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About this book

This textbook is an engaging introduction to the more advanced writings on contract law, primarily designed to allow students to ‘get under the skin’ of the topic and begin to build their critical thinking and analysis skills. Each chapter is structured around key questions and debates that provoke deeper thought and, ultimately, a clearer understanding. This edition has been extensively rewritten to include new cases and scholarship throughout. New sections include ‘no oral modification’ clauses, substantive fairness, regulation of standard-form contracts, and remoteness of damage in contract.


An excellent book for students of contract law who wish to know more, the aim of the book is not to present a complete overview of theoretical issues in contract law, but rather to illustrate the current debates which are currently going on among those working in shaping the area. The text features summaries of the views of notable experts on key topics and each chapter ends with a list of guided further reading.

Table of Contents

Chapter 1. Formation of Contract

Abstract
Does the law on offer and acceptance respect the parties’ intentions?
Jonathan Morgan

Chapter 2. Enforceability: Consideration, Intention and Estoppel

Abstract
The rules on offer and acceptance (and certainty) ascertain whether agreement has been reached (see Chapter 1). We now examine the requirements for agreements to be legally enforceable contracts. The English rules are complex to the point of eccentricity. The cornerstone of the common law is the doctrine of consideration, which appears ‘surprising, even shocking’ to civilian eyes. We examine whether it serves any useful purpose in the modern law of contract. A possible alternative is the doctrine of ‘intention to create legal relations’. Consideration has proved especially controversial as a requirement for the modification of contracts (Debate 3). Finally, we examine calls for an expanded, reliance-based form of liability – and inquire whether ‘estoppel’ is truly distinct from contract law, or a branch of it.
Jonathan Morgan

Chapter 3. Standard Forms and Written Contracts

Abstract
The standard form has long been an inevitable fact of modern contracting. Although English law does not require contracts to be made in writing (with exceptions such as sales of land), in practice most contracts are. Few are individually negotiated. Standardisation drastically reduces the cost of negotiations in an economy based on mass transactions. Standard forms’ prevalence (ever-greater in online commerce) shows their indispensability. But they have been denounced as ‘contracts of adhesion’ presented on a take-it-or-leave-it basis, allowing enterprises to impose their will on consumers – resembling legislative fiat rather than true contractual agreement.
Jonathan Morgan

Chapter 4. Contractual Content: Terms and Their Meaning

Abstract
By far the most important question that contract lawyers face in legal practice is the meaning of the words in the contract. Courts spend considerable time resolving disputes about the correct interpretation of contracts. This sounds mundane. Yet the subject is surprisingly controversial. With its practical importance and blossoming theoretical interest, interpretation is the subject of Debate 1. Second, we examine the implication of terms. Is it an extended version of interpretation or an entirely different process? As for terms implied ‘by law’, their basis is unsurprisingly controversial as they conflict with the basic notion of contractual obligations being assumed by the parties.
Jonathan Morgan

Chapter 5. Misrepresentation and Mistake

Abstract
It is not uncommon to enter a contract holding a mistaken belief about a significant matter. English law’s response is complex. Where the mistake stemmed from a positive misstatement made by the other party the law quite readily finds the contract voidable for misrepresentation. The two main debates in this chapter concern doctrines standing in contrast to misrepresentation: first, that a failure to disclose information is not usually actionable (why not?); second, that a sufficiently fundamental mistake negates or nullifies the consent necessary for formation, so that the apparent contract is rendered void (not merely voidable). The effect (and indeed the very existence) of the doctrines of identity mistake (fraudulent impersonation) and common mistake has been questioned. Before turning to these we briefly indicate some problems in the law of misrepresentation. Although nobody questions its existence, many of the detailed rules are controversial.
Jonathan Morgan

Chapter 6. Frustration

Abstract
What is the basis of the doctrine of frustration?
Jonathan Morgan

Chapter 7. Inequality of Bargaining Power

Abstract
What is economic duress?
Jonathan Morgan

Chapter 8. Party-Agreed Remedies

Abstract
Remedies have a central place in contract theory. Alan Farnsworth claims:Whereas contract law supplies relatively few ‘primary obligations’ there are ‘a good number providing for remedies in all their various guises’. Moreover Sarah Worthington observes:As Worthington says: ‘That boundary needs justifying’. She concludes that it cannot be justified despite its deep roots.
Jonathan Morgan

Chapter 9. Judicial Remedies: Performance, Compensation and Remoteness

Abstract
Every breach of contract attracts remedies as a matter of law, even when the contract is silent on the question. These rules illuminate the basis of obligation as perceived by contract lawyers. In particular, remedies point up the contrast between ‘moral’ and ‘instrumental’ approaches to law. This is the most hotly contested area of contract theory. (Of course though, as seen in the previous chapter, others argue that the law of contract remedies should only be a default regime out of which parties should be free to contract. As Epstein puts it, ‘The operative rules should be chosen by the parties for their own purposes, not by the law for its purposes’.)
Jonathan Morgan
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