Severability

Abstract: The modern role of contract law contracts, promises and the law of obligations Holmes and the theory of contract Fuller and the theory of contract form and substance in contract law the liberal theory of contract executory contracts, expectation damages and the economic analysis of contract consideration - a restatement judicial techniques and the law of contract misrepresentation, warranty and Estoppel contract and fair exchange freedom of contract and the New Right.

Abstract: This is the paperback edition of a book first published in 2003, which was received with warmth and critical acclaim by scholars of jurisprudence and contract theory Liberal theory of contract is traditionally associated with the view according to which contract law can be explained simply as a mechanism for the enforcement of promises The book bucks this trend by offering a theory of contract law based on a careful philosophical investigation of not only the similarities, but also the much-overlooked differences between contract and promise Drawing on an analysis of a range of issues pertaining to the moral underpinnings of promissory and contractual obligations, the relationships in the context of which they typically feature, and the nature of the legal and moral institutions that support them, the book argues for the abandonment of the over-simplified notion that the law can systematically replicate existing moral or social institutions or simply enforce the rights or the obligations to which they give rise, without altering these institutions in the process and while leaving their intrinsic qualities intact In its place the book offers an intriguing thesis concerning not only the relationship between contract and promise, but also the distinct functions and values that underlie contract law and explain contractual obligation In turn, this thesis is shown to have an important bearing on theoretical and practical issues such as the choice of remedy for breach of contract, and broader concerns of political morality such as the appropriate scope of the freedom of contract and the role of the state in shaping and regulating contractual activity The book's arguments on such issues, while rooted in distinctly liberal principles of political morality, often produce very different conclusions to those traditionally associated with liberal theory of contract, thus lending it a new lease of life in the face of its traditional as well as contemporary critiques

Abstract: In its "First Annual Progress Report on European Contract Law and the Acquis Review," the European Commission recently announced that, within the Common Frame of Reference process, it will prioritise the revision of the consumer acquis. This "reprioritisation" has a number of practical consequences. However, the more fundamental question is what the effect of a renewed focus on consumer protection will be on the character of European contract law, and on the way in which the Union addresses and views the people living in Europe. This question will become all the more important if the Commission is going to attempt, as it seems to envisage, some comprehensive and exclusive European legislation with regard to contracts with consumers (all or certain important ones, notably sales).Obvious alternatives to the consumer protection approach to the Europeanisation of contract law include the perspectives of European citizenship and of justice. Does it matter whether European contract law is developed as a matter of consumer protection, citizenship or justice? Or, to put it differently, does it make a difference for a contracting party whether she is treated as a consumer, a citizen or a person? This paper argues that it does. It presents the European policies with regard to consumer protection, European citizenship and the Area of justice, and discusses the kind of contract law that each of these approaches leads to and the kind of society they contribute towards. Both the citizenship and, in particular, the consumer protection approach are rejected as an exclusive approach to contract law because they are reductive. They fail to take into account important aspects of human life which would be included in an approach to contract law from the perspective of justice. The conclusion is that European contract law should become a matter of justice. As a consequence, the European Union will need to provide a legal basis for treating contract law as a matter of civil justice. Moreover, the Union will have to articulate a common European conception of justice in contract law.

Abstract: 1 Introduction and Scheme Introduction Advance conclusions Terms and elements A snapshot from 2007 Scheme 2 Consent in private international law The general principle The role of consent in commercial law Consent or agreement, and the absence of consent or agreement Consent in the application of foreign law Consent in choice of law Consent in the recognition of foreign judgments Consent and the personal jurisdiction of the court Consent and the subject-matter jurisdiction of the court European jurisdiction 3 Dispute resolution and severability Contractual terms The nature of agreements for the resolution of disputes Contractual agreements on jurisdiction Separate natures, or severable agreements The path to the principle of severability Validity and severability: jurisdiction agreements The obverse of severability The agreement on choice of law as part of the severable agreement The strength and weakness of agreement as an organising principle i Divergence on the existence of a contract ii Divergence on the content of the bargain Assumptions and conclusions 4 Clauses, principles, and interpretation The range and varieties of jurisdiction clause Jurisdiction clauses: rights conferred and duties assumed Jurisdiction agreements as exemption clauses The scope of the duty the ambit of the clause Service of suit clauses Combined arbitration and jurisdiction agreements Choice of law clauses One contract but several agreements The role of European law 5 Drafting agreements Drafting by specimen Contractual variation of the Brussels Regulation A specimen clause: elaborate version Explanation of contents: elaborate version A specimen clause: simple version Drafting by incorporation from other documents The meaning of words and the use of authority i Subject matter: 'this contract', 'this agreement' ii Prepositions, connections, and the terminology of relationship 6 Jurisdiction agreements: primary obligations Jurisdiction-blind enforcement Development of the anti-suit injunction Objections to enforcement by order of the English court Equitable maxims as restriction on remedy The position of strangers to the contract Stays of English proceedings brought in breach of contract 7 Jurisdiction agreements: Brussels Regulation The context in which Article 23 is to operate The structure of Article 23 The conclusiveness or inconclusiveness of writing What is an agreement for the purposes of Article 23 ? Unilateral or bilateral agreement Article 23: what writing ? whose writing ? The parties to the 'particular legal relationship' Formal alternatives to writing which satisfy Article 23 Article 23 and those who depart from the agreement Injunctions to enforce agreements about jurisdiction and litigation Turner v Grovit How persuasive ? The burden of proof The 'particular legal relationship' Clarifying the wording: the United Kingdom Jurisdiction agreements for the courts of non-Member States Conclusions 8 Jurisdiction agreements: secondary obligations The starting points of the common law Union Discount v Zoller and five cases which are less straightforward Other issues arising within the common law analysis i The cause of action ii The assessment of damages iii Where the nominated court is not in England Judgments from the courts of a Member State 9 Foreign Judgments Common law recognition Judgments from the court designated by a dispute resolution agreement Foreign judgments obtained in breach of jurisdiction agreement Overcoming foreign judgments obtained in breach of contract Recognition and enforcement under the Regulation The decision in De Wolf v Cox Recognition and enforcement at the margin of the Regulation International obligations binding courts personal obligations binding parties 10 Agreements on choice of law Contracts: where the existence of the contract is not in dispute Contracts: where the existence of the contract is in dispute Contracts: the law which governs the consequences of contractual invalidity Contracts: conclusions about the nature of choice of law for contracts Agreements of choice of law and claims in tort Choice of law and property rights 11 Giving effect to agreements on choice of law Introduction The common law and the proper law of a contract Choice of proper law: common intention or mutual agreement? Governing the contract and governing contractual litigation The consequence if the law identified for application is not applied i Breach of a choice of law ii Non-monetary responses iii Monetary remedies iv Subverting the contract as a tortious wrong v The Rome Convention Impermissible choices of law: secondary consequences The alternative: careful drafting i Promising to pay ii Adapting the undertaking in damages 12 Agreements to resolve disputes by arbitration Preliminary questions and practical answers Who will adjudicate ? Who decides who will adjudicate ? Another view To what do the parties agree when they agree to arbitration ? The jurisdiction of the courts of the seat Foreign judgments in breach of arbitration agreement: Brussels Regulation i Non-recognition of judgments ii Reversal of judgments iii Private rights and public duties Foreign proceedings in breach of agreement to arbitrate: Brussels Regulation The New York Convention Damages for breach of the contract to proceed by way of arbitration The problem of excessive supervision 13 Conclusions The relative effect of agreements on the resolution of disputes The Hague Convention on Exclusive Choice of Court Agreements Reprise: private international law and party autonomy