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This article articulates a theory of relational contract, as an alternative to traditional freedom of contract philosophy. The law has moved away from freedom of contract to some extent, and it can be criticised on the basis of its unrealistic assumptions and detachment from the typical reality of parties' contracting. Relational contract theory is a possible suitable alternative theoretical framework. It may be useful in relation to contract interpretation. Specifically, it can be utilised to support a broader approach to contract interpretation, with the court focussing on the entirety of the parties' relations, including the written terms and also subsequent performance. It enjoys some support in the United Kingdom and in other common law jurisdictions. It can support the view taken by two justices of the High Court of Australia in a recent contract interpretation decision involving employment contracts. The article favours the approach taken by these justices, rather than that of the majority, whose judgment reflects classic contract law sentiments at odds with the general direction of contract law in comparative jurisdictions. [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]

Covid-19 has created an unexpected global pandemic which has brought unprecedented and wide ranging restrictions from governments around the world. One result of these events has been profound disruptions to individual contracts. This article considers the nature and history of the doctrine of frustration in English law. The lack of certainty in ascertaining whether or not an event is a frustrating one is examined. A consideration of the particular problems innumerable parties will face in attempting to decide whether or not their contract has been discharged by frustration as a result of Covid-19 and the regulations designed to curtail the virus are made. The article concludes with an overview of the Law Reform (Frustrated Contracts) Act 1943. [ABSTRACT FROM AUTHOR]

The literary agent is a recent addition to the publishing industry, yet in a relatively short space of time has become instrumental in the production of literature. This article examines the origins and development of the A.P. Watt literary agency to explore how it became a dominant organisation in the late nineteenth century. It analyses how its founder Alexander Pollock Watt, despite being met with resistance, gained legitimacy to be accepted by authors and publishers. Through an analysis of historical sources this article argues that by using contract law, Watt was able to disrupt existing business practices. [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]

Purpose - This paper focuses on the application of the postal rule to email, due to the controversy surrounding the application of the "instantaneous" test to emails. Methodology/approach/design - This article analyses standards and literature on the formation of contract under English law. Findings - Although the postal rule is an invention of its time, this rule could still play a role regarding emails. Indeed, due to the difficulties in applying the "instantaneous" test to emails, emails would still be subject to the postal rule. Of course, the postal rule in its current form is no more fitting the reality. However, the benefits that such rule provides should not be lost, instead a new rule could be drafted based on the postal rule. Practical implications - This article discusses the possible improvements to the already existing framework. Originality/value - This paper analyses the use of the postal rule to electronic contracts in the UK, a topic that is not much researched but could have great importance when doing electronic business. [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]

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]