Chapter 1

1. 'Contract law probably works well enough in practice but its theory is a mess.' Discuss.

There is much disagreement about the basis of contractual liability; that is, in the answers given to the question 'why should the law enforce voluntarily undertaken obligations (see 1.4)?'

Note the main theories and compare them (e.g. will, reliance, efficiency, facilitating the practice of making contracts);
Is there any common ground despite the obvious differences (e.g. respect for the parties' agreement)?
What difference does it make which one we subscribe to (e.g. the will theory has difficulty explaining implied terms but the economic theory does not)?
Discuss how well (or not) each theory explains the major features of contract law, such as:

the objective test of intentions,
the enforceability requirements (e.g. consideration),
vitiation factors,
controls over the contents of contracts, and
the remedies for breach of contract (e.g. the primacy of damages).
What difference might the theory make to questions of reform? In what direction should the law travel?

2. To what extent does contract law enforce promises?

The focus of this question is on the main theory of contractual liability, the will or promissory theories. Note the importance of voluntariness (and hence promise?) to the imposition of contractual obligations in all theories of law. See 1.4, especially 1.4.1.

How well does it explain the major features of contract law, such as:

the objective test of intentions,
the enforceability requirements (e.g. consideration, promissory estoppel),
vitiation factors,
controls over the contents of contracts, and
the remedies for breach of contract (e.g. the primacy of damages).

Another dimension of this question is the enforcement of contract parties' 'performance interest'. To what extent do courts compel parties to do what they promised, or to pay the money equivalent of performance (i.e. cost of cure)?

3. 'The study of contract law is a study on the restrictions on the freedom of contract.' Does modern contract law interfere too much with contractual freedom?

See 1.3.2.

There are two parts to this question:

The descriptive one- note how freedom is restricted directly or indirectly by the vitiation doctrines (e.g. duress, undue influence), the doctrines controlling the contents of contract (both primary and secondary or remedial terms) and by statutes such as the Unfair Contract Terms Act 1977 (UCTA) and the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR).
The prescriptive one- what is the justification for restricting contractual freedom (e.g. standard form contracting, inequality of bargaining power, substantive unfairness, market failure, defective consent)? Are they good reasons? Does the current law reflect your conclusion about the right level of restriction? If not, how should it be addressed?

4. Discuss the role played by the different sources of contract law.

See 1.2.2 and 1.7.

English contract law derives some of its complexity from its patchwork of sources layered over each other. You need to address the contribution of and interaction between:

The common law (court made decisions, stare decisis, on the major features of the law such as formation, vitiation, content and remedies)
Equity (takes priority over the common law, different methodology and remedies from the common law e.g. equitable mistake, promissory estoppel, specific performance)
Legislation (major fields of operation (e.g. in misrepresentation, privity, frustration, unfair terms), specialist application (e.g. Sale of Goods), protectionist emphasis (e.g. UCTA and UTCCR), and relationship to the common law (to modify and qualify it))
International commercial law (Conventions and codes, standard forms, specialization)
European law (harmonization, common principles, EU directives, civilian methodology and concepts such as good faith)
Human rights (restrictions on legislation and common law)

5. What problems are caused by the prevalence of standard form contracts?

See 1.3.2, and 10.1.

This question focuses on the challenge to classical contract law posed by standard form contracting. The sub-questions you should address are:

What is the difference between the picture of bargaining assumed by classical contract law and that of standard for contracting (e.g. in terms of equality of bargaining power, comprehension and negotiability of terms)?
What potential problems arise from the latter (e.g. inequality of bargaining power, non-negotiability, comprehensibility, substantive unfairness)?
How have courts and Parliament modified the principles of classical contract law to meet these problems (e.g. interpretation of exemption clauses, special rules on incorporation of onerous and unusual terms, UCTA and UTCCR, see chapters 10-12)?
Should the law intervene more or less (how should the concerns for certainty and fairness and respect for the parties' intentions be balanced? refer to the Law Commission's Report on 'Unfair Terms in Contracts' (Report 292, 2005)?

6. What values are, and what values should be, promoted by contract law? Illustrate with examples.

This is a very open question and invites you to discuss the many (and often conflicting) influences on the principles and application of contract law. These are discussed at 1.3.2. Organize them in such a way as to tell an interesting story and present your view about where the balance should lie between cut-throat self-interest and more restrictions to protect from unfair contracts and bad faith contracting.

Where do you think the emphasis should lie?
At what point is that emphasis pushed back by countervailing policies? What is the interaction between potentially conflicting policies? Does it depend on the nature of the contract and the status of the parties?

7. 'At its edges contract law is supplemented by the laws of tort, unjust enrichment and property.' Discuss.

See 1.6.

This question asks you to focus on the 'boundaries' of contract law. What is the generally agreed basis for these other branches of private law? How might they help to resolve problems arising (benefits transferred, profits not made or harm suffered) in the factual context of contract where:

there is no contract formation (e.g. restitution for benefits conferred in anticipation of a contract that does not eventuate),
the contract is vitiated (e.g. reliance damages for misrepresentation or restitution for mistaken payments),
the contract is terminated for breach (e.g. restitution for total failure of consideration), or
there is no privity of contract (restitutionary or tort liability between the third party and one of the contract parties).

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Oxford University Press, Online Resource Centre, Chapter 1.