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1 Introduction1

Explanation of the scheme of the book1

History of contract law3

The basis of contract5

The law of contract or contracts8

The law of obligations9

The real world10

Europe and beyond11

Part ⅠTHE NEGOTIATION STAGE11

2 Negotiating the contract15

Introduction15

Estoppel by convention16

The objective test of agreement and the 'snapping up' of mistaken offers20

Mistake of identity22

Misrepresentation26

General principles27

Representations of fact27

Silence as misrepresentation31

Inducement34

The actions for misrepresentation40

Rescission40

The recovery of damages54

Misrepresentation in overview73

Proprietary estoppel73

Restitution: failed contract cases80

Advantages and disadvantages of a restitutionary analysis85

Collateral contracts87

A duty to disclose?94

Disclosure of terms96

Contracts uberrimaefidei98

Undue influence99

Fiduciary relationships101

Inequality of bargaining power101

Statutory disclosure requirements104

Quasi exceptions: conduct, half-truths, and With v O'Flanagan104

Other encouragements to disclosure: Sale of Goods Act 1979105

A wider duty to disclose106

A duty to negotiate in good faith109

What is it?109

Do we have it?112

Do we need it?113

Conclusion116

Part Ⅱ THE BIRTH OF THE CONTRACT119

A Formation of a contract: the positive requirements119

3 Agreement: offer and acceptance119

Introduction119

Offers and invitations to treat120

Two caveats122

Advertisements123

Displays of goods125

Auctions127

Tenders128

Standing offers133

Tickets and machines133

The termination of an offer134

Revocation - bilateral contracts134

Revocation - unilateral contracts136

Rejection139

Lapse of time144

Death of offeror and offeree145

Acceptance145

Acceptance in bilateral contracts146

The postal rule of acceptance148

Silence as acceptance152

Acceptance in unilateral contracts155

Conclusion157

4 Consideration and its substitutes159

The traditional definition161

Consideration and gift161

Consideration need not be adequate162

Past consideration164

Moral and economic consideration165

Compromise agreements166

Pre-existing duties168

The pre-existing duty arises from a contract with a third party169

The pre-existing duty arises from the law generally171

The substitutes173

5 Form, intention and certainty176

Form176

Cautionary formal requirements178

Informational formal requirements179

Transferable formal requirements180

Intention180

Domestic and social arrangements182

Business agreements between strangers184

Certainty187

Vagueness188

Incompleteness188

B Formation: negative factors191

6 Illegality in formation191

Introduction191

Policy objectives193

Statutory illegality197

Illegality at common law199

Contracts to commit a crime or a tort201

Contracts promoting sexual indecency202

Contracts prejudicial to the administration of justice203

Contracts injurious to the institution of marriage or prejudicial to family life206

