Discussion of aspects of the English law of contract which are in need of reform, and the mechanisms by which reform can be achieved. Revised text of Inaugural Lecture delivered on 7 October 2008 in acceptance of the Chair of Anglo-American Private Law at the University of Leiden.

ISBN: 0928-9801

This discusses the Court of Appeal decision in Office of Fair Trading v Abbey National and 7 Others [2009] EWCA Civ 116 in which Sir Anthony Clarke MR upheld the High Court's rejection of the banks' claim that their penalty charges are exempt from the test for unfairness under regulation 6(2). It examines the purposive interpretation of the Unfair Terms in Consumer Contracts Regulations 1999 as law of EC origin. It argues that while ensuring transparency is insufficient consumer protection under the Regulations, Sir Anthony Clarke goes too far in effectively requiring terms to be negotiated. The focus of regulation 6(2) is a difficult-to-stabilise something in between; namely, only the exemption of terms which are sufficiently important from the consumer's perspective that they can be said to be meaningfully consented to by consumers. 

The doctrine of consideration has come under increasing attack. In Gay Choon Ing v. Loh Sze Ti Terence Peter, Andrew Phang Boon Leong J.A. of the Singapore Court of Appeal raises the spectre of its replacement with the doctrines of economic duress, undue influence, unconscionability and promissory estoppel. In response to the reasoning of Phang J.A. and others, I argue that: (i) consideration is not a meaningless doctrine; in particular, the adequacy of consideration is relevant to the enforceability of an agreement and ?practical benefit? can be made a meaningful concept; (ii) contract law does not, and should not, enforce all seriously intended undertakings; and (iii) the vitiating factors do not simply interrogate the presence of contractual intention and cannot replace the functions performed by consideration.

This discusses the High Court decision in Office of Fair Trading v Abbey National Plc and 7 Others [2008] EWHC 875 (Comm). First, it examines the relevant considerations in determining,  and the standard required for language to be, 'plain and intelligible'. Second, it assesses Andrew Smith J's reasoning and conclusion that the relevant bank charges fall outside the exemption for so-called 'core' terms.  Third, it criticisesthe banks' argument that contravention of good faith requires procedural unfairness.

Abstract: Is it necessary to codify the private law of contracts in Europe? The question, the author argues, breaks down into three sub-questions. First, is such a codification conceivable, that is, does it make sense to claim to envision it? Next, is it desirable? And finally, is it realizable? The demand for codification would imply that one should answer these three questions affirmatively. According to the author this is not the case, however, because even if it is conceivable to create a legal instrument common to countries with distinct legal traditions and epistemologies (notably the civil and the common law), the arguments in favour of such a project are outweighed by those against it, notably issues of costs and uselessness. Above all, the idea of "Europeanizing" the law of contracts betrays a certain lack of understanding of the nature of law. In effect, not only is it impossible to set out in a uniform manner the same norm in several different systems, especially if they use different languages, but also the interior dependence of each of these systems of contract law on other branches of law and on national legal science makes the creation of a uniform contract law in Europe radically impossible.

ISBN: 0024-9041

New edition of classic text on contract law

ISBN: 9780199282470

Book designed to introduce the lawyer who is trained in a civil law jurisdiction to the common law, and to the English law of contract.

ISBN: 978 1 84113 577 9

This article considers why English lawyers have not generally been attracted by the notion of 'network contracts' to regulate complex economic relations.

ISBN: 978 1 84844 889 6

Discussion and criticism of recent cases holdinbg that a fraudulent breach of a duty of disclosure is actionable within the tort of deceit.

ISBN: 9780199583706

If we accept that a bird in the hand is the worth two in the bush then the idea that the receipt of performance (even part performance) confers a benefit over and above the right to performance, and can be exchanged for something from the recipient, is consistent with the core idea of the consideration doctrine. All that remains is to replace the bilateral contract analysis in Williams v Roffey with a unilateral contract analysis (the promisor is only bound if the stipulated performance is actually received). This is preferable to three recently mooted alternatives to consideration as the primary test of enforceability: (i) the test of serious intention subject to contrary policies advanced in Antons Trawling v Smith; (ii) promissory estoppel as advanced in Collier v Wright, and (iii) leaving it all to the vitiating factors advocated in Gay Choon Ing v Loh Sze Ti Terence Peter.

An essay concerning the limits to the enforceability of agreements to negotiate and a proposal for reform

ISBN: 978-0-19-958370-6

The author explores the contours of the ?objective test of intentions? and concludes that Smith v Hughes and other ?mistake of terms? cases said to represent exceptional subjectivity trumping the objective approach are straightforward applications of objectivity; there is no need, indeed no room, for resort to subjectivity. Further, stabilizing the language of ?mistake,? ?defective consent,? and ?void? allows  vital distinctions to be drawn between contract formation and vitiation which explains why known non-correspondence of any term prevents contract formation, while mistaken assumptions must be shared and fundamental to void a contract.  It also allows us to map the related areas of rectification, non est factum, mistaken identity and misrepresentation.

The article analyses the law governing the effectiveness of entire agreement clauses in English law

This essay explores the validity of price variation clauses in English law

ISBN: 978-2-275-03136-1

This chapter looks at the meaning of unfairness and its inter-relationship with the method chosen to implement the Unfair Terms in Consumer Contracts Regulations.

ISBN: 978-0-19-922937-6

Published version of paper from Oxford-Norton Rose Colloquium 2006.

ISBN: 978 0 19 922937 6

Discussion of the role of estoppel and the protection of legitimate (or reasonable) expectations in English contract law. Contribution to the 17th Congress of the International Academy of Comparative Law, Utrecht, July 2006. Also published (separately) on-line in the Electronic Journal of Comparative Law at http://www.ejcl.org/103/art103-6.pdf

ISBN: 978 2 908199 53 6

This work analyses the different types of contract terms which allow an injured party to terminate on the ground of breach of contract and explains and criticises the controls which statute and the courts have put in place to control them.

ISBN: 978-0-19-922937-6

Continued updating and rewriting of chapters (including new section on the HRA and contracts).

ISBN: 1 0 421 842 806

A collection of essays on the 'formation process' and 'third parties' based on the papers presented at the Oxford-Norton Rose Law Colloquium, September 2009

ISBN: 978-0-19-958370-6

Essays from Norton Rose-Oxford colloquium

ISBN: 978-0-19-922937-6

Edited collection of essays, responses and conference discussionconcerned with current issues and problems in the law of remedies

ISBN: 0-19-926465-1

An argument in favour of the expansion of common law doctrines to protect pre-contractual reliance, including a comparative, doctrinal and economic assessment of the problem.

This note assesses the decision of the UK Supreme Court in the 'Bank Charges' case in the light of the decision of the case-law of the ECJ

Case note on Statoil ASA v Louis Dreyfus Energy Services LP

A comment on the decision of the House of Lords in The Achilleas

ISBN: 0023-933X

a casenote on the HL decision in Concord Trust v Law Debenture Trust Corp

ISBN: 0023-933X

A casenote on the Court of Appeal's decision in Watford Electronics Ltdv Sanderson CFL Ltd

ISBN: 0-421-755-407