Chapter 7: Contract Networks, Freedom of Contract and the Restructuring of Privity of Contract
Simon Whittaker1 It is always difficult to discuss a topic from the point of view of a legal system where that legal system does not recognise the existence of the topic. This is a well-known problem for comparative lawyers. Where the topic rests on a concept or conceptual framework which is not found in the legal system to be analysed, various methods are adopted in order to avoid the difficulty, including the equally well-known ‘functionalist’ approach which is often coupled with a focus on the way in which similar facts are analysed across legal systems. However, the topic of this volume on which I have been asked to write from the point of view of English law is not as such a conceptual one, as its central theme is ‘contractual networks’ viewed primarily as a commercial and, therefore, economic phenomenon. Even so, this topic remains a difficult one for an English lawyer, given that English law and, for the most part, English lawyers do not identify ‘network contracts’ (whether known under this name or some similar name, such as ‘contractual groups’) nor do they regulate them specially.2 This means that in discussing the topic I need to explain why it is that English lawyers are not generally attracted by notions such as ‘network contracts’ or ‘contractual groups’ in order to deal with the issues which do in fact arise from the complex commercial and economic relations which (in other legal systems) these notions seek to capture. The core of this...
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