Contracts liable to affect adversely the state's relations with other states209

Contracts inconsistent with good government209

Contracts in restraint of trade209

Employment contracts210

Contracts for the sale of a business211

Other anti-competitive practices212

Statutory control of anti-competitive practices214

Gambling contracts216

The effects of a gambling contract219

The consequences of illegality220

Enforcement of the contract220

The recovery of money and property221

Recovery without reliance upon the illegal contract226

The non-reliance principle and the law of trusts228

Critique of the non-reliance exception228

Severance230

Reform of the law231

7 Non-agreement mistakes233

Common mistake as to the existence of the subject matter of the contract234

Common mistake as to quality237

Mistake as to ownership of property240

Conclusion241

C Personnel242

8 Capacity242

Minors242

Contracts for necessaries242

Beneficial employment contracts243

Ratification244

Voidable contracts244

Restitution by a minor244

Mental incapacity245

Companies246

Conclusion246

9 Third parties247

Introduction247

The first rule: strangers cannot enforce contracts249

Exceptions to non-enforceability252

Contracts (Rights of Third Parties) Act 1999252

Other statutory exceptions259

The trusts exception261

Agency264

Collateral contracts265

Assignment268

The law of tort269

Action by the promisee271

Specific performance271

Stay of action272

Damages275

The second rule: contracts cannot impose obligations upon strangers278

Land law279

The tort of interference with contractual rights279

Bailment281

Part Ⅲ THE LIFE OF THE CONTRACT281

10 The content of the contract: express and implied terms285

Express terms285

Term or representation?286

Implied terms290

Statute290

Custom296

The common law296

11 The content of the contract: exclusion clauses300

Exemption clauses300

Incorporation302

Construction304

The Unfair Contract Terms Act 1977307

Scope, concepts and definitions308

Liability for negligence310

Contractual liability311

Statutory implied terms312

The Misrepresentation Act 1967, s 3314

The Unfair Terms in Consumer Contracts Regulations 1999314

Overview316

12 The modification of contracts318

Introduction318

Contractual flexibility320

Opportunism321

Where a rule of non-enforcement works322

Where a rule of non-enforcement fails322

The pre-existing duty doctrine325

Rescission and new contract328

A finding of new consideration330

Duress337

Introduction337

The present approach339

The legitimacy of the threat340

The requirement of 'compulsion'346

The law provides a remedy for the damage which would result if the threat were carried out350

The law provides a remedy for the damage which would result if the threat were carried out which in all the circumstances of the case is an adequate one351

Either the law provides a remedy for the damage which would result if the threat were carried out which in all the circumstances is an adequate one, or there exists an extra-legal alternative which in all the circumstances of the case is an adequate one353

Independent advice354

Subsequent affirmation355

The ability to pass on costs355

The non-enforcement rule356

Waiver357

Introduction357

Waiver as forbearance358

Promissory estoppel363

Introduction363

Unambiguous representations365

Reliance365

Promisee must have acted equitably367

Is promissory estoppel suspensory or extinctive?368

The offensive limits of promissory estoppel370

The estoppel spectrum operationalised380

Should promissory estoppel create a new cause of action?383

Frustration385

Introduction385

Frustration and the allocation of risk387

Increases in performance costs395

Imposed modifications400

Mitigation402

Conclusion404

13 Performance407

Withholding performance407

Incomplete performance409

Illegality in performance411

Part Ⅳ THE DEATH OF THE CONTRACT411

14 Frustration417

Introduction417

The juristic basis of frustration421

The implied term theory421

Total failure of consideration423

The just and reasonable solution423

Frustration of the adventure424

The 'radical difference' approach424

The main applications425

Impossibility425

Illegality426

Frustration of objective426

The effects of frustration427

15 Termination for breach431

Anticipatory breach432

Conditions and warranties434

By statute434

By the parties' own classification435

The courts' classification436

Innominate terms436

Part Ⅴ THE AFTERMATH436

16 Literal performance441

Introduction441

Specific performance441

Should specific performance be more widely available?442

What the parties want444

History444

Restrictions444

Damages are an adequate remedy444

Constant supervision449

Contracts of personal service450

Severe hardship451

Conduct and inaction of the claimant452

Absence of mutuality452

Expectation longstop453

Injunction453

Action in debt455

17 Damages for breach of contract461

Introduction461

The general compensatory aim461

The three types of award462

Loss, proof and opportunity464

The net loss principle466

Extra compensatory damages470

Exemplary and aggravated damages470

The requirement of a property interest471

Restitution measure damages: enrichment by wrongdoing474

The rule in Cory v Thames Ironworks Co476

Unliquidated damages477

The time of assessment477

The expectation measure: pecuniary loss478

The expectation measure: non-pecuniary loss483

The reliance measure: pecuniary loss486

The reliance measure: non-pecuniary loss488

The restitution measure490

The relationship between the measures of damage492

Limits upon recovery494

Causation494

Contributory negligence495

Remoteness497

Recovery for ordinary losses502

Recovery for unusual losses503

Mitigation504

Liquidated damages and penalties506

Policy506

Lord Dunedin's guidelines508

The effect of liquidated damages clauses and penalties516

Liquidated damages clause516

Penalty clauses516

Evasion of the jurisdiction518

Sum made payable on an event other than breach of contract by the payer518

Creation of a present debt and an acceleration clause519

Termination clause in Lombard North Central v Butterworth519

The forfeiture of deposits and advance payments519

Deposits520

Advance payments522

Index525