Defences in Contract

Description

This book is the third in a series of essay collections on defences in private law. It addresses defences to liability arising in contract. The essays range from those adopting a predominantly black-letter approach to others that examine the law from a more theoretical or historical perspective. Some essays focus on individual defences, while some are concerned with the links between defences, or with how defences relate to the structure of contract law generally. One goal of the book is to determine what light can be shed on contract law doctrines by analysing them through the lens of defences. Many scholars are unaccustomed to thinking of defences to contract law and so fresh light is shed on an old topic. The contributors—judges and academics—are all leading jurists. The essays are addressed to all of the major common law jurisdictions. Volume 3 in the series Hart Studies in Private Law: Essays on Defences Foreword Preface Contents List of Contributors Table of Cases Table of Legislation Table of Statutory Instruments and Rules Table of Restatements Table of Conventions 1 Thinking in Terms of Contract Defences I. INTRODUCTION II. ARE THERE DEFENCES IN CONTRACT? III. THE PUZZLE OF CONTRACT DEFENCES IV. SHOULD CONTRACT LAWYERS THINK IN TERMS OF DEFENCES? V. CONCLUSION 2 What Is a Contractual Defence (and Does It Matter)? I. INTRODUCTION II. INSIGHTS FROM LEGAL HISTORY III. THE ANALYTICAL QUESTION IV. CONCLUSION 3 Good Faith Bargaining in the Shadow of a Form I. INTRODUCTION II. THE PROBLEM OF THE FORM IN ITSELF III. BEGUILED BY FORM IV. BARGAINING IN THE SHADOW OF A FORM V. DEFENCES REVISITED 4 Good Faith, Good Conscience, and the Taking of Unfair Advantage I. INTRODUCTION II. FRAUD III. FORFEITURES IV. PENALTIES V. PERSONS BORROWING ON THE EXPECTATION OF FUTURE OWNERSHIP OF PROPERTY VI. UNDUE INFLUENCE VII. UNFAIR TRANSACTIONS VIII. RELATION OF JUDICIAL DEVELOPMENT TO LEGISLATION IX. GOOD CONSCIENCE X. THE ÇUKUROVA CASE XI. GOOD FAITH XII. CONCLUSION 5 Undue Influence and Unconscionability I. UNDUE INFLUENCE II. UNCONSCIONABILITY III. CONCLUSION 6 Should Consideration Be Required for the Consensual Discharge of an Agreement By Part Payment? I. FOAKES V BEER II. WHAT SHAPE SHOULD ANY LEGISLATIVE REFORM TAKE? III. THE COURTS HAVE SOUGHT TO DEVELOP THE LAW IN WAYS THAT MITIGATE THE EFFECT OF FOAKES v BEER IV. WILLIAMS V ROFFEY: THE COURT OF APPEAL HOLDS THAT PRACTICAL BENEFIT TO THE CREDITOR IS GOOD CONSIDERATION V. RE SELECTMOVE LTD: THE COURT OF APPEAL HOLDS THAT ROFFEY REASONING DOES NOT APPLY TO DEBT RESCHEDULING VI. MWB V ROCK: THE COURT OF APPEAL DISTINGUISHES SELECTMOVE WHERE ADDITIONAL PRACTICAL BENEFIT IS FOUND VII. CONCLUSION 7 Not Waiving but Drowning I. THE CLAIMS II. TERMINOLOGY III. OTHER USES OF "WAIVER" IV. IS IT A DEFENCE? V. EVIDENTIAL ESTOPPEL (OR ESTOPPEL BY REPRESENTATION) VI. EQUITABLE ESTOPPEL VII. PROPRIETARY ESTOPPEL VIII. CONSTRUCTIVE TRUSTS IX. UNJUST ENRICHMENT X. PROPRIETARY ESTOPPEL AND CONTRACT XI. WHAT TO DO? 8 Frustration: Automatic Discharge of Both Parties? I. INTRODUCTION II. TAYLOR V CALDWELL III. HIRJI MULJI V CHEONG YUE STEAMSHIP CO LTD IV. SUBSEQUENT DEVELOPMENTS V. EVALUATION VI. INTERNATIONAL RE-STATEMENTS VII. CONCLUSION 9 Resisting Termination: Some Comparative Observations I. INTRODUCTION II. RESISTING TERMINATION IN ENGLISH LAW III. RESISTING TERMINATION IN FRENCH LAW IV. DEFENCES TO TERMINATION: COMPARATIVE REMARKS V. CONCLUSION 10 The Contract Remoteness Rule: Exclusion, Not Assumption of Responsibility I. INTRODUCTION II. THE RELATIONSHIP BETWEEN REMOTENESS AND THE COMPENSATORY PRINCIPLE III. THE AUTHORITIES: EXTERNAL RULE OR IMPLIED EXCLUSION? IV. IMPLIED EXCLUSION OR IMPLIED ASSUMPTION? V. CONCLUSION 11 Contributory Negligence and Strict Contractual Obligations Revisited I. INTRODUCTION II. OBJECTION OF PRINCIPLE: THAT ASSUMING RESPONSIBILITY FOR THE CLAIMANT"S FAULT IS INHERENT IN A STRICT CONTRACTUAL OBLIGATION III. OBJECTION OF POLICY-UNCERTAINTY AND COMPLEXITY IV. CONCLUSION 12 The Impact of Exemption Clauses and Disclaimers: Construction, Contractual Estoppel and Public Policy GERARD McMEEL I. PUBLIC POLICY INTERVENTIONS IN GENERAL CONTRACT LAW II. PUBLIC POLICY INTERVENTIONS IN THE FINANCIAL SERVICES CONTEXT III. THE RISE AND RISE OF CONTRACTUAL ESTOPPEL IV. THE CRITIQUE V. CONCLUSION AND LESSONS 13 Illegality: Where Are We Now? I. INTRODUCTION II. ORIGINS III. POLICY IV. TANGLE V. RECENT SUPREME COURT CASES VI. THE COURT OF APPEAL VII. WHERE NOW? Author Index Index