Contract Law and Contract Practice
Home > Law > Laws of specific jurisdictions > Company, commercial and competition law: general > Contract law > Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation
Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation

Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation


     0     
5
4
3
2
1



International Edition


X
About the Book

An oft-repeated assertion within contract law scholarship and cases is that a good contract law (or a good commercial contract law) will meet the needs and expectations of commercial contractors. Despite the prevalence of this statement, relatively little attention has been paid to why this should be the aim of contract law, how these 'commercial expectations' are identified and given substance, and what precise legal techniques might be adopted by courts to support the practices and expectations of business people. This book explores these neglected issues within contract law. It examines the idea of commercial expectation, identifying what expectations commercial contractors may have about the law and their business relationships (using empirical studies of contracting behaviour), and assesses the extent to which current contract law reflects these expectations. It considers whether supporting commercial expectations is a justifiable aim of the law according to three well-established theoretical approaches to contractual obligations: rights-based explanations, efficiency-based (or economic) explanations and the relational contract critique of the classical law. It explores the specific challenges presented to contract law by modern commercial relationships and the ways in which the general rules of contract law could be designed and applied in order to meet these challenges. Ultimately the book seeks to move contract law beyond a simple dichotomy between contextualist and formalist legal reasoning, to a more nuanced and responsive legal approach to the regulation of commercial agreements.

Table of Contents:
1. Introduction: The Relationship between Contract Law and Commercial Expectations Contexts and Background The Deficiencies of Classical Contract Law The Wider Debate: A Contextual and Relational Approach to Contracts Specific Lines of Enquiry Defining and Identifying 'Commercial Expectations' Descriptive Accuracy of the Mismatch Claim Theoretical Difficulties Posed by the Commercial Expectations Argument (i) Efficiency and Rights-based Theories (ii) Relational Contract Theory The Capacity of Contract Law (i) The Character and Limits of Legal Regulation (ii) The Limits of the Socio-legal and Empirical Scholarship Commercial Agreements, Contracts and Contract Law 2. Understanding Commercial Expectations What Does an Appeal to Commercial Expectations Mean? Why do Commercial Expectations Matter? A More Accurate Picture of the Parties' Agreement Accordance with the Self-understandings of Participants in the Practice The Role of Co-operation in Business Dealings The Perceived Values of Commercial Law Normative Derivation of Commercial Expectations Changes in Contracting Practice The Influence of Transaction Cost Economics Networks Umbrella Agreements Conclusion 3. The Contours and Sources of Commercial Expectations Empirical Studies of Commercial Contracting Behaviour Preliminaries The Use of Legally Enforceable Contracts The Use of Private Legal Systems Norms of the Business Relationship Do Customs Exist? Legalisation of Immanent Business Norms Costs of Enforcement The Role of Trust in the Business Relationship Conclusion 4. Current Contract Law and Commercial Expectations Tensions between Law and Commercial Contracting Behaviour The Significance of the Documents (i) Differing Frameworks for an Agreement (ii) Absence of Formalities Contract Interpretation and Commercial Reasonableness Contracts and their Contents The Battle of the Forms Contracting for Flexible Commitments Conclusion 5. Commercial Expectations and Theories of Contract Law Distinguishing Rights-based and Efficiency Accounts of Promising Promissory Theories Main Features Promissory Theories and Commercial Expectations Economic Analysis of Contract Main Features Economic Analysis and Commercial Expectations Characteristics of the Contracting Parties The Efficiency of Social Norms Contract Modification Contract Interpretation A Variable Approach? Conclusion 6. The Relational Theory of Contract Characteristics of Relational Analysis of Contracts Essential Contract Method: Macneil's Common Contract Norms Significance for the Law of Contract Relational Legal Reasoning: Initial Difficulties Neoformalism Relational Legal Reasoning: Possible Processes Conclusion 7. Commercial Expectations and Legal Capacity Relationalism, Contract Law Rules and Common Law Method Relationalism, Judicial Legitimacy and Judicial Activism Objectivity Legal Commitment to the Written Agreement The Litigation Process Litigating Parties Contract Law as a Product Litigation as a Self-contained Context Transformation and Legalisation of Norms Judicial Expertise and Error Path Dependency and the Characteristics of Legal Regulation Conclusion 8. Conclusion: Aligning Contract Law and Commercial Expectations The Binary Divide of Formalism and Contextualism Methods of Effecting a Relationally Constituted Contract Law Contextual Interpretation Case Examples (i) Conflict between Formal and Informal Norms: RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Productions) (ii) Interpreting the Agreement as a Unified Scheme: Total Gas Marketing v Arco British (iii) Avoiding a Doctrine-driven Approach: Durham Tees Valley Airport Ltd v BMIBaby Ltd Changing Mindset Contracting In or Contracting Out of Contextualism? Conclusion

About the Author :
Catherine Mitchell is a Reader in Law at the University of Hull.

