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Exploring Contract Law Edited by Jason W Neyers Richard Bronaugh and Stephen G A Pitel Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213–3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: orders@isbs.com Website: http://www.isbs.com © The editors and contributors severally 2009 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: mail@hartpub.co.uk Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-906-7 Typeset by Columns Design Ltd, Reading Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall EXPLORING CONTRACT LAW In this book, leading scholars from Australia, Canada, Hong Kong, New Zealand, Singapore, the United Kingdom and the United States deal with important theoretical and practical issues in the law of contract and closely-related areas of private law The chapters analyse developments in the law of estoppel, mistake, undue influence, the interpretation of contracts, assignment, exclusion clauses and damages The chapters also address more theoretical issues such as discerning the limits of contract law, the role of principle in the development of contract doctrine and the morality of promising With its rich scope of contributors and topics, Exploring Contract Law will be highly useful to lawyers, judges and academics across the common law world Foreword The chapters in this volume are the product of a symposium titled ‘Exploring Contract Law’ held at the University of Western Ontario Faculty of Law in January 2008 The sessions featured good intellectual punch-ups between those participants who see law as an adjectival study focused on the work of the courts and commerce, and others who dedicate their careers to more philosophical musings about legal concepts Both approaches are helpful Problem solving without a sound philosophical basis risks palm tree justice Theory without a nod to practice risks irrelevance Those in the first group would likely agree with Karl Llewellyn’s definition of law as what legal people do: This doing of something about disputes, this doing of it reasonably, is the business of law And the people who have the doing in charge, whether they be judges or sheriffs or clerks or jailers or lawyers, are officials of the law What these officials about disputes is, to my mind the law itself.1 However, chapters in this volume by those in the second group show them to be in determined pursuit of what might be called a pure theory of contract law At the symposium, one of the participants conjured up (in support of the argument that contracts are not necessarily promises) an electrical repairman who includes in his wiring contract a rather unlikely clause: The commitments expressed herein are exclusively contractual We intend hereby to bind ourselves contractually to make the payments and to perform the acts specified, but we not intend to bind ourselves morally to so: these are contractual undertakings, not promises (emphasis added) I not expect to see such contractual provisions anytime soon and the theoreticians probably have no expectation that we will, or even much interest in whether we Such writings constitute ‘an exercise in logic, not in life,’2 and derive their nourishment from the writings of other academics rather than judges, even the sort of peripatetic judges who turn up at symposia like this to listen, learn and inwardly digest What is intensely enjoyable about these sorts of confrontations is the enthusiasm with which the participants attack one another For example, John Swan observed at the symposium: K Llewellyn, The Bramble Bush: Some Lectures on Law and its Study (1930) (emphasis in original), recently reprinted as K Llewellyn, The Bramble Bush: The Classic Lectures on the Law and Law School (New York, Oxford University Press, 2008) HJ Laski, A Grammar of Politics, 4th edn (London, Allen & Unwin Ltd, 1963) vi vi Foreword From my point of view, I can’t see what could possibly be gained by the acceptance of Stephen [Smith’s] argument that, for example, the law of damages for breach of contract is not part of the law of contract but should instead be dealt with in a discussion of both contract and tort damages, with tort damages seeming to run from cases of personal injury through negligent misrepresentation to trespass, defamation and beyond The ‘what’s your point’ rejoinder was much favoured by most of the participants in both camps most of the time While the chapters published here are generally more restrained in tone than the symposium itself, together they represent significant and closely-argued contributions to our collective understanding of contract law We are fortunate to have the work of both the theoreticians and the Llewellynites gathered together here in permanent form Justice Ian Binnie Supreme Court of Canada 28 May 2008 Contents Foreword Contributors Introduction v ix xi 1 The Limits of Contract STEPHEN A SMITH Border Control: Some Comparative Remarks on the Cartography of Obligations 25 HELGE DEDEK Principle in Contract Law: the Doctrine of Consideration 51 STEPHEN WADDAMS Contractual Interpretation at Common Law and Civil Law: An Exercise in Comparative Legal Rhetoric 77 CATHERINE VALCKE Consideration and the Morality of Promising 115 ANDREW S GOLD Justifying Damages 139 CHARLIE WEBB Damages and the Right to Performance: A Golden Victory or Not? 171 ROBERT STEVENS Estoppels and Rights-Creating Events: Beyond Wrongs and Promises 199 ANDREW ROBERTSON Lumley v Gye and the (Over?) Protection of Contracts 225 G H L FRIDMAN 10 Contracting Out of Liability for Deceit, Inadvertent Misrepresentation and Negligent Misstatement MARK P GERGEN 237 viii Contents 11 Assignments, Trusts, Property and Obligations 267 ANDREW TETTENBORN 12 The Nature of Equitable Assignment and Anti-Assignment Clauses 283 C H THAM 13 Coming to Terms with The Great Peace in Common Mistake 319 KELVIN F K LOW 14 Contractual Mistake, Intention in Formation and Vitiation: the Oxymoron of Smith v Hughes 341 MINDY CHEN-WISHART 15 From Morgan to Etridge: Tracing the (Dis)Integration of Undue Influence in the United Kingdom 379 RICK BIGWOOD Index 431 Contributors RICK BIGWOOD, LLB, PHD, Professor of Law, University of Auckland RICHARD BRONAUGH, BA, MS, PHD, BLITT, Professor of Law and Professor Emeritus of Philosophy, University of Western Ontario MINDY CHEN-WISHART, BA, LLB, LLM, MA, Reader in Contract Law, Merton College, University of Oxford HELGE