Comparative contract law British and American perspectives

513 Pages·2016·4.014 MB·English

by  DiMatteo, Larry A

COMPARATIVE CONTRACT LAW

Comparative
Contract Law
British and American Perspectives
Edited by
LARRY A DIMATTEO
Huber Hurst Professor of Contract Law and Legal Studies,
University of Florida
and
MARTIN HOGG
Professor of the Law of Obligations,
University of Edinburgh
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For
My Dad, who passed during the editing of this book.
He taught me the values of unconditional love and hard work.
L A D

Preface
This book comprises the collected and revised papers from a conference on compara-
tive British and American contract law, held at the University of Edinburgh Law School
in September 2013. The topics selected for the conference, and hence for the chapters of
this book, were intended, in ranging across the spectrum of contract law, to illuminate the
extent to which similarities and differences exist between the laws of both countries. In
comparing the common law of contract of the United States and the United Kingdom (spe-
cifically England and Scotland), the authors have undertaken valuable doctrinal, as well as
some theoretical, work in a neglected field of comparative law.
As editors of this work, it has been our pleasure to work with leading contract scholars
from both sides of the Atlantic. We also had the privilege of hearing at the Edinburgh
Conference from Lord Hodge, Justice of the Supreme Court of the United Kingdom, and
subsequently of including his keynote address within this collection. We are very much in
the debt of all of the contributors to this volume, from whom we have learned and who have
enriched, and will continue to enrich, this quintessential area of private law.
We are also indebted to the University of Edinburgh for its support, both financial and
administrative, in relation to the holding of the conference, out of which the contributions
to this volume were born. In particular, much of the administration of the conference was
ably undertaken by Simon Kershaw of the University of Edinburgh, to whom we extend our
grateful thanks. Our thanks are also due to the University of Florida, Warrington College
of Business Administration, for financial support for the conference.
We have been ably assisted in our work by the commissioning and editorial staff of Oxford
University Press, who had faith in the value of this project, and who have been on hand to
advise and help us as the book progressed from idea to finished work.
The ultimate value of any work such as the present lies in the extent to which it advances
knowledge in the field of comparative contract law. We trust that the readers of this work
will find much to enlighten them within its pages, and that it will be of use to scholars in
the United States, the United Kingdom, and to all in the civil and common law worlds who
value comparative law methodology, and who understand its importance to the advance-
ment of the rule of law and its contribution to the corpus of legal knowledge.
One final word, on law reform. At the time of writing, the (United Kingdom) Consumer
Rights Act 2015 has been enacted but has yet to come into force. The reader should bear this
in mind, particularly in the context of the discussion in Chapter 20 on consumer rights in
the UK.
Larry A DiMatteo and Martin Hogg (Editors)
November 2015

Contents
Table of Cases xvii
Table of Legislation (Including Law Reform Proposals and Model Laws) xxxi
Table of Frequently Cited Works xxxv
List of Contributors xxxvii
1. Introduction: British and American Perspectives 1
Larry A DiMatteo and Martin Hogg
Comparative law approach 1
Challenges to US–British comparative contract scholarship 4
Consent and standard terms 5
Structure of the book 7
PART I. CONTRACT THEORY AND STRUCTURE
2. Saying What We Mean: Fundamental Structural Language
in Contract Law 13
Martin Hogg
Introduction 13
Why is fundamental structural terminology used in contract law? 14
Examples of fundamental structural contractual language 15
Obligation and liability 15
Conditional and contingent 20
Unilateral and bilateral 24
Conclusions 28
3. The Death of Consent? 30
Peter A Alces
Introduction 30
Seminal cases 33
Carnival Cruise v Shute 34
Decisions of Judge Easterbrook 38
Arbitration, unconscionability, and consent 45
Constructing consent 52
Normative sense of consent 52
Inferring consent 53
“There oughta be a law!” 55
More heat than light 58
Conclusion 59
Reply to Martin Hogg, “Saying What We Mean: Fundamental
Structural Language in Contract Law” Peter A Alces 61
Reply to Peter A Alces, ‘The Death of Consent?’ Martin Hogg 65
Editors’ Commentary on Chapters 2 and 3
(Language and Structure of Contract Law) 71