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Hohfeld was acutely aware of the 'potent tendency [of words] to control thought'. He was perhaps less aware of the power of syntax to do the same. Hohfeld's tendency to express the content of duties and liberties in the syntactically restrictive to ϕ form has allowed a corrupted version of his analytical scheme to take root. That version takes as axiomatic that the content of any duty or liberty is the action or inaction of the duty bearer or liberty holder. Yet duties and liberties can (and do) pertain to matters other than the action or inaction of the duty bearer or liberty holder. This insight has a range of doctrinal implications. [ABSTRACT FROM AUTHOR]

Taking inequality as a key challenge of our time, this article aims to highlight consumer markets, and their underpinning legal ground rules, as important contributors to inequitable wealth distributions. It illustrates how product design, as manifested in contractual terms, can allow firms to evade competition and divert resources upwards along society's wealth distribution curve. It then highlights the contestable legality of certain pricing practices, such as 'contingent charges', and the challenge they pose to fundamental principles of contract law. An in-depth view of the 2015 case of Beavis v ParkingEye argues that the UK Supreme Court has validated contingent pricing models in a manner unsupported by traditional contractual reasoning and unjustified by contemporary market failure analysis. The article asks contract law to confront the reality that it shapes market distributions in economically and politically significant ways, and appeals for greater scrutiny of the contribution of contract law adjudication to inequality. [ABSTRACT FROM AUTHOR]

Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties' agreement; implied terms are derived from express terms by a process of reasoning, albeit one aimed at establishing the parties' commitments. [ABSTRACT FROM AUTHOR]

This article considers the extent to which the law of contract is dictated by promise, agreement or intention rather than prevailing norms and standards. It argues that, over the last century, contract law has developed along two different lines. Through statute, policy objectives have been increasingly implemented in contract, in particular, with respect to consumer protection. By contrast, judge-made law has developed, particularly in the commercial context, so as to place greater emphasis on giving effect to what parties promise, agree or intend. This article analyses these changes through an empirical investigation of the law as it has developed in practice. It shows that contract law involves a balance between autonomy and institutionalism; it demonstrates that, beyond consumer protection under statute, contract has shifted in favour of party autonomy. [ABSTRACT FROM AUTHOR]

The new law of contractual discretion is developing apace. This article addresses three major issues in this dynamic field. First, the article propounds an analytical framework for understanding the nature and practice of reasonableness review in the contractual setting, based on doctrinal exegesis of the full run of cases on contractual discretion. Significantly, the analysis demonstrates that review of contractual discretion is characterised by a 'variable intensity' approach: the intensity with which courts scrutinise exercises of discretion is dependent on a series of contextual factors. Second, the article analyses the genus of the implied term, which imposes legal constraints on contractual decision-makers, arguing that the term is properly conceptualised as a term implied in law. Third, the article addresses the remedial consequences of non-compliance with implied fetters, identifying three different remedial models in the case law. The article challenges the common assertion that damages are the invariable remedy, arguing that an impugned exercise of discretion may be void or voidable. [ABSTRACT FROM AUTHOR]

The question of loss is central to the account of negotiating damages, namely whether it is correct to view the breach of a contractual right as a measurable loss to the claimant. The UK Supreme Court in One Step clarified the circumstances in which negotiating damages can be awarded. The decision aimed to explain that negotiating damages are compensatory in nature, but revealed several flaws in the Court's reasoning. I draw on leading cases, including One Step , to show that negotiating damages can be plausibly explained by the compensatory principle. I explain that the loss suffered by the claimant is the 'choice value' of his infringed contractual right to performance, and that damages are awarded to the claimant equivalent to the value of his lost choice. If this new choice value approach I develop is correct, then negotiating damages can be understood as compensating the loss of the value of choice. [ABSTRACT FROM AUTHOR]

Judges in judicial review cases in New Zealand and the UK currently begin with the presumption that the existence of a contract means that the matter should be treated as a private law one—at least in the absence of a special 'public element'. This article argues that all contracts with government entities should be treated as presumptively public. Such a position can be justified by recourse to liberal contract theory. Arthur Ripstein's Kantian theory identifies the critical role of the state in securing the background conditions for the operation of private law. These are unsettled when a government entity is one of the parties to a contract. [ABSTRACT FROM AUTHOR]

The contra proferentem rule has been under sustained attack in recent years, as judges doubt whether it has any role to play in modern commercial contract law. This article sheds light on the function of the rule by examining its historical development. The rule has been part of English contract law for over 600 years, playing very different roles at each stage of its development. Lawyers since the medieval period have criticised the rule, but have succeeded in continually repurposing it to fit with new conceptions of contract law and to address the most pressing concerns of their day. This article shows that the contra proferentem rule can provide a fascinating case study in the development of common law doctrine, and argues that the future need not be wholly bleak for one of our longest-lived canons of construction. [ABSTRACT FROM AUTHOR]

This article examines an underexplored reason to have contract law: conflict minimisation. An important function of contract law, the article contends, is to diminish the wasted time, effort and resources spent on disputes over economic exchange, and to reduce the incidence of harm resulting from these disputes. Minimising conflict typically serves the parties' own interests, and it also serves the public interest in social peace. These insights have implications not just for contract law as a whole, but also for its doctrinal details. The article thus discusses how several doctrines of substantive contract law help to minimise conflict, without claiming that currently prevailing contract law regimes are perfectly adapted to this aim. Finally, it defends the normative claim that conflict minimisation should be considered one of contract law's goals. [ABSTRACT FROM AUTHOR]