DEDEK, First and Second State Examination in Law, LLM, PHD, Assistant Professor of Law, McGill University GERALD H L FRIDMAN QC, MA, BCL, LLM, FRSC, Professor Emeritus of Law, University of Western Ontario MARK P GERGEN, BA, JD, Fondren Foundation Centennial Chair for Faculty Excellence, University of Texas ANDREW S GOLD, BA, JD, Associate Professor of Law, DePaul University College of Law KELVIN F K LOW, LLB, BCL, Associate Professor of Law, The University of Hong Kong JASON W NEYERS, BA, LLB, MST, Associate Professor of Law and Cassels Brock LLP Faculty Fellow in Contract Law, University of Western Ontario STEPHEN G A PITEL, BA, LLB, LLM, PHD, Associate Professor of Law, University of Western Ontario ANDREW ROBERTSON, LLB, LLM, PHD, Professor of Law, University of Melbourne STEPHEN A SMITH, BA, LLB, PHD, William Dawson Scholar and Professor of Law, McGill University ROBERT STEVENS, BA, BCL, Professor of Commercial Law, University College London ANDREW TETTENBORN, MA, LLB, Bracton Professor of Law, University of Exeter 428 Rick Bigwood ‘paternalistic’;202 or to operate unfairly, harshly or unjustly;203 or to deprive trial judges of the valuable ability to assess and weigh the evidence so as to get the truth of the matter;204 or to be an ‘incubator in which fraud may flourish and grow’;205 or to create too-ready incentives for disgruntled or disappointed claimants to challenge objectively concluded transactions, often many years after the event or the death of the transferor.206 Also, the Etridge view of undue influence is not inconsistent with the (sometimes) considered approaches to Class undue influence of several courts in other common law legal systems.207 Still, no such reasons are explicit in the demotion of the traditional ‘presumption’ of undue influence in Etridge The law in that respect is presented there as if it had always been that way It is hoped that other Commonwealth appellate courts,208 if and when they eventually confront the question of adopting (or not) the Etridge undue influence principles,209 will respond reflectively, and not merely reflexively, to the issue Such courts should not, in my view, relax or dismantle the strict fiduciary operation of traditional relational undue influence law without first credibly responding to the conventional rationale that existed for the strict accountability regime in first place, that is, without furnishing plausible reasons why we should now comfortably reject the original premises for the strict regulation Without gainsaying the possibility of such reasons coming forward, I would myself be surprised if the risk of, and hence judicial concern for, the mischief of opportunism in limited-access arrangements were any less demonstrable today than in the past Surely those who concede deferential trust in others, or who are otherwise subordinate within a limited-access relation of influence, are as 202 CP Reed, ‘Comment’ (1984) 18 Law Teacher 132, 134 See, eg, BD Stapleton, ‘The Presumption of Undue Influence’ (1967) 17 University of New Brunswick Law Journal 46, 64–5; A Craig, ‘Evidential Presumptions’ (2002) 152 New Law Journal 217, 218 Although fiduciary rules may operate harshly in some cases, this is offset by the fact that it is very easy for a fiduciary to insulate himself or herself, ex ante, against that risk, that is, by securing the obligee’s permissive and transactional consent A failure to so might itself be indicative, at least of transactional neglect On the concept of ‘transactional neglect,’ see R Bigwood, ‘Contracts by Unfair Advantage: From Exploitation to Transactional Neglect’ (2005) 25 OJLS 65 204 Re Estate of Carpenter 253 So 2d 697, 703–704 (Fla 1975) 205 Stapleton, above n 203, at 64 206 See, eg, the note at (1941) 41 Columbia Law Review 707, 722: ‘It seems, too, that instead of being the shield of a trusting, weakminded grantor, as it was intended to be, the “presumption” can easily become the sword of a disgruntled, disappointed heir.’ 207 For example, Boardman v Lorentzen 145 NW 750 (Wis 1914); Re Estate of Carpenter, above n 204, a case involving the execution of a will, but the principles were later held to apply equally to inter vivos gift transactions; Majorana v Constantine 318 So 2d 185 (Fla Ct App 2d Dist 1975); Re Estate of Wood, 132 NW 2d 35 (Mich 1965); Geffen v Goodman Estate, above n 16, at 242–3 (Sopinka J in obiter dicta) 208 Though perhaps Australia, Canada, and New Zealand especially 209 In contrast to the separate principles relating to third-party disability in the enforcement of suretyship transactions, which is the main subject of the Etridge appeals 203 From Morgan to Etridge 429 vulnerable to exploitation today as they ever were On the other side, it is doubtful whether twenty-first-century human beings, when tempted by ready opportunities to make secret personal gains, are generally any less likely to succumb to the self-regarding impulse than their nineteenthcentury counterparts Indeed, in the wider fiduciary setting it has been argued that ‘there does not appear to be a plausible basis for sending a new signal that the regulation of opportunism [in limited-access arrangements] should now be scaled back’.210 Similarly, for undue influence, it might be argued that allowing the presumption of undue influence to affect only the burden of production and not the burden of persuasion is problematic on the ground that the presumption itself embodies strong policy preferences that are not adequately served if only the burden of production is affected The ultimate effect of Morgan and Etridge, undoubtedly, is to enlarge the scope of undue influence so that it now potentially applies to all acts of unfair persuasion in inter vivos transactions, regardless of the relational context within which that persuasion occurs To my mind this has rendered undue influence hollow as an independent doctrinal category Stripped of its fiduciary underpinnings, relational undue influence is now practically and intellectually indistinguishable from other exculpatory categories or pleas in avoidance that have, in other legal systems, tended to regulate unfair persuasion or victimisation in arm’s-length transactional encounters Those categories or pleas are certainly capacious enough to absorb undue influence’s historical burden In those other legal systems the expansion of the duress and unconscionable dealing doctrines, for example, has tended to eliminate the need