15. Good faith

English law does not currently recognise a general duty of good faith, but this position is increasingly being challenged. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter addresses the following: the meaning of good faith; good faith in current contract law; and the nature of good faith. It further considers whether English law should recognise a general good faith doctrine and the difference this might make to various aspects of the law.

14. Specific and agreed remedies

While courts are very willing to award orders compelling the defendant to pay the agreed price, orders compelling non-monetary performance (for specific performance or injunctions) are rarely given because of the many ‘bars’ to such awards. The law also controls the parties’ agreed remedies. This chapter addresses the following questions: (1) To what extent does (and should) the law grant specific enforcement of contract? (2) How can parties control the consequences of breach and prevent under-compensation? (3) To what extent does (and should) the law permit the parties to agree on the remedies for breach? (4) What considerations influence the answers to questions 1–3?

9. Unfairness: undue influence, non-commercial guarantees, unconscionable bargains

This chapter examines three doctrines that allow a party to set aside a contract: (i) undue influence, which deals with the abuse of relationships of trust and confidence; (ii) a doctrine protecting non-commercial parties who guarantee another’s debts; and (iii) unconscionable bargains, which deals with the exploitation of bargaining weaknesses. It addresses the following questions: (1) What is the justification for these doctrines? (2) What is the burden of proof for undue influence, unfair non-commercial guarantees, and unconscionable bargains? (3) In practice, how is each element of the respective burdens of proof satisfied? (4) Is the law satisfactory? If not, how might it be developed in the future?

8. Duress

Contract law has always imposed limits on the permissible means used to persuade another to enter into a contract. The doctrine of duress allows a complainant to set aside the contract if these limits are exceeded. This chapter addresses the following questions: (1) What is the justification for the duress doctrine? (2) What must be proved for duress? (3) What sorts of pressures are regarded as illegitimate by the law? (4) How much pressure must the illegitimate threat exert on the other party? (5) Is the current law on duress satisfactory? If not, how might it be developed in the future? (6) What protection do consumers have against aggressive commercial practices?

6. Mistake

A party who enters a contract on the basis of a mistaken assumption as to background fact can realistically complain that he or she should not have to take the normal responsibility for his or her apparent consent. On the other hand, the objective test of intentions renders mistakes irrelevant to the validity of contracts except in certain exceptional circumstances. The chapter explores how contract law balances these competing norms. It addresses the following questions: (1) When can a claimant escape a contract on the ground of a unilateral mistake as to terms, the nature of the document, or the other party’s identity? (2) When can a contract be rectified to correct a common mistake in recording it? (3) When can a claimant escape a contract on the ground of his or her mistaken assumption about the relevant facts? (4) What is the justification for any relief? (5) Is the current law satisfactory, and if not, how might it be developed?

2. Agreement

How does contract law determine whether the parties have committed to the contract and what each has committed to? This chapter discusses the following: the objective test of intentions; offer and acceptance; termination of the offer; assessment of the mirror image approach; certainty; intention to create legal relations; and restitution for benefits conferred in anticipation of contracts that do not materialise.

11. Direct control over terms

This chapter examines direct controls over the contents of contracts, with particular emphasis on the Unfair Contract Terms Act 1977 (UCTA) and the Consumer Rights Act 2015 (CRA). The discussions cover: patterns of control; the parties affected and excluded contracts; types of terms controlled and control mechanisms under UCTA and CRA; the enforcement mechanism; other statutory and common law control of terms; and control of substantive unfairness.

10. Identifying and interpreting contractual terms

This chapter examines how contract terms are identified and interpreted. It also considers the problems arising from standard form contracts. The increasing use of such contracts has put enormous pressure on traditional contract rules, which are premised on a different model of individual negotiation between notionally equal parties. The topics covered are: express terms, collateral terms, interpretation of terms, interpretation of exemption clauses, and implied terms.

5. Misrepresentation and non-disclosure

Since English law recognises no general duty of good faith, the parties need not disclose important matters about the transaction to each other, nor make reasonable efforts to reach agreement. But, while there is no liability for such omissions, contract parties who make false statements to induce the other party’s consent to the contract may find their contracts set aside and that they are liable for damages for misrepresentation. This chapter addresses the following questions: (1) What must the claimant prove in an action for misrepresentation? (2) What liability is there, if any, for non-disclosure? (3) When can the claimant set aside (rescind) the contract? (4) What money awards are made for misrepresentation? (5) To what extent can a party exclude or limit his liability for making a misrepresentation? (6) What recourse do consumers have against misleading and aggressive practices? (7) What justifications underlie the remedies for misrepresentation?

3. Enforceability: consideration, promissory estoppel, formalities

English law does not enforce all promises; it will not even enforce all agreements. To trigger legal recognition and thus enforcement, an informal agreement must comprise an exchange in which each party treats his performance (or promise of performance) as the price of the other’s performance (or promise of performance). Consideration is the ‘agreed equivalent and inducing cause of the promise’. If consideration is lacking, English law permits some enforcement, in qualifying circumstances, of promises that induce the promisee’s reliance via the doctrine of promissory estoppels. It also enforces formal promises or agreements. This chapter discusses: (1) the requirements of consideration, promissory estoppel, and formalities; (2) the justification for each test of enforceability; (3) whether the rules and scope of each doctrine are satisfactory, and, if not, how each should each be developed.