Contract as Assumption II: Formation, Performance, and Enforcement

Description

This second collection of Brian Coote’s previously published writings is for the most part a follow-up to his Contract as Assumption (Hart Publishing, 2010). Part of the theme of that collection was that in a bilateral contract the obligations of the parties, both primary and secondary, are those which at formation they have each assumed, that is, have taken upon themselves. Being exchanged at the point of formation, these assumptions constitute the consideration. The institution of contract provides a facility the purpose of which is to enable the parties thereby to bind themselves to legal (contractual) obligation. This emphasis on what happens at formation has prompted the inclusion of several of the papers in this collection. These focus on intention, offer and acceptance, the qualification of primary and secondary obligations whether express or implied, agency, and the effect of illegality on pre-existing rights. Falling outside this group are two pieces respectively on chance and the burden of proof and on impecuniosity, in each case in tort as well as in contract. The collection ends with the author’s valedictory lecture, ‘Contract: An Underview’. In this paper, delivered on his retirement from the University of Auckland, he summed up his thinking on Contract. It is now for the first time given general currency. Preface Acknowledgements Contents Abbreviations Table of Cases Table of Legislation 1. Introduction 2. Reflections on Intention in the
Law of Contract What do We Mean by Intention? Why Intention? Objective Intention at Formation Subjective Intention at Formation Meaning, Interpretation, and Construction Conclusion 3. The Instantaneous Transmission
of Acceptances Introduction The Problem Four Possible Analogies A Possible Solution The Place of Formation Summary 4. Dunlop v Lambert: The Search
for a Rationale Introduction Agency and Trust The Cases before Dunlop v Lambert Bailment as an Explanation Lord Diplock's Explanation The St Martins Case The Panatown Case What did Dunlop v Lambert Really Decide? Does the Promisee Really Suffer No Loss? Ought the Promisee to be Accountable? Conclusion 5. Sale of Goods at Auction
Without Reserve Two Nineteenth-Century Cases Barry v Davies Some Questions Still Unresolved Conclusion 6. Correspondence with Description
in the Law of Sale of Goods Introduction The Ascertainment of the Physical Subject Matter of a Sale The Strict Approach The Non-Strict Approach Tests for Elementary or Reduced Descriptions The Ashington Piggeries Case Conclusion 7. Deviation and the Ordinary Law Introduction The Doctrine of Fundamental Breach Discharge for Breach Condition or Innominate Term? Interpretation and Construction Bailment A Test for Deviatory Breaches Deck Cargo Conclusion 8. PART I: The Effect of Discharge by Breach on Exception Clauses Introduction The Ordinary Law of Discharge by Breach The Effect of the Deviation Cases Conclusion 8. PART II: Discharge for Breach
and Exception Clauses Since
Harbutt's 'Plasticine' Introduction Termination of the Contract The Function of Exception Clauses Can Harbutt's 'Plasticine' be Distinguished? Exception Clauses as Dependent Promises Two Recent Cases Conclusion 9. Another Look at Bowmakers v
Barnet Instruments The First Line of Criticism The Second Line of Criticism The Third Line of Criticism Conclusion 10. Chance and the Burden of Proof
in Contract and Tort Introduction The Need to Establish a Cause of Action That the Act or Omission which Caused or Contributed to the Injury was Committed by the Defendant That the Act or Omission Committed by the Defendant Caused or Contributed to the Plaintiff\u2019s Injury That the Injury or Breach of Duty Caused or Occasioned Economic Loss of a Legally Compensable Kind The Measure of the Loss Suffered Areas of Uncertainty Remaining Conclusion 11. Damages, The Liesbosch,
and Impecuniosity The Liesbosch: The Facts The Probate Division: Mitigation The Court of Appeal: Measure of Damages The House of Lords: Causation and Remoteness The Alcoa Minerals Case Contract Summary Torts Contract Conclusion Postscript: Impecuniosity Pays Off 12. Contract as Assumption and
Remoteness of Damage A Premise Two Questions The Two Cases Assumed or Imposed? The First Question The Second Question Conclusion 13. Contract: An Underview Introduction United States' Legal Scholarship Realism Outside the United States The Problems of Judge-Made Law Contracts as Assumptions of Contractual Obligation Five Traps Does it Matter? Conclusion Index