Atiyah's Introduction to the Law of Contract

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ISBN: 9780199249411 | 0199249415
Cover: Paperback
Copyright: 5/8/2006

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This is the new sixth edition of Atiyah's Introduction to the Law of Contract that offers a clear and comprehensive account of this area of law. This latest edition, by Stephen Smith, retains the general shape and structure of Atiyah's classic book but as with previous editions, the texthas been completely revised and updated to place the law of contract in a modern context. Combining coverage of the law with an account of perspectives on contract law, Smith addresses European influences on the subject and takes all key changes and developments in the law and current literatureinto account. The aims of the book, however, remain unchanged: to supply a basic introduction, not merely to the law of Contract, but also to theories, policies and ideas underlying the subject. This remains a stimulating and innovative introduction for all students coming to Contract Law forthe first time.

Prefaces to the sixth edition

Table of Cases

xix

Table of Statutes

xxxiii

Table of Statutory Instruments

xxxvii

1. Introduction

(27)

1. The Classification of Contract Law

(2)

2. The Justification for Contract Law

(2)

3. The Limits of Contract Law

(4)

4. The Contested Ideal of Freedom of Contract

(12)

The classical period: 1770-1870

(2)

The period from 1870 to 1980

(5)

The contemporary period: 1980 to the present

(5)

5. The Historical Development of Contract Law

(1)

6. The Practical Importance of Contract Law

(2)

7. The Sources of Contract Law

(4)

2. Definition and Classification

1. Definition

(1)

2. Classification

(6)

PART I Formation of Contracts

3. Offer and Acceptance

(58)

1. Agreements

(1)

The offer must express a willingness to be bound

(3)

Conceptual reasoning in the law of offer and acceptance

(2)

The offer must be certain

(5)

Termination of the offer

(3)

Acceptance

(1)

Communication of the acceptance

(2)

Agreement inferred from conduct and the 'battle of the forms'

(3)

2. Promises (Unilateral Undertakings)

(2)

Deeds

(1)

Conditional promises

(4)

Promises to pay for requested acts

(1)

Announcements of auctions and calls for tenders

(1)

Concluding remarks

(1)

3. Promissory and Agreement-based Liability Outside of Contract Law

(1)

The law of companies

(1)

The law of trusts

(1)

The law of estoppel

(1)

The law of collective agreements

(1)

4. Contractual Liabilities Not Based on Promises or Agreements: Contracts made by the State

(1)

Collateral contracts

(3)

Simultaneous exchanges

(2)

5. Mistakes in the Formation Process

(1)

Mistake as to terms

(2)

Mistake as to the existence of a promise or agreement

(2)

Mistake as to identity

(4)

6. Non-contractual Liability in Contractual Settings

(1)

Negative duties

(1)

Positive duties

(3)

Reliance-based duties

(3)

4. Beyond Offer and Acceptance: Formalities, Intent to Create Legal Relations, and Consideration

(40)

1. Formalities

(4)

2. Intention to Create Legal Relations

(1)

Mere puffs and joking statements

(1)

Agreements not to be bound

(4)

Social, family, and collective bargaining agreements

103

(3)

3. Consideration

106

(4)

Consideration as a reason not to enforce certain kinds of agreements and promises

110

(9)

Consideration as a negative requirement: conclusion

119

(1)

Benefits and detriments as (positive) reasons for enforcing certain kinds of agreements and promises

120

(8)

Conclusion: the future of consideration

128

(5)

PART II The Content of the Contract

5. Express Terms

133

(22)

1. Terms and Representations

133

(3)

2. Written Contracts

136

(1)

Is the document part of the contract?: Signed documents

136

(3)

Is the document part of the contract?: Unsigned documents

139

(3)

Is the document exclusive evidence of the contract?

