acceptable terms, civilian tradition, 80
acceptance
in American law, 47–48
in civil law tradition, 55–58
in English law, 32–34
Adams v. Lindsell, 33–34
adversarial system, 21–23
advertisements in English law, 29–30
agency, 161
in Anglo-American Tradition, 169–170
civil law tradition, 172
AG of Belize v. Belize Telecom Ltd, 66
Alfred Marks Realty Co. v. “Churchills,” 125
America, contract law in, 6–7
American law
contract formation (see contract formation)
contractual terms (see contractual terms)
discharge of contract (see discharge of contract)
equitable remedies (see equitable remedies)
Anglo-American tradition, 22–23
United States, 169–170
assignment
civil law tradition, 172–173
English law, 165–167
United States, 168–169
Balfour v. Balfour, 41
The Bank of Credit and Commerce International v. Aboody, 149
Bannerman v. White, 64
Barber v. NWS Bank Ltd, 68
Battle of the Forms, 49
Bell v. Lever Bros, 92
bilateral (synallagmatic) contract, 35, 54
bilateral offer, 28
breach
American law, 123–124
of contract, damages for, 131, 138
English law, 111–115
failure of performance, 114–115
impossibility, 113–114
renunciation, 112–113
Brogden v. Metropolitan Railway Company, 32–33
Canada Steamship Lines Ltd v. R, 72
capacity
in American law, 52–53
in civil law tradition, 59–60
in English law, 42–43
Carbolic Smoke Ball Company, 46
Carlill v. Carbolic Smoke Ball Company, 29, 33
cas fortuit (fortuitous occurrence), 129
cause and object in civil law tradition, 60–62
Chappell v. Nestle, 36–37
civil law tradition, 8–10
adversarial system, 21–23
Code, 19–20
contract formation (see contract formation)
contracts in, 3–4
contractual terms (see contractual terms)
damages (see damages)
discharge of contract (see discharge of contract)
equitable remedies (see equitable remedies)
inquisitorial system, 21–23
legal professionals in, 20–21
privity of contract (see privity of contract)
civil legal system, 7–10
codes, 19–20, 23
Collins v. Godefroy, 39
common law system, 4
contracts in, 3–4
judges in, 15–16
theory and structure of, 7–10
common law tradition, 8–10
common mistake
civilian tradition, 105–106
English law, 92–94
consensus ad idem, 78
consideration
in American law, 50–52
in civil law tradition, 58
in English law, 34–40
The Consumer Rights Act, 66, 111, 150
contract, 1–3. See also discharge of contract; privity of contract
in civil law tradition, 53–55
common law and civilian tradition, 3–4
discharge of (see discharge of contract)
freedom of, 2
obligations in, 1
and outsider, 162–163
relationship, 3
contract formation
in American law, 43
acceptance, 47–48
capacity, 52–53
consideration, 50–52
exception, 48–49
extinguishing an offer, 46–47
intentionality, 44–45
offer, 45–46
option contracts and firm offer, 47
in civil law tradition, 53
capacity, 59–60
cause and object, 60–62
consideration, 58
definition of contract, 53–55
illegal/immoral contracts, 62
offer and acceptance, 55–58
in English law, 27
acceptance, 32–34
advertisements, 29–30
capacity, 42–43
consideration, 34–40
goods displayed for sale, 30–31
legal relations, creating, 40–42
offer, 27–28
offer/invitation to treat, 28–29
termination of offer, 31–32
contract law
in American jurisdiction, 6–7
in EU, 5–6
international level, 6
Contracts (Third Party Rights) Act 1999, 163–165
Contracts for the International Sale of Goods (CISG), 6
contractual liability
in the civilian tradition, 101–102
common mistake, 105–106
duress, 106–107
fraud, 106
inexcusable mistake, 105
mistake, 102–104
risky/uncertain bargains, 104–105
in English law
common mistake, 92–94
duress, 96
fraudulent misrepresentation, 95–96
legislation, 96
legitimacy, 97
misrepresentation, 94–95
mistake, 85–86
negligent misstatement, 96
reasonable alternative, lack of, 97
unilateral mistake, 86–92
in the United States
duress and undue influence, 100–101
misrepresentation, 99–100
mistake, 97–99
contractual terms
in American law, 73
exemption clauses, interpretation of terms, 77
integrated agreements, 73–75
omission and the interpretation of terms, 75–76
