Contract lawPDF电子书下载

1 Introduction 1

Explanation of the scheme of the book 1

History of contract law 3

The basis of contract 5

The law of contract or contracts 8

The law of obligations 9

The real world 10

Europe and beyond 11

Part ⅠTHE NEGOTIATION STAGE 11

2 Negotiating the contract 15

Introduction 15

Estoppel by convention 16

The objective test of agreement and the 'snapping up' of mistaken offers 20

Mistake of identity 22

Misrepresentation 26

General principles 27

Representations of fact 27

Silence as misrepresentation 31

Inducement 34

The actions for misrepresentation 40

Rescission 40

The recovery of damages 54

Misrepresentation in overview 73

Proprietary estoppel 73

Restitution: failed contract cases 80

Advantages and disadvantages of a restitutionary analysis 85

Collateral contracts 87

A duty to disclose? 94

Disclosure of terms 96

Contracts uberrimaefidei 98

Undue influence 99

Fiduciary relationships 101

Inequality of bargaining power 101

Statutory disclosure requirements 104

Quasi exceptions: conduct, half-truths, and With v O'Flanagan 104

Other encouragements to disclosure: Sale of Goods Act 1979 105

A wider duty to disclose 106

A duty to negotiate in good faith 109

What is it? 109

Do we have it? 112

Do we need it? 113

Conclusion 116

Part Ⅱ THE BIRTH OF THE CONTRACT 119

A Formation of a contract: the positive requirements 119

3 Agreement: offer and acceptance 119

Introduction 119

Offers and invitations to treat 120

Two caveats 122

Advertisements 123

Displays of goods 125

Auctions 127

Tenders 128

Standing offers 133

Tickets and machines 133

The termination of an offer 134

Revocation - bilateral contracts 134

Revocation - unilateral contracts 136

Rejection 139

Lapse of time 144

Death of offeror and offeree 145

Acceptance 145

Acceptance in bilateral contracts 146

The postal rule of acceptance 148

Silence as acceptance 152

Acceptance in unilateral contracts 155

Conclusion 157

4 Consideration and its substitutes 159

The traditional definition 161

Consideration and gift 161

Consideration need not be adequate 162

Past consideration 164

Moral and economic consideration 165

Compromise agreements 166

Pre-existing duties 168

The pre-existing duty arises from a contract with a third party 169

The pre-existing duty arises from the law generally 171

The substitutes 173

5 Form, intention and certainty 176

Form 176

Cautionary formal requirements 178

Informational formal requirements 179

Transferable formal requirements 180

Intention 180

Domestic and social arrangements 182

Business agreements between strangers 184

Certainty 187

Vagueness 188

Incompleteness 188

B Formation: negative factors 191

6 Illegality in formation 191

Introduction 191

Policy objectives 193

Statutory illegality 197

Illegality at common law 199

Contracts to commit a crime or a tort 201

Contracts promoting sexual indecency 202

Contracts prejudicial to the administration of justice 203

Contracts injurious to the institution of marriage or prejudicial to family life 206

