The ability of the parties to conclude binding agreements, and to determine the contents of these agreements, is at the very core of our market system. They are the consequence of our liberal understanding of personhood, placing individuality and autonomy as essential elements of our personality. Despite the importance of these concepts, however, the content of freedom of contract has experienced significant changes throughout the years, as more and more limitations are imposed upon it. This new understanding rests on the idea that not all parties are the same, and that there are certain matters that should not be modified by mere agreement. Our work focuses on the relation that freedom of contract (and its limitations) has with forum selection clauses, as well as whether they can be seen as abusive terms. In order to conduct this analysis, we use the case of maritime carriage contracts under bills of lading, reviewing the regulations that affect the trade, and whether changes need to be made to accommodate our new understanding.

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Freedom of contract, bargaining power & forum selection in bills of lading

To gain a deep understanding of contract law, one needs to master not only the rules and principles of the field, but also its underlying theory and justification, and its long and intricate history. This book offers an accessible introduction to all aspects of American contract law, useful to both first-year law students and advanced contract scholars. The book is grounded on up-to-date scholarship and contains detailed references to cases, statutes, Restatements and international legal principles. The book takes the reader from contract formation through interpretation and remedies, considering both the practical and theoretical aspects throughout. Each chapter also includes helpful lists of suggested further reading.

Contract Law: Rules, Theory, and Context

Commercial contract law is in every sense optional given the choice between legal systems and law and arbitration. Its 'doctrines' are in fact virtually all default rules. Contract Law Minimalism advances the thesis that commercial parties prefer a minimalist law that sets out to enforce what they have decided - but does nothing else. The limited capacity of the legal process is the key to this 'minimalist' stance. This book considers evidence that such minimalism is indeed what commercial parties choose to govern their transactions. It critically engages with alternative schools of thought, that call for active regulation of contracts to promote either economic efficiency or the trust and co-operation necessary for 'relational contracting'. The book also necessarily argues against the view that private law should be understood non-instrumentally (whether through promissory morality, corrective justice, taxonomic rationality, or otherwise). It sketches a restatement of English contract law in line with the thesis.

Contract Law Minimalism: A Formalist Restatement of Commercial Contract Law

Introduction. Part 1 - Contravening the law. Part 2 - Public policy. Part 3 - Restraint of trade. Part 4 - Relief from the consequences. Part 5 - Reform. Part 6 - Cases and comments.

Illegality and Public Policy

Resolving contractual disputes

1 Introduction 2 Definition and Classification PART I: FORMATION OF CONTRACTS 3 Offer and Acceptance 4 Beyond Offer and Acceptance: Formalities, Intent to Create Legal Relations, and Consideration PART II: THE CONTENT OF THE CONTRACT 5 Express Terms 6 Implied Terms 7 The Force and Scope of Contractual Obligations: Standards of Care, Mistake, Frustration, Breach, and Notice 8 Unenforceable Contracts and Terms PART III: EXCUSES FOR NON-PERFORMANCE 9 The Duty to Disclose Material Facts 10 Misrepresentation 11 Duress and Undue Influence 12 Unfair Contracts PART IV: ENFORCING THE CONTRACT 13 Third Party Rights 14 Remedies For Breach of Contract

Atiyah's Introduction to the Law of Contract

This article defends the common law traditional ‘third party rule’ - the rule that only the parties to a contract can enforce the contract. It argues that despite the rule’s near universal condemnation by judges, academics, and the Law Commission, the rule is a fundamental feature of contract law. Any duties owed to third parties - and it will be suggested that in certain circumstances they may be owed duties in contract and/or tort - are not duties to perform contracts to which the third parties are strangers. The article is in three parts. In the first part the third party rule is defined and defended. In the second part it is argued that the reason the results are so often unsatisfactory in what I shall call ‘privity cases’ - cases where a contractual obligation between A and B is intended to benefit a third party C - is not because of the third party rule, but because privity cases are a locus for a number of distinct, but general, problems in the law of obligations. The problems arise in respect of the proper protection of each of the three basic private law interests, viz: (i) the expectation interest; (ii) the reliance interest; and (iii) the restitution interest. In the final part, the Law Commission’s proposal to reform the third party rule is examined.

