Michael Furmston and G J Tolhurst, CONTRACT FORMATION: LAW AND PRACTICE Oxford: Oxford University Press (www.oup.com), 2010. liii + 421 pp. ISBN 9780199284245. £175.

Publication Date01 September 2011
Date01 September 2011
AuthorGillian Black

This book provides a detailed and constructive review of the specific issues arising from contract formation. While every contract textbook will unfailingly dedicate considerable space to this topic, it is of particular interest to have a text which concentrates solely on formation, and provides a focused review of the practical and theoretical issues which arise. Contract formation is capable of giving rise to contentious issues since, if there is an allegation of breach of contract, the most complete defence is often to point to the fact that there was no concluded contract – or, failing which, that the contract concluded was on different terms to those contended, and that these have not been breached. Thus, determining whether or not the parties were in a contractual relationship and, if so, the terms of that relationship, is often a matter of the first importance.

This book is a new contribution to the literature, but the authors acknowledge in their preface that it can trace its DNA to Michael Furmston, Takao Norisada and Jill Poole, Contract Formation and Letters of Intent (1998), curiously given a publication date of 1977 in the preface. The preface also highlights that this account will focus on Common Law systems, specifically England, Australia and the United States. While acknowledging that “the problems of contract formation have also been considered by the great Civil Law Systems” (v), the authors have not sought to give an account of these systems, albeit reference is made to formation in instruments such as the Vienna Convention, the Unidroit Principles for International Commercial Contracts, PECL and the DCFR. This is a useful early warning for the Scots reader, since the applicability of certain sections of the book is thus restricted: most notably where the authors deal with the role of consideration (albeit briefly) and the notion of promise underlying contract. The focus of the work is also highlighted in the introduction: it is “principally a work on English law for English practitioners” (para 1.05). With that caveat in place, this is a valuable account of contract formation.

Perhaps most usefully, this work sets out to review the principles underlying contract formation, rather than citing every single decided case in the area. While considerable extracts from cases are usefully provided, this is neither a textbook nor a cases and materials book. It is exhaustively referenced, allowing the reader to follow up specific points if so...

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