The Future of the Law of Contract

Description

The Future of the Law of Contract brings together an impressive collection of essays on contract law. Taking a comparative approach, the aim of the book is to address how the law of contract will develop over the next 25 years, as well as considering the ways in which changes to the way that contracts are made will affect the law. Topics include good faith; objectivity; exclusion clauses; economic duress; variation of contract; contract and privacy law in a digital environment; technological change; Choice of Court Agreements; and Islamic finance contracts. The chapters are written by leading academics from England, Australia, Canada, the United States, Singapore and Malaysia. As such, this collection will be of global interest and importance to professionals, academics and students of contract law. Cover Half Title Series Page Title Page Copyright Page Table of Contents Detailed Contents List of contributors Table of cases Table of legislation List of articles CHAPTER 1. AN OVERVIEW Introduction Diversity and unity Doctrine Evolution and revolution CHAPTER 2. THE IMPLIED OBLIGATION OF GOOD FAITH Introduction The American experience Canada Australia Singapore United Kingdom Internationalization Concluding thoughts CHAPTER 3. GOOD FAITH IN THE SUPREME COURT OF CANADA Introduction Bhasin v Hrynew Good faith and equity Security of contracts Subsequent decisions Conclusion CHAPTER 4. THE QUAGMIRE OF UTMOST GOOD FAITH IN INSURANCE LAW: A COMPARATIVE STUDY OF MALAYSIAN, AUSTRALIAN AND ENGLISH LAWS IN CONSUMER INSURANCE CONTRACTS Introduction The evolution of the legal principle of utmost good faith in the English insurance law Carter v Boehm The evolution of the burdensome duty of utmost good faith – misrepresentation in insurance contracts under common law Influencing the judgment of the prudent underwriter Current regulation and legislation under English law The Malaysian treatment of the principle of utmost good faith The reception of English law into Malaysia – cut-off dates Pre-contractual duty of disclosure for consumer insurance contracts The Australian treatment on the duty of utmost good faith in insurance contracts The future of utmost good faith in insurance contracts: is the application of utmost good faith in insurance contracts dead? Resurrection of utmost good faith – striking a more balanced approach Conclusion CHAPTER 5. OBJECTIVITY Introduction Purpose, rules and a presumption Focus of discussion What does the contract mean? Is there a contract? Introduction Agreement between the two approaches Disagreement between the two approaches Two great nineteenth-century cases Implied terms Introduction Does the role of objectivity vary? Are implication and construction different? What does ‘necessary’ signify? Conclusions CHAPTER 6. AUTOMATED TRANSACTIONS AND THE LAW OF CONTRACT: WHEN CODES ARE NOT CONGRUENT Introduction Two classes of reasons for non-enforcement: principle and policy Coherentism and reasons of principle Regulatory-instrumentalism and reasons of policy The question of non-congruence: doctrinal principles, regulatory policies and automated transactional technologies Technological enablement Networks Deviation from the expectation measure Penalties Payments associated with an illegal contract Technological disablement A creditor’s promise to settle for less (with any attempt to recover the balance of the debt being disabled) An unfair term in a consumer transaction Conclusion CHAPTER 7. THE RESILIENCE OF CONTRACT LAW IN LIGHT OF TECHNOLOGICAL CHANGE Introduction Roadmap Contract automation and artificial intelligence Some terminology Agents Autonomy Operators and users Confronting the theories Separation theories Agency theories Absence of intention Smart contracts The legal enforceability of ‘smart contracts’ Expressing intention Consideration Encoding contracts Coding errors Predictability Encoding contracts – or obligations? Reducing ambiguity? Ubiquitous computing A brief reminder of the ‘past’ – the click-wrap debate Transactions in ubicomp A question of consent Who deserves protection? A question of context Conclusions CHAPTER 8. A COLLISION OF CONTRACT AND PRIVACY LAW IN A DIGITAL ENVIRONMENT—AN ACCIDENT WAITING TO HAPPEN! A COMPARATIVE STUDY Introduction What maketh an online contract? International agreement on electronic contracts Formation-offer? What does the social media platform offer, the use of the platform in exchange for PII? Acceptance – browse-wrap/click wrap agreements in the case of privacy agreements Acceptance general common law position, drawing on the experience in the United States Informed consent in cases of personal data protection pursuant to the EU’s general data protection regulation (GDPR), which came into force in the EU on 25 May 2018 Protection of personal data The right to withdraw consent (the right to be forgotten) and contract law Consideration What amounts to consideration in common law countries – traditional views? Information as a form of consideration Other problems in taking civil action under the law of contract Class actions Standing The use of disclaimers Breach of contract Damages The position in the United States The position in Malaysia The position in the UK Conclusion: what is the difference between a normal contract and that relating to personal data? CHAPTER 9. SETTING OUT A COMPREHENSIVE LEGAL FRAMEWORK TO GOVERN EXEMPTION CLAUSES IN MALAYSIA: LESSONS FROM THE UNITED KINGDOM AND AUSTRALIA Introduction Background of study Legal framework governing exclusion clauses under common law Meaning and type of exclusion clauses Drawbacks of the rules of incorporation Drawbacks of the rules of construction/interpretation Legal framework governing exclusion clauses under the Contracts Act 1950 Doctrine of unconscionability Public policy Agreements in restraint of legal proceedings Legal framework governing exclusion clauses under the Sale of Goods Act 1957 Exclusion of implied terms Application of law for the states of Sabah and Sarawak Legal framework governing exclusion clauses under the Hire-Purchase Act 1967 Legal framework governing exclusion clauses under the Consumer Protection Act 1999 Inadequacy of the Consumer Protection Act Unfair contract terms Guarantees in respect of supply of goods Product liability Lessons from the United Kingdom Unfair Contract Terms Act 1977 Consumer Rights Act 2015 Lessons from Australia Application of common law Section 68 Trade Practices Act 1974 (Cth) Sale of Goods Act 1923 (NSW) Contracts Review Act 1980 (NSW) Australian Consumer Laws The way forward in setting out a proper framework to govern exclusion clauses Contracts Act 1950 Sale of Goods Act 1957 Hire-Purchase Act 1967 Consumer Protection Act 1999 Specific legislation Concluding remarks CHAPTER 10. ECONOMIC DURESS: PRESENT STATE AND FUTURE DEVELOPMENT IN ENGLAND, AUSTRALIA AND MALAYSIA Introduction English law Illegitimate pressure Causation Australia Illegitimate pressure Causation Malaysia Section 15 Contracts Act 1950 Section 73 Contracts Act 1950 and economic duress A restrictive judicial approach Conclusion CHAPTER 11. THE VALIDITY OF CHOICE OF COURT AGREEMENTS IN INTERNATIONAL COMMERCIAL CONTRACTS UNDER THE HAGUE CHOICE OF COURT CONVENTION AND THE BRUSSELS IA REGULATION Introduction Concept, scope and key provisions of the Hague Convention Concept Scope Key provisions The nature and anatomy of choice of court agreements Formal validity and consent in choice of court agreements Substantive validity of choice of court agreements Severability of choice of court agreements Conclusions CHAPTER 12. DE-IDENTIFICATION OF ISLAMIC FINANCE CONTRACTS BY THE COMMON LAW COURTS Introduction Non-interventionist approach to Islamic finance contracts Interventionist approach to Islamic finance contracts Judicial treatment of Shari’ah non-compliance Judicial reference of Shari’ah non-compliance to Shari’ah scholars The way forward Index