Changing Concepts of Contract: Essays in Honour of Ian Macneil PDF
Preview Changing Concepts of Contract: Essays in Honour of Ian Macneil
IAN MACNEIL OF BARRA Palgrave Macmillan Socio-Legal Studies Series Editor David Cowan, Professor of Law and Policy, University of Bristol, UK Editorial Board Dame Hazel Genn, Professor of Socio-Legal Studies, University College London, UK Fiona Haines, Associate Professor, School of Social and Political Science, University of Melbourne, Australia Herbert Kritzer, Professor of Law and Public Policy, University of Minnesota, USA Linda Mulcahy, Professor of Law, London School of Economics and Political Science, UK Carl Stychin, Dean and Professor, The City Law School, City University London, UK Mariana Valverde, Professor of Criminology, University of Toronto, Canada Sally Wheeler, Professor of Law, Queen’s University Belfast, UK Changing Concepts of Contract Essays in Honour of Ian Macneil Edited by David Campbell Lancaster University, UK Linda Mulcahy London School of Economics and Political Science, UK Sally Wheeler Queen’s University Belfast, UK Editorial selection and matter © David Campbell,Linda Mulcahy and Sally Wheeler 2013 Foreword,preface and chapters © their individual authors 2013 Softcover reprint of the hardcover 1st edition 2013 978-1-137-26926-3 All rights reserved.No reproduction,copy or transmission of this publication may be made without written permission. 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Contents Acknowledgments vii Foreword by Stewart Macaulay ix Notes on Contributors xi Preface by Rory Macneil of Barra xv 1 Introduction 1 Jay M Feinman 2 ‘Post-Technique’: The New Social Contract Today 14 Roger Brownsword 3 What Might Macneil Have Said about Using eBay? 38 Sally Wheeler 4 The Contract of Employment in 3D 65 Hugh Collins 5 Neglected Insights into Agreed Remedies 89 Roger Halson 6 Relational Values in English Contract Law 116 Hugh Beale 7 Arcos v Ronaasen as a Relational Contract 138 David Campbell 8 In Defence of Baird Textiles: A Sceptical View of Relational Contract Law 166 Jonathan Morgan 9 Telling Tales about Relational Contracts: How Do Judges Learn about the Lived World of Contracts? 193 Linda Mulcahy 10 Relational Contract and Social Learning in Hybrid Organization 216 Peter Vincent-Jones Index 235 v Acknowledgments With the death of Ian Macneil on 16 February 2010 the common law world lost arguably the most important theorist of the law of contract it had known since Lon Fuller. Ian was the principal contributor to the formula- tion of the relational theory of contract. This book is an attempt by a number of UK scholars who have been influenced by, even if at times they disagree with, the relational theory to honour the achievement of this great theorist. Though it was not possible to arrange for contributions from all the UK scholars who have been so influenced, this collection nevertheless representatively states a powerful challenge to the limits of orthodox contract scholarship in the spirit of Ian’s work. It is perhaps fitting that it will appear in the year in which the first English judgment in which the relational theory has played a productive part was handed down: the judg- ment in the Queen’s Bench Division of Leggatt J in Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] EWHC 111, [2013] 1 All ER (Comm) 1321, [2013] 1 Lloyd’s Rep 526, [2013] BLR 147, (2013) 146 Con LR 39, [2013] All ER (D) 227. A note on this case focusing on Leggatt J’s handling of the relational theory will appear in the Modern Law Review in 2014. The chapters in this collection were prepared for presentation at a conference held in March 2012 at the School of Law, University of Leeds, where David Campbell was then Professor of International Business Law. The conference was one of a series of events held to celebrate the open- ing of the Liberty Building, the School of Law’s impressive new home, and was initially suggested by Professor Steve Wheatley, then Head of the Law School, and Professor Joan Loughrey, then Director of the Law School’s Centre for Business Law and Practice. The school committed very considerable funds to the support of this conference. The burden of organizing the conference was largely borne by Professor Loughrey, with the very able help of Ms Nicolette Butler, then a doctoral student in the School. This collection appears in Palgrave Macmillan’s series of books on Socio- Legal Studies. We are