omitted/unexpressed terms, 76
terms regulated/supplied in laws, 78
in the civilian tradition, 78–79
acceptable terms, 80
exemption clauses, omitted terms and protective rules, 82–84
interpretation, 80–82
mandatory and supplementary terms, 79–80
prohibited terms, 80
types of contracts, 80
in English law
classification, 67–68
express and implied terms, 63–66
incorporation, 69–71
interpretation, 71–73
contra proferentem rule, 71–72, 77
convention of the parties/terms, civilian tradition, 126–127
Corpus Iuris Civilis, 19–20
Court of Chancery, 144–147
Couturier v Hastie, 92
covenants (promises), 166
CTN Cash and Carry Ltd v. Gallaher, 97
culpa in contrahendo, civilian tradition, 137
Cundy v. Lindsay, 88
Curtis v. Chemical Cleaning and Dyeing Co Ltd, 69
Cutter v. Powell, 110
damages
for breach of contract, 131
in the civilian tradition
breach of contract, 138
culpa in contrahendo, 137
demand for performance, 138–140
limitations, 142
nature, 140–142
in English law
demonstration, 135
headings, 131–132
limitations, 132–134
pre-agreed, 134
in the United States
limitations, 136–137
types of interest, 136
Davis Contractors Ltd v. Fareham UDC, 118
De Cicco v. Schweizer, 167
delegation, United States, 168–169
demand for performance, civilian tradition, 138–140
Derry v. Peek (Herschell), 95–96
Dick Bentley Productions Ltd v. Harold Smith (Motors) Ltd, 65
discharge of contract
in American law, 120
breach of a condition, 123–124
faith, 126
frustration, 125
impracticability/impossibility, 125
material breach, 124
non-occurrence, 125
performance, 121–123
in the civilian tradition
convention of the parties/terms, 126–127
German and French law, circumstances in, 130
impossibility, 129
non-fruition, 128
nonperformance vs. breach, 127–128
in English law
breach, 111–115
frustration, 115–120
performance, 109–111
doctrine of jurisprudence constante, 23–25
doctrine of precedent (stare decisis), 8–9, 16
doctrine of substantial performance, 121
duress, 159–160
civilian tradition, 106–107
English law, 96
and undue influence, United States, 100–101
The Earl of Oxford’s Case, 144
E-Commerce Regulations, 31
Edwinton Commercial Corporation v. Tsavliris Russ Ltd, 119
efficient breach, civil law tradition, 158–159
England, equitable remedies. See equitable remedies
English common law system, 3, 17–18
English law
contract formation (see contract formation)
contractual liability (see contractual liability)
contractual terms (see contractual terms)
damages (see damages)
discharge of contract (see discharge of contract)
privity of contract (see privity of contract)
English statutory law in the United States, 18–19
Enimont Overseas AG v. Rojugotanker Zadar, 96
Entores Ltd v. Miles Far East Corporation (Denning), 33
equitable remedies
in American law
reformation/rescission, 155–156
specific performance, 153–155
undue influence, 156
in civil law tradition
efficient breach, 158–159
resolution, 157–158
specific performance, 157, 158–159
undue influence, 159–160
in England
misrepresentation, 148–149
mistake, 148
rectification, 150–151
rescission, 148
unconscionable transaction, 149–150
undue influence, 149
equity, 143–147
specific performance, 151–153
equity, 143–147
European Union (EU), contract law in, 5–6
exception in American law, 48–49
exclusion clauses
English law, 68–69
incorporation, 69–71
interpretation, 71–73
exemption clauses
American system, interpretation of terms, 77
civilian tradition, omitted terms and protective rules, 82–84
expectation interest, 136
express condition, 123
express terms, 63–65
failure of performance, breach, 114–115
faith, American law, 126
Farley v. Skinner (No. 2), 135
FA Tamplin Steamship Co Ltd v. Anglo-Mexican Petroleum Products Co Ltd, 117
firm offer in American law, 47
force majeure (overwhelming force), 129
fraud, civilian tradition, 106
fraudulent misrepresentation, English law, 95–96
Frederick E Rose (London) Ltd v William H Pim Junior & Co Ltd, 151
freedom of contract, 2
Freeth v. Burr, 112–113
French Civil Code, 10, 19–20
