Commercial Contract Law: Transatlantic Perspectives

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Larry A. DiMatteo, Qi Zhou, Severine Saintier
Cambridge University Press, Jan 31, 2013 - Law - 594 pages
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This book focuses on the law of commercial contracts as constructed by the U.S. and UK legal systems. Leading scholars from both sides of the Atlantic provide works of original scholarship focusing on current debates and trends from the two dominant common law systems. The chapters approach the subject areas from a variety of perspectives - doctrinal analysis, law and economic analysis, and social-legal studies, as well as other theoretical perspectives. The book covers the major themes that underlie the key debates relating to commercial contract law: role of consent; normative theories of contract law; contract design and good faith; implied terms and interpretation; policing contract behavior; misrepresentation, breach, and remedies; and the regional and international harmonization of contract law. Contributors provide insights on the many commonalities, but more interestingly, on the key divergences of the United States and United Kingdom's approaches to numerous areas of contract law. Such a comparative analysis provides a basis for future developments and improvements of commercial contract law in both countries, as well as other countries that are members of the common law systems. At the same time, insights gathered here should also be of interest to scholars and practitioners of the civil law tradition.
 

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Contents

THE ROLE OF CONSENT
1
Larry A DilVlatteo Qi Zhou and SÚverine Saintier
14
Conclusion
39
Contracts Courts and the Construction of Consent 4 1
41
Illusory Nature of PartyCentrism
50
Candor in the Judicial Construction ofConsent
56
Conclusion
64
Are Mortgage Contracts Promises?
67
Rescission
389
Towards a More Measured Response to Compensation
416
English Law and the CISG
434
A Comparative
466
Scots Law of KeepOpen Covenants
471
Why Would Commercial Parties Ever Seek Literal Enforcement?
479
Enforcement of KeepOpen Obligations under the English Law
482
The Wisdom of Lord Justice Millet
486

Why Do People Make Promises?
70
If Modern Mortgage Contracts Are Typically Not Promises
76
NORMATIVE VIEWS OF CONTRACT
83
NORMATIVE VIEWS OF CONTRACT
85
Minimum Content of Natural Contract
96
Is Naturalism Fallacious?
110
Contract in a Networked World
116
Consumer Contracts
127
Private Contracts
143
Contract Transactions and Equity
146
Equity in a Contractual Context
150
The Domain ofEquity
168
Conclusion
176
PART III CONTRACT DESIGN AND GOOD FAITH
179
Modern Contracts and the Diminishing ofConsent
184
of Good Faith
201
Does the Restricted Approach to Good Faith Accord with
213
Conclusion
220
PART IV IMPLIED TERMS AND INTERPRETATION
223
Judicial Role Not Parties Choice
240
Judicial Role Not Parties Choice 24 0
242
POLICING CONTRACTING BEHAVIOR
287
Software Contracts
339
DCFR Initiative and Consumer Unfair Terms
366
Conclusion
381
PART VIZ MISREPRESENTATION BREACH AND REMEDIES
383
Supervisory Problems in the Law of KeepOpen Covenants
489
Commercial Uniqueness Cases
494
Advice to English Landlords
495
Changing the Default Law Commercial Leasing and the Irrelevance of the Performance Interest
496
Conclusion
501
HARMONIZING CONTRACT LAW
503
Default and Mandatory Rules
505
A Comparison
506
Contract Law
509
Harmonisation of Default Rules
515
Harmonisation ofMandatory Rules
521
Conclusion
527
Europeanisation of Contract Law and the Proposed Common
529
Proposed Common European Sales Law
530
A Historical Scottish Perspective
539
Comparing the Proposed CESL with the UK Sale of Goods Act
545
A Implied Terms or Rules
546
B Quality Defined
547
Time ofConformity
551
The Right to Reject
552
E Overview
556
Harmonization of International Sales Law
559
Introduction
560
A CISG as Customary International Law and as Soft Law
576
Copyright

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About the author (2013)

Larry A. DiMatteo is the Huber Hurst Professor of Contract Law and Legal Studies at the Warrington College of Business Administration and Affiliated Professor at the Levin College of Law at the University of Florida.

Qi Zhou is a Lecturer at the University of Sheffield, School of Law.

SÚverine Saintier is a Senior Lecturer at the University of Sheffield, School of Law.

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