Contract as Assumption: Essays on a Theme
246
Contract as Assumption: Essays on a Theme
246Hardcover
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Overview
It is to further such discussion that some of the author's previously published writings around this subject have been brought together in this book. His basic premises are that contractual obligation and liability in this context are two sides to the same coin and that an assumption of one is an assumption of both. Parties are bound not because liability has been imposed upon them by law as a result of their having entered into a contract but because, in the act of assuming, they have imposed it upon themselves. Contract provides a facility the purpose of which is to enable this to be done within the limits prescribed by law.
The implication of these premises are much more significant than might be supposed when applied to such areas of contract as formation, consideration, intention to contract, exception clauses, privity and damages. The book concludes with a treatment of the role of assumption in tort.
Because of the importance of its subject matter and its wide-ranging treatment, this book should appeal not only to teachers and postgraduate students of contract but also to practitioners in the field and to anyone else with an interest in contract theory.
Product Details
| ISBN-13: | 9781849460293 |
|---|---|
| Publisher: | Bloomsbury Academic |
| Publication date: | 04/02/2010 |
| Pages: | 246 |
| Product dimensions: | 6.14(w) x 9.21(h) x 0.62(d) |
About the Author
Rick Bigwood is Professor of Law at the University of Auckland and Director of the Research Centre for Business Law.
Table of Contents
Preface v
Acknowledgements ix
Table of Cases xv
Table of Legislation xxvii
1 Introduction 1
2 The Essence of Contract 7
Introduction 7
Textbook Definitions 10
Contract Theories 13
The Secret Paradox 24
The Failure of Traditional Contract Theories 28
The Reaction Against Classical Concepts of Contract 29
The Need for a More Inclusive Theory 37
A Suggested Solution to the 'Secret Paradox' 38
The Essence of a Contract 42
Some Consequences 42
The Contemporary Near-Contracts 47
Conclusion 50
3 Consideration and Benefit in Fact and in Law 53
The Facts 53
The Judgment 54
The Meaning of the Decision 56
An Explanation for the Decision 56
Bilateral Contracts 57
Unilateral Contracts 58
Conclusion 60
4 Consideration and the Variation of Contracts: A Different Solution 61
5 Consideration and the Joint Promisee 65
The Arguments for the Joint Promisee Principle 67
Two Fallacies 69
Joint Promisee as Promisor 74
Unilateral Contracts 75
Conclusion 76
Addendum 76
6 The Function of Exception Clauses 81
The Current Approach 81
Are Exception Clauses Substantive or Procedural In Their Effect? 83
Can the Parties to a Contract Create Rights Intended by Them to be Unenforceable? 84
A Different Approach Suggested 86
A Suggested Classification of Exception Clauses 88
The Interpretation of Exception Clauses In Relation to Their Function 90
Some Special Consequences of the Exception Form 92
Conclusions 95
Addendum 95
7 The Second Rise and Fall of Fundamental Breach 99
Discharge for Breach and Deviation Distinguished 100
The Function of Exception Clauses 105
The Suisse Atlantique Case 107
The Second Version of Fundamental Breach 109
The Securicor Case 115
The Significance of Securicor for the Future 119
Conclusion 125
8 Contract Damages, Ruxley, and the Performance Interest 127
The Ruxley case 128
A Basic Ambiguity in Contract Damages 130
Damages as Protection of the Performance Interest 130
Other Protections of the Performance Interest 132
Extending the Potential Inclusiveness of Performance Protection 133
The Compensation Principle 134
Reinstatement and Repair: Building Contracts 146
Difference in Value in Building Cases 147
Three Questions 149
The Place of General Damages 157
Summary and Conclusions 158
Addendum: Two Recent Cases 159
9 The Performance Interest, Panatown, and the Problem of Loss 165
The Arguments 166
The Problem of Characterisation 168
The Narrow Ground 169
The Albazero Exception 170
The Broad Ground 174
Who Suffered the Loss? 176
The Position Where Both Have Suffered Loss 178
Conclusion 179
10 Contract not Trust: Some Questions About the Contracts (Rights of Third Parties) Act from Another Perspective 181
Contract or Not? 182
A New Form of Contract? 184
The Availability of Equitable Remedies 186
Failure of Consideration 187
Defences Available to the Promisee 188
Conclusion 190
11 Assumption of Responsibility and Pure Economic Loss in New Zealand 191
Assumption of Legal Liability in Tort 193
Assumption of Non-Tort Obligation 203
Assumption of a Task 208
Conclusion 209
Index 211