very grateful to Professor Dave Cowan, General Editor of the series, Mr Rob Gibson, the series’ publisher, and Ms Marie Selwood, responsible for production, for their unfailing help. vii viii Acknowledgments We should also like to acknowledge our gratitude to the contributors and especially to Mr Rory Macneil, who succeeded his father to become the 47th Chief of the Clan Macneil. Rory has always taken a great interest in the relational theory, to which he has made his own contribution, and gave wholehearted support to the conference. David Campbell, Linda Mulcahy and Sally Wheeler 10 August 2013 Foreword At the conference at Northwestern Law School that marked his retirement, I said ‘People should not attempt to write about contracts until they have studied Ian Macneil.’ While often we exaggerate at such events in order to honour someone, I am still comfortable with what I said. Part of Macneil's contribution is empirical. He insisted that we start with a picture of impor- tant business transactions that reflected long-term continuing relationships that involve their own norms and sanctions apart from the commands of the law. Macneil then looked at what a relational approach means for the law that we do and that we ought to have. To say the least, his conclusions were not conventional. Rather, his work was always challenging. I am pleased that the School of Law at the University of Leeds decided to honour Macneil in the best way possible: gathering an exceptional group of scholars to pay serious attention to his work. Now those of us unable to attend the conference have the chance to read the papers given there. I hope that in the years to come this book is read widely by those think- ing about contract law. Stewart Macaulay Malcolm Pitman Sharp Hilldale Professor Emeritus, University of Wisconsin-Madison, Wisconsin, USA ix Notes on Contributors Hugh Bealeis Professor of Law at the University of Warwick in the UK and Visiting Professor at the universities of Oxford and Amsterdam. He was a Law Commissioner for England and Wales from 2000–2007. He was a member of the Commission on European Contract Law 1987–2000, of the Study Group on a European Civil Code and of the team responsible for the Draft Common Frame of Reference. He is a member of the Group of Experts set up by the European Commission to produce the Feasibility Study which preceded the proposed Common European Sales Law. Among his publica- tions, he is an editor (with B Fauvarque-Cosson, J Rutgers, D Tallon and S Vogenauer) of Casebooks on the Common Law of Europe: Contract Law (Oxford: Hart Publishing 2010) (2nd edn) and he is the general editor of Chitty on Contracts (London: Sweet & Maxwell 2012) (31st edn). He is an Honorary Queen’s Counsel and a Fellow of the British Academy. Roger Brownsword, who is a graduate of the London School of Economics (LSE), has been an academic lawyer for more than 40 years. Currently, he is Professor of Law at King’s College London, where he was the founding director of TELOS (a research centre that focuses on technology, ethics, law and society), an honorary professor at the University of Sheffield, and a visiting professor at Singapore Management University. In the area of contract law, his publications include Understanding Contract Law(London: Sweet & Maxwell 2007) and Key Issues in Contract (London: Butterworths Law 1995) (both with John Adams), Contract Law: Themes for the Twenty- First Century (Oxford: Oxford University Press 2006) and most recently the co-edited collection The Foundations of European Private Law (Oxford: Hart Publishing 2011). David Campbellwas educated at Cardiff University, UK (BSc (Econ) 1980), the University of Michigan School of Law, USA (LLM 1985), and the University of Edinburgh, UK (PhD 1985). He is a Fellow of the Chartered Institute of Arbitrators. Since 1985, he has taught at a number of British universities and in Australia, Hong Kong, New Zealand, Spain and the USA. He is currently the Professor of Law in the Lancaster University School of Law, UK. He has written on a wide range of legal and social scientific issues in leading UK, Commonwealth and US journals. His books on the relational theory include: Contract and Economic Organisation:Socio-Legal Initiatives (with P Vincent-Jones (eds), Aldershot:Dartmouth Publishing 1996); The Implicit Dimensions of Contract (with H Collins and J Wightman (eds), xi
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