English Contract Research Articles

Fidic’s Red Book 1999 edition: a study review

The paper describes the main features of the 1999 edition of Fidic’s Red Book, possibly the most commonly used standard-form construction contract in international projects. The paper is addressed to construction professionals who already have an understanding of English construction contracts but have not yet looked into Fidic contracts. The 1999 Red Book is for use when the contractor has been given the design by the employer. The contract features general and particular conditions, the latter of which have to be drafted by the parties before the contract is entered into. A typical feature of the 1999 Red Book is the role of the engineer. Whether he has to act for the employer or whether he has to make a fair determination depends on the matter in question. There are two striking differences from the contract JCT SBC 2005 regarding claims of the contractor. First, only the 1999 Red Book contains strict time bars. Second, the clauses which contain events that justify claims are spread out over the whole contract and not contained in comprehensive lists of events. New features are clause 13.2 on value engineering and clause 20 on the impartial dispute adjudication board.

What Can Contract Lawyers Learn from Law and Economics?

This is the lecture text which I was invited to given at the University of Tasmania. My aim in this lecture is to offer some general observations on what insights law and economics, which is also known as the economic analysis of law, can offer us into contract law. I argue that despite some serious limitations of this approach, contract lawyers can benefit from the economic analysis of contract law. At least, we can benefit in three ways. Firstly, economic analysis can be a method to evaluate the effectiveness of law. Secondly, it can help us in identifying the winners and losers created by the law. Thirdly, it can broaden our understanding of business behaviour so that we can make contract law meet legitimate commercial expectations. The lecture will proceed as follows. After a brief review of the history of the law and economics movement, I will use three examples in English contract law, namely misrepresentation, the exclusion clause in consumer contracts, and the unfair contract term to illustrate the three merits of law and economics noted above.

Reflections on the Introduction of Punitive Damages for Breach of Contract

Following the recognition by the House of Lords in AG v Blake of the gain-based remedy of an account of profits in a contractual context, an increasing number of commentators have argued that the English remedial regime for breach of contract should be further reinforced by the introduction of punitive damages. This article considers whether there may be a role for punitive awards in contract law. It seeks to demonstrate that the adoption of punitive damages, without wider reform of the existing remedial regime, may lead to inconsistencies. The reason is that English contract law has generally shown reluctance to view contractual default as being reprehensible or the motive for breach as materially relevant. Legal intervention in particular defined circumstances by way of regulation may be more appropriate than punitive awards. Support for the conclusion that caution should be exercised before reform is undertaken is also drawn from recent developments in France, where the introduction of punitive damages has been proposed as part of a project to reform the Civil Code.

The Applicability of the Islamic Mortgage Contract Under English Law

The Islamic financial market is one of the fastest growing markets, not only in the Muslim world, but also in the European countries, and particularly in England (Wilson 2007, p 10). This article will critically analyse one of the best known Islamic financial contracts: the Islamic mortgage contract. It will look at its background and origin, how it came to existence, and whether it is originally an Islamic concept. In addition, this article will discuss what the Qur’an says about this contract, and the main terms and conditions that apply to it. This article will then critically examine the applicability of this contract in England under English law, focusing on the differences between the Islamic mortgage contract and the conventional English mortgage contract. Finally, this article will adopt a new analogical method based on the Qura’nic perspective to judge the applicability and the acceptability of the Qur’an verses within the English legal rules.

1305 英文契約書評価支援システムの開発(一般セッション)

1305 英文契約書評価支援システムの開発(一般セッション)

On Comparing French and English Contract Law: Insights from Social Contract Theory

I here argue that the same thought structure that underlies French contract law (contractual interpretation and contractual mistake) also underlies French social contract theory (Rousseau), whereas a different thought structure underlies both English contract law and English social contract theory (Hobbes and Locke). More specifically, I claim that, on the French side, facts and norms tend to be neatly delineated from one another and clear prevalence is given to the norms, whereas, on the English side, facts and norms tend to be interwoven within a clear prevalence of the factual. The immediate purpose of this argument is to show that the differences revealed through a comparative analysis of French and English law in fact are part of a larger pattern of difference between French and English ways of thinking. Less immediately, but no less importantly, the piece is meant to provide an example of comparative law operating as a self-standing academic discipline.

Enforceability of Take-or-Pay Provisions in English Law Contracts

In a recent case the Commercial Court considered, for the first time, whether a claim based on a ‘take-or-pay’ provision in a sale and purchase agreement should fail because the take-or-pay provision was a ‘penalty clause’. This article considers the impact of this judgment on the interpretation and drafting of contracts containing take-or-pay provisions.

