ostal acceptance rule is a model for Market-Individualism in the sense that it is clear, simple, and not hedged aroundwith qualifications which leave contractors constantly unsure of theirpositio
postal rule
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illas v Arcos12 approach to .rtaint ofterms
Certainty of terms
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market-individualist doctrine of in orporation of term byreasonable noti
Incorporation of terms
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(eg the Unfair Contract T rms ct1977- UCTA).
Unfair contract terms
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Suisse At/antique case'
A case about exemption clauses
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princif1e that the basis of implied terms is necessity not reason-ableness;'
You are familiar with this idea.
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courts will not review the adequacy of consideration
You are familiar with this idea
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octrine of inequality of bargaining
We will look at this topic next semester
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rustrationr
We will look at this topic next semester
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the resistance to the citationuncertainty as a ground for release from
You are already familiar with this issue
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rguments of economic wast or unr G nablcnc abasis for release from a bargain.
We will examine this topic next semester
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his straightforward! und rv rite th Hong Kong'28approach to withdrawal.
We will look at this case next semester
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High Trees27 and equitable st ppel and whi h rcat thopening in English law for the protection of reasonable r lianc
You are familiar with this case
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icolene Ltd v Simmond
You should be familiar with this case.
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The Hansa Nord
We will look at this case next semester
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common mistake
Mistake is not part of the syllabus for this module
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p rformancc damages 33 and perhaps the argument in White & Carter"which (unsucc ssfully) pleaded the unreasonableness of continued per-formanc . Equally, frustration should not entail unfair financial advan-rage."
We will look at these topics next semester
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'S.
Adams and Brownsword are referring to misrepresentation here. We will look at this topic briefly next semester.
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frustration
We will look at this topic next semester
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Thi· prin iplcthreatens both x .mption clauses whi h deal with ncglig ·n '; 17 andindemnity clauses which purport to pass on the risk of ncglig ·n cliability
Familiar topics
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frustrati n (
We will look at this next semester
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implied terms
This is a familiar topic
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f implied terrns
Familiar from Semester 1
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frustration
We will look at this in Semester 2
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pluralistic scheme
By pluralistic, the authors mean that consumer-welfarism incorporates a wide variety of principles.
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Batt! of th' Form (in th' Butler vlachine Toolcasc'"), are a cl ar example of this auitud :The probl mis how sh uld that battle be ondu tcd? The ,·i ·w tak 'n b ,the judge was that th battl should 'lend o er a idc r 'a and thcourt hould do its best to look into th mind of th partic and makecertain as umption . In my judgm mt, th' baul hast be ndu red inaccordanc with set rules ... The rul s relating to a battle r rhi kindhave b en known f r th p t l -odd ear . '51bresolved accordin to th traditional rulthe traditional rul s of ontra t lik 'Ol'along'.
A case you know well
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doctrine of fundamental breach, from Suisse Atlantique56 onwards is agood example of a formalist purifying op ration
A discussion of control of unfair terms
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Gibson u Ylanchesler City Councii"
A case about offer and acceptance
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principl of un on cionabilit
We will look at this in Semester 2
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Photo Production (supra)
A case on control of unfair terms
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The
One interesting question for us may be whether Adams and Brownsword's prediction that "the advance of consumer-welfarism" would be halted turned out to be true.
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McCutcheon v David MacBrayne Ltd
A case about exemption clauses.
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C NTRA ,T R LE-B OK
This article discusses examples from across our syllabus. Some will be familiar and others will not. Focus on the familiar examples for now, and make a note to yourself to come back and look at the other examples in Semester 2.
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In this section, the authors tell you what they are going to do. The introduction could be more effective but it gives you the general structure of the article.
1) They are going to argue that we should read contract law in the light of 'market individualism' and 'consumer welfarism'.
2) They are going to argue that we should read contract law judgments using both the ideas of 'market individualism' and 'consumer welfarism' and two other ideas; 'formalism' and 'realism'. In Workshop Exercise 1(a) on Learn you are asked to figure out what 'Market Individualism' and 'Consumer Welfarism' mean. You can find definitions of formalism and realism in the module glossary on Learn.
If you skip down to the last page, you'll see that they set out their argument in much clearer terms there.
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n
Academic reading expands your vocabulary. You may come across some words you haven't seen before. It is absolutely fine to read with a dictionary (or Google) alongside you.
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nterpreted
Adams and Brownsword are using the word "interpretation" here in the sense of discovering the true meaning of a judicial decision.
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Th immediate problem of Plato's prisoners in the cave, it will ber called was under tanding what was going on in the cave (for theycould s c only th shadows on th wall) .
You don't need to have come across this story before to understand what the article is about, but you can watch this short video explanation if you like.
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h 'black-lctt r approach
"Black-letter law" refers to well-established legal principles or rules that are considered fundamental, settled, and not subject to reasonable dispute. In critical legal writing, it is a pejorative phrase because critical legal scholars argue that by focusing on the rules of contract law traditional scholars miss what is actually happening. Judicial decision-making draws on other values which are not directly encoded in legal rules.
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