach of Contract? The Significance of the Obligation to Perform
• 2. The Range of Remedies
• II. Specific Performance and Injunction
• 1. Specific Performance and Injunction as Equitable Remedies
• 2. The Content of the Order and the Remedy for Non-compliance
• 3. Specific Performance in the Modern Law
• 4. Injunction
• 5. Damages in Place of Specific Performance or Injunction
• III. Termination for Breach
• 1. The Nature of Termination
• 2. Availability of Termination
• (a) Breach of Condition
• (b) Fundamental Breach
• 3. Exercising the Right to Terminate
• 4. Consequences of Termination
• 5. Contractual Termination Clauses
• 6. Deposits; Relief against Forfeiture
• 7. No General Right of Suspension
• IV. Damages
• 1. Damages are to Compensate the Claimant’s Failed Expectation
• 2. Valuing the Expectation
• 3. Damages for Distress and Other Intangible Losses
• 4. Whose Expectation? Losses Suffered by Third Parties
• 5. Punitive Damages
• 6. Damages to Deprive the Defendant of a Profit
• 7. Limits on Recovery and Defences: Remoteness, Mitigation, Contributory Negligence and Limitation Periods
• (a) Remoteness of Damage
• (b) Mitigation of Loss; Contributory Negligence
• (c) Limitation Periods
• 8. Damages for Delay
• V. Debt
• VI. Consumer Contracts for the Supply of Goods, Digital Content or Services: Rejection, Repair, Replacement, Reduction in Price and Repeat Performance
• VII. Agreed Remedies
• VIII. Learning About a Contract from the Remedies for Breach
• Appendix
• Index
• Copyright Page