Contracts liable to affect adversely the state's relations with other states 209

Contracts inconsistent with good government 209

Contracts in restraint of trade 209

Employment contracts 210

Contracts for the sale of a business 211

Other anti-competitive practices 212

Statutory control of anti-competitive practices 214

Gambling contracts 216

The effects of a gambling contract 219

The consequences of illegality 220

Enforcement of the contract 220

The recovery of money and property 221

Recovery without reliance upon the illegal contract 226

The non-reliance principle and the law of trusts 228

Critique of the non-reliance exception 228

Severance 230

Reform of the law 231

7 Non-agreement mistakes 233

Common mistake as to the existence of the subject matter of the contract 234

Common mistake as to quality 237

Mistake as to ownership of property 240

Conclusion 241

C Personnel 242

8 Capacity 242

Minors 242

Contracts for necessaries 242

Beneficial employment contracts 243

Ratification 244

Voidable contracts 244

Restitution by a minor 244

Mental incapacity 245

Companies 246

Conclusion 246

9 Third parties 247

Introduction 247

The first rule: strangers cannot enforce contracts 249

Exceptions to non-enforceability 252

Contracts (Rights of Third Parties) Act 1999 252

Other statutory exceptions 259

The trusts exception 261

Agency 264

Collateral contracts 265

Assignment 268

The law of tort 269

Action by the promisee 271

Specific performance 271

Stay of action 272

Damages 275

The second rule: contracts cannot impose obligations upon strangers 278

Land law 279

The tort of interference with contractual rights 279

Bailment 281

Part Ⅲ THE LIFE OF THE CONTRACT 281

10 The content of the contract: express and implied terms 285

Express terms 285

Term or representation? 286

Implied terms 290

Statute 290

Custom 296

The common law 296

11 The content of the contract: exclusion clauses 300

Exemption clauses 300

Incorporation 302

Construction 304

The Unfair Contract Terms Act 1977 307

Scope, concepts and definitions 308

Liability for negligence 310

Contractual liability 311

Statutory implied terms 312

The Misrepresentation Act 1967, s 3 314

The Unfair Terms in Consumer Contracts Regulations 1999 314

Overview 316

12 The modification of contracts 318

Introduction 318

Contractual flexibility 320

Opportunism 321

Where a rule of non-enforcement works 322

Where a rule of non-enforcement fails 322

The pre-existing duty doctrine 325

Rescission and new contract 328

A finding of new consideration 330

Duress 337

Introduction 337

The present approach 339

The legitimacy of the threat 340

The requirement of 'compulsion' 346

The law provides a remedy for the damage which would result if the threat were carried out 350

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 one 351

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 one 353

Independent advice 354

Subsequent affirmation 355

The ability to pass on costs 355

The non-enforcement rule 356

Waiver 357

Introduction 357

Waiver as forbearance 358

Promissory estoppel 363

Introduction 363

Unambiguous representations 365

Reliance 365

Promisee must have acted equitably 367

Is promissory estoppel suspensory or extinctive? 368

The offensive limits of promissory estoppel 370

The estoppel spectrum operationalised 380

Should promissory estoppel create a new cause of action? 383

Frustration 385

Introduction 385

Frustration and the allocation of risk 387

Increases in performance costs 395

Imposed modifications 400

Mitigation 402

Conclusion 404

13 Performance 407

Withholding performance 407

Incomplete performance 409

Illegality in performance 411

Part Ⅳ THE DEATH OF THE CONTRACT 411

14 Frustration 417

Introduction 417

The juristic basis of frustration 421

The implied term theory 421

Total failure of consideration 423

The just and reasonable solution 423

Frustration of the adventure 424

The 'radical difference' approach 424

The main applications 425

Impossibility 425

Illegality 426

Frustration of objective 426

The effects of frustration 427

15 Termination for breach 431

Anticipatory breach 432

Conditions and warranties 434

By statute 434

By the parties' own classification 435

The courts' classification 436

Innominate terms 436

Part Ⅴ THE AFTERMATH 436

16 Literal performance 441

Introduction 441

Specific performance 441

Should specific performance be more widely available? 442

What the parties want 444

History 444

Restrictions 444

Damages are an adequate remedy 444

Constant supervision 449

Contracts of personal service 450

Severe hardship 451

Conduct and inaction of the claimant 452

Absence of mutuality 452

Expectation longstop 453

Injunction 453

Action in debt 455

17 Damages for breach of contract 461

Introduction 461

The general compensatory aim 461

The three types of award 462

Loss, proof and opportunity 464

The net loss principle 466

Extra compensatory damages 470

Exemplary and aggravated damages 470

The requirement of a property interest 471

Restitution measure damages: enrichment by wrongdoing 474

The rule in Cory v Thames Ironworks Co 476

Unliquidated damages 477

The time of assessment 477

The expectation measure: pecuniary loss 478

The expectation measure: non-pecuniary loss 483

The reliance measure: pecuniary loss 486

The reliance measure: non-pecuniary loss 488

The restitution measure 490

The relationship between the measures of damage 492

Limits upon recovery 494

Causation 494

Contributory negligence 495

Remoteness 497

Recovery for ordinary losses 502

Recovery for unusual losses 503

Mitigation 504

Liquidated damages and penalties 506

Policy 506

Lord Dunedin's guidelines 508

The effect of liquidated damages clauses and penalties 516

Liquidated damages clause 516

Penalty clauses 516

Evasion of the jurisdiction 518

Sum made payable on an event other than breach of contract by the payer 518

Creation of a present debt and an acceleration clause 519

Termination clause in Lombard North Central v Butterworth 519

The forfeiture of deposits and advance payments 519

Deposits 520

Advance payments 522

Index 525