French code, 54, 55, 81, 83
French law, 57
civilian tradition, 130
French tradition, 56
frustration
American law, 125
English law, 115–120
Gallie v. Lee, 93–94
German civil code, 80
German code, 54, 55, 82–83
German law, 57, 127, 130
Gibson v. Manchester City Council, 28–29
Glasbrook Brothers Ltd v. Glamorgan County Council, 39
goods displayed for sale, English law, 30–31
G Percy Trentham Ltd v. Archital Luxfer Ltd (Steyn), 27–28
Grainger and Son v. Gough (Surveyor of Taxes), 29
Great Peace Shipping Ltd v. Tsavliris Salvage (International) Ltd, 92, 148
Hadley v. Baxendale, 133
Hamer v. Sidway, 50
Harmonization projects, 5
headings of damages, 131–132
Herne Bay Steam Boat Co v. Hutton., 116–117
Hochster v. De La Tour, 113
Hong Kong Fir Shipping Co v. Kawasaki Kisen Kaisha, 67
honor clauses, 42
hybrid/mixed jurisdictions, 8, 11, 176
of Scotland, 176–179
State of Louisiana, 179–183
illegal/immoral contracts in civil law tradition, 62
implied condition, 123
implied terms, 65–66
impossibility
breach, 113–114
civilian tradition, 129
impracticability/impossibility, American law, 125
incorporation, English law, 69–71
inexcusable mistake, civilian tradition, 105
Ingram v. Little, 90
inquisitorial system, 21–23
integrated agreements, American system, 73–75
intentionality in American law, 44–45
interest, United States, 136
International Institute for the Unification of Private Law (UNIDROIT), 6
international level, contract law, 6
interpretation, 16
American system, 75–76, 77
civilian tradition, 80–82
English law, 71–73
Jackson v. Union Marine Insurance Co Ltd, 118–119
Johnson v. Atkins, 125
Jones v. Padavatton, 41
J Spurling Ltd v. Bradshaw, 71
jurisdiction, 15
jurisprudence constante, 9, 23–25, 181–182
Kendall v. Lillico, 71
Kings Norton Metal Co v. Edridge, 89
Krell v. Henry, 116
Labour Relations (Consolidation) Act 1992, 152
Lach v. Cahill, 126
Laemthong International Lines Company Ltd v. Artis, 164
Lampleigh v. Brathwait, 38
Law Reform (Frustrated Contracts) Act, 110
Lawrence v. Fox, 167
Lefkowitz v. Great Minneapolis Supply Store, 45–46
legal professionals in the civilian tradition, 20–21
legal relations, English law, 40–42
legal system. See civil legal system
legislation, English law, 96
legitimacy, English law, 97
Leonard v. Pepsico, 44–45
L’Estrange v. Graucob Ltd, 69
Lewis v. Averay, 90
liability, English law, 165–167. See also contractual liability
limitations on damages
civilian tradition, 142
English law, 132–134
in the United States, 136–137
Lochner v. New York, 2
Lord Strathcona Steamship Co Ltd v. Dominion Coal Co Ltd, 166
Louisiana Civil Code, 20, 180
Lovelock v. Franklyn, 114
Lucy v. Zehmer, 44
mailbox rule, 16
mandatory terms, civilian tradition, 79
material breach, American law, 124
Mills v. Wyman, 51
misrepresentation
England, 148–149
English law, 94–95
United States, 99–100
Misrepresentation Act, 148–149
mistake
civilian tradition, 102–104, 105–106
England, 148
English law, 85–94
United States, 97–99
Mitchell v. Lath, 74
Morton’s Trustees v. Aged Christian Friend Society of Scotland, 178
Moschi v. Lep Air Services Ltd, 112
National Carriers Ltd v. Panalpina (Northern) Ltd, 117–118
negligent misstatement, English law, 96
non-fruition, civilian tradition, 128
non-occurrence, American law, 125
nonperformance vs. breach, civilian tradition, 127–128
Notts Patent Brick and Tile Co v. Butler, 94
Ocean Tramp Tankers Corp v. V/O Sofracht, 119
Odorizzi v. Bloomfield School Dist, 100
offer
in American law, 45–47
in civil law tradition, 55–58
in English law, 27–29, 31–32
Olley v. Marlborough Court Ltd, 70
omitted terms
American system, 75–76
civilian tradition, 82–84
option contracts in American law, 47
Oscar Chess Ltd v. Williams (Denning), 64, 65
outsider, 162–163
Pao on v. Lau Yiu Long, 97
Paradine v. Jane, 115
Parker v. Clarke, 41–42
Parker v. South Eastern Railway Co, 70
Partridge v. Crittenden, 29
penalty clauses, 134
“perfect tender” rule, 121, 122
performance
American law, 121–123
English law, 109–111
