Bridging the Gap: A Relational Approach to Contract Theory

Publication Date01 Dec 2014
DOIhttp://doi.org/10.1111/j.1467-6478.2014.00689.x
AuthorHugh Beale
Review Article
Bridging the Gap: A Relational Approach to
Contract Theory
Hugh Beale*
CONTRACT LAW AND CONTRACT PRACTICE ± BRIDGING THE GAP
BETWEEN LEGAL REASONING AND COMMERCIAL EXPECTATION by
CATHERINE MITCHELL
(Oxford: Hart Publishing, 2013, 308 pp., £50.00)
In this book, Catherine Mitchell argues that the English law applying to
commercial contracts leaves a significant gap between what the court will
recognize as the parties' legal entitlements and the parties' `commercial
expectations' ± as Stewart Macaulay put it, between the `paper deal' and the
`real deal'.
1
In a very thorough and careful argument, drawing on a very
wide range of sources, Mitchell proposes that commercial contract law ± she
deliberately excludes consumer and employment contracts from her analysis
± should become more `relational'. In other words, the law should take
greater account of the context in which the parties made their agreement, the
understandings that they derived from that context, and the difficulties that
they may have faced in translating those understandings into contract terms
that are sufficiently precise to meet the current law's requirements for
certainty.
Mitchell's case is essentially founded on the insights of the late Ian
Macneil.
2
Macneil argued that every contract is to a degree `relational' and
not a `discrete' event. At first this was thought to refer primarily to the
641
*Warwick Law School, University of Warwick, Coventry CV4 7AL, England
hugh.beale@warwick.ac.uk
1 S. Macaulay, `The Real Deal and the Paper Deal: Empirical Pictures of Relationships,
Complexity and the Urge for Transparent Simple Rules' in Implicit Dimensions of
Contract, eds. D. Campbell et al. (2003) 51.
2 Macneil's extensive writing is best accessed in The Relational Theory of Contract:
Selected Works of Ian Macneil, ed. D. Campbell (2001).
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School

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