Contract Law and Contract Practice

1. Introduction: The Relationship between Contract Law and Commercial Expectations
Contexts and Background
The Deficiencies of Classical Contract Law
The Wider Debate: A Contextual and Relational Approach to Contracts
Specific Lines of Enquiry
Defining and Identifying 'Commercial Expectations'
Descriptive Accuracy of the Mismatch Claim
Theoretical Difficulties Posed by the Commercial Expectations Argument
(i) Efficiency and Rights-based Theories
(ii) Relational Contract Theory
The Capacity of Contract Law
(i) The Character and Limits of Legal Regulation
(ii) The Limits of the Socio-legal and Empirical Scholarship
Commercial Agreements, Contracts and Contract Law
2. Understanding Commercial Expectations
What Does an Appeal to Commercial Expectations Mean?
Why do Commercial Expectations Matter?
A More Accurate Picture of the Parties' Agreement
Accordance with the Self-understandings of Participants in the Practice
The Role of Co-operation in Business Dealings
The Perceived Values of Commercial Law
Normative Derivation of Commercial Expectations
Changes in Contracting Practice
The Influence of Transaction Cost Economics
Networks
Umbrella Agreements
Conclusion
3. The Contours and Sources of Commercial Expectations
Empirical Studies of Commercial Contracting Behaviour
Preliminaries
The Use of Legally Enforceable Contracts
The Use of Private Legal Systems
Norms of the Business Relationship
Do Customs Exist?
Legalisation of Immanent Business Norms
Costs of Enforcement
The Role of Trust in the Business Relationship
Conclusion
4. Current Contract Law and Commercial Expectations
Tensions between Law and Commercial Contracting Behaviour
The Significance of the Documents
(i) Differing Frameworks for an Agreement
(ii) Absence of Formalities
Contract Interpretation and Commercial Reasonableness
Contracts and their Contents
The Battle of the Forms
Contracting for Flexible Commitments
Conclusion
5. Commercial Expectations and Theories of Contract Law
Distinguishing Rights-based and Efficiency
Accounts of Promising
Promissory Theories
Main Features
Promissory Theories and Commercial Expectations
Economic Analysis of Contract
Main Features
Economic Analysis and Commercial Expectations
Characteristics of the Contracting Parties
The Efficiency of Social Norms
Contract Modification
Contract Interpretation
A Variable Approach?
Conclusion
6. The Relational Theory of Contract
Characteristics of Relational Analysis of Contracts
Essential Contract Method: Macneil's Common Contract Norms
Significance for the Law of Contract
Relational Legal Reasoning: Initial Difficulties
Neoformalism
Relational Legal Reasoning: Possible Processes
Conclusion
7. Commercial Expectations and Legal Capacity
Relationalism, Contract Law Rules and Common Law Method
Relationalism, Judicial Legitimacy and Judicial Activism
Objectivity
Legal Commitment to the Written Agreement
The Litigation Process
Litigating Parties
Contract Law as a Product
Litigation as a Self-contained Context
Transformation and Legalisation of Norms
Judicial Expertise and Error
Path Dependency and the Characteristics of Legal Regulation
Conclusion
8. Conclusion: Aligning Contract Law and Commercial Expectations
The Binary Divide of Formalism and Contextualism
Methods of Effecting a Relationally Constituted Contract Law
Contextual Interpretation
Case Examples
(i) Conflict between Formal and Informal Norms: RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG (UK Productions)
(ii) Interpreting the Agreement as a Unified Scheme: Total Gas Marketing v Arco British
(iii) Avoiding a Doctrine-driven Approach: Durham Tees Valley Airport Ltd v BMIBaby Ltd
Changing Mindset
Contracting In or Contracting Out of Contextualism?
Conclusion