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