Catherine Mitchell, CONTRACT LAW AND CONTACT PRACTICE Oxford: Hart Publishing (www.hartpub.co.uk), 2013. xvii+288 pp. ISBN: 9781849461214. £55 (hardback; electronic formats are also available).
| DOI | 10.3366/elr.2015.0311 |
| Date | 01 September 2015 |
| Author | |
| Published date | 01 September 2015 |
| Pages | 434-435 |
The author seeks to undertake the difficult task of bringing together the worlds of contract theory and contract practice. This is done in the specific context of commercial expectations. To what extent does contract law currently have regard to commercial expectations? Is there scope for the law to engage further with such expectations, and if so, in which areas of contract law, how, and using which theoretical model as a foundation? Although the work takes English contract law as its primary focus, there is considerable engagement with recent Scots literature (e.g. the reference to Martin Hogg's work (116) and caselaw such as
After a very full and useful introductory chapter, the book's argument commences in chapter two with a substantial chapter exploring the notion of commercial expectations. This chapter explores the question of what, precisely, is meant when parties or the courts advert to “commercial expectations.” The author considers such a reference as “appealing to factors external to the operation of the legal imperatives, but internal to the parties and their contracting context” (30) and proceeds to give a highly persuasive justification of why such considerations matter and to consider the normative value of such expectations. In chapter three, the author addresses the “contours and sources” (63) of commercial expectations, concluding that there exists a wide variety of sources for commercial expectations and that a law which fails to take cognisance of these contexts and instead relies upon a narrow model of contracting, where the parties are imagined to act self-interestedly and at arms-length, may be considered to be deficient. In chapter four, Mitchell sets out the extent to which current contract law can be said to be aligned with commercial expectations. Particular attention is paid to the law's approach to contractual interpretation and flexible agreements. This chapter is, quite simply, a superb and highly persuasive exposition and critique of the law, which acknowledges the role played by judges, practitioners and the parties themselves in the...
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