Modern Law Of Contract Research Articles

Non-monetary relief for breach of contract: a European perspective on Chinese contract law

ABSTRACT To compensate for the loss caused by the non-performance, monetary damages are considered almost automatically. This article provides a broader perspective. Indeed, albeit monetary damages are and will always remain the most frequently awarded form of compensation, this comparative analysis reveals that non-monetary relief has a full role to play within a modern law of contract. Non-monetary relief is not to be confused with specific performance. Unlike specific performance, an order for non-monetary relief does not provide actual or full performance. Non-monetary relief provides rather, by way of compensation for the loss caused by the non-performance, an act different as agreed upon, aimed at placing the aggrieved party in as good a position as if the contract would have been fully performed. Under Chinese contract law, this alternative form of compensation is available yet remains underexplored. This article provides the legal framework and highlights the under-utilization of this remedy, identifying examples for which non-monetary relief is an appropriate alternative to monetary damages for breach of contract. It argues that in the twenty-first century, when sustainability is increasingly pursued as a matter of a guiding principle, the law of contract needs to be re-gigged up to reflect this trend. The availability of non-monetary relief can meet not only private interests, but can comply with public interests as well.

Form and substance in contract damages

This article discusses the role of form and substance in the modern law of contract both generally and with specific reference to the law of damages for breach of contract and, in particular, the decisions of the UK Supreme Court in Swynson Ltd v Lowick Rose LLP [2017] UKSC 32 and Fulton Shipping Inc of Panama v Globalia Business Travel SAU (The New Flamenco) [2017] UKSC 43. Although it was probably true to say when Atiyah and Summers wrote in Form and Substance in Anglo-American Law over 30 years ago that ‘the English law of contractual damages continues to be treated by judges and writers as governed by highly formal rules’, it would be wrong to describe the reasoning employed by judges in modern times when explaining, refining and applying these rules as highly formal. Particularly in appellate decisions, judicial reasoning is usually an amalgam of what the authors would describe as formal and substantive considerations. Indeed, the formal reason for supporting a decision may be preferred precisely because it provides the just or most convenient solution to the dispute, as in Swynson v Lowick Rose. In that case the Supreme Court overturned the decision of the majority of the Court of Appeal that denial of the damages claimed ‘would be a triumph of form over substance’, preferring the view of the dissenting judge who said that ‘the form here is the substance’. And, while the decision in The New Flamenco appears at first sight to rest on formal, arguably formalistic, reasoning, a closer reading reveals that substantive considerations influenced the outcome of the appeal.

Rediscovering the Contract of Employment for Non-Standard Workers in the UK Common Law

The central concept underlying access to employment rights is based on a binary divide between contract of service (the employee) and contract for services (independent contractor). New classifications of work relationships have however been added over time. These new categories do not sit comfortably with the binary classification system. New ways of working may undermine what we traditionally understand as working relationships. As such the usefulness of this system has been questioned. Yet contract remains central. In view of the lack of any practical alternative it is worth considering whether the interpretation of contract law itself is capable of development. The modern law of contract has the potential capacity to redefine the binary divide so that only those who are truly self-employed are excluded from statutory protection. To do this the meaning of 'contract of service' would need to reflect the reality of labour market contracting and take account of the impact of exploitative bargaining strength. This reinterpretation could potentially expand the classification of contract of service to encompass more non-standard workers within the remit of full employment protection in the UK. Such a possibility depends on how far the employment tribunal and courts have incorporated a contextual framework into their interpretation of contract and how far any context incorporates wider social values consistent with public law standards of fairness and reasonableness. This paper contends that there needs to be explicit acknowledgement by the judiciary that the contextual interpretation of contracts needs to include the economic, political and social imperatives that informed the statutory environment. By seeing the employment relationship in this wider context the pragmatic judge may truly take a purposive stance.

CONTRACT: THERE’S STILL LIFE IN THE CLASSICAL LAW

The case of Carlton Communications plc and Granada Media plc v. The Football League [2002] EWHC 1650 should serve as a cautionary tale for contract scholars seeking to promote a socio-legal approach to the development of contract law at the expense of the classical model. For such scholars, the development of an alternative to the classical law is thought necessary given “the devastating empirical finding of non-use” of contract law in sociological studies of contracting behaviour (D. Campbell, “Reflexivity and Welfarism in the Modern Law of Contract” (2000) 20 O.J.L.S. 477, 480). In parts of his recent work Regulating Contracts (Oxford, 1999) Hugh Collins argues that the legal rules frequently undermine the parties’ agreement because, at least in the commercial context, “considerations of the long term business relation, the customs of the trade, and the success of the deal” (ibid. p. 271) are more important than the contractual planning documents in regulating the relationship. Quite simply, contracting parties do not start from the rules and doctrines of contract law in constructing their agreement—they start from the deal. While cases like Williams v. Roffey [1991] 1 Q.B. 1 demonstrate some judicial appreciation of this fact, Baird Textile Holdings v. Marks and Spencer plc [2001] EWCA Civ 274, [2000] 1 All E.R. (Comm) 737 reminds us that agreements (in that case lasting some thirty years) may still falter for want of a (legal) contract. Carlton Communications is another reminder of what the socio-legal vision is up against.

Reflexivity and Welfarism in the Modern Law of Contract

Over the past decade I have argued repeatedly that, in the terms of the modem philosophy of science, the classical law of contract is now so unproductive a research programme that it should be regarded as falsified. ' Falsification, however, never follows only from the degeneration of an unproductive programme. It quite rightly awaits the emergence of a superior, rival programme which makes it possible for those working in the field to abandon the unproductive programme by moving to that rival. The classical law of contract has been such an astounding success in the past that we should not be surprised that there remain, long after notice of its death has appeared,2 those who just obstinately refuse to accept their sad loss, or even hope to breathe new life into the deceased. I will take it that the evidence of the degeneration of the classical law is now so overwhelming that there is no point arguing about it. For those who are prepared to, and are capable of, moving to a new, rival law of contract, the issue now is one not of defence of the classical law as such but of weighing the attractiveness of any rival. Though resolutely or even militantly formal in method, the current restitutionary redrafting of the law of obligations is understood by some of its proponents to be such a rival.3 I do not think it is much of one, but having had my latest say on this only recently,4 and in the confident expectation that the proponents of restitution will themselves have something to say about the book under review, I will focus on the 'interdisciplinary' or 'socio-legal' character of the rival to the classical law which Hugh Collins offers in Regulating Contracts.'

When surfers start to shop: Internet commerce and contract law

Given that the modern law of contract is geared to the protection of reasonable expectation, is this approach capable of extension to contracting in electronic environments, particularly to mass consumer contracting via the Internet? The position taken in this paper is that the gearing of the modern law is largely appropriate. Applying such a modern approach to the provision of dedicated legal regimes for electronic commerce, the principle of ‘medium neutrality’ puts electronic environments on the same footing as traditional contracting environments; and the principles of fair dealing developed for traditional consumer marketplaces are copied across to virtual shopping sites. Whilst we contend that a revolution in the technology of contracting does not imply a revolution in contractual principles, we accept that it will not always be straightforward for the law to implement or respond to the reasonable expectations of Internet contractors (particularly so where, as is increasingly the case, contractors from radically different cultures are connected by the Internet).