for a broader application of the undue influence concept, so it is possible that relational undue influence may, despite Etridge, continue to retain its distinctive character in some English-based legal systems outside of the United Kingdom The possible elimination of the Class 2(B) category of undue influence in particular, though, seems to leave little room for an understanding of relational undue influence apart from unconscionable dealing, the criteria of which seem perfectly well suited to the administration of many undue influence claims.211 Yet to the extent that both doctrines can be understood as legal devices for the 210 Flannigan, above n 54, at 212 As Mason J stated in a leading unconscionable dealing case (Commercial Bank of Australia Ltd v Amadio, above n 11, at 461): ‘There is no reason for thinking that the two remedies [of unconscionable dealing and undue influence] are mutually exclusive in the sense that only one of them is available in a particular situation to the exclusion of the other Relief on the ground of unconscionable [dealing] will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.’ 211 430 Rick Bigwood protection of vulnerable parties, it cannot be said that victims of unconscionable dealing and victims of relational undue influence are ‘vulnerable’ (to victimisation) in quite the same way ‘Specially disadvantaged’ parties under the unconscionable dealing jurisdiction are typically inept, weak or unable to advance their best interests when entering into voluntary or consensual transactions with others who are much stronger, but that is not because they have renounced playing for advantage themselves in such transactions They would or might press for advantage or pursue selfinterest inter se if only they could, but ex hypothesi their special relative disability inhibits them from doing so on the occasion in question Such persons are disadvantaged, but they are not ‘exposed’ Deferentially trusting parties, in contrast, characteristically have surrendered, partially or completely, control in their decision-making to another and so are susceptible to a much greater extent and to a higher order of wrongdoing altogether They are, to the extent of their surrender, truly exposed, and their exposure is to no less than betrayal or treachery The corollary of such greater vulnerability and risk on the one side must be greater obligation on the other, which is fiduciary obligation We may question, therefore, whether such parties would be adequately protected—their interests properly served—if their petitions for exculpation from impugned transactions were consigned to administration through what is effectively an unconscionable dealing inquiry only That, I believe, is the ultimate and lamentable effect of Morgan and Etridge.212 212 Interestingly, in Lawrence v Poorah [2008] UKPC 21, Lord Walker, on behalf of the Judicial Committee, observed obiter dicta: ‘It is sufficient to say that the doctrines of undue influence and unconscionable bargain share a common root—equity’s concern to protect the vulnerable from economic harm—but they are generally regarded as distinct doctrines … In particular, although the doctrine of unconscionable bargain involves the exploitation of the plaintiff’s vulnerability, it does not depend on a pre-existing relation of actual or presumed confidence The doctrine of unconscionable bargain appears to be particularly vigorous in Australian jurisprudence …’ (emphasis added) Index Introductory Note References such as ‘178–9’ indicate (not necessarily continuous) discussion of a topic across a range of pages Wherever possible in the case of topics with many references, these have either been divided into sub-topics or only the most significant discussions of the topic are listed Because the entire volume is about the law of contract, the use of this term (and certain others occurring throughout the work) as an entry point has been minimized Information will be found under the corresponding detailed topics abuse: of confidence, 406, 410, 415 of rights, 92 of trust and confidence, 388, 414–15 acceptance see offer and acceptance access to assets, 391, 393–5, 397–8, 402, 405, 409, 416 accessory liability, 225, 229 accommodationism, 115–21, 123, 128, 132–5, 137 accuracy, 237–8, 243, 249, 252, 259–61, 263–4, 365 acquiescence, 71, 73, 213, 215–17, 352 action: detrimental, 219–20, 224 private rights of, 116, 128–33, 136–7, 306 actor objectivity, 349–51, 364–5 actual undue influence, 382, 399, 415, 418 Addison, C, 51–2, 74 agency, 304, 395–6 agency costs, 396 agents, 66, 113, 129, 242–3, 259–62, 395 moral, 115–21, 127–8, 130–2, 134–5, 137 agreed exchange of performances, 330 agreements, 37, 104–5, 150–2, 335–9, 355–6, 363–4, 372–8 absolving an actor from liability for fraud, 244, 246, 253 binding, 120, 216 contractual, 11, 210, 268, 290 objective, 356, 359–60, 362, 364 alterations, 98, 277–8 ambiguity, 341, 343, 354 latent, 363 analogical reasoning, 122 anti-assignment clauses, 268, 279, 281, 283–9, 291, 305–18 breaches, 309–17 effective, 268, 288 Aristotle, 47, 370 arm’s-length transactions, 388–9 arrangements: limited-access, 386, 393, 398, 401–2, 428–9 physical, 391, 402, 411 ‘as is’ sales, 242–4, 254, 256, 357 ascendancy, 381, 395–6, 399–400, 402–3, 411, 413–16 assets, 63–4, 66, 145–7, 159–62, 164–6, 271–2, 393–5 non-profit-making, 174 assignees, 269–77, 279–80, 282, 284–316, 318 equitable, 270, 274, 291, 293, 307 rights, 277, 279 assignment, 267–91, 293–318, 402 of choses in action, 286, 289–90 of contract rights, 267, 295, 304, 314 contracts of, 286–8, 291, 316 equitable, see equitable assignments informal, 286–7 of leases, 313–14 purported, 283, 310, 316 statutory, 270, 278, 283, 289, 291, 293, 301 surrogate, 277 assumpsit, 53, 64 assumptions, 116, 215–17, 252–3, 374 mistaken, 368–76 relevant, 204–6, 209, 216–17, 219–20 and terms, 371–3 assurances, 57, 211, 213, 220, 250, 259, 308–9 Atiyah, PS, 43–4, 46 432 Index auctioneers, 47, 362, 366 Austin, J, 233 authorisation, 386, 392 autonomy, 32, 133, 347, 364 of the will, 38, 86–8 bare trusts, 271–2, 274–5, 277–8 Beatson, J, 343 beneficial reliance, 208 benefits, impugned, 383, 405, 418 Benson, P, 56, 121, 126, 207, 210, 213 Bentham, J, 31 best interests, 429–30 BGB, 36–38 bidders, 362, 366 bindingness, 123, 127–8 Birks, P, 26–9, 31, 71, 201–2, 210, 215 Blackstone, W, 29–30, 52–4, 129–30 boilerplate, 240–1, 247, 257 breach, 139–42, 164–9, 174–6, 186–7, 226–33, 309–13, 315–18 of covenant, 313–15 of deferential trust, 404, 412, 417 efficient, 16, 145 of fiduciary duty, 275, 390, 410 of promise, 47, 121, 127, 132, 207 responses to, 142–4 time of, 176, 182–3, 187, 191, 196 of trust, 274–5, 404 of warranty, 242, 254 building contractors, 283–4, 287–8, 316 building contracts, 188, 283–4, 309, 316–17 burden of proof, 384, 389, 401, 420–2 and relational undue influence, 419–27 Burrows, A, 27, 71, 77, 191–4 buyers, 176–83, 242–4, 252–4, 256–8, 263–5, 341, 356–63 conduct, 358 identity, 104 intention, 357, 372 mistake, 342, 357–8, 368 capacity, 19–21, 38, 53, 84, 194, 259, 265 special, 382, 398–9 carelessness, 173, 208–9, 364, 378 carriage of goods, 111, 179, 184–6 carriers, 66, 111 cartography of obligations, 25–49 categories, 2–3, 17–18, 28–9, 201–2, 389–90, 425–7 hardening of, 31, 38, 42, 48–9 legal, 2, 5–6, 29 of wrongs, 176, 201–2 categorisation, 28–9, 42, 67, 369 causation, 45–6, 110, 219–20, 403–4 change of position, 207 Chitty, J, 58 choses in action, 273, 280, 283, 286, 289–91, 304, 316 circularity, 78, 315–16, 318, 373, 408 civil law, 27, 31–2, 48, 77–9 and interpretation, 83–94 civilian tradition, 32, 35, 48 co-contractors, 308–9 codification, 25, 27, 31–2, 39, 176 coercion, 19, 116, 123, 125–7, 131–2, 135–7 forcible, 126, 132–3 coercive remedies, 116, 123, 125–7, 132–3, 137 cogency, 422 collateral terms, 367, 372–3 commercial contracts, 98, 103, 201, 352–3 negotiated, 246–7, 251, 253–4 commitments, 141, 211–15, 217–18, 265, 370 common fundamental mistake, see common mistake common intention, 82, 91 common law, 3, 29–31, 48–9, 288–91, 321–3, 325–7, 331–4 and interpretation, 94–113 mistake, 323, 369 common mistake, 319–25, 327, 329–39, 365, 369, 373–375, 378 in The Great Peace, 319–39 remedial flexibility, 334–8 and third parties, 331–4 compensable loss, 148–9 compensation, 14–15, 43, 47, 141, 158, 164–7, 172 compensatory awards see compensatory damages compensatory damages, 43, 141, 143–5, 147, 149–50, 157–67 competing policy interests, 329–30 conceptual looseness, 89, 96, 99, 112–13 conceptual tightness, 89–90, 94, 113 conceptualisation, 28, 419 conditions precedent, 110, 311–12, 321–2, 367 implied, 321–3 conditions, 83–4, 154, 311–13, 316, 337–8, 351–2, 370 contingent, 312 conduct, 57–8, 203–4, 206–8, 212–17, 345–6, 349–53, 364–5 buyers, 358 inconsistent, 203–4, 206–8, 210, 224 sellers, 358, 362 unacceptable, 413 confidence, abuse of, 406, 410 confidential relationships, 401, 409–10, 412, 415 Index 433 confidentiality, 149, 406, 409, 411 conflict of interest, 383–4 confusion, 48, 172, 231, 238, 255, 343–4, 362 conscience, 54, 56, 72, 203, 290, 294, 388 consecrating/disciplining distinction, 82, 86–91, 94–5, 98–9 consecrating functions, 82–3, 86, 93–8, 100–2, 105, 107–9, 111–13 consent, 19, 201–2, 251–2, 315–16, 369–71, 374, 391–2 defective, 344, 369, 371, 376 prior, 313, 315–16 quality of, 252–3 consequential losses, 11–13, 15, 172–5, 177–8, 180–2, 193–8 proof of, 176, 186, 197 consideration, compared to equitable assignments, 272–78 and cultural criterion, 135–6 doctrine of, 8, 51–75,116, 123, 126–8, 133–4, 166 and morality of promising, 115–37 consolidation of law and equity, 99–100 constitutive elements, 83–4 construction, rules of, 98, 105–7 constructive trusts, 272, 274, 278, 287, 294, 307, 392 consumer contracts, 160, 192 contingent conditions, 312 contra proferentem rule, 89 contract-creating events, 6–7 basic, 8–9, 21 contract prices, 60–1, 176, 178, 191, 197 contracting parties, 11, 18–19, 53, 69, 140, 150–3, 342 contracts: of assignment, 286–8, 291, 316 commercial see commercial contracts consumer, 160, 192 employment, 250–1, 320, 328, 372 of guarantee, 323–4 of hiring, 227 of sale, 37, 40–1, 47, 179–80, 184 of service, 231–2 contractual documents, 349, 351–3, 355, 364, 372–3, 375, 378 contractual duties, 11–12, 15, 306 contractual obligations, 7–8, 16–17, 34–6, 92–3, 110, 304–5, 316–18 see also obligations nature of, 12–13 primary, 151, 172 contractual prohibitions, 268, 285, 288 contractual promises, 44, 54, 123, 127–8, 132, 209, 308–11 see also promises contractual relations, 225, 247, 280, 285 direct, 285–7, 291, 307, 309, 312, 317 contractual rights, 229, 267, 285–9, 294–5, 308–10, 314, 394 see also rights bargained-for, 166 contributory negligence, 148, 245, 249–51 conventions, 84–6, 89, 93, 164 conveyances, 286–7, 309, 383 Corbin, AL, 248, 254, 257, 302, 304–6 corrective justice, 29, 47, 128–30 cost of cure awards, 145–9 counterclaims, 273, 275, 276 counterproof, 420, 422 court-ordered rights: law of, 14–18 orders to perform existing duty, 15–17 orders to perform new duty, 17–18 court orders, 11, 15–18, 21–3 covenants, 16, 55, 163, 187, 310 breach of, 313–15 not to build, 192–4 to repair, 187 criminal law, 3, 5, 7, 22–3 culpa in contrahendo, 45 cultural criterion, 118–19 and consideration, 135–7 culture, 27–8, 118, 136 moral, 119, 135–6 cure damages see cost of cure awards damages, 9–18, 38–44, 140–54, 165–9, 171–98, 256–7 compensatory, 43, 141, 143–4, 147, 149–50, 155–67 expectation, 41, 43, 47, 56, 119, 139, 222–4, 257 gain-based, 139, 193–4 general, 173, 184 general law of, 14, 44, 46 and The Golden Victory, 195–7 justification, 139–70 law of, 10–14 liquidated, 112, 189 measure of, 12–13, 152 mitigation of , 11, 13, 15, 148, 169, 181–2, 191, 193 monetary, 122, 139, 143–4, 174 nominal, 14, 17–18, 143, 162, 168, 194–5 performance interest, 144–9, 155, 165 punitive, 14, 17, 119 quantification of, 45, 152, 182, 186, 191, 193 reliance, 31, 44–6, 139, 222, 427 remoteness rule of see remoteness and right to performance, 171–98 special, 173, 184 434 Index substantial, 149, 162, 165, 176, 180–1, 187–90, 195–7 substitutive, 139, 165–9, 173, 175 tort, 12 vindicatory, 14 death, 57, 70, 258, 384, 428 deceit, 176, 237–9, 265 contracting out of liability for, 239–54 declarations of trust, 269, 271, 281 see also trusts defamation, 2, 4, 34, 147 defeasibility, 309, 314, 316–18 defective consent, 344, 369, 371, 376 defective goods, 41, 179–82 defective performance, 147, 156, 181 defences, 22–3, 141, 232–3, 238, 245, 249–50, 275–6 justification, 232–4 deference, 396–7, 403 deferential trust, 395–8, 403–5, 411, 414, 428 breach of, 404, 412, 417 delivery, 177–8, 182–5, 300–1, 304 late, 11, 174, 183 time of, 179, 182 dependence, 57, 395–6, 400, 414–16, 425 designations, 100–2, 106 detached-formal objectivity, 355–6, 362 detached objectivity, 348–9, 351–2 detrimental action, 219–20, 224 