Contract Law and the Legislature: Autonomy, Expectations, and the Making of Legal Doctrine

Acknowledgements
Contents
List of Contributors
1. Introduction: Legislation and the Shape of Contract Law
	I. Contract and the Missing Legislature: Implications
	II. Putting Statutes at the Core: Three Key Themes
	III. The Impact of Statutes: Contracts, Markets and a Statutory Trilemma
PART I: REMAKING THE LAW: THE PURPOSES
AND EFFECTS OF STATUTES
	2. Preservation, Removal and Freezing of the Common Law by Statute
		I. Preservation of the Common Law
		II. Removal of the Common Law
		III. Freezing of the Common Law
		IV. Final Remarks
	3. History, Context and the Problem of Juristic Method: The Chancery Amendment Act 1858 and the Law of Contract
		I. Introduction: Statutes in Changing Contexts
		II. Narrow Purposes and Broad Effects: The Judicial Embrace of Lord Cairns' Act
		III. Statutes and the Courts: A Problem of Integration
		IV. Rethinking the Role of Context
		V. Conclusion: Statutes, Method and Theory
	4. The Lasting Impact of the Judicature Acts 1873–1875 upon Contract Law
		I. Introduction
		II. Equity in Contract before the Judicature Acts
		III. The Judicature Acts 1873–1875
		IV. Misrepresentation
		V. Mistake
		VI. Unconscionability
		VII. Conclusions
	5. Contract and the Challenge of Consumer Protection Legislation
		I. Introduction
		II. Contract and the Rise of Consumer Protection Legislation
		III. The Impact of Consumer Protection Legislation on Contract
		IV. The Marginalisation of Statute
		V. The Resilience of Consumer Protection Law
		VI. Conclusion
	6. A Reputation for Boldness: Statutory Reform of Contract Law
in New Zealand
		I. Introduction
		II. Membership of the Committee
		III. The Operation of the Committee
		IV. The State of Contract Law in New Zealand in the 1960s
		V. Illegal Contracts
		VI. Mistaken Contracts
		VII. Misrepresentation and Breach of Contract
		VIII. A Contract Code for New Zealand
PART II: FAIRNESS, COMMERCIALITY AND
THE NATURE(s) OF CONTRACT
	7. The Consequences of Defying the System of Natural Liberty: The Absurdity of the Misrepresentation Act 1967
		I. Introduction
		II. A Brief Comparison of LRFCA 1943 and MA 1967
		III. Innocent Misrepresentation Prior to the 1960s
		IV. What the Law Reform Committee Tried to Do
		V. The Background to the Law Reform Committee's Approach
		VI. Conclusion
		Appendix
	8. Two Laws of Contract, or One?
		I. Private and Public Points of View
		II. The Decay of the Private and the Rise of the Public
		III. The Collins Thesis
		IV. The Opposition
		V. Conclusion
	9. Compulsion, Choice and Statutory Intervention in Contract:
Implied Terms of Quality in Sale of Goods
		I. Introduction
		II. A Taxonomy of Implied Terms
		III. Statutory Default Rules
		IV. Statutory Immutable Rules
		V. Conclusions
	10. Contract Law Reform by Statute in a Common Law System:
The Work of the Law Commissions
		I. Background for the Contract Code Project
		II. The UK Contract Code Project: A Study in Failure
		III. The Contract Work of the Law Commissions 1973–2000
		IV. Law Commission Bills and the Legislatures
		V. Conclusion
	11. The Reform of French Contract Law: The Struggle for Coherency
		I. Introduction
		II. The French Civil Code: An Exceptional Piece of Legislation
		III. The Origins of the Recent Reform of French Contract Law
		IV. The Ambitious Goals of the Reforms
		V. Concluding Observations: A Missed Opportunity for Coherent Reform
	12. Statutes and the Common Law of Contracts: A Shared Methodology
		I. Introduction
		II. Courts and Legislatures: Differences and Similarities
		III. Private Ordering without Intervention or Contracting
		IV. Non-adjudicable Norm Omitted from Express Contract: Should Law Add a Term?
		V. Private Agreements Formed without Statutes: Government Intervention to Enforce or Add Remedial Defaults
		VI. Statutes Intervening to Help Parties Achieve Goals they could not Achieve Privately
		VII. Statutes or Common Law Rules to Facilitate Contracting Save Parties' Transaction Costs, Overcome Bargaining Obstacles and Develop an Efficient Governance Form
		VIII. Mandatory Disclosure in Securities, Real Estate and Consumer Contexts: What Works?
		IX. Terms Forbidden by Legislature: Regulatory Intervention and its Limits
		X. Conclusion
	13. Insurance and Price Regulation in the Digital Era
		I. Contract, Statute and the 'Price Optimisation' Conundrum
		II. Price Optimisation, Adam Smith's Invisible Hand and Freedom of Contract
		III. The Legislative Basis for Price Regulation
		IV. Price Optimisation and Regulation
		V. Conclusion
PART III:
CONTRACTS AND SOCIAL ORGANISATION
	14. Understanding the (Re-)regulation of Private Renting in England:
Karl Polanyi, the Rogue Landlord, the Responsible Tenant
and the Decent Home
		I. Introduction
		II. Polanyi and the Contemporary Crisis of Housing
		III. The Resurgence of the Market - The Housing Act 1988
		IV. The Contemporary Re-Regulation of the Private Rented Sector
		V. Contestation, Contingency and Complexity in the Current Countermovement
		VI. Contemporary Re-regulation and Countermovements
		VII. Conclusion
	15. Regulating Commercial Contracts: What can we Learn from Part II
of the Housing Grants, Construction and Regeneration Act 1996?
		I. Introduction
		II. A Blind Spot in Contract Scholarship
		III. Reframing the Inquiry
		IV. 'Trust and Money' – The Origins of the HGCRA
		V. 'Constructing the Team' – Recommendations and Implementation
		VI. A New Kind of Regulation
		VII. Conclusion
	16. Contractual Enforceability and Surrogacy Arrangements:
Mapping the Moral Limits
		I. Introduction
		II. Background: Origins of Unenforceability of Contracts in the Surrogacy Context
		III. Moving Towards Reform of Surrogacy Law: Questions of Enforceability in the Spotlight?
		IV. Enforceability of Surrogacy Arrangements: Likely Practical Effects?
		V. Enforceability of Surrogacy Contracts: Exploitation, Autonomy and Contract Law
		VI. The Unintended Consequences of Removing Areas from the Remit of Contract Law
		VII. Enforceable Contracts and Surrogacy: The Theoretical Basis?
		VIII. Conclusion
	17. Contract Law and Economic Reform in China
		I. Conceptual Framework: The Co-Evolution of Contract Law and Economy
		II. A Brief Overview of China's Economic Reform
		III. The Evolution of Chinese Contract Law
		IV. China as a Test for a Co-Evolutionary Model
		V. Conclusion
	18. Relational Regulation – The Role of Contract and the Evolution
of Habitat Protection Legislation
		I. Introduction
		II. The Use of Contract in Habitat Protection
		III. The Evolution of Relational Regulation in Habitat Protection Law
		IV. Contracts and Effective Relational Regulation
		V. Conclusion
PART IV: CONCLUSION
	19. Remapping Contract Law: Four Perceptions of Markets
		I. Introduction
		II. Dichotomies and their Limits
		III. Beyond Dichotomies: Four Perceptions of Contracting
		IV. From 'Autonomy' to 'Expectations': Rethinking Contract Doctrine
Index