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.
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 Muller 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
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