Contract law : an introduction to the English law of contract for the civil lawyer
著者
書誌事項
Contract law : an introduction to the English law of contract for the civil lawyer
Hart, 2007
- : pbk
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注記
Includes bibliographical references and index
内容説明・目次
内容説明
This new book is designed to introduce the lawyer who is trained in a civil law jurisdiction to the method of reasoning in the common law, and in particular to the English law of contract. It is written primarily for the lawyer-whether student or practitioner-from another jurisdiction who already has an understanding of a (different) law of contract, but who wishes to discover the way in which an English lawyer views a contract. After a general introduction to the common law system-how a common lawyer reasons and finds the law-the book explains the principles of the law of contract in English law covering all the aspects of a contract from its formation to the remedies available for breach, whilst directing attention in particular to those areas where the approach of English law is in marked contrast to that taken in many civil law systems.
目次
- Part I: An Introduction to the Common Law1 The 'Common Law'I. The 'Common Law' of England1. Meanings of 'Common Law'2. Common Law and Equity 3. Common Law and Civil Law II. Common Law Systems Around the World 1. The Range of the Common Law 2. Differences Between Common Law Systems 3. Some General Features of the Common Law Systems 2 Finding the Law I. The Sources of Law 1. Legal Reasoning in the Common Law: Where Shall We Begin? 2. Legislation and Case-Law as Sources of Law II. The Judge as Interpreter and as Law-Maker 1. Different Judicial Approaches to the Different Sources 2. The 'Binding' Force of Case-Law: the Doctrine of Precedent (a) Case-Law as an Authority (b) Case-Law as Binding (c) The Rules of Precedent in English Law (d) Understanding the Case-Law in the Light of the Doctrine of Precedent 3. The Interpretation of Legislative Texts (a) The Basic Test: Applying the Normal, Objective Meaning of the Words of the Statute (b) Some General Principles and Presumptions of Interpretation (c) Interpretation of European Law and Compliance with the European Convention on Human Rights (d) The Relevance of the Context of the Statute at the Time of its Enactment (e) The Court Does Not Generally Reason Beyond the Statute 4. Reasoning From the Cases in the Common Law (a) The Judge Develops the Common LawHe Does Not Simply Declare It (b) Reasoning in the Common Law (c) An Illustration of Common Law Reasoning: Donoghue v Stevenson and its Aftermath III. English Statutory Drafting 1. The General Style of Statutory Drafting in England 2. An Illustration: the Contracts (Rights of Third Parties) Act 1999 Part II: The Law of Contract 3 Introduction to the English Law of Contract I. The Place of Contract in Private Law 1. Contract Within the Law of Obligations 2. Contract and Tort 3. Contract and Property II. A General Law of Contract
- the Place of 'Special' Contracts 1. 'General' and 'Special': a Different Starting-Point 2. The (Limited) Role of 'Special Contracts' in English Law (a) Formation of the Contract (b) The Terms of the Contract (c) Remedies (d) Significance of the Adoption of a General Rule rather than 'Special' Contracts in English Law III. Some General Features and Some Fundamental Starting-Points 1. The Role of 'Good Faith' 2. Objectivity, Reasonableness and Reliance 3. The Significance of the 'Intentions of the Parties' 4. Contract as an Economic Instrument: Contractual Freedom, Certainty, and the Commercial Model of Contracting 5. Contract Drafting in the Common Law 4 The Negotiations for a Contract I. The Starting-Point: No General Duty between Negotiating Parties 1. The General Approach 2. No General Duty because of a Reluctance to Use General Rules? 3. Difficulties in Defining the Duty? 4. The Relationship Between Negotiating Parties is Adversarial
- the Allocation of Risk in Negotiations 5. Negotiations 'Subject to Contract' 6. No General Duty of Disclosure 7. Breaking Off Negotiations is Not a Tort 8. No General Liability Based on Estoppel II. Particular Liabilities Arising During the Negotiations 1. Particular Liabilities Rather Than General Duties 2. Misrepresentation: Remedies in Tort 3. Contractual Liability in the Precontractual Phase (a) Express Contracts: Options, Rights of Pre-Emption, Lock-Out Agreements and 'Letters of Intent' (b) Implied Contracts: Duties to Consider Tenders 4. Unjust Enrichment 5. Breach of Confidence 5 Formation of the Contract: Contract as 'Agreement' I. The Meaning of 'Agreement': the 'Objective Test' 1. An 'Agreement' Requires Communication Between the Parties 2. 'Objectivity' and 'Subjectivity' 3. Arguments in Relation to the Different Approaches 4. The 'Objective' Test in English Law 5. The Objective Test in Context in the English Law of Contract II. The Mechanisms of Contract Formation: the Rules of Offer and Acceptance 1. 'Offer and Acceptance' as a Rule (a) Problems and Benefits of the 'Offer and Acceptance' Analysis (b) Rejection of the 'Offer and Acceptance' Analysis by Lord Denning (c) Insistence on the 'Offer and Acceptance' Analysis by the House of Lords (d) 'Offer and Acceptance' is Normally a Rule 2. The Particular Rules of 'Offer and Acceptance' (a) Offer (b) Termination of Offer by the Offeror or the Offeree (c) Acceptance (d) Time and Place of Acceptance 3. Unresolved Negotiations: 'Battles of Forms' III. Minimum Content and Certainty 1. An Agreement (and the Offer) must be Complete 2. An Agreement (and the Offer) must be Certain 6 Form, Consideration and Intention I. Formality in the Formation of Contracts 1. Specific Formalities for Specific Contracts 2. A General Formality: the Deed 3. The Avoidance of Formalities II. The Doctrine of Consideration 1. Consideration: the Basic Principle 2. Consideration: Particular Rules III. Promissory Estoppel 1. T
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