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This chapter briefly examines contract law trends over the past 200 years or so. The chapter explores the development of the common law of contract, identifying the broad shift from the classical law of the 1800s to the neo-classical law characteristic of the second half of the twentieth century. By the second half of the twentieth century, thanks to the rise of the consumer and empirical evidence demonstrating the minor role played by contracts and contract law in business practice, the classical law model appeared to be under considerable pressure from realist and contextualist rivals that stressed the life of a contract outside its formal express terms. The shift to a more standards-based, neo-classical contract law in response to these tensions was not easily confined to consumer contracts, and there was plenty of scope for importing the broad values of ‘consumer-welfarism’ into commercial contracts. The move to a contextual method of interpretation and the willingness to relax doctrines such as consideration in response to business realities suggested further classical law disintegration. The chapter notes that this process now seems to have gone into reverse.
This chapter explores some of the current and future pressures on contract law that are likely to reinforce its formalist and commercialist tendencies. The first of these is the recasting of contract law as a commodity that should primarily serve the interests of commercial contractors (usually by upholding the terms of the contract) at the expense of doctrinal development. The second is the declining use of adjudication to resolve disputes, rooted in lack of support for litigation and the emphasis on non-adjudicative dispute resolution within courts themselves. The third factor is the increasing automation of contract processes, manifest in the development of ‘smart contracts’ and algorithmic contracting. These innovations are likely to require revision of the foundational understandings upon which contract law is built, notably around how contracts are created, by whom and for what purposes.
This chapter explores the potential for the revival of the common law of contract. The emphasis is on the possibility of judicial action to reverse some of the movements explored earlier in the work. Contract scholars with a more pragmatic or practical approach to the subject have long maintained that contract law must do more to distinguish different contracting contexts and to develop appropriate rule sets accordingly. The recent engagement with the concept of relational contracting demonstrates a judicial ambition (admittedly not shared by all) to create a more responsive, contextual and flexible contract law. The development of relational contracts is considered and critiqued in the chapter. Developments in other common law jurisdictions (notably the elaboration of an organising principle of good faith in Canada) are contrasted with English law. The chapter concludes that English law is unlikely to follow the lead of other common law countries in articulating good faith principles. Limitations on the litigation system in England are also examined.
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.
This chapter sets out the main objectives and major themes of the work. The overall aim of the project is to establish the implications of a diminishing contract law (common law in particular). By ‘diminishment’ is meant the return to formal and classical law values in the common law and a reduced field of application for the rules of contract law. A brief outline is given of the topics that are explored during the course of the book: the rise of private ordering through contracts and the legal response to this; the ‘contractualisation’ of society; the formalist turn in modern contract law; the likely future pressures on legal development (such as ‘smart contracts’). The chapter raises some initial arguments concerning the drawbacks of a diminishing contract law (lack of development of public rules of contract law; lack of legal scrutiny of many modern contracts, or aspects of them; lack of opportunity for courts to express and apply the normative values that should underpin contracting). The chapter also anticipates, and responds to, some initial questions or criticisms about the project.
This chapter examines the relationship between private ordering/self-regulation and national contract law rules. It assesses the impact that private ordering exerts upon national contract law, with particular reference to the legal response to the ISDA Master Agreement. The chapter also examines aspects of market-specific regulation in the United Kingdom. Many areas traditionally covered by common law rules, such as the control of unfair terms in contract, are now the preserve of regulators such as the Financial Conduct Authority (FCA) and the Competition and Markets Authority. In addition to the activities of regulators, enforcement of consumer contract law can be undertaken by a range of organisations and dispute resolution services provided by private entities or through various ADR schemes. There are often significant divergences between the regulatory approach to contract enforcement and the applicable contract law rules on the issue. To illustrate this, the FCA review of the mis-selling of interest rate hedging products to ‘unsophisticated’ customers is contrasted with case law on misrepresentation covering the corresponding scenario under the common law.
This chapter considers the disadvantages arising from the reduced capacity of the common law to serve as a general regulator of contracts. Four areas of ordinary (non-commercial) contracting activity are examined: consumer debt management, payday lending, student loans and non-disclosure agreements. Judicial engagement with these areas of contract has been minimal or non-existent. The examples show how little influence some common problems in consumer contracting, or other contracts involving inequality of bargaining power, have had on the development of contract law rules. The law’s lack of exposure to some common issues generated by its rules only serves to compound the hold that commercial contracting has over legal development. The dearth of legal engagement with these issues also closes off an important forum for the debate, development and communication of contract’s deeper normative values, including the general standards of conduct that are, or should be, inherent in contracting. This accelerates the process of common law impoverishment.
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.
NICE guidelines suggest baseline physical health monitoring be performed prior to commencing antipsychotics, in addition to follow-up monitoring for adverse effects for at least 12 months. ‘Shared Care Guidelines’ were adapted from NICE guidance for local use in North East Lincolnshire. Nevertheless, a local audit published in 2018 reported low compliance with baseline monitoring in community mental health teams (CMHTs) compared to inpatient teams. The parameter most infrequently performed overall was the Glasgow Antipsychotic Side Effect Scale (GASS) questionnaire.
This study aimed to assess whether compliance with baseline physical health monitoring had improved in line with the previous audit's recommendations. Additionally, it aimed to expand on previous findings by adding compliance data for follow-up physical health checks and produce further recommendations to optimise performance.
A retrospective re-audit was performed in NAViGO Health and Social Care to assess compliance with the guidelines for physical health monitoring when commencing antipsychotics in previously antipsychotic-naïve patients. Patient records were examined for which recommended physical health checks were performed at baseline, and at 1-, 3- and 6- months from commencing antipsychotics.
15 eligible patients were identified to have been commenced on antipsychotics, 8 patients under a CMHT and 7 under an inpatient team. The average overall compliance at baseline for checking 16 parameters was 50%. For the CMHT, compliance was 60%, compared to 38% for the inpatient team. Across both teams, baseline compliance was highest for renal function tests, liver function tests, and blood pressure and pulse (80%). For 1-, 3-, and 6- month checks, overall compliance for checking recommended parameters were 33%, 29% and 29% respectively. GASS monitoring compliance was 7% at baseline, 0% at 1- and 3-months, 7% at 6-months.
The CMHT performed better than the inpatient team at baseline monitoring. This may reflect action on the previous audit's recommendations to increase provision of community ‘Wellbeing Health Improvement Service’ (WHISe) clinics. However, performance of the GASS questionnaire at baseline was consistent with the previous audit, with similar performance at follow-up extending these findings.
In response, the first recommendation is for Quality Improvement Activities to help improve compliance with the ‘Shared Care Guidelines’. This may include CQUINs and further provision of community clinics to improve compliance with both baseline and follow-up checks. Secondly, it is proposed that GASS questionnaires be sent to patients prior to appointments to be completed in advance to avoid further risk of GASS being incomplete.
The authors surveyed hospitals across the country on their policies regarding overlapping surgery, and found large variation between hospitals in how this practice is regulated. Specifically, institutions chose to define “critical portions” in a variety of ways, ultimately affecting not only surgical efficiency but also the autonomy of surgical trainees and patient experiences at these different hospitals.