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Catherine Mitchell

Although business networks are often created or supported by contractual arrangements between independent firms, there is a good deal of scepticism within network scholarship that the general law of contract has much of a role to play in networks. This chapter explores the role of contract law in facilitating the internal workings of network forms of commercial organisation. It considers which aspects of networks, and which network problems, can be adequately dealt with by contract law concepts and tools, and whether reform or development of contract law is necessary. While the sceptical view concerning the capacity of contract law to resolve problems in line with network expectations is certainly warranted, it is not clear that the commitment to ‘traditional’ contract doctrine is absolute in law, and that we cannot move to an alternative understanding, at least in the commercial sphere, that better accommodates expectations generated by the network. Keywords: networks, commercial contracts, English contract law

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Catherine Mitchell

This chapter explores what we know, and what it might be useful to know, about the connection between contract law remedies for breach and commercial reality. It considers three different perspectives on commercial reality: empirical studies of contract; the relational theory of contract; contract law remedies as default rules. The chapter draws out the insights that each perspective presents on legal remedies for breach, highlights the areas where contract remedies appear to deviate from these conceptions of commercial reality, and notes potential areas for further research. One of these areas for future research is whether, in the light of the increasing use of contracts to create essentially private legal systems with bespoke and complex remedial regimes which courts are willing to enforce, the legal default remedies for breach of contract are becoming obsolete.

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Tania Voon, Andrew Mitchell and Catherine Gascoigne