Book contents
- Vanishing Contract Law
- Law in Context
- International Journal of Law in Context: A Global Forum for Interdisciplinary Legal Studies
- Vanishing Contract Law
- Copyright page
- Contents
- Preface
- Acknowledgements
- Table of Cases
- Table of Statutes
- 1 Vanishing Contract Law
- 2 Contract Common Law Trends
- 3 Contractualisation and the Common Law Retreat
- 4 Private Ordering, Regulation and Contract Law
- 5 Contracts through the Gaps
- 6 Future Challenges for Contract Law
- 7 The Possibility of Common Law Revival
- 8 Conclusion
- Select Bibliography
- Index
3 - Contractualisation and the Common Law Retreat
Published online by Cambridge University Press: 25 August 2022
- Vanishing Contract Law
- Law in Context
- International Journal of Law in Context: A Global Forum for Interdisciplinary Legal Studies
- Vanishing Contract Law
- Copyright page
- Contents
- Preface
- Acknowledgements
- Table of Cases
- Table of Statutes
- 1 Vanishing Contract Law
- 2 Contract Common Law Trends
- 3 Contractualisation and the Common Law Retreat
- 4 Private Ordering, Regulation and Contract Law
- 5 Contracts through the Gaps
- 6 Future Challenges for Contract Law
- 7 The Possibility of Common Law Revival
- 8 Conclusion
- Select Bibliography
- Index
Summary
This chapter subjects the revival of formal and classical law values in contract law to critical examination. The emergence of a commercially oriented contract law is explored across a number of contract developments over recent years: the reassertion of party autonomy and the emphasis on contract law as default rules; the return to a formalist style of contract interpretation; the marginalisation of equity and considerations of public policy in contract; the tendency of judges to uphold contract terms whose validity was previously regarded as questionable (‘no oral modification’ and ‘no reliance’ clauses); the dilution of common law controls on contract terms (in relation to penalties, for example).The first part of the chapter examines recent contract law developments that suggest the re-emergence of formalism in law. The second part explores the common law’s retreat from a role as general regulator of contracting activity in the context of an increasingly contractualised society.
- Type
- Chapter
- Information
- Vanishing Contract LawCommon Law in the Age of Contracts, pp. 53 - 86Publisher: Cambridge University PressPrint publication year: 2022