Brian Coote, CONTRACT AS ASSUMPTION Oxford: Hart Publishing (www.hartpub.co.uk), 2010. xxviii + 217 pp. ISBN 9781849460293. £29.99.

Pages315-318
Date01 May 2011
DOI10.3366/elr.2011.0039
Published date01 May 2011

This work brings together a number of essays on contract law (prefaced by a newly written introductory chapter) which were previously published by the author as separate journal articles between 1964 and 2006. The essays are linked thematically by the central thesis that contract is best explained as an act by which the contracting parties mutually assume obligations towards each other. To grasp this thesis the reader could simpy confine him- or herself to reading chapter 1, where Coote's theory is fully expounded and differentiated from pre-existing theories of contract law. However, a reading of the later chapters provides illumination of the theory within the context of specific aspects of contract law, aspects shown in a new light by the idea of contract as assumption. The essays included cover a range of topics: the doctrine of consideration (chs 3–5), exception clauses (ch 6); fundamental breach (ch 7); damages and the performance interest (ch 8); transferred loss claims and the performance interest (ch 9); third party rights (ch 10); and assumption of responsibility and pure economic loss in New Zealand (ch 11), a jurisdiction with which Coote is well familiar, being an emeritus professor of law at the University of Auckland.

Coote states, by reference to Charles Fried's famous work, Contract as Promise (1981), that he “accepts that contracts are made up of promises and that promises involve assumptions of obligation” (1). However, the focus of Coote's own work is not, as with Fried's, the foundation of contract law upon the morality of promising, but rather upon the idea of the voluntary assumption of obligations, of which Coote sees promise as merely an expression or form. Contract law is, for Coote, a facility which parties may choose to use, the liabilites achieved using this facility not being imposed or incurred but rather intentionally assumed (intention is a “central requirement” of contract law for Coote, rather than a peripheral matter). The focus on intention and assumption allows the requirement of consideration to be cast in a new light by Coote – it is the exchange of mutual assumption of contractual obligation which is (or at least ought to be, on Coote's view) the consideration of a contract (3). Coote is not so radical as to jettison consideration altogether (such reticence arguably resulting in some problems discussed below), but his equasion of consideration and assumption of responsibility is radical enough to take Coote's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT