Contract and Regulation
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Contract and Regulation

A Handbook on New Methods of Law Making in Private Law

Edited by Roger Brownsword, Rob A.J. van Gestel and Hans-W. Micklitz

Contract and Regulation: A Handbook on New Methods of Law Making in Private Law sheds light on the darker side of contracts. It begins by exploring the ‘regulatory space’ in which projects are planned, deals are done, and goods and services are consumed, then shows how a ‘bottom-up’ approach can be adopted in order to view this transactional space through the eyes of contractors. The expert contributors explore modes of governance that do not fit nicely into traditional contract theory, paying special attention to three key examples: governance and codes of conduction, networks and relations, compliance and use.
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Chapter 4: From ‘the law of A and B’ to productive learning at the interfaces of contract

Rónán Condon

Abstract

The interpretative turn in English contract law has opened contract law towards relational and network elements in contractual practices. Courts are more willing to take account of diffuse norms of co-operation. The driver is a modern understanding of markets and party intention. However, the merits of the interpretative turn are doubted. It is submitted that the revised understanding of party intention is an unsuitable prism through which to view contemporary contractual practices. Additionally, it undermines the discreteness of contract law. The author claims that contract law should be understood as a way to ‘contract out’ of the default background legal norms rooted in fairness, namely equity and tort law. When we re-conceptualise contract law in this way, the focus turns to developing interface rules between contract, tort and equity. This leads to ‘productive learning’ whereby discrete and relational elements can be balanced, repurposing the law for a society of long-term and network contracting. Keywords: contract, relational turn, networks, equity, tort

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