Promises and contract law : comparative perspectives /

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Bibliographic Details
Author / Creator:Hogg, Martin.
Imprint:Cambridge, U.K. ; New York : Cambridge University Press, c2011.
Description:xxxviii, 505 p. ; 24 cm.
Subject:Promise (Law)
LAW / Contracts.
Promise (Law)
Format: Print Book
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ISBN:9780521193382 (hardback)
0521193389 (hardback)
Notes:Includes bibliographical references (p. 468-481) and index.
Summary:"Promises and Contract Law is the first modern work to explore the significance of promise to contract law from a comparative legal perspective. Part I explores the component elements of promise, its role in Greek thought and Roman law, the importance of the moral duty to keep promises and the development of promissory ideas in medieval legal scholarship. Part II considers the modern contract law of a number of legal systems from a promissory perspective. The focus is on the law of England, Germany and three mixed legal systems (Scotland, South Africa and Louisiana), though other legal systems are also mentioned. Major topics subjected to a promissory analysis include formation of contract, third party rights, contractual remedies and the renunciation of contractual rights. Part III analyses the future role which promise might play in contract law, especially within a harmonised European contract law"--Provided by publisher.
Table of Contents:
  • Preface
  • Abbreviations of Court names
  • Table of cases
  • Table of legislation
  • Part l. Theoretical and historical introduction
  • 1. The concept of promise
  • 1. What is a promise?
  • (a). A definition of promise
  • (b). Promise: objectively existing phenomenon or human construction?
  • (c). Testing component elements of the definition of promise
  • (i). A promise is more than merely an internal mental process: promises as speech acts demonstrating commitment
  • (ii). A promise is a commitment to a performance of the promisor
  • (iii). A promise must manifest more than an illusory commitment or one which the promisor is patently unable to fulfil
  • (iv). A promise must relate to the future
  • (v). A promise must state a commitment in favour of another party
  • (vi). Things which are not components of the definition
  • 2. Three crucial qualities of relevance to promises: gratuitousness, conditionality, unilaterality
  • (a). Gratuitousness
  • (b). Conditionality
  • (c). Unilaterality
  • 3. Acts having some similarity to, but which are distinct from, promises
  • (a). Vows
  • (b). Oaths
  • (c). Threats
  • (d). Donation (gift)
  • (e). Warranties (guarantees)
  • (f). Agreement
  • 4. Promise as a culturally universal and significant idea
  • 5. Preliminary conclusions
  • 2. Promises as obligations: morality and law
  • 1. Introduction: promise as a type of obligation
  • 2. Taxonomies of obligations in morality and law
  • 3. Promises as moral obligations: the practice of promising
  • (a). Promises as moral, immoral or amoral?
  • (b). Source of the morality of the practice of promising
  • (i). Promising as a virtuous act; the natural law tradition
  • Scripture
  • The canon law
  • Objections to the morality of promising as having a natural law/virtue basis
  • (ii). Promising as an act of the will: respect for personal autonomy
  • (iii). The 'contract theory' of promising
  • (iv). Consequentialism (utilitarianism)
  • (v). Reliance theory
  • A more limited role for reliance
  • (vi). Conclusion on the competing theories of the moral value of promises
  • 4. Powers and sanctions relevant to breach of morally binding promises
  • 3. The historical development of promissory ideas in the law
  • 1. Roman law
  • (a). Formal contracts: the stipulatio
  • (b). Informal contracts
  • (c). Conclusion on Roman law
  • 2. Medieval contract law
  • (a). Continental legal thought
  • (b). English law
  • (i). Debt
  • (ii). Covenant
  • (iii). Unilaterality and bilaterality in early English contract law
  • (iv). Assumpsit
  • (v). The doctrine of consideration
  • 3. The Northern natural law school
  • (a). Hugo Grotius
  • (b). Samuel von Pufendorf
  • (c). James Dalrymple (Viscount Stair)
  • 4. Eighteenth and nineteenth centuries
  • (a). English law
  • (b). Scots law
  • (c). Civilian systems
  • (i). German law
  • (ii). Robert Pothier
  • 5. Contract theory and practice in the twentieth century
  • 6. A revitalised will theory
  • Part 2. The modern law
  • 4. Formation of contract
  • 1. Wasted pre-contractual expenditure following termination of contract negotiations
  • (a). A Common law solution to the problem of pre-contractual expenditure: promissory and proprietary estoppel "
  • (i). Promissory estoppel: promissory or reliance-based principle?
