Reviving Contract
DOI | http://doi.org/10.1111/j.1468-2230.1989.tb02598.x |
Published date | 01 January 1989 |
Date | 01 January 1989 |
REVIEW
ARTICLE
REVIVING CONTRACT
UNDERSTANDING
CONTRACT
LAW. By JOHN ADAMS and ROGER
BROWNSWORD. [Fontana
1987 f4.95
paperback.]
CONTRACT CASES
AND
MATERIALS. By H.
G.
BEALE,
w.
D.
BISHOP
and
M.
P.
FURMSTON.
[Butterworths
1985 f33
hardback,
f19.95
paperback.]
THE
LAW
OF
CONTRACT.
By HUGH COLLINS. [Weidenfeld and
Nicolson
1986 f 14.95
hardback,
€7.50
paperback.]
IF
the “law
of
contract” were not already entrenched in the
traditions
of
legal education, would anyone organise a course
around it, let alone produce books expounding it? This question
reflects the doubts about the integrity
of
contract law as a coherent
object
of
study which flow from much
of
the work about it
published over the last twenty years, and from changes in the law
itself over a longer period. Within the orthodox expository tradition,
the study
of
the ‘general part’
of
contract
is
subject to such a
degree
of
qualification, because
of
bodies
of
special rules applying
to many particular kinds
of
contract, that its direct utility for
practice is limited. For those concerned with the study
of
law in
context, the connection
of
the law of contract with reality poses
problems because it does not seem to refer to any part
of
reality in
particular, just “contracts,” the possible content
of
which is virtually
infinite. Further, the blurring
of
the boundaries between contract
and other areas
of
private law, and also between private law and
public law, has led some to query the adequacy of treating
contractual obligation as a distinctive category. The undermining
effect these tendencies have on the integrity
of
the law
of
contract
as a subject can be seen as flowing from two problems with the
traditional account
of
contract represented by the well known
leading texts.
The first problem concerns the relationship between contract law
and reality and emerges as soon as one attempts to understand
contract law in terms
of
those events in the world to which it is
presumed to apply beyond the conduct
of
litigation. Attempts to
contextualise contract, for example by ascribing a function or
purpose to it and then examining how well in reality it serves that
function or purpose, run up against the brute fact that contract
law, as rendered in the traditional texts,
is so
general in its scope
that the identification
of
a particular context,
e.g.
consumer
protection or particular kinds of commercial contracts, is necessary
for contact with reality to be made. Yet once a specific context is
selected the generality
of
the law becomes fragmented. And, to the
extent that the truism about the law
of
contract being replaced by
a law
of
contracts is actually true, the connection
of
particular
115
116
THE
MODERN
LAW
REVIEW
[Vol.
52
parts of contract law
with
reality leaves general contract law
even
further behind because, where special contract rules are developed
in
particular contexts,
e.g.
employment, those rules
will
probably
share more
with
other rules, whether public or private, governing
that fact or situation based category than they do with
the
contractual rules concerning other situations.’
The
second problem is that of ideological coherence, and arises
from
the
perception that
it
is
unpersuasive to see contract law as
held together and distinguished from other legal areas by virtue of
it
being grounded on a coherent body of principle. Thus Atiyah’
and Kennedy,” from different perspectives, share a scepticism
about the adequacy of understanding both the creation and content
of
contractual obligations as being derived from the ideas of
promise and agreement. For example,
the
claim that
contractual^'
obligation
is
better understood as stemming from
the
ideas of
benefit and reliance, which are not unique to contract because they
underpin the law of obligations more generally, or the claim that
the premisses of liberal individualism from which
the
ideas of
promise and agreement flow are themselves incoherent or
indeterminate, inevitably make problematic
the
defence of general
contract law as a viable object of analysis on the ground of its
ideological coherence.
Both these problems, although highlighted by non-expository
approaches, are to some
extent
visible
within
the expository
tradition itself. The search for a better ideological coherence,
particularly through liability criteria, can be seen as
a
development
of
the
ratiorialist endeavour of judges and scholars
in
searching for
better ways of reconciling cases. And the tacit understanding
of
the
relationship between contract law and reality upon which
the
traditional treatise relies,
i.e.
that the reader’s eventual object
is
to
acquire instrumental knowledge, is made problematic by the
inevitably incomplete account of contract law that
it
offers.
But even
if
there is some perception of these problems
within
the expository tradition,
it
is clear that the response to them has
led writers beyond the confines of the expository approach and
caused them to embrace other ways of thinking about contract law.
It is at this point that the greatest potential for the transformation
of the understanding of contract occurs. The expository approach,
which is an internal approach
in
the sense that its forms of analysis
and criteria of relevance are modelled on the practice of judges
’
Problcrns in “contcxtualising” gcncral contract law arc pcrhaps indicatcd by thc fact
that it has takcn
16
ycars for
a
gcncral book on contract
to
appcar in Wcidcnfcld and
Nicolson’s “Law in Contcxt” scrics, whcrcas particular typcs
of
contract havc bccn dcalt
with carlicr in thc scrics in books on landlord and tcnant, consumcr protcction and
labour
law.
’
“Distributivc and Patcrnalist Motivcs in Contract and Tort Law with Spccial
Reference
to
Compulsory Tcrrns and Uncqual Bargaining Powcr”
41
Maryland Law
ReuieH;
563
(1982).
Rise
and Fall
of
Freedom
of
Contract
(1979).
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