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Condon, Rónán --- "From ‘the law of A and B’ to productive learning at the interfaces of contract" [2017] ELECD 1192; in Brownsword, Roger; van Gestel, A.J. Rob; Micklitz, Hans-W. (eds), "Contract and Regulation" (Edward Elgar Publishing, 2017) 171

Book Title: Contract and Regulation

Editor(s): Brownsword, Roger; van Gestel, A.J. Rob; Micklitz, Hans-W.

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784710651

Section: Chapter 4

Section Title: From ‘the law of A and B’ to productive learning at the interfaces of contract

Author(s): Condon, Rónán

Number of pages: 27

Abstract/Description:

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