detrimental reliance, 73, 207, 210–11, 218–21, 224 direct contractual relations, 285–7, 291, 309, 312, 317 directors, 217, 299, 328, 390–1, 395 disabilities, 364, 378, 394–5 disadvantage, manifest, 407–8 disciplining functions, 82–3, 88, 91, 93–5, 97–8, 100–2, 112–13 disclaimers, 240, 247, 254, 256–9, 262–4 discretion, 47, 274–5, 277, 322 equitable, 336–7 remedial, 334–6 discrimination, 175 dishonesty, 126, 241, 243, 246–7, 345 see also honesty Dobbs, D, 249 dominant parties, 399, 401, 418 duress, 5, 9, 18–23, 37, 61–2, 371, 388, 413–14 economic, 19, 60, 62, 231 duty: breach of, 11, 13, 163, 210, 316, 403 ethical, 126, 133, 135 fiduciary, 275, 328, 384, 390–1, 395, 403, 409–10 of loyalty, 392, 403 moral, 63, 115, 117–18, 120, 122, 127, 137 primary, 12–14, 18, 23, 147, 194 special, 382, 392, 417 economic duress, 19, 60, 62, 231 Edelman, J, 211 effective anti-assignment clauses, 268, 288 efficient breach, 16, 145 Eisenberg, M, 396 employees, 67–8, 99, 103, 175, 259, 360, 395 employers, 99, 175, 189–91, 195, 226, 283–4, 395 employment, 191, 320, 328, 372, 395, 398 employment contracts, 250–1, 320, 328, 372 enforcement, 55, 57–9, 65–6, 82–3, 247–8, 251–3, 273–4 of exculpatory agreements/terms, 238, 242–4, 247–9, 251–3, 265 of interpersonal morality, 115, 117 of promises, 57, 211 enrichment, 71, 161, 216 unjust, 2, 22–3, 63–4, 70–1, 161, 215–16, 335–6 entire agreement clauses, 355, 373 equal value, 56, 144, 155 equitable: assignees, 270, 274, 291, 293, 307 assignments, 272–3, 283–318 apart from transfer, 286–9 of benefits, 284–304 compared to trusts, 272–8 and contract terms, 296–304 and discharge by performance, 296–304 English approach, 270–2 and insolvency, 273 minimalist view, 304–17 as transfers, 289–96 claims, 99, 206, 255 discretion, 336–7 estoppel, 71, 199, 201–3, 205–6, 208–12, 224 Australia, 199, 221 fraud, 71, 380 interests, 206, 271, 279, 292, 294, 305–9, 311 jurisdiction, 95, 203, 323, 325, 331–2, 380, 401 mistake, 369, 378 rescission, 255–6, 266, 331 set-offs, 275–6, 302 wrongs, 175, 384 equity, 71–3, 270–3, 289–91, 293–5, 306–9, 325–7, 334–6 consolidation of law and, 99–100 Index 435 courts of, 70, 95, 203, 206, 212, 306, 360 rules of, 93, 289–90 estoppel, 5, 7, 72–4 equitable, 71, 199, 201–3, 205–6, 208–12, 224 promissory, 73, 200, 208, 211, 218, 260 proprietary, 70–1, 73, 199–201, 204–5, 207, 210–18, 220–3 and rights-creating events, 199–224 substantive doctrines of, 199, 202, 218 ethical duties, 126, 133, 135 events-based taxonomy, 202–3 evidence, 97–8, 247–8, 251, 350–1, 358–60, 420–2, 424–6 see also burden of proof of intention, 98, 355 reliable, 55–6 rules, 73, 90, 97–8, 350–1, 372 evidential burden/onus see burden of proof evidential presumptions, 423–4, 428 exact performance, 146, 154, 270, 304 exclusionary clauses, 105–8, 110 exculpatory agreements, 237–53, 256 clear, 245, 254 exculpatory categories, 386, 388, 429 exculpatory terms, 238, 240–3, 246–7, 253–4, 256–61, 263–5 clear, 244–5, 254–5, 258 expectancy, 43–5, 47, 383 expectation damages, 41, 43, 47, 56, 119, 139, 223 expectations, 47, 57–8, 208–10, 213–14, 222–3, 312–13 reasonable, 68, 324, 326–7, 346, 350, 374 expected value, 239, 253 exploitation, 406–7, 414–15, 429–30 express influence, 419 extra-contractual misrepresentation, 240, 260 extra-contractual representations, 240, 246, 254–5, 260, 266 factual advantages, 150–1, 155–6, 159–60, 166–7, 169 factual harms, 156, 161–2, 167, 169 factual losses, 166–8 failure to perform, 12, 17, 116, 127, 140, 142, 144 see also non-performance; performance fair-dealing rules, 404, 417 fairness, 12, 66, 106, 255, 326, 347, 404 fallibility, 248, 253, 255 fault, 19, 41, 93, 256, 322, 337, 369 fiduciaries, 194, 381–3, 390–6, 401–3, 405–8, 411–13, 416–18 fiduciary: accountability, 380, 390–1, 395–6, 401, 415 disloyalty, 392 duties, 275, 328, 384, 390–1, 395, 403, 409–10 breach of, 275, 390, 410 functions, 381–2, 384, 392, 416 influence, 383, 386 law, 328, 381, 384, 394, 401, 403, 409–10 liability, 390, 392, 404 obligations, 390–6, 398, 401–2, 409–12, 418, 430 principle, 381, 387, 396, 400, 414 rationale, 383, 388–9, 408, 419, 421, 427 regulation, 386, 389–95, 405, 427 relational undue influence as, 398–402 relations/relationships, 380–2, 384–5, 390, 394, 401, 410–11, 417 responsibility, 393–4, 417, 425 rules, 384, 405, 421, 427–8 relational undue influence as, 389–405 status, 391, 394–5 trust, 403, 405, 418 types, 394–8 financial information, 246, 252, 263 financial statements, 262–3 Finn, P, 381 Finnis, J, 351, 353 Flannigan, R, 390–7, 402, 410, 425 flexibility: interpretive, 99–100 remedial, 327, 334 force, 125–6, 133, 135, 228, 230, 271, 350 physical, 125, 127 threats of, 125 force majeure, 111–12, 334 forfeitures, 105, 310, 313–15 form contracts, 240–2, 247, 257, 352 see also boilerplate formal objectivity, 351–2 formation of contracts, 37, 44–5, 83–4, 139–40 and intention, 341–78 and objectivity, 356–68 see also offer and acceptance fraud, 55, 71, 237–43, 245–53, 332–3, 379–81 claims, 238–46, 248, 252, 258–60, 265 unfounded, 248, 253, 265–6 clear and convincing evidence of, 244, 248, 251, 253 equitable, 71, 380 freedom, 19, 38, 44, 48, 110, 125, 202 436 Index French law, 32, 36, 81, 101, 103, 108–13 and interpretation, 83–94 Fried, C, 116, 121 frustration, 9, 18, 95, 109–11, 113, 329–30, 333–5 Fuller, L, 42–4, 47 functionalism, 82 fundamental mistakes, see common mistake gain-based damages, 139, 193–4 Gaius, 27–9, 33, 35 general damages, 14, 44, 46, 173, 184 general rules, 2, 9, 21, 39–40, 43–6, 250–2 generality, 16, 38, 42, 52 German law, 3, 30–5, 37–40, 42, 44, 46–7 gift promises, 58, 120 gifts, 22, 37, 53, 120, 238, 272, 398–400 executed, 7, 22 Gilbert, J, 54, 56, 63–4, 66 Gilbert, M, 123–5 Gilmore, G, 43 good faith, 61, 77–8, 92–3, 264 Goode, RM, 310–11 goods, 15, 176–80, 182–6, 332–3, 362–3, 366, 409 carriage of, 184–6 defective, 179–82 gross negligence, 264–5 guarantees, 92, 258, 323, 354 contracts of, 323–4 hardening of categories, 31, 38, 42, 48–9 hardship, 97, 385 harms, 6, 164, 207–8, 223–4, 328, 348, 384 factual, 156, 161–2, 167, 169 physical, 158–9, 161, 165, 237 Hart, HLA, 124–5, 369–71 history, 25, 32–3, 42, 44, 56, 74, 147 Holdsworth, W, 228, 235, 270 Holmes, OW, 16, 141–2, 156 honesty, 241, 243, 252–3, 328, 343, 373, 401 see also dishonesty horizontal borders, 2–7, 34 identity, mistake of, 104, 332, 344, 366–8, 375–8 implied-in-fact terms, 18, 108–9 implied-in-law terms, 9, 12, 18, 108–9 implied intentions, 333 implied