Contract Law and the Legislature : Autonomy, Expectations, and the Making of Legal Doctrine

This volume revisits some of the key debates about the nature and shape of contract law in light of the impact that statutes have had on its development. With contributions from leading contract law scholars, it fills a significant gap in existing theoretical and doctrinal analyses of contract law, which draw almost exclusively on cases to put forward accounts of the general principles and structure of contract law. Statutory rules are, typically, seen as being specific instances of legal regulation that carve out exceptions to these general principles for specific reasons of policy. This treatment of these rules has resulted in an incomplete understanding of the nature of contract law and the principles that underpin it. By drawing specifically on contract statutes, the volume produces a more complete picture of modern contract law. A companion to the ground-breaking Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing, 2012), this collection will have a significant impact on the study of contract law. Acknowledgements Contents List of Contributors 1. Introduction: Legislation and the Shape of Contract Law I. Contract and the Missing Legislature: Implications II. Putting Statutes at the Core: Three Key Themes III. The Impact of Statutes: Contracts, Markets and a Statutory Trilemma PART I: REMAKING THE LAW: THE PURPOSES AND EFFECTS OF STATUTES 2. Preservation, Removal and Freezing of the Common Law by Statute I. Preservation of the Common Law II. Removal of the Common Law III. Freezing of the Common Law IV. Final Remarks 3. History, Context and the Problem of Juristic Method: The Chancery Amendment Act 1858 and the Law of Contract I. Introduction: Statutes in Changing Contexts II. Narrow Purposes and Broad Effects: The Judicial Embrace of Lord Cairns' Act III. Statutes and the Courts: A Problem of Integration IV. Rethinking the Role of Context V. Conclusion: Statutes, Method and Theory 4. The Lasting Impact of the Judicature Acts 1873–1875 upon Contract Law I. Introduction II. Equity in Contract before the Judicature Acts III. The Judicature Acts 1873–1875 IV. Misrepresentation V. Mistake VI. Unconscionability VII. Conclusions 5. Contract and the Challenge of Consumer Protection Legislation I. Introduction II. Contract and the Rise of Consumer Protection Legislation III. The Impact of Consumer Protection Legislation on Contract IV. The Marginalisation of Statute V. The Resilience of Consumer Protection Law VI. Conclusion 6. A Reputation for Boldness: Statutory Reform of Contract Law in New Zealand I. Introduction II. Membership of the Committee III. The Operation of the Committee IV. The State of Contract Law in New Zealand in the 1960s V. Illegal Contracts VI. Mistaken Contracts VII. Misrepresentation and Breach of Contract VIII. A Contract Code for New Zealand PART II: FAIRNESS, COMMERCIALITY AND THE NATURE(s) OF CONTRACT 7. The Consequences of Defying the System of Natural Liberty: The Absurdity of the Misrepresentation Act 1967 I. Introduction II. A Brief Comparison of LRFCA 1943 and MA 1967 III. Innocent Misrepresentation Prior to the 1960s IV. What the Law Reform Committee Tried to Do V. The Background to the Law Reform Committee's Approach VI. Conclusion Appendix 8. Two Laws of Contract, or One? I. Private and Public Points of View II. The Decay of the Private and the Rise of the Public III. The Collins Thesis IV. The Opposition V. Conclusion 9. Compulsion, Choice and Statutory Intervention in Contract: Implied Terms of Quality in Sale of Goods I. Introduction II. A Taxonomy of Implied Terms III. Statutory Default Rules IV. Statutory Immutable Rules V. Conclusions 10. Contract Law Reform by Statute in a Common Law System: The Work of the Law Commissions I. Background for the Contract Code Project II. The UK Contract Code Project: A Study in Failure III. The Contract Work of the Law Commissions 1973–2000 IV. Law Commission Bills and the Legislatures V. Conclusion 11. The Reform of French Contract Law: The Struggle for Coherency I. Introduction II. The French Civil Code: An Exceptional Piece of Legislation III. The Origins of the Recent Reform of French Contract Law IV. The Ambitious Goals of the Reforms