Contracts for the Benefit of Third Parties: In Defence of the Third Party Rule

In this Article I explore two ways of understanding damage awards. The first way, which I call the duty view, supposes that damage awards confirm existing legal duties to pay damages. According to this view, damage awards are structurally similar to awards that require defendants to do things such as deliver contractually promised goods, cease nuisances, or pay contractual debts. Like these awards, damage awards are essentially rubber stamps: they require defendants to do what they should have done already. In contrast, the second way of understanding damage awards, which I call the liability view, supposes that insofar as it makes sense to speak at all of legal duties to pay damages, such duties are created--not confirmed--by damage awards. According to this view, damage awards are structurally similar to awards that require criminal wrongdoers to pay fines. In Montreal, there is a bylaw stipulating that citizens are liable to be fined a minimum of $300 if they allow their dogs to run unleashed. (1) But there is no rule stipulating that if citizens allow their dogs to run unleashed, they should send the city a check for $300. Errant dog owners have no legal or even moral duty to pay the city prior to being ordered to do so. The liability view regards damage awards as similar: they are at most duty creating, not duty affirming. The Article defends three main propositions. First, the best-known contemporary theories of damages--"rights-based theories" and "utilitarian theories"--are committed to the duty view. Properly understood, the explanations these theories give for why damages should be paid--roughly, that there are moral duties to pay damages or that the practice of paying damages promotes utility--are in principle best satisfied if payment is made immediately after the wrong. If either of these theories is correct, the common law should contain a rule stipulating that wrongdoers have duties to pay damages to their victims. Second, the common law contains no such rule. (2) Rather than imposing ordinary or even inchoate duties to pay damages, the common law merely imposes liabilities to pay damages. Third and finally, it follows from the first two propositions that any theory of damage awards focusing on the value of the actions that such awards require--as do rights-based and utilitarian explanations--is bound to fail. The most important feature of damage awards is that they are awards--that is, that courts issue them. Like orders to pay fines, their importance lies fundamentally not in what they do, but in what they represent. And what damage awards represent is the law's recognition that the plaintiff was wronged by the defendant. Damage awards are the law's way of vindicating--not enforcing--the plaintiff's rights. A word on terminology: except where indicated otherwise, "legal duties" refers to duties that exist because there is a legal rule--legislative or judge-made--that makes certain behavior obligatory. This usage is familiar: lawyers say that citizens have legal duties to pay their contractual debts because there is a legal rule that contractual debts ought to be paid. It is not, however, the only usage; in particular, lawyers sometimes talk of legal duties that exist because a court issued a judicial award. (3) Thus, it is sometimes said that a defendant who has been ordered to pay a sum has a legal duty, arising from the order, to pay the money. (4) In Part II, I briefly consider whether "court-ordered duties" are different in kind from "rule-based duties" and, more generally, whether the idea of court-ordered duties makes sense at all. In general, however, this distinction is unimportant for my purposes. The alleged duties that are this Article's focus are duties that arise upon the commission of a wrong and that require the wrongdoer to pay damages. Such duties are necessarily rule-based. I. RIGHTS-BASED AND UTILITARIAN THEORIES: THE DUTY VIEW A. Rights-Based Theories Rights-based theories explain private law in terms of rights that individuals hold against other individuals. …

Duties, Liabilities, and Damages

This article challenges the widespread view that the common law 'third-party rule'-the rule that only the parties to a contract can enforce the contract'-is an indefensible anachronism. It will be argued that despite the near universal condemnation of the rule by judges,2 academics,3 and the Law Commission,4 the rule is a fundamental feature of contract law. Any duties owed to third parties-and it will be suggested that in certain circumstances they may be owed duties in contract and/or tort-are not duties to perform contracts to which the third parties are strangers. In the first part of the article, the third-party rule is defined and defended. In the second part, it is argued that the reason the results are so often unsatisfactory in what I shall call 'privity cases'-cases where a contractual obligation between A and B is intended to benefit a third party C-is not because of the third-party rule, but because privity cases are a locus for a number of distinct, but general, problems in the law of obligations. The problems arise in respect of the proper

Contracts for the Benefit of Third Parties: in Defence of the Third-Party Rule

The scope and status of unjust enrichment law are uncertain because the standard account of the subject raises a significant normative question. Specifically, the standard account appears inconsistent with broadly-held views about how private law should operate. In this essay, I examine what Peter Birks, Lionel Smith, and Hanoch Dagan (three contributors to the Symposium in which this essay appears) say, or don’t say, about this normative question. I then propose an alternative answer to the normative question, one that argues, inter alia, that there is no duty to reverse unjust enrichments.

Stephen A. Smith

Papers

Atiyah's Introduction to the Law of Contract

Contracts for the Benefit of Third Parties: In Defence of the Third Party Rule

Duties, Liabilities, and Damages

Contracts for the Benefit of Third Parties: in Defence of the Third-Party Rule

Justifying the Law of Unjust Enrichment