Great Debates in Contract Law 3rd edition by Jonathan Morgan ISBN 1352009986 978-1352009989

Introduction

1 Formation of Contract

Debate 1: Does the law on offer and acceptance respect the parties’ intentions?

A Subjective or Objective Approach?

Mistakes

Offer and Acceptance

Debate 2: How should the law resolve the ‘battle of the forms’?

The Traditional ‘Mirror Image’ Approach

Flexibility in Finding Contracts

Non-contractual Remedies

Is Restitution the Solution?

Contract, After All, Is Best?

Further Reading

2 Enforceability: Consideration, Intention and Estoppel

Introduction

Debate 1: Does the doctrine of consideration serve any useful purpose?

Consideration: A Brief History

Consideration Today

Gratuitous Promises in Commercial Law

Gratuitous Promises in Private Life

Formal Contracts

Conclusion: Consideration’s Function

Debate 2: Should ‘intention to create legal relations’ take over as the hallmark of enforceability?

Debate 3: Should consideration be necessary to modify contracts?

The Doctrinal Question

What Is the Correct Policy Towards Contract Modification?

Alternatives?

Debate 4: How does estoppel fit into contract law?

Establishing Estoppels

Estoppel Remedies

Estoppel: A Sword or a Shield?

The Death of Contract?

Further Reading

3 Standard Forms and Written Contracts

Introduction

Debate 1: Is a signature really ‘agreement’?

Debate 2: Can parties make written contracts exclusively ‘documentary’?

The Parol Evidence ‘Rule’

Entire Agreement Clauses: Party Autonomy

Non-reliance Clauses: Statutory Control

Debate 3: Should ‘no oral modification’ clauses be enforceable?

(a)  Policy: Commercial Expectations

(b)  Principle: Freedom to Change One’s Mind

(c)  Divergence from international consensus?

(d)  Exceptions: Reliance

Debate 4: The use and abuse of commercial standard forms

Debate 5: Consumer protection and standard forms

Why Do Consumers Need Protection?

Blanket Non-enforcement

Fairness-Based Doctrines

Consumer Rights Act 2015

Further Reading

4 Contractual Content: Terms and Their Meaning

Introduction

Debate 1: How should contracts be interpreted?

The Modern Approach: Context and Purpose

Criticisms of the Contextual Approach

A Retreat from Context?

Resolving the Text/Context Dispute?

Limiting the Context: Prior Negotiations

Rectification and Interpretation

Rectification: Objective or Subjective?

Conclusion

Debate 2: How should terms be implied into contracts?

Default Rules: Terms Implied ‘by Law’

Law and Economics: Efficient Default Rules

Further Reading

5 Misrepresentation and Mistake

Misrepresentation: Some Controversies Outlined

Debate 1: Should there be a general duty to disclose relevant information?

Comparisons

Critique

Encouraging the Production and Use of Valuable Information

Conclusion

Debate 2: Do we need ‘The Doctrine of Mistake’?

Voidness and Voidability

Identity Mistakes

Common Mistake

Remedies for Common Mistake

Mistake in Equity

Further Reading

6 Frustration

Debate 1: What is the basis of the doctrine of frustration?

Supervening Illegality

Impossibility, Impracticability and Frustration of Purpose

Justice

Risk Allocation

Economic Efficiency and the ‘Superior Risk Bearer’

Debate 2: Do we need the doctrine of frustration?

Foreseeability

Force Majeure Clauses

Conclusion

Debate 3: Are the consequences of frustration too inflexible?

Unjust Enrichment and the Act of 1943

Loss Sharing

Rebalancing the Contract

Conclusion

Further Reading

7 Inequality of Bargaining Power

Debate 1: What is economic duress?

The Basis of the Doctrine: ‘Vitiated Consent’ or ‘Wrongful Threats’?

Was the Claimant Coerced?

Were the Threats ‘Illegitimate’?

Are Threats to Breach a Contract ‘Illegitimate’?

Debate 2: The nature of undue influence and unconscionability

The Basis of Undue Influence

Unconscionability

Debate 3: A general principle of contract unfairness?

A ‘General Judicial Power to Modify Highly Unreasonable Contracts’?

Substantive Fairness?

Paternalism?

Further Reading

8 Party-Agreed Remedies

Introduction

Debate 1: When should termination be allowed in response to breach of contract?

When Is Termination Available as a Matter of Law?

Controlling Termination: Rules of Law

Controlling Termination: Contract Interpretation

Conclusion

Debate 2: Should penalty clauses be allowed?

Liquidated Damages

‘Supra-Compensatory’ Clauses

Economic Analysis of Penalties

The Post-Cavendish Law: ‘Legitimate Interest’ and ‘Proportionality’

Conclusions

Further Reading

9 Judicial Remedies: Performance, Compensation and Remoteness

Introduction

Debate 1: How far should contract remedies enforce performance?

Rights and Remedies

Holmes and Contractual Rights

Efficient Breach

Efficient Breach: Critique

Specific Performance

Substitutionary Damages

Deterring Breach: Exemplary Damages and Disgorgement of Profits

Negotiating Damages

Debate 2: How should liability for consequential loss be limited (‘remoteness’)?

‘Assumption of Responsibility’ or ‘External Rule of Law’?

Remoteness of Damage and Economic Efficiency

Conclusion

Further Reading

Appendix: Third Parties

Index