V. Concluding Observations: A Missed Opportunity for Coherent Reform 12. Statutes and the Common Law of Contracts: A Shared Methodology I. Introduction II. Courts and Legislatures: Differences and Similarities III. Private Ordering without Intervention or Contracting IV. Non-adjudicable Norm Omitted from Express Contract: Should Law Add a Term? V. Private Agreements Formed without Statutes: Government Intervention to Enforce or Add Remedial Defaults VI. Statutes Intervening to Help Parties Achieve Goals they could not Achieve Privately VII. Statutes or Common Law Rules to Facilitate Contracting Save Parties' Transaction Costs, Overcome Bargaining Obstacles and Develop an Efficient Governance Form VIII. Mandatory Disclosure in Securities, Real Estate and Consumer Contexts: What Works? IX. Terms Forbidden by Legislature: Regulatory Intervention and its Limits X. Conclusion 13. Insurance and Price Regulation in the Digital Era I. Contract, Statute and the 'Price Optimisation' Conundrum II. Price Optimisation, Adam Smith's Invisible Hand and Freedom of Contract III. The Legislative Basis for Price Regulation IV. Price Optimisation and Regulation V. Conclusion PART III: CONTRACTS AND SOCIAL ORGANISATION 14. Understanding the (Re-)regulation of Private Renting in England: Karl Polanyi, the Rogue Landlord, the Responsible Tenant and the Decent Home I. Introduction II. Polanyi and the Contemporary Crisis of Housing III. The Resurgence of the Market - The Housing Act 1988 IV. The Contemporary Re-Regulation of the Private Rented Sector V. Contestation, Contingency and Complexity in the Current Countermovement VI. Contemporary Re-regulation and Countermovements VII. Conclusion 15. Regulating Commercial Contracts: What can we Learn from Part II of the Housing Grants, Construction and Regeneration Act 1996? I. Introduction II. A Blind Spot in Contract Scholarship III. Reframing the Inquiry IV. 'Trust and Money' – The Origins of the HGCRA V. 'Constructing the Team' – Recommendations and Implementation VI. A New Kind of Regulation VII. Conclusion 16. Contractual Enforceability and Surrogacy Arrangements: Mapping the Moral Limits I. Introduction II. Background: Origins of Unenforceability of Contracts in the Surrogacy Context III. Moving Towards Reform of Surrogacy Law: Questions of Enforceability in the Spotlight? IV. Enforceability of Surrogacy Arrangements: Likely Practical Effects? V. Enforceability of Surrogacy Contracts: Exploitation, Autonomy and Contract Law VI. The Unintended Consequences of Removing Areas from the Remit of Contract Law VII. Enforceable Contracts and Surrogacy: The Theoretical Basis? VIII. Conclusion 17. Contract Law and Economic Reform in China I. Conceptual Framework: The Co-Evolution of Contract Law and Economy II. A Brief Overview of China's Economic Reform III. The Evolution of Chinese Contract Law IV. China as a Test for a Co-Evolutionary Model V. Conclusion 18. Relational Regulation – The Role of Contract and the Evolution of Habitat Protection Legislation I. Introduction II. The Use of Contract in Habitat Protection III. The Evolution of Relational Regulation in Habitat Protection Law IV. Contracts and Effective Relational Regulation V. Conclusion PART IV: CONCLUSION 19. Remapping Contract Law: Four Perceptions of Markets I. Introduction II. Dichotomies and their Limits III. Beyond Dichotomies: Four Perceptions of Contracting IV. From 'Autonomy' to 'Expectations': Rethinking Contract Doctrine Index Introduction : Legislation and the Shape of Contract Law / -- TT Arvind and Jenny Steele -- Preservation, Removal and Freezing of the Common Law by Statute / Andrew Burrows -- History, Context and the Problem of Juristic Method: The Chancery Amendment Act 1858 and the Law of Contract / -- TT Arvind and Jenny Steele -- The Lasting Impact of the Judicature Acts 1873-1875 upon Contract Law / Catharine MacMillan -- Contract and the Challenge of Consumer Protection Legislation / Jeannie Paterson and Elise Bant -- A Reputation for Boldness : Statutory Reform of Contract Law in New Zealand / Warren Swain -- The Consequences of Defying the System of Natural Liberty : The Absurdity of the Misrepresentation Act 1967 / -- David Campbell -- Two Laws of Contract, or One? / Steve Hedley -- Compulsion, Choice