Review :
Mitchell's book is a very valuable contribution to our understanding of and thinking about relational contract theory...Her book deserves to be read by every serious student of contract law. This is a stimulating and highly insightful work, meticulously researched, carefully argued, and both cognisant of and scrupulously fair to counter-argument. It is an important contribution to contract scholarship and deserves to be widely read. Ms. Mitchell’s scholarship is impressive and the range of material that she has covered means that she has developed a powerful tool for examining the question she has set out to answer.


Best Sellers


Product Details
  • ISBN-13: 9781849461214
  • Publisher: Bloomsbury Publishing PLC
  • Binding: Hardback
  • Language: English
  • Spine Width: 24 mm
  • Weight: 620 gr
  • ISBN-10: 184946121X
  • Publisher Date: 02 Dec 2013
  • Height: 236 mm
  • No of Pages: 312
  • Sub Title: Bridging the Gap Between Legal Reasoning and Commercial Expectation
  • Width: 166 mm


Similar Products

Add Photo
Add Photo

Customer Reviews

REVIEWS      0     
Click Here To Be The First to Review this Product
Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation
Bloomsbury Publishing PLC -
Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation
Writing guidlines
We want to publish your review, so please:
  • keep your review on the product. Review's that defame author's character will be rejected.
  • Keep your review focused on the product.
  • Avoid writing about customer service. contact us instead if you have issue requiring immediate attention.
  • Refrain from mentioning competitors or the specific price you paid for the product.
  • Do not include any personally identifiable information, such as full names.

Contract Law and Contract Practice: Bridging the Gap Between Legal Reasoning and Commercial Expectation

Required fields are marked with *

Review Title*
Review
    Add Photo Add up to 6 photos
    Would you recommend this product to a friend?
    Tag this Book Read more
    Does your review contain spoilers?
    What type of reader best describes you?
    I agree to the terms & conditions
    You may receive emails regarding this submission. Any emails will include the ability to opt-out of future communications.

    CUSTOMER RATINGS AND REVIEWS AND QUESTIONS AND ANSWERS TERMS OF USE

    These Terms of Use govern your conduct associated with the Customer Ratings and Reviews and/or Questions and Answers service offered by Bookswagon (the "CRR Service").


    By submitting any content to Bookswagon, you guarantee that:
    • You are the sole author and owner of the intellectual property rights in the content;
    • All "moral rights" that you may have in such content have been voluntarily waived by you;
    • All content that you post is accurate;
    • You are at least 13 years old;
    • Use of the content you supply does not violate these Terms of Use and will not cause injury to any person or entity.
    You further agree that you may not submit any content:
    • That is known by you to be false, inaccurate or misleading;
    • That infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
    • That violates any law, statute, ordinance or regulation (including, but not limited to, those governing, consumer protection, unfair competition, anti-discrimination or false advertising);
    • That is, or may reasonably be considered to be, defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation;
    • For which you were compensated or granted any consideration by any unapproved third party;
    • That includes any information that references other websites, addresses, email addresses, contact information or phone numbers;
    • That contains any computer viruses, worms or other potentially damaging computer programs or files.
    You agree to indemnify and hold Bookswagon (and its officers, directors, agents, subsidiaries, joint ventures, employees and third-party service providers, including but not limited to Bazaarvoice, Inc.), harmless from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown including reasonable attorneys' fees, arising out of a breach of your representations and warranties set forth above, or your violation of any law or the rights of a third party.


    For any content that you submit, you grant Bookswagon a perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from and/or sell, transfer, and/or distribute such content and/or incorporate such content into any form, medium or technology throughout the world without compensation to you. Additionally,  Bookswagon may transfer or share any personal information that you submit with its third-party service providers, including but not limited to Bazaarvoice, Inc. in accordance with  Privacy Policy


    All content that you submit may be used at Bookswagon's sole discretion. Bookswagon reserves the right to change, condense, withhold publication, remove or delete any content on Bookswagon's website that Bookswagon deems, in its sole discretion, to violate the content guidelines or any other provision of these Terms of Use.  Bookswagon does not guarantee that you will have any recourse through Bookswagon to edit or delete any content you have submitted. Ratings and written comments are generally posted within two to four business days. However, Bookswagon reserves the right to remove or to refuse to post any submission to the extent authorized by law. You acknowledge that you, not Bookswagon, are responsible for the contents of your submission. None of the content that you submit shall be subject to any obligation of confidence on the part of Bookswagon, its agents, subsidiaries, affiliates, partners or third party service providers (including but not limited to Bazaarvoice, Inc.)and their respective directors, officers and employees.

    Accept

    New Arrivals


    Inspired by your browsing history


    Your review has been submitted!

    You've already reviewed this product!