ENGLISH AND EUROPEAN PERSPECTIVES ON CONTRACT AND COMMERCIAL LAW. ESSAYS IN HONOUR OF HUGH BEALE. Eds Louise Gullifer and Stefan Vogenauer Oxford: Hart Publishing Ltd (www.hartpub.co.uk), 2014. lx+498 pp. ISBN 9781849465496. £65.
| Date | 01 September 2015 |
| Author | |
| Published date | 01 September 2015 |
| Pages | 440-442 |
| DOI | 10.3366/elr.2015.0314 |
This book was produced to honour the work of Professor Hugh Beale, on his retirement from full-time teaching at Warwick University in 2014. The twenty-five chapters are structured in six sections: legal history; law reform; English contract law; European contract law; security and financing; and trends in transnational and European commercial law. It contains much food for thought, and is a fitting tribute to a man whose expertise and impact spans as far as, or indeed wider than, the six sections of the book. There is much of interest to any reader working in this area. It will be of particular interest to those working on unfair terms in contract, the focus of many of the chapters, in whole or part. In a short book review such as this, the reviewer concentrates on the chapters of most interest to her.
The section on English contract law may provide a snapshot of issues of significant concern in English law at the moment. In his chapter “Freedom to Exercise Contract Rights of Termination”, Michael Bridge examines several instances where agreed or conferred rights of contractual termination are, according to him, at risk or undergoing a degree of transformation. Along the way, he summarises the developments in interpretation and the implication of terms, casting them (at 88) in a not altogether positive light: “The movement away from literal interpretation in favour of a broader commercial interpretation has undoubtedly amplified the measure of judicial discretion in the interpretation of contracts. The restraint on judicial intervention imposed by the Moorcock in the case of implied terms, resistant as it is to the implication of terms merely because they are reasonable, may now be a thing of the past if judicial intervention may more freely be exercised in the form of interpretation”. He voices concerns shared by many, including practising lawyers, that the law of contract is losing important safeguards. The end result is likely to be the loss of contractual certainty, “…one of the prized attributes of English law” (104).
Also in the section on English Contract Law is Michael Furmston's chapter, “Universal Terms in Contract.” If there is a general rule that contracts contain an implied term that they should be performed in good faith, can that term be excluded? Although a party cannot exclude liability for its own fraud, he notes, albeit in cautious terms, that such a party can only exclude the liability of its agent's fraud by using very clear words...
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