Mistake and Non-Disclosure of Fact: Models for English Contract Law

by Hugh Beale QC FBA

Overview

In this book Hugh Beale examines the case for reforming the law on mistake and non-disclosure of fact to bring English law closer to the law in much of continental Europe. There, and in common law countries like the US, a party may avoid a contract for mistake of fact on a more liberal basis, and a party who deliberately keeps silent knowing that the other party is making a mistake may be guilty of fraud. This is not necessarily the case in England and Wales. Developing a proposal for law reform, the author concedes that the English courts require a law that puts great emphasis on certainty and expects parties to look out for their own interests; but posits that this individualistic approach is not suitable for smaller businesses which are less sophisticated and which are likely to be making low value contracts, so that relative cost of taking advice will be high. He argues that the solution may not be to reform English contract law generally, but to support the development of an optional instrument on contract law, along the lines of the Common European Sales Law recently proposed by the European Commission. This measure is aimed specifically at the needs of small and medium enterprises, and contains the protective rules found in the other jurisdictions. It is aimed primarily at cross-border sales, but Member States would be given the option of adopting it for domestic transactions too. This would give small businesses the choice of using the current "hard-nosed" law or adopting the more protective optional instrument, recognizing that different parties require different things from the law governing their contract.

Product Details

ISBN-13:	9780191641916
Publisher:	OUP Oxford
Publication date:	08/23/2012
Series:	Clarendon Law Lectures
Sold by:	Barnes & Noble
Format:	eBook
File size:	2 MB

About the Author

Hugh Beale QC FBA is Professor of Law at the University of Warwick, and a Visiting Professor at the University of Amsterdam and the University of Oxford. He was a member of the Commission on European Contract Law from 1987-1999, and was a Law Commissioner for England and Wales with responsibility for the Commercial and Common Law Team from 2000-2007. An honorary QC, he is also the editor of Chitty on Contracts.

Table of Contents

Table of Cases xi

Table of Instruments and Legislation xix

Abbreviations of Frequently Cited Material xxiii

1 Defining the Issues 1

Background: 'European' principles of contract law 3

Defining the issue 14

Real differences between the English and 'European' laws 19

Conclusions 26

2 Mistake and Non-Disclosure in Other Systems 33

Commonwealth laws 33

European models 42

United States 68

What to make of this survey 71

3 Possible Models for English Law 75

Models not to follow 76

The underlying aim: protection of autonomy or fairness in exchange? 77

A plausible 'informed consent' model 78

Remedies 95

Should the rules be mandatory? 97

A provisional proposal 98

Do we want to adopt this kind of model? 99

Appendix 125

Index 135