Under Directive 86/653/EEC on the co-ordination of the laws of European Union Member States relating to self-employed commercial agents, commercial agents have an obligation to act 'dutifully and in good faith' (the Obligation). This article considers the impact that this general good faith clause has had upon the UK legal order. It first analyses the Obligation, assessing its scope, function and content. It then reviews the choices made by the UK legislature in implementing this duty and scrutinises the manner in which it has been construed and applied by UK courts, as well as commentators. Finally, it charts the areas of the pre-existing common law agency rules that are affected by this imported notion and appraises the resulting alterations to the positive law. [ABSTRACT FROM AUTHOR]

This article examines the current approach to the quantification of damages for non-pecuniary loss, and the issues that have arisen therein. Notwithstanding the acceptance by English contract law that certain forms of non-pecuniary loss are compensable, substantial difficulties still arise when attempting to quantify such loss. In particular, the courts have struggled to justify damages in cases that require some measurement of the value of the 'subjective' loss to the claimant. One method of measurement is the concept of consumer surplus, as demonstrated in the oft-cited cases of Ruxley v Forsyth and Farley v Skinner. This article discusses various inconsistencies with the courts' application of the term consumer surplus, and posits a solution for quantification of loss in such situations, using tools already available to economists (viz equivalent and compensatory valuation deployed in the course of cost-benefit analyses). In so doing, the article seeks to promote the utility of the consumer surplus as a remedial tool, and advance the underlying goals of contract law. [ABSTRACT FROM AUTHOR]

In John Rawls's theory, the role of the principles of justice is to regulate the basic structure of society--its major social, political and economic institutions-- and to specify the fair terms of cooperation for free and equal persons. Some have interpreted Rawls as excluding contract law, and perhaps the private law as a whole, from the basic structure. However, this interpretation of Rawls is untenable, given the motivations for his emphasis on the basic structure and the highly inclusive characterisations he gives of it. Yet if he includes private law within the basic structure, he seems committed to holding that its design and operations should be regulated by his two principles of justice, which govern the distribution of basic liberties, economic resources and opportunities. This would leave it unclear whether there was any room for values other than distributive values to inform the design of private law. Leaving no role for other values might be unproblematic if distributive justice were a master normative category with equal regulative authority over all basic social institutions. But we should not assume that this 'distributivist paradigm' gives the best interpretation either of private law or of the fair terms of cooperation for a society of free and equal people. We need to think further about how non-distributive values may inform the principles of justice that regulate the institutional structure of society. And we need to ask how much of law, whether public or private, is regulated solely by principles of justice that focus on the distribution of basic liberties, economic resources and opportunities. [ABSTRACT FROM AUTHOR]

Contract terms can be express or implied. But what does that mean? I argue that the distinction can be illuminated by reference to the philosophy of language. Express terms are best understood by reference to the truth-conditional content of the parties' agreement; implied terms are derived from express terms by a process of reasoning, albeit one aimed at establishing the parties' commitments., (© The Author(s) 2022. Published by Oxford University Press.)

While it has recently been established that an account of profits may be awarded for torts or breaches of contract in ‘exceptional cases’, it remains unclear when this requirement will be satisfied. This article explores the issue in the light of the principal justification offered by courts and commentators for stripping defendants of profits: the deterrence of wrongdoing. It concludes that deterrence provides less support for accounts of profits than is often assumed. In particular, this rationale does not justify stripping defendants of consequential profits for every ‘cynical’ wrong, as is commonly suggested. Weight must equally be given to the importance of the relevant interest, the gravity of the breach and the vulnerability of the interest in question. In addition, it must be asked how effective an account of profits would be at deterring future transgressions in a particular context and what costs would come from its use. This analysis explains how some ‘exceptional cases’ can indeed be identified as justifying profit-stripping relief in the interests of optimal deterrence. Nonetheless, these objectives will seldom justify extending the account of profits beyond the contexts in which it has traditionally been employed. [ABSTRACT FROM PUBLISHER]

While rescission and restitution are closely related, they are not identical concepts. The election requirement in rescission is a key feature that distinguishes that process from a claim for ‘simple’ restitution. This article considers the election requirement and concludes that it need not be restricted to its contractual operation within the law of unjust enrichment. Election could also play an important role in determining the availability of proprietary restitution for unjust enrichment. [ABSTRACT FROM PUBLISHER]

The new law of contractual discretion is developing apace. This article addresses three major issues in this dynamic field. First, the article propounds an analytical framework for understanding the nature and practice of reasonableness review in the contractual setting, based on doctrinal exegesis of the full run of cases on contractual discretion. Significantly, the analysis demonstrates that review of contractual discretion is characterised by a 'variable intensity' approach: the intensity with which courts scrutinise exercises of discretion is dependent on a series of contextual factors. Second, the article analyses the genus of the implied term, which imposes legal constraints on contractual decision-makers, arguing that the term is properly conceptualised as a term implied in law. Third, the article addresses the remedial consequences of non-compliance with implied fetters, identifying three different remedial models in the case law. The article challenges the common assertion that damages are the invariable remedy, arguing that an impugned exercise of discretion may be void or voidable., (© The Author(s) 2022. Published by Oxford University Press.)