  • (ii). Promissory estoppel and failed contractual negotiations
  • (iii). Proprietary estoppel and failed contractual negotiations
  • (iv). Conclusion on estoppel and pre-contractual expenditure
  • (b). A civilian solution to wasted pre-contractual expenditure: culpa in contrahendo and bad faith termination of contractual negotiations
  • (c). A mixed legal system solution to wasted pre-contractual expenditure: liability from an implied assurance that a valid contract exists
  • (d). Other solutions to the problem of pre-contractual liability
  • (e). Conclusion on pre-contractual liability
  • 2. Pre-contractual duties of disclosure
  • 3. Offer and acceptance
  • (a). Offer and acceptance as conditional promise
  • (b). The traditional offer and acceptance model as a unilateral dictation of terms
  • (c). Distinguishing offer from conditional promise
  • (d). Problem cases for a promissory analysis of offer and acceptance
  • (e). Conceiving of offers as binding
  • 4. Enforcement of auction/tender conditions
  • 5. The firm or irrevocable offer
  • (a). Characterising the firm offer
  • (b). Promises of reward
  • 6. options
  • 7. Letters of intent and preliminary contracts
  • (a). An intent to contract
  • (b). A preliminary contract, envisaging a further contract
  • (c). An expectation of a formal contract
  • (d). An expression of intention to do something other than contract
  • (e). A genuine unilateral promissory intention
  • 8. Error in formation of contract
  • (a). Choosing the policies which inform the rules on error
  • (b). Constructing workable classifications which implement the policies chosen
  • (i). Roman law
  • (ii). The Common law
  • (iii). The mixed legal systems
  • (iv). German law
  • (v). An ideal approach to promissory error?
  • 9. Extortion in the formation of contract
  • (a). English law
  • (b). The mixed legal systems
  • (c). German law
  • (d). Conclusion on extortion
  • 10. Implied terms
  • 11. Consideration
  • (a). The Common law
  • (b). The mixed legal systems
  • (c). German law
  • (d). Model law
  • 12. Requirements of form: unwarranted restrictions on promising?
  • 5. Third party rights
  • 1. The challenge to third party rights in contract
  • 2. The historical legal background
  • 3. Third party rights in modern contract law
  • (a). The Common law
  • (b). The mixed legal systems
  • (c). German law
  • (d). Model law
  • (e). Conclusion on third party rights under contract
  • 4. Assignment
  • (a). English law
  • (b). The mixed legal systems
  • (c). German law
  • (a). Model law
  • 5. The problem or transferred loss
  • (a). English law
  • (b). The mixed legal systems
  • (c). German law
  • 6. Conclusion on third parties
  • 6. Contractual remedies
  • 1. The 'interests' protected by remedies
  • 2. Mutuality of promises and withholding of performance
  • (a). The Common law
  • (b). Mixed legal systems
  • (c). German law
  • (d). Model law
  • 3. Specific performance
  • (a). English law
  • (b). Mixed legal systems
  • (c). German law
  • (d). Model law
  • 4. Perfect or substantial performance of contractual promises
  • (a). Contracts for services
  • (b). Sales of goods
  • 5. Injunction (interdict)
  • 6. Damages
  • (a). Contractual damages and interests other than the performance interest
  • (b). Damages for mere breach of contract, or for fault?
  • (c). English law
  • (d). Mixed legal systems
  • (e). German law
  • (f). Model law
  • 7. Liquidated damages: penalty clauses
  • (a). English law
  • (b). Mixed legal systems
  • (c). German law
  • (d). Model law
  • 8. Termination of contract for non-performance
  • (a). Historical origins of the right to terminate
  • (b). English law
  • (c). Mixed legal systems
  • (d). German law
  • (e). Model law
  • 9. Restitution following termination for non-performance
  • (a). English law
  • (b). Mixed legal systems