Mindy Chen-Wishart is a Professor of the Law of Contract at Oxford University and a Tutorial Fellow in Law at Merton College. She was formerly a Senior Lecturer at Otago University in New Zealand and a Rhodes Visiting Research Fellow at St. Hilda's College before taking up her current position. She has taught Contract, Restitution, Torts and Constitutional Law, Administrative Law, Consumer Protection Law and Introduction to Law. She is involved in graduate teaching in Philosophical Foundations of the Common Law and Private Law and Fundamental Rights. She is author of Contract Law (5th ed), and is leading a large project on the Contract Laws of Asia, to be published with OUP. She holds a fractional Professorship at the National University of Singapore and a Visiting Professorship at Hong Kong University. She is the the Associate Dean of Taught Graduate Studies at Oxford Law Faculty. She delivered the Fourth Annual International and Comparative Quarterly Lecture as author of the best paper in 2013, has lectured to the Judicial College in the UK, Hong Kong and Taiwan and is an Editor of Chitty.
- ISBN: 9780414065130ISBN: 9780414065130ISBN: 9780414065130ISBN: 9780414065130Since written contracts are overwhelmingly in standard form, regulating such contracts must be one of contract laws most important tasks. While the substantive law embodied in the legislation is relatively well settled, there has been little theorising on the precise scheme of regulation contained therein. Doing so is important, not only because any law that demands obedience should be justifiable, but also because it provides a guide to adjudication, a basis for critique, and a direction for future reform. I explore three possible justifications for this pattern of control (defective consent, market inefficiency and standard terms as defective product), and conclude that they provide important insights, but do not provide complete or satisfying justifications. I then put forward and defend a justification based on preventing abuse of the institution of contract.The orthodox defective consent account of vitiating factors in contract law presents an appealing and simple consent-in, lack-of-consent-out picture that is normatively skewed, lacks fit with the law it seeks to explain, lacks transparency, and takes an unrealistic and disrespectful view of the complainants rationality. It tames the evidence of other factors at work in the vitiating factors beyond defective consent by three common techniques that give a distorted view of the law. Identifying the principles behind these other factors and accommodating them within the two-step defeasibility approach redresses the normative imbalance, enhances transparency, yields better fit with the law, and affirms the importance of the human faculties of reason and responsibility. Instead of obscuring the real issue behind the façade of qualifying consent, the path is cleared for an open examination of the operative principles at stage-two and how they relate to the consent principle at stage-one.DOI: 10.5235/147293220.127.116.11ISBN: 1472-9342ISBN: 9780199678907Is legal transplant possible? The stark bipolarity of a yes or no answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer requires an examination of the relationship between law and society, and between the formal and informal legal orders of the originating and the recipient society.ISBN: 0020-5893ISBN: 9780199644841If 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) the version of promissory estoppel 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.ISBN: 9780199583706ISBN: 0023-933XThe 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.ISBN: 9781841139067This discusses the Court of Appeal decision in Office of Fair Trading v Abbey National and 7 Others  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  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.ISBN: 0-19-921211-2ISBN: 0-19-920655-4The title is self-explanatory.I was a contributing editor for the United Kingdom with Prof Beatson with primary responsibility for 107 pages (of 585 total pages) being pps 31-34, 104-114, 171-173, 252-281, 285-319, 322-332, 524-542.ISBN: 1-84113-126-1ISBN: 0 521 80820 0
Contract, Restitution, Contract theory, Comparative Contract Law
Options taughtContract, Philosophical Foundations of the Common Law, Private Law and Fundamental Rights
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