142

(2)

3. Oral Contracts

144

(2)

4. The Interpretation of Express Terms

146

(3)

5. The Interpretation of Exemption Clauses

149

(6)

6. Implied Terms

155

(99)

1. The Nature of Implied Terms

155

(2)

2. Individualized Implied Terms

157

(2)

3. Standardized Implied Terms

159

(1)

Judicial decision

160

(3)

Custom

163

(1)

Legislation

164

(1)

4. A Duty to Act in Good Faith?

164

(3)

7. The Force and Scope of Contractual Obligations: Standards of Care, Mistake, Frustration, Breach, and Notice

167

(41)

1. Strict Duties in the Law of Contract

167

(1)

The justification for strict liability

168

(2)

Exceptions to the normal rule

170

(2)

2. Mistake and Pre-existing facts

172

(1)

When is a mistake 'fundamental'?

172

(3)

The juridical basis of the law of mistake

175

(3)

Why is relief for mistake so rare?

178

(2)

Mistake in equity

180

(1)

Unilateral mistakes

181

(1)

3. Frustration and Subsequent events

182

(1)

Frustration through impossibility of performance

183

(1)

Frustration of the common venture

184

(3)

Hardship

187

(1)

Frustration as a risk-allocation procedure

187

(4)

Consequences of frustration

191

(1)

4. Breach

192

(1)

Terminological difficulties

193

(2)

Interdependent obligations and 'entire contracts'

195

(1)

Termination for breach

196

(5)

Anticipatory breach

201

(2)

The act of termination

203

(2)

5. Notice

205

(3)

8. Unenforceable Terms and Contracts

208

(33)

1. Agreements that Require One or Both Parties to do Something Undesirable

210

(1)

Cases in which performance is a crime or other legal wrong

210

(2)

Cases in which performance is not otherwise unlawful

212

(2)

Cases in which performance facilitates other acts that are undesirable

214

(2)

2. Agreements that Unduly Restrain the Liberty of One or Both Parties

216

(1)

Agreements to oust the jurisdiction of the courts

216

(2)

Agreements not to marry

218

(1)

Restraints on personal freedom

218

(1)

Restraints of trade

219

(1)

What kinds of restraints?

220

(1)

Restraints must protect a 'legitimate interest'

221

(3)

Reasonableness in the interests of the parties and of the public

224

(3)

Statutory developments

227

(3)

3. Agreements that are initially unobjectionable, but that are performed using, or become otherwise associated with, undesirable acts

230

(1)

Agreements that are performed using illegal means

230

(1)

Conditional contracts where the condition is satisfied using illegal means

231

(1)

Miscellaneous cases

232

(1)

4. The Consequences of an Unenforceable Term or Agreement

233

(1)

Severance

233

(1)

Collateral warranty

234

(1)

Enforcement by third parties

234

(1)

Restitution

234

(7)

PART III Excuses for Non-performance

9. The Duty to Disclose Material Facts

241

(13)

1. Excuses in General

241

(2)

2. A General Duty of Disclosure?

243

(2)

3. Particular Duties of Disclosure

245

(2)

Insurance contracts and other contracts uberrimae fidei

247

(2)

Fiduciary relationships

249

(1)

Statutory duties

249

(1)

Contracts subject to the Financial Ombudsman Service

250

(1)

4. Alternatives to Duties of Disclosure

251

(1)

Implied terms

251

(1)

Liability in tort

252

(2)

10. Misrepresentation

254

(13)

1. The Nature of Misrepresentation

254

(1)

A false statement of fact

254

(2)

Causation

256

(1)

Fault

257

(2)

2. Bars to Rescission

259

(1)

3. Damages for Misrepresentation

260

(1)

Fraudulent, negligent, and innocent misrepresentation

261

(3)

The measure of damages in tort

264

(1)

4. Exclusion of Liability for Misrepresentation

265

(1)

5. Misrepresentation in the Performance of Contracts

266

(1)

11. Duress and Undue Influence

267

(29)

1. Duress

267

(1)

Threats to breach

268

(3)

Blackmail

271

(1)

The theoretical basis of relief for duress

272

(1)

Duress as illegitimate or 'wrongful' pressure

273

(1)

Duress as impaired consent

274

(1)

The meaning of consent

275

(2)

