Contract AND Economic Organisation
| Author | JOHN WIGHTMAN |
| Published date | 01 September 1997 |
| Date | 01 September 1997 |
| DOI | http://doi.org/10.1111/j.1467-6478.1997.tb00007.x |
CONTRACT AND ECONOMIC ORGANISATION
edited by DAVID
CAMPBELL and PETER VINCENT JONES
(Aldershot: Dartmouth,
1996,288
pp.,
€41.50)
EXPLORING THE BOUNDARIES
OF
CONTRACT
edited by ROGER
HALSON
(Aldershot: Dartmouth,
1996, 160
pp.,
€42.50
hbk.,
€14.95
pbk)
The last few years have seen a resurgence in the United Kingdom of
non-
expository work on contract law and contractual behaviour; these two collec-
tions of essays are very welcome contributions to the further broadening of
contract studies.’
The Campbell and Vincent-Jones collection is the more ambitious, and
draws
on
papers first delivered at the Social Legal Studies Association
Conference of
1994.
The standard of the papers
is
excellent, and the volume
will surely become
a
landmark in the socio-legal analysis of contracting.
It
is
divided into two parts, the first addressing general theoretical issues and
the second analysing contracting
in
the public sector. However, the key
theme running through all papers is the role of
norms
of co-operation and
trust
-
and a fruitful.connection is drawn between the work of relational
contract theorists such as Ian Macneil and more recent debates about stake-
holding and corporate governance, and about contractualization of the
public services.
Although many agree that co-operation has been neglected in the under-
standing of contracts
-
at least in that offered by lawyers and economists
-
there is an important definitional question that must be traversed before
such
a
generalization can be rendered intelligible. What exactly do we mean
by co-operation? What does co-operative behaviour look like?
Roger Brownsword tackles this issue. He identifies co-operation with the
parties to a contract exercising restraint and responsibility in the furtherance
of the contractual project, and refraining from opportunism. However, he
argues that whether behaviour
is
co-operative should depend not only
on
whether it promotes the object
of
the contract by demonstrating restraint,
but also
on
motive, that is, whether the apparently co-operative behaviour
was the result of more that self interest. Thus, for Brownsword, the
agreement by the main contractor
in
Williams
v.
Roffey Bros and Nicholls
(Contractors)
Ltd-’
to pay the carpenter extra for work already due under
the contract would only qualify as an instance of co-operation if the main
contractor saw paying extra
as
a
moral
requirement stemming from the
‘contractual community of interest’. If the motive for the extra payment was
prudential
-
merely to get the job done most cheaply
-
then the behaviour
would not count as co-operative.
Injecting an internal as well as external component into the definition of
co-operation has important implications for the analysis of contracting
practice and contract law. Most simply, it results in a narrower conception
of co-operation under which it is plausible to expect rather fewer instances
450
C
Blackwell
Publishers
Ltd
1997
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