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3 - Contractualisation and the Common Law Retreat

Published online by Cambridge University Press:  25 August 2022

Catherine Mitchell
Affiliation:
University of Birmingham
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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.

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Vanishing Contract Law
Common Law in the Age of Contracts
, pp. 53 - 86
Publisher: Cambridge University Press
Print publication year: 2022

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