and Statutory Intervention in Contract : Implied Terms of Quality in Sale of Goods / Jonathan Morgan -- Contract Law Reform by Statute in a Common Law System : The Work of the Law Commissions / Hector MacQueen -- The Reform of French Contract Law : The Struggle for Coherency / Solène Rowan -- Statutes and the Common Law of Contracts : A Shared Methodology / Juliet P Kostritsky -- Insurance and Price Regulation in the Digital Era / James Davey -- Understanding the (Re-)regulation of Private Renting in England : Karl Polanyi, the Rogue Landlord, the Responsible Tenant and the Decent Home / Helen Carr and Rowan Alcock -- Regulating Commercial Contracts : What can we Learn from Part II of the Housing Grants, Construction and Regeneration Act 1996? / Charlotte Ellis -- Contractual Enforceability and Surrogacy Arrangements : -- Mapping the Moral Limits / Aisling McMahon -- Contract Law and Economic Reform in China / Ding Chen -- Relational Regulation : The Role of Contract and the Evolution of Habitat Protection Legislation / Stuart Bell -- Remapping Contract Law : Four Perceptions of Markets / TT Arvind and Jenny Steele "This volume revisits some of the key debates about the nature and shape of contract law, in the light of the impact that statutes have had on its development. With contributions from leading contract law scholars, it fills a significant gap in existing theoretical and doctrinal analyses of contract law, which draw almost exclusively on cases in putting forward accounts of the general principles and structure of contract law. Statutory rules are, typically, seen as being specific instances of legal regulation which carve out exceptions to these general principles for specific reasons of policy. This treatment of these rules has resulted in an incomplete understanding of the nature of contract law and the principles that underpin it. By drawing specifically on contract statutes, the volume produces a more complete picture of modern contract law. A companion volume to the ground-breaking Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing, 2012) this collection will have a significant impact on the study of contract law"-- Provided by publisher Présentation de l'éditeur : "This volume revisits some of the key debates about the nature and shape of contract law, in light of the impact that statutes have had on its development. With contributions from leading contract law scholars, it fills a significant gap in existing theoretical and doctrinal analyses of contract law, which rely primarily on cases to put forward accounts of the general principles and structure of contract law. Statutory rules are, typically, seen as being specific instances of legal regulation that carve out exceptions to these general principles for specific reasons of policy. This treatment of these rules has resulted in an incomplete understanding of the nature of contract law and the principles that underpin it. By drawing specifically on contract statutes, the volume produces a more complete picture of modern contract law. A companion to the ground-breaking Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing, 2012) this collection will have a significant impact on the study of contract law." "This volume revisits some of the key debates about the nature and shape of contract law, in light of the impact that statutes have had on its development. With contributions from leading contract law scholars, it fills a significant gap in existing theoretical and doctrinal analyses of contract law, which rely primarily on cases to put forward accounts of the general principles and structure of contract law. Statutory rules are, typically, seen as being specific instances of legal regulation that carve out exceptions to these general principles for specific reasons of policy. This treatment of these rules has resulted in an incomplete understanding of the nature of contract law and the principles that underpin it. By drawing specifically on contract statutes, the volume produces a more complete picture of modern contract law. A companion to the ground-breaking Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing, 2012) this collection will have a significant impact on the study of contract law."-- Provided by publisher