Contract as Assumption II: Formation, Performance and Enforcement

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.

Table of Contents:
1. Introduction 2. Reflections on Intention in the Law of Contract 3. The Instantaneous Transmission of Acceptances 4. Dunlop v Lambert: The Search for a Rationale 5. Sale of Goods at Auction Without Reserve 6. Correspondence with Description in the Law of Sale of Goods 7. Deviation and the Ordinary Law 8. PART I: The Effect of Discharge by Breach on Exception Clauses 8. PART II: Discharge for Breach and Exception Clauses Since Harbutt’s ‘Plasticine’ 9. Another Look at Bowmakers v Barnet Instruments 10. Chance and the Burden of Proof in Contract and Tort 11. Damages, The Liesbosch, and Impecuniosity 12. Contract as Assumption and Remoteness of Damage 13. Contract: An Underview

About the Author :
Brian Coote, CBE, FNZAH, FRSNZ is an Emeritus Professor and sometime Dean of Law at the University of Auckland, and has published widely on Contract topics. JW Carter is Emeritus Professor of Law in Sydney Law School in the University of Sydney, and Consultant at the international law firm Herbert Smith Freehills.

Review :
This collection brings together some of the thought-provoking, still relevant and carefully reasoned views that characterise one of the greatest contract scholars of our time.