Around Oxford Around Oxford Law image
 

Mindy Chen-Wishart

photo of Mindy Chen-Wishart

Reader in Contract Law

Mindy Chen-Wishart is a Reader of Contract Law at Oxford University 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 was previously 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 supervises graduate students working in Contract, Contract Theory and Restitution. She is leading a project on the contract laws of Asia, a series of six books to be published with Oxford University Press. Volume I will be published in November 2015.

She is author of Contract Law (4th ed), and is leading a large project on the Contract Laws of Asia, to be published with OUP.  She holds visiting professorships at Hong Kong University and the National University of Singapore. She delivered the Fourth Annual International and Comparative Quarterly Lecture as author of the best paper in 2013. 

 



Publications

Showing all[*] publications sorted by type, then year, author, title  [change this]

Showing all 38 of this author's publications currently held in our database
Change to sort them by year | title | name OR
Show only Recent | Selected publications

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

2015

M Chen-Wishart, Contract Law (Oxford University Press 2015) [...]

Since written contracts are overwhelmingly in standard form, regulating such contracts must be one of contract law’s 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.


2014

M Chen-Wishart, The Nature of Vitiating Factors (P Saprai, G Letsas, G Glass eds, Oxford University Press 2014) [...]

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 complainant’s 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.


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

2015

M Chen-Wishart, '“Controlling Unfair Terms: Protecting the Institution of Contract”' in L Gullifer and S Vogenaur eds (eds), English and European Perspectives on Contract and Commercial Law ( 2015)

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

2014

M Chen-Wishart, 'Not so fast please! Abolition of consideration for contract modifications' (2014) New Zealand Law Journal

2010

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


News

Studies in the Contract Laws of Asia workshop

Mindy Chen-Wishart and Alexander Loke of City University Hong Kong are the editors of a series titled Studies in the Contract Laws of Asia […]

Research Projects

European Contract Law

Interests

Teaching: Contract; Philosophy of Law; Restitution

Research: Contract, Restitution, Contract theory, Comparative Law

Other details

Correspondence address:

Merton College
Merton Street,
Oxford OX1 4JD





Page updated on 13 May 2014 at 13:02 :: Send us feedback on this page :: photo credits

Policies on: cookies :: freedom of information :: data protection