Misrepresentation in English Contract Law from an Economic Perspective

The law-and-economics movement has made a huge impact on the scholarship of contract law in the US. But compared to their US counterparts, English legal scholars are less enthusiastic about adopting the economic approach in their research. Existing studies have rarely, from an economic perspective, considered the topic of misrepresentation. This thesis fills the gap in the literature by applying the law-and-economics analytical framework to the study of misrepresentation in English contract law. The study investigates only the law of pre-contractual misrepresentation, a term conventionally used by contract lawyers to refer to a body of legal rules governing four types of conduct: fraudulent misrepresentation, negligent misrepresentation, innocent misrepresentation and pre-contractual disclosure. Based on the existing law-and-economics theories, this thesis explores three primary economic dimensions of the law. First, what are the costs generated by a misrepresentation? Second, from an economic perspective, how should the law govern misrepresentations? It is demonstrated that if the objective of the law is assumed to be the enhancement of economic efficiency (Kaldor-Hicks test), the legal rules should vary with the type of misrepresentation. There is no unique legal model which is efficient in governing all types of misrepresentation. Thirdly, with the aid of an analytical framework developed by the author, a critical evaluation of the current law is conducted with a focus on two issues: (1) how the current law adjusts the costs associated with a misrepresentation; (2) how the contracting parties' incentives in relation to making a representation are modified by the current law.In examining these issues, the author seeks to show that the law-and-economics approach can generate insights valuable for the understanding the law of misrepresentation, with particular emphasis on how the law can be used as a regulatory instrument to shape the parties' behavior in making representations in the pre-contractual context.

FROM CONTRACT TO UMBRELLA AGREEMENT

It is now widely accepted that English contract law does not deal equally well across the whole range of agreements that are made. The model which fits best to English contract law is one in which the parties move immediately from no contract to completed contract. There is great difficulty with situations where the parties spend a long time in an area where there are obligations and understandings but not yet a fully completed contract. This article considers an important development that attempts to deal with this difficulty. That is the increasing use by contracting parties of what may be called umbrella agreements.

A Diachronic Study of English Negative Contraction

A Diachronic Study of English Negative Contraction

After the unfair Contract Terms Directive; Recent European Directives and English Law

This paper examines the implementation into English law of three recent EC Directives; the Consumer Sales Directive, the Electronic Commerce Directive and the Unfair Commercial Practices Directive – transposition of the latter currently at a consultative stage. Although English law copes remarkably well in accommodating alien concepts and rules within its doctrinal framework, nevertheless, these Directives have generated some significant conceptual and substantive adjustments in English contract law. The recently enacted Unfair Commercial Practices Directive adds a new dimension to the impact of EC legislative activity in the area of private law. Furthermore, the ensuing regulatory complexity and incoherence arising from UK implementation obligations is a cause for concern. Particularly in the light of the EC's current project on European Contract Law.

International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith

Most commercial contracts are nowadays written on the basis of English or American contract models, irrespective of whether the legal relationship that the contracts regulate is governed by a law belonging to a Common Law system or not. These contract models are drafted on the basis of the requirements and structure of the respective Common Law system in which they were originally meant to operate. These models may therefore be in part ineffective or parts thereof may redundant, if the governing law belongs to a Civilian system. To overcome this tension between Common and Civil Law, it is sometimes recommended to subject international contracts to non-state sources of law (also referred to as transnational law, lex mercatoria, soft law). This article analyses the tension between the Common and the Civil Law of contracts, and to what extent non-state sources may represent a satisfactory solution to such tension. This is made by analyzing the role that good faith and fair dealing play in contracts according to the respective systems: English law as an illustration of Common Law systems, Norwegian, German and Italian law as illustrations of Civil Law Systems, the UNIDROIT Principles of International Commercial Contracts and the Principles of European Contract Law as illustration of non-state sources.

Form and Substance in the Reception of EC Directives into English Contract Law

: In this paper, the author explores some of the difficulties facing English lawyers in implementing EC directives in the area of ‘contract law’ and compares them with those facing lawyers in systems with codified private laws. To do so, he identifies four significant features of the EC contract law directives: the ambiguity of what is meant by ‘contract law’ for this purpose, there being a contrast between a traditional sense of the law governing the rights arising in a contracting party against the other and ‘policing measures’ in relation to the behaviour of contracting parties; the special nature of the regulation which the directives require and the relative absence of ‘general clauses’; the relationship of the contract law rules of the directives to national law distinctions between public and private law; and the particular, ‘European’ nature of the uncertainty which affects many of the concepts which the directives use. The author explains how these features affect the form of the reception of the directives into national laws, identifying differences between laws where codification is important and English law where it is all but absent. However, English law shares with codified laws a number of substantive problems in implementing contract law directives, notably, in terms of the question whether the rules and concepts which the directives use can be melded with existing national legislative rules (often as interpreted by national case-law) so as to achieve a true integration (and not a mere implementation) of the EC regulation into national laws. In dealing with these problems, the minimum nature of the harmonisation required by many contract law directives allows Member States to extend a directive's scheme in a way which permits it to fit into national law more harmoniously, but even where this is so, sometimes the substantive strategy of a directive clashes with much more general strategies of their national laws. Finally, the author sees the clearer definition of concepts used by the directives as contributing significantly to the resolution of some of the problems which he identifies, this allowing Member States a better sense of how to go about the true integration of the regulation which the directives require with the surrounding regulation of national laws.

