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Comparative contract law British and American perspectives PDF

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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 1 1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2016 The moral rights of the authors have been asserted First Edition published in 2016 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2015956488 ISBN 978–0–19–872873–3 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. 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

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