Threats and impaired consent

277

(1)

States of necessity, monopolies, and consent

278

(5)

Conclusion

283

(1)

2. Undue Influence

283

(1)

'Actual' undue influence

284

(1)

Presumed undue influence

285

(1)

A relationship of trust and confidence

285

(1)

A transaction that 'calls for explanation'

286

(1)

Rebutting the presumption of undue influence

287

(1)

The basis of relief for presumed undue influence

288

(3)

Undue influence by third parties

291

(3)

3. Conclusion

294

(2)

12. Unfair Contracts

296

(39)

1. Fairness and Contract Law

296

(1)

The meaning of 'substantive fairness'

297

(1)

Why should courts care about substantive fairness?

298

(4)

2. Contract Law and Substantive Fairness

302

(4)

3. The Striking Down of Express Contract Terms at Common Law

306

(1)

Agreements contrary to public policy

307

(1)

Stipulated damages and forfeitures

307

(1)

Unconscionability and inequality of bargaining power

308

(5)

4. The Unfair Contract Terms Act 1977

313

(4)

5. The 1999 Regulations on Unfair Contract Terms

317

(1)

Application of the Regulations

318

(3)

The meaning of 'unfair'

321

(1)

Significant imbalance

321

(1)

Good faith

322

(2)

Schedule 2 the 'grey' list

324

(1)

Prevention of unfair terms

325

(1)

Theoretical justification for legislative protection

326

(4)

6. The Financial Ombudsman

330

(5)

PART IV Enforcement of the Contract

13. Third Parties

335

(1)

1. The Distinction between Contract and Property

335

(1)

Third parties and representatives of a second party

336

(1)

Third parties and security

336

(1)

Third parties and property law

337

(1)

The general principle of privity

338

(3)

2. Enforcement by the Promisee

341

(2)

3. Assignment

343

(2)

4. Agency

345

(2)

5. Insurance Contracts

347

(1)

6. Trusts

348

(3)

7. Commercial Cases

351

(1)

8. Privity and the Law of Tort

352

(1)

Privity of contract and exemption clauses

353

(3)

Economic loss and privity of contract

356

(3)

9. The Contracts (Rights of Third Parties) Act 1999

359

(1)

The intent requirement

360

(2)

Exclusions and limitations to the 1999 Act

362

(2)

10. Enforcing Contractual Rights against Third Parties

364

(1)

Agency

364

(1)

Novation

364

(2)

Obligations running with property

366

(2)

Other ways of enforcing obligations against third parties

368

(3)

14. Remedies for Breach of Contract

371

(54)

1. The Nature of Contractual Remedies

371

(2)

2. Self-help

373

(4)

3. Specific Performance and Injunction

377

(2)

When damages are inadequate

379

(2)

Personal service contracts

381

(1)

Difficulty of supervision

382

(1)

Should specific relief be more widely available?

383

(5)

4. The Action for an Agreed Sum

388

(1)

Part performance

389

(1)

Damages for failure to pay an agreed sum?

390

(1)

Agreed damages clauses

391

(5)

5. The Action for Damages

396

(2)

Contributory negligence

398

(1)

6. The Measure of Damages

399

(1)

Expectation damages

399

(2)

Compensation for what? Diminution in value versus cost of cure

401

(3)

Reliance damages

404

(4)

7. Restitutionary Claims

408

(1)

Restitution on grounds of failure of consideration

408

(4)

Gain-based restitution: restitution for 'wrongs'

412

(4)

8. Consequential Losses and Remoteness of Damage

416

(4)

The mitigation principle

420

(2)

Non-pecuniary and intangible losses

422

(3)

Index

425

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Atiyah's Introduction to the Law of Contract

Summary

Author Biography

Table of Contents

Supplemental Materials

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Rent More, Save More! Use code: BBRENTAL

5% off 1 book, 7% off 2 books, 10% off 3+ books

Atiyah's Introduction to the Law of Contract

Summary

Author Biography

Table of Contents

Supplemental Materials

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