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Mindy Chen-Wishart

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Reader in Contract Law

Mindy Chen-Wishart is a Lecturer in the Law Faculty and a Tutorial Fellow in Law at Merton College. She has taught law since 1985. Until 1992, she was a Senior Lecturer at Otago University in New Zealand. She then spent two years as the Rhodes Visiting Research Fellow at St. Hilda's College before taking up her current position. She teaches Contract, Restitution, Torts and Constitutional Law (and has previously also taught Administrative Law, Consumer Protection Law and Introduction to Law). She is involved in graduate teaching in Restitution and supervises graduate students working in topics in the law of Contract and Restitution.



Publications

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Journal Articles

2013

M Chen-Wishart, 'In defence of consideration' (2013) 13 Oxford University Commonwealth Law Journal 209

M Chen-Wishart, 'Legal Transplant and Undue Influence: Lost in Translation or a Working Misunderstanding' (2013) 62 International and Comparative Law Quarterly (forthcoming) [...]

Is 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: 0020-5893

2011

M Chen-Wishart, 'The Purposes and Methods of English Contract Law' (2011) 12 Peking University Law Review 681

2009

M Chen-Wishart, 'Bank Charges: A Lesson in Interpreting EC Law' (2009) 125 LQR 389 [...]

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. 


M Chen-Wishart, 'Consideration and Serious Intention' (2009) SJLS 434 [...]

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.


2008

M Chen-Wishart, 'Unfairness of Bank Charges' (2008) 124 LQR 561 [...]

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.


2007

M Chen-Wishart, 'Undue Influence Vindicating Relationships of Influence' (2007) OUP 231

2000

M Chen-Wishart, '“Unjust Factors and the Restitutionary response” ' (2000) 20 Oxford Journal of Legal Studies 557

1998

M Chen-Wishart, 'Restitutionary Damages for Breach of Contract' (1998) 114 Law Quarterly Review 363

1997

M Chen-Wishart, 'The O’Brien Principle and Substantive Unfairness' (1997) 56 Cambridge Law Journal 60

1994

M Chen-Wishart, 'Undue Influence, Manifest Disadvantage and Loss Apportionment' (1994) 110 Law Quarterly Review 173

1993

M Chen-Wishart, 'Creditors Beware' (1993) 2 Property Review 140

M Chen-Wishart, 'Creditors Beware II' (1993) 2 Property Review 499

M Chen-Wishart, 'Taking Securities, Taking Advantage' (1993) New Zealand Law Journal 224

1991

M Chen-Wishart, 'The Enforceability of Additional Contractual Promises: A Question of Consideration?' (1991) New Zealand Universities Law Review 270

1987

M Chen-Wishart, 'Unconscionable Bargains' (1987) New Zealand Law Journal 107

1986

M Chen-Wishart, 'The Contractual Mistakes Act 1977 and Contract Formation' (1986) Otago Law Review 334=354

Books

2012

M Chen-Wishart, Contract Law (4th ed, Oxford University Press 2012)

2011

M Chen-Wishart, Contract and Reciprocity: The Hochelaga Annual Lectures of the Hong Kong University Law Faculty (Hochelaga 2011)

2010

M Chen-Wishart, Contract Law, 3rd edition (Oxford University Press 2010)

2008

M Chen-Wishart, Contract Law, 2nd ed (Oxford University Press 2008)

2005

M Chen-Wishart, Contract Law (OXford University Press 2005)

2003

M Chen-Wishart and others, Ius Commune Casebooks for the Common Law of Europe: Cases, Materials and Texts on Unjustified Enrichment (Hart Publishing 2003) [...]

The 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: 1-84113-126-1

2000

M Chen-Wishart, In Defence of Unjust Factors: A Comparative Study of Duress, Fraud and Exploitation (Oxford U Comparative L Forum 2 at ouclf.iuscomp.org 2000)

1989

M Chen-Wishart, Unconscionable Bargain (Butterworths 1989)

Chapters

2013

M Chen-Wishart and U Magnus, 'Termination, Price Reduction and Damages' in S Vogenaur, G Dannemann (eds), The Common European Sales Law and its Interaction with English and German Law (Oxford University Press 2013) (forthcoming)

2010

M Chen-Wishart, 'A Bird in the Hand: Consideration and One-Sided Contract Modifications' in AS Burrows, E Peel (eds), Contract Formation and Parties (Oxford University Press 2010) [...]

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) 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: 9780199583706

2009

M Chen-Wishart, 'Objectivity and Mistake: the Oxymoron of Smith v Hughes' in J Neyers, R Bronough, SGA Pitel (eds), Exploring Contract Law (Hart 2009) [...]

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.


ISBN: 9781841139067

2006

M Chen-Wishart, 'Undue Influence: Beyond Impaired Consent and Wrong-Doing, Towards a Relational Analysis' in Andrew Burrows and Alan Rodger (eds), Mapping the Law: Essays in Honour of Peter Birks (OUP 2006)

2002

M Chen-Wishart, 'In Defence of Unjust Factors: a Study of Rescission for Duress, Fraud and Exploitation' in David Johnston and Reinhard Zimmermann (eds), Unjustified Enrichment: Key Issues in Comparative Perspective (Cambridge University Press 2002)

1996

M Chen-Wishart, 'Controlling the Power to Agree Damages' in P Birks (ed), Wrongs and Remedies in the Twenty-First Century ( 1996)

1995

M Chen-Wishart, 'Consideration, Practical Benefit and the Emperor’s New Clothes' in Beatson and Friedmann (eds), Good Faith and Fault in Contract Law (Oxford University Press 1995)

Case Notes

2010

M Chen-Wishart, 'Transparency and Fairness in Bank Charges' (2010) 126 Law Quarterly Review 157


Interests

Teaching: Contract; Philosophy of Law; Restitution

Research: Contract, Restitution

Other details

Correspondence address:

Merton College
Merton Street,
Oxford OX1 4JD





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