Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its 'doctrines' are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided - but does nothing else. The limited capacity of the legal process is the key to this 'minimalist' stance. This book considers evidence that such minimalism is indeed what commercial parties choose to govern their transactions. It critically engages with alternative schools of thought, that call for active regulation of contracts to promote either economic efficiency or the trust and co-operation necessary for 'relational contracting'. The book also necessarily argues against the view that private law should be understood non-instrumentally (whether through promissory morality, corrective justice, taxonomic rationality, or otherwise). It sketches a restatement of English contract law in line with the thesis.

Critically examines moral-promissory, economic and socio-legal perspectives on contract law, arguing that it should be formal and minimalistic by design.

English contract law provides the invisible framework that underpins and enables much contracting activity in society, yet the role of the law in policing many of our contracts now approaches vanishing point. The methods by which contracts come into existence, and notionally create binding obligations, have transformed over the past forty years. Consumers now enter into contracts through remote and automated processes on standard terms over which they have little control. This book explores the substantive weakening of the institution of contract law in a society heavily dependent on contracts. It considers significant areas of contracting activity that affect many people, but that escape serious and sustained legal scrutiny. An accessibly written and succinct account of contract law's past, present and future, it assesses the implications of a diminished contract law, and the possibilities, if any, for its revival.

Critically examines moral-promissory, economic and socio-legal perspectives on contract law, arguing that it should be formal and minimalistic by design.

This volume revisits some of the key debates about the nature and shape of contract law, in light of the impact that statutes have had on its development. With contributions from leading contract law scholars, it fills a significant gap in existing theoretical and doctrinal analyses of contract law, which rely primarily on cases to put forward accounts of the general principles and structure of contract law. Statutory rules are, typically, seen as being specific instances of legal regulation that carve out exceptions to these general principles for specific reasons of policy. This treatment of these rules has resulted in an incomplete understanding of the nature of contract law and the principles that underpin it. By drawing specifically on contract statutes, the volume produces a more complete picture of modern contract law. A companion to the ground-breaking Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change (Hart Publishing, 2012) this collection will have a significant impact on the study of contract law.

Provides a fresh, topical and accessible account of the Australian law of contract.

This informative and accessible book reviews the core concepts of contract law and theory from an Anglo-American perspective. Larry A. DiMatteo deftly analyses the key principles, rules and frameworks which have shaped Anglo-American contract law, as well as highlighting important legislative acts that have changed and modernised its development.

The vast bulk of claims in international commercial arbitration are contractual in nature. Viewed through that lens, what comes to occupy centre stage in the arbitration of disputes is the choice of applicable contract law. This book breaks new ground by for the first time focusing in depth on the contract law chosen by the parties to be applied to disputes. The author uses a comparative-inductive methodology to analyse why – according to statistics of the International Chamber of Commerce – English, New York, and Swiss contract law outperform transnational and other contract law regimes in the choice-of-law provision of business contracts. He finds that these three bodies of law share a firm commitment to enforcing the contract as written, thus prioritizing certainty, stability, and predictability, and clearly recognizing the parties’ right to determine for themselves (and have arbitrators and courts respect) central issues such as risk allocation and price. Starting from a detailed comparative examination of traditional and contemporary theories of contract, the author develops a minimalist approach that is acceptable to lawyers with a civil or common law background and that facilitates dealmaking by providing a clear set of hard-edged rules in four areas – formation of contracts, invalidity and public policy, contract interpretation, and damages for breach – and showing how each of the three contract regimes that are dominant in practice manifests his approach. With its emphasis on pragmatic adjudication grounded on facts and consequences rather than on conceptualisms and generalities, the book greatly enhances the ability of arbitrators to make decisions based on legal arguments that fit the setting of international commercial arbitration. It is sure to become established as a tool to achieve the defined objective of facilitating cross-border commercial transactions as well as providing arbitrators with a set of rules for the interpretation of contractual provisions and the quantification of damages. ‘Peter Sester confronts the reality that disputes in commercial arbitration are overwhelmingly contract-based, and properly directs our attention away from the contract by which the parties agreed to arbitrate to the contract by reference to which they intended their disputes to be adjudicated. This is a most welcome move and one that cannot help stimulate those whose interests are similarly situated on the frontier between the law of arbitration and the law of international contracts.’ Prof. George A. Bermann Columbia University, New York City ‘This is a book that is not only useful but also close to market expectations. ... Summing up, I would like to congratulate Peter Sester for giving us a free-market society book. He provides his readers with much food for thought and a remarkable admonition not to replace the parties’ work with public policy considerations.’ Prof. Dr Peter Nobel Emeritus Universities St. Gallen and Zurich, Switzerland

One of the hallmarks of the present era is the discourse surrounding Human Rights and the need for the law to recognise them. Various national and supranational human rights instruments have been developed and implemented in order to transition society away from atrocity and callousness toward a more just and inclusive future. In some countries this is done by means of an overarching constitution, while in others international conventions or ordinary legislation hold sway. Contract law plays a pivotal role in this context. According to many, this is done through the much-debated ‘civilising mission’ of the contract, a notion which itself constitutes the canon of the Western liberal principle of ‘civilised economy’. The movement away from the belief in the absolute freedom of contract, which reached its zenith in the nineteenth century, to the principles of fairness and justice that underpin contract law today, is often deemed to be a testament to this civilising influence. Delving into the interplay between human rights policies, constitutional law, and contract law from both theoretical and practical perspectives, this first volume of a two-book collection offers a totally new reappraisal of the subject by gathering a collection of essays written by contract law scholars from Europe, South Africa, Canada, and Australia. Instead of providing the reader with a sterile compilation of positivistic norms and policies on the impact of fundamental rights and constitutional law issues on contract law’s development, the authors build on their personal experience to analyse specific topics related to contracting that include a constitutional dimension. The book fills an important void in comparative law scholarship and in so doing represents the starting point for further debate on the subject.

This new volume analyses the central doctrines and concepts of Indian contract law and provides guidance on the interpretation of the Indian Contract Act 1872 by examining its historical, philosophical, and comparative foundations. Featuring contributions from practitioners and academics from around the world, the book follows a methodology carefully calibrated to address the shortcomings in traditional Indian contract law scholarship. The primary presuppositions of this methodology are that: (a) the answers to many difficult questions of Indian contract law can be found in the history of the Contract Act; and (b) while it is difficult to understand the Contract Act other than against the backdrop of the common law, one should not assume that Indian contract law mirrors the common law on all difficult points. Each chapter therefore pays close attention to the legislative history of the relevant provision(s) of the Contract Act. Based on a holistic analysis of the Contract Act's drafting history and its current interpretation, Foundations of Indian Contract Law is a carefully crafted volume providing the input needed to influence the Indian courts' approach to contract law, inform meaningful legislative reform, and, more broadly, catalyse a culture of critical scholarship on Indian private law. Formed of 24 chapters and a conclusion by Professor Hugh Beale (former Commercial Law and Common Law Commissioner at the Law Commission of England and Wales), the volume presents an authoritative exposition of a branch of the law that is of considerable interest and great practical importance for practitioners, scholars, and students interested in Indian contract law.