Mandatory and Default Rules in Contract and Commercial Law: (Hart Studies in Private Law)

Some legal rules governing commercial transactions operate as defaults, which can be modified or excluded by the parties, while others are mandatory, or non-excludable. This collection explores the nature of mandatory and default rules and the complicated relationship between them. Four issues receive close attention. The first is taxonomy: the collection distinguishes between different kinds of mandatory and default rules that govern commercial transactions. The second issue is justification. Where rules are mandatory, are there clearly understood and convincing reasons for parties to be denied choice? In the case of default rules, on what basis is the default position selected? The third issue is the relationship between default rules and interpretation, and, relatedly, between default rules and contractual risk allocation. The application of default rules inevitably raises interpretive issues, and certain problems can be addressed either by way of a default rule or the identification of implicit allocations of risk. The fourth issue is the relationship between mandatory and default rules, which is revealed to be more akin to a spectrum, with shades of compulsion and optionality, rather than a binary divide.

Table of Contents:
1. Mandatory and Default Rules: Issues and Themes, Katy Barnett, William Day, Jonathan Morgan and Andrew Robertson 2. Default and Mandatory Rules in Contract and Commercial Law: A Judicial Perspective, Sir David Foxton 3. Default Rules, Interpretation and Risk Allocation, Andrew Robertson 4. Party Intention, Default Rules and Contract Theory, Ryan Catterwell 5. Default Rules in Contract Formation, William Day 6. Default Terms in Sale of Goods Contracts, Louise Gullifer and Louise Merrett 7. When it’s Mandatory to be ‘Reasonable’: the Nature and Application of Reasonableness under the Unfair Contract Terms Act 1977, Devon Airey 8. Mandatory Statutory Rules, Consumer Contracts and Contractual Interpretation, Jeannie Marie Paterson 9. Frustration Dissected: Mandatory and Default Rules, Jonathan Morgan 10. Date of Breach as a Sticky Default Rule and the Role of the Court in Assessing Reasonable Mitigatory Measures, Katy Barnett 11. The Express Modification of Contract Law’s Default Remedial Rules, David Winterton 12. Three Forms of Default Rules (in the Law of Unjust Enrichment), Rory Gregson 13. Equity in Commerce: Why do we need Default Rules?, Man Yip 14. From Mandatory to Default Rules: Trusts in the ‘Commercial’ Context, Ying Khai Liew

About the Author :
Katy Barnett is Lecturer in Law at the University of Melbourne, Australia. William Day is Lecturer at the University of Cambridge and a barrister at 3 Verulam Buildings, UK. Jonathan Morgan is Reader in English Law and Fellow of Corpus Christi College University of Cambridge, UK. Andrew Robertson is Professor of Law and Director of Studies in Private Law at Melbourne Law School, Australia.