terms, 77–8, 95, 108–9, 152–3, 321, 333–4, 338–9 impugned benefits, 383, 405, 418 impugned transactions, 381, 386–7, 402–4, 406–7, 423, 426, 430 inaccuracy, 254, 256, 259–60, 266 inadvertent misrepresentation, 237, 266 contracting out of liability for, 254–60 incapacity, 18–19, 22–3, 385 see also capacity incentives, 256, 332, 367, 383–4 inconsistent conduct, 203–8, 210, 224 incontestability clauses, 239 incorporation of terms, 8–9, 15, 85, 365 indemnities, 152, 178, 245, 293 induced mistakes, 371, 375 inducement, 204–7, 210, 218–19, 238–9, 241, 252–3, 259–60 of a change of position, 207–8 inducing breach of contract, 226–7, 230–1 inferences, 24, 42, 385, 419–20, 426 permissible, 382, 388–9, 419–21, 424, 427 influence: express, 419 fiduciary, 383, 386 limited-access relations of, 403, 407, 414, 416, 428 presumptions of, 424–5 relationships of, 381, 400, 411, 417, 425 special, 381, 386, 403–4, 426 special relations of, 381, 386, 419, 423 undue see undue influence informal assignments, 286–7 information, 29, 149, 208, 238, 257, 260–6 financial, 246, 252, 263 supplying of, 238, 259, 261–4 infringements of rights, 149–50, 166, 172–3, 193, 195, 202–3 see also breach; rights injury, 11, 43–5, 111, 129–30, 165, 227, 232 injustice, 32, 70, 97, 154, 187, 254, 276 innocent misrepresentation, 255–7, 375 innocent third parties, 331–3, 335, 366 insolvency and equitable assignments, 273 insurance, 239, 262 insurance contracts, 239 insurers, 67, 70, 239, 275, 277–8 intention, 82–3, 85–99, 101–2, 341–4, 346–7, 351–3, 355–6 actual, 45, 90, 97, 99, 109, 344–5 common, 82, 91 evidence of, 98, 355 and formation of contracts, 341–78 implied, 333 objective, 89, 95–102, 108, 112–13, 345, 361 real, 55, 58, 95, 97, 103, 345–6, 355 reasonable, 96, 109 subjective, 89–90, 94–6, 98, 113, 345–6, 361–4 subjective conception of, 86–7 Index 437 and vitiation, 341–78 interests, 6, 172, 205–7, 291, 293–4, 381–5, 390–3 best, 429–30 equitable, 206, 271, 279, 292, 294, 305–9, 311 personal, 239, 241–2, 252, 384, 393 interference with economic relations, 229, 231 intermediaries, 395–7 interpersonal morality, 115, 117–18, 120–1 enforcement of, 115, 117 interpretation, 8–9, 77–114, 350–1 civil law, 83–94 classic canons of, 89, 94 common law, 94–113 contextual, 91, 353 French law, 83–94 general principles of, 105–6 literal, 91, 97, 99, 281, 299, 353, 360 objective, 98, 342, 372, 377 interpretive flexibility, 99–100 invited reliance, 238, 261–4, 266 judicial activism, 225, 234 justice: corrective, 29, 47, 128–30 general considerations of, 63, 66–7 justifiable reliance, 249, 255 justification defence, 232–4 known mistakes as to terms, 343, 358–9, 378 Langdell, CC, 26 late delivery, 11, 174, 183–4 latent ambiguity, 363 legal categories, 2, 5–6, 29 see also categories legitimate expectations see reasonable expectations liability, 224–6, 228–34, 237–9, 241–7, 251–61, 263–5 accessory, 225, 229 contracting out of, 237–66 fiduciary, 390, 392, 404 negligence, 238, 261–4 strict, 256, 259, 384, 392 ‘limited-access’ abstraction, 393–4 see also access to assets limited-access arrangements, 386, 393, 398, 401–2, 428–9 limited-access relations of influence, 403, 407, 414, 416, 428 limits of contract, 1–24 classificatory criteria, 6–8 liquidated damages, 112, 189 literal interpretation, 91, 97, 99, 281, 353, 360 literalism, 91, 96–9 Locke, J, 126, 129–30 Lord Cairns’ Act, 187 losses, 43–7, 142–5, 147–9, 158–69, 172–9, 181–7, 191–3 actual, 47, 171, 177–8, 182, 188, 195–6 compensable, 148–9 consequential, 11–13, 15, 172–5, 177–8, 180–2, 193–8 factual, 166–8 non-pecuniary, 161, 164 pecuniary, 45, 161 proof of, 173–4 recovery of see recovery reliance, 217, 222–3 loyalty, 353, 382, 392, 403 MacMillan, C, 327–8 malice, 228, 230 manifest disadvantage, 407–8 mapping contract law, 25–6, 28, 30–1, 48–9, 52–3 market price, 176–7, 182–4, 197, 360 market value, 160–1, 176–81, 183, 185, 190, 196, 198 markets, 33, 164, 177, 179, 183, 187, 191–2 marriage contracts, 53, 85 Marshall, OR, 286–7 master and servant, 226–27, 232 McFarlane, B, 200, 204–5, 307 McMeel, G, 107 meaning, natural, 99–100, 102–3, 105–7 merger provisions, 240, 248, 254, 256–8 minors, 20, 39, 262 misrepresentation, 18–23, 237–9, 251–2, 344, 357–9, 375–8 see also representations extra-contractual, 240, 260 inadvertent, 237, 254–60, 266 innocent, 255–7, 375 intentional, 19, 247 negligent, 237–8, 251, 254, 357 reckless, 246–7 misstatement, 237–8, 258, 260, 264 negligent, 237, 242, 255, 257–65 mistake, 319–21, 323–5, 330–1, 341–78 categories of, 344, 369 common law, 323, 369 common, 319–25, 327, 329–39, 365, 369, 373–375, 378 contracts void for, 373 equitable, 369, 378 of fact, 344, 371–2, 377 of identity see mistaken identity induced, 371, 375 438 Index mutual, 257, 320, 363, 369 and objectivity, 372–3 operative common, 321, 332, 334 shared, 337, 375 subjective, 343, 363 of terms, 342–4, 355, 357, 360, 371–3, 376–7 known, 343, 358, 378 operative, 356, 374 unilateral, 323, 332, 347, 360–1, 369, 374–5 mistaken assumptions, 368–76 mistaken identity, 104, 332, 344, 366–8, 375–8 mitigation, 11, 13, 15, 148, 169, 181–2, 191, 193 modification of contracts, 41, 59, 61–2 monetary damages, 122, 139, 143–4, 174 money, 16, 62–3, 142–6, 160, 163–5, 174–5, 216–17 moral: agents, 115–21, 127–8, 130–2, 134–5, 137 behaviour, 119, 135–6 concepts, 38, 123–4 culture, 119, 135–6 duties, 63, 115, 117–18, 120, 122, 127, 137 obligations, 6, 120, 133, 136 permissibility, 121–2, 127–8 principles, 57, 119, 121, 132 relationships, 118, 124, 129 remedies, 122–3, 133, 135, 137 rights, 116, 123–8, 131–3, 136–7 strong, 127, 132–4 weak, 127–8 morality, 20–1, 115–17, 119–27, 131–3, 135–7, 233–4 interpersonal see interpersonal morality promissory, 115–37 mutual mistake, 257, 320, 363, 369 natural meaning, 99–100, 102–3, 105–7 negligence, 67–8, 104, 107, 208, 238, 242, 261, 264 contributory, 148, 245, 249–51 gross, 264–5 liability, 238, 261–4 tort of, 261–2 negligent misrepresentation, 237–8, 251, 254, 357 negligent misstatement, 237, 242, 255, 257–65 negotiated commercial contracts, 246–7, 251, 253–4 negotiations, pre-contractual, 361, 371 nemo dat, 295–6, 331 nineteenth century legal thought, 26, 32–3, 38, 64, 93, 225 no-conflict rules, 384, 392, 404, 418 no-profit rules, 392, 403 nominal damages, 14, 17–18, 143, 162, 168, 194–5 non-assignability, 304, 315 of personal obligations, 304–6 non-assignable rights, 279–80 non-assignment provisions, 279, 305 see also anti-assignment clauses