persuasive authority, 17
Pharmaceutical Society of Great Britain v. Boots Cash Chemists, 30
Phillips v. Brooks Ltd, 89–90
Pitt v. Holt, 151
Port Line Ltd v. Ben Line Steamers Ltd, 166
pre-agreed damages, 134
precedent condition, 123
precedent, vitality of, 16–17
precise legislation, 10
Price v. Easton, 162
Principles of European Contract Law (PECL), 5
private law, 176, 177
privity of contract
in civil law tradition
agency, 172
assignment, 172–173
third party benefit, 170–171
in English law, 162–163
Contracts (Third Party Rights) Act 1999, 163–165
liability and assignment, 165–167
in the United States
anglo-american tradition, agency in, 169–170
assignment and delegation, 168–169
Proform Sports Management Ltd v. Proactive Sports Management Ltd, 43
prohibited terms, civilian tradition, 80
promesse de porte-fort, 56
protective rules, civilian tradition, 82–84
Raffles v. Wichelhaus, 91
Ramsgate Victoria Hotel Co v. Montefiore, 31–32
reasonable alternative, English law, 97
rectification, England, 150–151
reformation/rescission, American system, 155–156
reliance interest, 136
renunciation, breach, 112–113
rescission, England, 148
resolution, civil law tradition, 157–158
restitution interest, 136
risky/uncertain bargains, civilian tradition, 104–105
A Roberts and Co Ltd v. Leicestershire CC, 151
Robinson v. Davison, 117
Royal British Bank v. Turquand, 169
R v. Clarke, 35
R v. Warwickshire CC Ex Parte Johnson, 30–31
Saunders v. Anglia Building Society, 93–94
Schawel v. Read, 65
Schuler AG v. Wickman Machine Tool Sales Ltd, 68
Scotland, hybrid/mixed jurisdictions, 176–179
Scots private law, 176, 177
Sherwood v. Walker, 98
Shogun Finance Ltd v. Hudson, 91
Singla v. Bashir, 150
Smith v. Hughes (Blackburn), 87
societies, vitality of precedent, 16
specific performance
American system, 153–155
civil law tradition, 157, 158–159
equitable remedies, 151–153
Stambovsky v. Ackley, 99
stare decisis (doctrine of precedent), 8–9, 16
State of Louisiana, hybrid/mixed jurisdictions, 179–183
Statute of Frauds, The, 10, 18–19
Storer v. Manchester City Council, 29
Stubbs v. Holywell Railway Co, 117
subjective interpretation, 81–82
subsequent condition, 123
“substantial performance” doctrine, 121
Sumpter v. Hedges, 111
supplementary terms, civilian tradition, 79–80
Taylor v. Caldwell, 115–116
termination of offer (English law), 31–32
terms of a contract. See contractual terms
terms regulated/supplied in laws, American system, 78
Thake v. Maurice, 64
third-party. See also privity of contract
beneficiaries, 161–162
benefit, 170–171
liability and assignment, 165–167
liability to, 168
Thomas v. Thomas, 36
Thompson v. London, Midland Scottish Railway Co, 70–71
Thornton v. Shoe Lane Parking, 71
Tilden Rent A Car Co v. Clendenning, 69
Tsakiroglou & Co Ltd v. Noblee Thorl GmbH, 118
Tulk v. Moxhay, 166
Tweddle v. Atkinson, 162
types of interest, United States, 136
Tyra v. Cheney, 99
uncertainty, 124
unconscionable transaction, England, 149–150
undue influence
American system, 156
civil law tradition, 159–160
England, 149
unexpressed terms. See omitted terms
Unfair Contract Terms Act 1977 (UCTA), 72, 150
Unfair Terms in Consumer Contracts Regulation 1999, 72
Uniform Commercial Code (UCC), 7, 19, 48–49, 75, 76, 137, 154, 168
unilateral mistake, English law, 86–92
unilateral offer, 28
United Nations Commission on International Trade Law (UNCITRAL), 6
United States
contract law in, 6–7
contractual liability (see contractual liability)
damages (see damages)
privity of contract (see privity of contract)
Universe Tankships Inc of Monrovia v. International Transport Workers Federation and Laughton, 97
Van Ness v. Placard, 17–18
Victoria Laundry, 134
Watts v. Morrow, 135
Weathersby v. Gore, 154–155
Webb v. McGowin, 51–52
We the People Paralegal Serv. v. Watley, 182–183
Wigmore, John, 22
Williams v. Rafferty Bros and Nicholls (Contractors) Ltd, 39
Williams v. Walker-Thomas Furniture Co., 155–156
With v. O’Flanagan, 95
Wood v. Boynton, 98
Yearworth v. North Bristol NHS Trust, 135