5. Lessons Learned from the English Contract Enforcement Experience and Their Possible Application to the Region

5. Lessons Learned from the English Contract Enforcement Experience and Their Possible Application to the Region

The development of the penal bond with conditional defeasance

The development of the penal bond with endorsed conditional defeasance presents a problem because the earliest monetary penalties in English contracts took the form of straight-forward penalty clauses. It is hard to see how the convoluted penal bond developed from such penalty clauses. This article traces the development of the penal bond from debt recognizances defeasible by the performance of conditions stated in a separate document. The logic of the defeasible recognizance was carried over to other arrangements including the penal bond with endorsed conditional defeasance.

CONTRACTUAL PENALTIES IN THE KING’S COURT 1260–1360

CLAUSES that provided fixed monetary penalties first appeared in English contracts and conveyances in the first decade of the thirteenth century. Rather quickly thereafter penalty clauses came to be used in a wide variety of contracts and conveyances. They were used in (1) agreements over tithes, (2) settlement of disputes, (3) arbitration agreements, (4) agreements to transfer or not to transfer land, (5) marriage property agreements, (6) warranties of title to land, (7) leases, (8) agreements to pay rents and annuities, loans, and in a variety of other transactions. The penalty clause was just another clause in the agreement. At about the middle of the thirteenth century other methods of inserting a penalty clause into an agreement began to be used. A penalty clause could be made part of a recognizance on the plea rolls, the Exchequer rolls, or the Chancery rolls. The recognizance itself could be a penalty to enforce a side agreement. A money bond could serve as a penalty rendered void if the terms of a separate, conditional acquittance were met. A bond or a statute merchant could be given to a third party under an agreement to give the bond or statute merchant to the promisee if the promisor failed to carry out his agreement. By 1348 the penal bond with conditional defeasance endorsed on the back of the bond had been invented.

Good Faith in English Contract Law Of Triggers and Concentric Circles

Good Faith in English Contract Law Of Triggers and Concentric Circles

Good Faith in English Contract Law: Of Triggers and Concentric Circles

Good Faith in English Contract Law: Of Triggers and Concentric Circles

Individualism, Cooperativism and an Ethic for European Contract Law

It was at a meeting held at the University of Trento in June 1994 that Reinhard Zimmermann suggested that good faith in contracts might make an interesting and fruitful topic for the so-called 'Common Core of European Private Law' project.' Six years later, with the publication of Good Faith in European Contract Law,2 Zimmermann's suggestion has been brought through to a successful completion. Whether one's interest is in comparative law or its methodology, the harmonisation of European private law, or good faith in contracts, the publication of this book is a major event and, whatever one makes of the product of this study, there is no question that Zimmermann, his co-editor Simon Whittaker, and the team of contributors are to be congratulated for conceiving of such a book and then delivering it so impressively. The book is a mine of informed analysis. Readers who want an introduction to good faith doctrines in German, French and (in its limited way) English contract law, will be considerably assisted by the co-editors' own opening contribution to the book. Similarly, if one's interest in good faith relates to its place in Roman law, or in contract law in the medieval ius commune, or in US contract law, then the contributions by, respectively, Martin Josef Schermaier, James Gordley, and Robert Summers will be required reading. However, the centrepiece of this book its distinctive contribution to comparative private law scholarship in general and to an understanding of good faith doctrines (or their cognates) in particular is the set of 30 case studies, discussion of which takes up the greater part of this volume. The purpose of the study, focused on the 30 hypothetical cases, is not so much to compare doctrinal technique and resource in contract law regimes across Europe; rather, the project is designed to reach beyond surface doctrinal difference to see how far there is a core of agreement as to good faith outcomes in Europe.

A Birthday Present for Lord Denning: The Contracts (Rights of Third Parties) Act 1999

The new century brings a new approach to the privity rule in English contract law. The Contracts (Rights of Third Parties) Act 1999 received royal assent on 11 November 1999 and came into force on 11 May 2000.1 The Act, with some modifications, implements the changes recommended in the Law Commission's 1996 Report.2 Legislative change of the privity rule has taken a long time and follows decades of judicial and academic criticism.3 When the Contracts ( Rights of Third Parties) Bill was read for a second time in the House of Lords,4 Lord Meston offered it to Lord Denning as a hundredth birthday present. The Act befits the late Lord Denning, for it was he who consistently questioned the existence of the privity rule in English contract law.5 According to his analysis, the common law recognised the right of a person to sue upon a contract where the person was not a party to the contract, provided that the contract was made expressly for the benefit of the third person and that it was intended to be enforceable by the third person.6 The Act now allows what Lord Denning considered possible over half a century ago. While the birthday present is not quite the right size (the Act does not abolish the privity rule but merely reforms it in certain circumstances) it would have suited Lord Denning's purposes in a number of contract cases. A few examples from past cases serve to illustrate this point. In the case of Beswick v Beswick,7 there would have been no need to resort to allowing the