non-contractual obligations, 9, 36, 39 non-contractual reliance, 71 non-delivery, 176–9, 182–4, 198, 375 non est factum, 364–5 non-pecuniary losses, 161, 164 non-performance: see also failure to perform; performance rights arising from, 10–18 non-profit-making assets, 174 non-reliance clauses, 240–1, 244–5, 254 novation, 289, 291, 307, 318 nuisance, 2, 4, 12, 16 objective: agreements, 356, 359–60, 362, 364 intention, 89, 95–102, 108, 112–13, 345, 361 conceptual looseness of, 96, 99, 113 interpretation, 98, 342, 372, 377 law, 88, 112 test, 342–4, 347–8, 363, 376 objectivity, 98, 342–51 actor, 349–51, 364–5 and contract formation, 356–68 defending, 344–55 defining, 348–55 detached, 348–9, 351–2 detached-formal, 355–6, 362 formal, 351–2 justification for, 345–7 and mistake, 372–3 observer-contextual, 355–6, 362, 367, 377–8 and voluntariness, 347–8 obligation-creating events, 6–7 obligations, 2–8, 33–41, 84–90, 139–42, 149–53, 199–204, 267–82 cartography of, 25–49 and factual structure, 402–5 fiduciary, 390–6, 398, 401–2, 409–12, 418, 430 moral, 6, 120, 133 non-contractual, 9, 36, 39 personal, 299, 304–5, 315 primary, 3–6, 10, 34, 139, 156, 159 promissory, 123, 133 tortious, 38–9, 411 Index 439 voluntary, 218, 346–8, 350 obligees, 268, 271, 297–301, 304–5, 310, 312–13, 391–2 obligors, 218, 280–1, 284–5, 287–9, 291–309, 311–13, 315–18 observer-contextual objectivity, 355–6, 362, 367, 377–8 offer and acceptance, 8–9, 18, 37, 40, 84, 210, 300, 359, 363, 370–3 onerous terms, 92, 95, 105–7, 113, 353 opportunism, 391, 394, 396, 401–2, 405, 428–9 overprotection of contracts, 225–35 ownership, 37, 116, 126–7, 201, 214, 294, 368–9 Paley, W, 57–8 Pandektensystem, 35–6 parol evidence rule, 97–100, 105, 254, 256–9, 266 pecuniary losses, 45, 161 Peden, E, 99 Peel, E, 107, 342–3 Perdue, W, 42–4, 47 performance, 15–18, 139–60, 166–75, 185–7, 195–8, 299–306 agreed exchange of, 330 defective, 147, 156, 181 discharge by, 296–304 exact, 146, 154, 270, 304 factual changes to, 297 interest, 141, 155, 157, 165, 172 damages, 144–9, 155, 165 in lieu of, 40–1, 186 limits, 149–57 right to and damages, 171–98 specific, 9, 15–18, 24, 41, 56, 67, 119, 142–4, 158, 172, 186–7, 222, 280, 290–3, 311–13, 318, 336, 360–2 standing to demand, 125, 127, 132–3, 137, 149 substitute, 11–13, 16 value of, 12, 187, 192 perjury, 55 permissibility, moral, 121–2, 127–8 permissible inferences, 382, 388–9, 419–21, 424, 427 personal obligations, 299, 315 non-assignability of, 304–6 persuasion, 233, 385, 387, 413, 420, 426, 429 unfair, 387, 429 persuasive burden, 385, 420, 422 physical harms, 158–9, 161, 165, 237 Pineau, J, 94 policy interests, competing, 329–30 policy presumptions, 384, 421–2, 424, 426 policy reasons, 68, 285, 384 see also public policy possibility regulation, 392–3, 423 post-notice equities, 276–8 Pound, R, 29, 35–6 pre-contractual negotiations, 361, 371 precedents, 51, 81, 97, 100, 225, 325–7 condition, 110, 311–12, 321–2, 367 pressure, 19, 61–2, 231, 319, 386 presumed undue influence, 382, 387, 417–18, 421 presumptions, 109, 219–20, 368, 382–90, 400–1, 406–12, 416–29 evidential, 423–4, 428 policy, 384, 421–2, 424, 426 probability, 421–2, 424 of undue influence, 382–6, 390, 398, 406–12, 417, 419–25, 429 price, 59–60, 140, 178–9, 182, 298, 356–8, 361 primary contractual obligations, 151, 172 primary duties, 12–14, 18, 23, 147, 194 primary obligations, 3–6, 10, 34, 139, 156, 159 primary rights, 122, 147, 172, 175, 202–3, 207 prior consent, 313, 315–16 private law, 15–16, 23, 25–8, 36–8, 48–9, 128–9, 139–40 private ordering, 246, 248, 253, 265 private rights of action, 116, 128–33, 136–7, 306 private wrongs, 53, 64 privity, 63, 65, 67–70, 74, 190, 226, 231–2 probability regulation, 392–3, 423 profit-making assets, 174 profits, 19, 45–6, 103, 178, 181, 183, 192–4 promises, 20–3, 55–9, 62–4, 115–23, 125–8, 133–7 breach of, 47, 121, 127, 132, 207 enforcement of, 57, 211 and estoppel 211–18 gift, 58, 120 morality of see promissory morality ordinary, 127, 132–3 rash, 54, 56 and rights-creating events, 209–24 promisors, 56–8, 115–16, 120, 125–6, 131–3, 135–7, 349 promissory: estoppel, 73, 200, 208, 211, 218, 260 morality, 115–37 obligations, 123, 133 remedies, 222–4 rights, 120–3 proof: see also evidence 440 Index burden of see burden of proof of consequential loss, 176, 186, 197 property, 53–4, 147, 199–201, 204–7, 217, 362 and obligations, 267–82 proprietary estoppel, 70–1, 73, 199–201, 204–5, 207, 210–18, 220–3 public order, 84–5, 93 public policy, 84, 246, 252, 288, 381–2, 385–6, 405–8 puffery, 249–51 punitive damages, 14, 17, 119 quality: of consent, 252–3 of life, 159, 161, 164–5 quantification of damages see damages, quantification of Raz, J, 348, 353 reasonable expectations, 68, 324, 326–7, 346, 350, 374 reasonable intentions, 96, 109 reasonable person, 96, 208–9, 213, 249, 345, 349, 351 reasonableness, 191, 212, 343, 350, 373 reckless misrepresentation, 246–7 rectification, 91, 97–9, 309, 355, 372–3, 375–6 redress, 14, 129–33, 239, 241–2, 253, 255–6, 266 regulation: fiduciary, 386, 389–91, 394–5, 398, 402, 405, 427 possibility, 392–3, 423 probability, 392–3, 423 relational undue influence, 385–90, 429–30 and burden of proof, 419–27 claims, 402, 412, 416, 418, 420 as fiduciary regulation, 398–402 as fiduciary rule, 389–405 law of, 390, 395, 412, 417 National Westminster Bank plc v Morgan, 405–12 nature of, 401, 410 Royal Bank of Scotland plc v Etridge (No 2), 412–19 reliance, 42–7, 70–3, 207–13, 215–24, 244–7, 249–52, 261–6 beneficial, 208 damages, 31, 44–6, 139, 427 detrimental, 73, 207, 210–11, 218–21, 224 interest, 216, 222 and damages, 42–8 invited, 238, 261–4, 266 justifiable, 249, 255 losses, 217, 222–3 non-contractual, 71 unexpected, 251 unjustifiable, 249–50 unreasonable, 249, 251 remedial discretion, 334–6 remedial flexibility, 327, 334 remedies: coercive, 116, 123, 125–7, 132–3, 137 moral, 122–3, 133, 135, 137 promissory conception, 222–4 remoteness, 11, 13, 15, 23, 111, 180–1 renegotiation, 59–61 replacement, 146, 158, 174, 181, 198 representations, 212, 215–16, 219, 221–2, 239–47, 249–51, 254–60 see also misrepresentation extra-contractual, 240, 246, 254–5, 260, 266 repudiation, 41, 186, 195–6 res extincta, 327, 329, 331–2 res ipsa loquitur, 384, 419–23, 425 res sua, 327, 329, 331–2 rescission, 255–7, 322, 324, 334–5, 337–8 equitable, 255–6, 266, 331 responsibility, 13, 18, 21–3, 39, 237–8, 382–4, 401–3 fiduciary, 393–4, 417, 425 Restatement (Second) of Contract, 