Introduction: The Boundaries of Commercial Law

Twigg‐Flesner, Christian; Puig, Gonzalo Villalta

doi:10.1515/9783866539198.1

Cited by 1 publication

(1 citation statement)

References 0 publications

Supporting

Mentioning

Contrasting

Order By: Relevance

“…This is a source of much criticism of commercial contract law. 67 In relation to regulating commercial contracts there are so many pragmatic considerations jostling for attention it is difficult to say the law should reflect any particular general values above those that would appeal to those in the market for a certain design of contract law rules (which in practical terms is lawyers rather than the commercial parties themselves). Treating contract problems as matters to be determined by interpretation of the agreement reconnects perceived matters of contractual justice more directly to the idea of simply enforcing what the parties have agreed.…”

Section: A Contingent Contract Law?mentioning

confidence: 99%

Obligations in Commercial Contracts: A Matter of Law or Interpretation?

Mitchell¹

2012

Current Legal Problems

View full text Add to dashboard Cite

English commercial contract law is undergoing its own 'interpretative turn'. According to Lord Hoffmann, disputes concerning implied terms in contracts and the extent of the defendant's liability for loss on breach are resolved by searching for the meaning of the parties' agreement. The process is one of contextual interpretation of the contract (understood in a broad sense which regards the contractual agreement as incorporating more than just the text), rather than the external application of autonomous legal rules derived from authoritative precedents. On the one hand this agreement-centred approach can be regarded as the natural consequence of a definitive principle of contractual liability-obligations are assumed by the parties, rather than imposed on them. On this basis, Lord Hoffmann is simply reasserting the facilitative character of commercial contract law. On the other hand this approach raises questions about the scope and limits of the legal regulation of commercial activity by courts. At its most extreme, the interpretative approach espoused by Lord Hoffmann admits of only an attenuated commitment to commercial contract law as a repository of non-instrumental normative values. Instead, commercial contract law is perceived only as a loose grouping of pragmatic considerations, given a superficial veneer of coherence by reference to a substantively empty concept of interpretation. The article traces the development of this interpretative turn and assesses some of its positive and negative implications, both for the operation of other rules of contract law and for our general understanding of the role of the law in regulating commercial activity.

show abstract

Section: A Contingent Contract Law?mentioning

confidence: 99%

Obligations in Commercial Contracts: A Matter of Law or Interpretation?

Mitchell¹

2012

Current Legal Problems

View full text Add to dashboard Cite

show abstract

Introduction: The Boundaries of Commercial Law

Cited by 1 publication

References 0 publications

Obligations in Commercial Contracts: A Matter of Law or Interpretation?

Obligations in Commercial Contracts: A Matter of Law or Interpretation?

Contact Info

Product

Resources

About