211, 218, 254, 330 restitution, 4, 12, 71, 215, 255–7, 266 see also unjust enrichment restrictive covenants see covenants righteousness, 383, 392, 406, 418 rights: of action see private rights of action non-assignable, 279–80 to performance and damages, 171–98 identification, 140–1 primary, 122, 147, 172, 175, 202–3, 207 secondary, 122, 202 of set-off, 273 subjective, 40 subrogation, 70, 277 third party, 70, 327, 333, 368 rights-creating events: and estoppel, 199–224 and promises, 209–24 and wrongs, 201–9 Ripstein, A, 156 risk allocation, 323, 339 rules: of construction, 98, 105–7 of equity, 93, 289–90 fiduciary, 384, 389, 405, 421, 427–8 no-conflict, 384, 392, 418 Index 441 no-profit, 392, 403 signature, 351–2, 365, 372 sale, contracts of, 37, 40–1, 47, 179–80, 184 sale of goods, 109, 176–84, 409 sale of land, 186–7 Samuel, G, 28 sanctity of contract, 229, 324, 326–7, 330 Savigny, FC von, 33, 36–8 Sayre, FB, 229 Schlag, P, 25 secondary rights, 122, 202 servants, 53, 58, 66, 226–7, 232, 328, 395 service, contracts of, 231–2 set-off, 271, 273, 276–8, 302–4, 318 equitable, 275–6, 302 rights of, 273 shared mistake, 337, 375 Shiffrin, S, 115–22, 127–8, 130–7 signatures, 216, 350, 352–3, 364, 366 rule, 351–2, 365, 372 special capacity, 382, 398–9 special damages, 173, 184 special duties, 382, 392, 417 special influence, 381, 386, 403–4, 419, 423,426 specific relief, 16, 143, 146, 148, 155, 159, 192 specific performance, 9, 15–18, 24, 41, 56, 67, 119, 142–4, 158, 172, 186–7, 222, 280, 290–3, 311–13, 318, 336, 360–2 standard form contracts see form contracts standing, 53, 125, 127–8, 132–3 status-based relations, 381, 424 Statute of Frauds, 55, 87 statutory assignment, 270, 278, 283, 289, 291, 293, 301 strangers, 63, 286, 288, 313–14, 316, 412 strict liability, 256, 259, 384, 392 strict rights, 72–3 strong evidence, 242, 248, 250 sub-buyers, 177, 179 sub-sale contracts, 177–80, 183–4 subcontractors, 60–1 subjective intention, 89–90, 94–6, 98, 113, 345–6, 361–4 subjective mistake, 343, 363 subjective right, 40 subjective trust, 394 subjectivity, 346, 348, 355–6, 364 subordinate parties, 382, 399, 403 subrogation, 70, 275, 277–8 subservient parties, 418, 425 substantial damages, 149, 162, 165, 176, 180–1, 187–90, 195–7 substitute performance, 11–13, 16 substitutes, 10–12, 82, 122, 132, 157–8, 167 substitution, 158, 165, 172, 174, 192, 270 substitutive damages, 139, 165–9, 173, 175 surrogate assignment, 277 suspicious transactions, 422, 425–6 swindlers see fraud taxonomy, 6, 26–9, 31–4, 36–8, 48–9, 199, 368–71 events-based, 202–3 tenants, 74, 187, 209, 213–14, 216, 354, 359 tendering contracts, 77, 109 terms, 105–10, 152–3, 251–4, 295–8, 334–8, 356–61, 371–7 clear exculpatory, 244–5, 254–5, 258 collateral, 367, 372–3 and equitable assignments, 296–304 exculpatory, 238, 240–3, 246–7, 253–4, 256–61, 263–5 implied-in-fact, 18, 108–9 implied-in-law, 9, 12, 18, 108–9 implied, 77–8, 95, 108–9, 152–3, 321, 333–4, 338–9 imposed, 322, 334–7 incorporation of, 8–9, 15, 85, 365 invariability of, 296–304 mistakes as to, 342–4, 355, 357, 359,360, 371–3, 376–7 onerous, 92, 95, 105–7, 113, 353 variability of, 296–304 Terré, F, 84 tertium comparationis, 79, 82 Thel, S, 211, 218 third parties, 69, 145–7, 186–90, 280–3, 301–3 assignees, 284–5, 317 and common mistake, 331–4 innocent, 331–3, 335, 366 rights, 70, 327, 333, 368 threats, 21, 61–2, 203, 312–13, 370 of force, 125 unlawful, 413 Tolhurst, G, 267, 271, 280, 286–7, 290–302, 305–7, 315–17 tort, 2, 5, 13–14, 128, 131, 147, 201–2, 224–5, 228–9, 237–8, 255–6 actions/claims, 13, 252, 255, 258–60 damages, 12–13 inducing breach of contract, 225–34 interference with economic relations, 229, 231 Lumley v Gye, 225–35 tortious obligations, 38–9, 411 transactions: arm’s-length, 388–9 442 Index impugned, 381, 386–7, 402–4, 406–7, 423, 426, 430 suspicious, 422, 425–6 transfer, 7–9, 20–1, 37–8, 269–72, 278–80, 305–7 and equitable assignments, 286–96 transferability, 317–18 transparency, 93, 107, 118, 133, 135 Treitel, G, 56, 342, 425 trespass, 2–4, 7, 10, 12, 16, 34, 64 trust: breach of, 274–5, 404 declarations of, 269, 271, 281 deferential see deferential trust fiduciary, 394–5, 398, 403, 405, 418 property, 277, 404 subjective, 394 relationship of, 397, 401, 403, 415–16 vigilant, 395, 397–8, 403–5 trust and confidence, 418–19 abuse of, 388, 414–15 trustees, 188, 269, 271, 274–7, 279–80, 287, 305 trusts, 22, 267–72 and assignments, 278–82 bare, 271–2, 274–5, 277–8 beneficiaries, 269, 273–6, 279, 282 constructive, 272, 274, 278, 287, 294, 307, 392 and equitable assignments, 272–8 unconscionability, 24, 37, 71, 106–7, 203–4, 414, 430 unconscionable dealing, 384, 388–9, 414, 429–30 undertakings, 39, 83, 140–2, 151–3, 156–7, 260–3 undue influence, 18–23, 399–450 actual, 382, 415, 418 changes in law, 386–9 claims, 386, 402, 408, 411–12, 415–16, 418, 420–1 presumed, 382, 387, 417–18, 421 presumptions of, 382–6, 390, 398, 406–12, 417, 419–25, 429 relational see relational undue influence types, 380–6 unfair persuasion, 387, 429 unfairness, 80, 106–7, 388, 396 unilateral mistake, 323, 332, 347, 360–1, 369, 374–5 unjust enrichment, 2, 35, 39, 63–4, 70–1, 161, 215–16, 369 law of, 4, 23, 335–6 unjustifiable reliance, 249–50 unjustified enrichment see unjust enrichment unlawful threats, 413 unreasonable reliance, 249, 251 unreasonableness, 251, 361 value: of assets, 160–1, 381, 402 equal, 56, 144, 155 expected, 239, 253 of performance, 12, 187, 192 variations, 59–60, 239, 296–7, 302, 309, 318 vertical borders of contract, 2–7, 9, 21, 34, 42–4, 48–9 vesting, 250, 284, 292, 309, 313, 315 victimisation, 386–7, 405–8, 429–30 vigilant trust, 395, 397–8, 403–5 vindicatory damages, 14 vitiation, 39 and intention, 341–78 Vogenauer, S, 79, 87, 90 void ab initio, 84, 321–2, 334 void contracts, 342, 344, 376 voluntariness, 210, 218 and objectivity, 347–8 voluntary obligations, 218, 346–8, 350 vulnerability, 380, 394, 396, 414, 416, 430 waivers, 70, 219, 239, 242, 252–3, 314–15 warranties, 242, 254, 256, 331 breach of, 242, 254 Weinrib, E, 11, 154–7, 347 Williston, S, 43, 248, 254, 257 wrongful act, 228, 381 wrongs, 53, 128–32, 139, 197 categories of, 176, 201–2 and damages, 172–6 equitable, 175, 384 inconsistent conduct, 203–7 inducing a change of position, 207–9 law of, 202–3, 207, 210, 224 private, 53, 64 and rights-creating events, 201–9 Yorio, E, 211, 218 Zimmermann, R, Zipursky, B, 128–31
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