Private Law, Nudging and Behavioural Economic Analysis: The Mandated-Choice Model (Markets and the Law)

Cover
Half Title
Series Page
Title Page
Copyright Page
Table of Contents
Detailed Contents
List of contributors
Table of cases
Table of legislation
List of articles
CHAPTER 1. AN OVERVIEW
	Introduction
	Diversity and unity
	Doctrine
	Evolution and revolution
CHAPTER 2. THE IMPLIED OBLIGATION OF GOOD FAITH
	Introduction
	The American experience
	Canada
	Australia
	Singapore
	United Kingdom
	Internationalization
	Concluding thoughts
CHAPTER 3. GOOD FAITH IN THE SUPREME COURT OF CANADA
	Introduction
	Bhasin v Hrynew
	Good faith and equity
	Security of contracts
	Subsequent decisions
	Conclusion
CHAPTER 4. THE QUAGMIRE OF UTMOST GOOD FAITH IN
INSURANCE LAW: A COMPARATIVE STUDY
OF MALAYSIAN, AUSTRALIAN AND ENGLISH
LAWS IN CONSUMER INSURANCE CONTRACTS
	Introduction
	The evolution of the legal principle of utmost good faith in the English insurance law
		Carter v Boehm
	The evolution of the burdensome duty of utmost good faith – misrepresentation in insurance contracts under common law
	Influencing the judgment of the prudent underwriter
	Current regulation and legislation under English law
	The Malaysian treatment of the principle of utmost good faith
	The reception of English law into Malaysia – cut-off dates
	Pre-contractual duty of disclosure for consumer insurance contracts
	The Australian treatment on the duty of utmost good faith in insurance contracts
	The future of utmost good faith in insurance contracts: is the application of utmost good faith in insurance contracts dead?
	Resurrection of utmost good faith – striking a more balanced approach
	Conclusion
CHAPTER 5. OBJECTIVITY
	Introduction
	Purpose, rules and a presumption
	Focus of discussion
	What does the contract mean?
	Is there a contract?
		Introduction
		Agreement between the two approaches
		Disagreement between the two approaches
		Two great nineteenth-century cases
	Implied terms
		Introduction
		Does the role of objectivity vary?
		Are implication and construction different?
		What does ‘necessary’ signify?
	Conclusions
CHAPTER 6. AUTOMATED TRANSACTIONS AND THE LAW
OF CONTRACT: WHEN CODES ARE NOT CONGRUENT
	Introduction
	Two classes of reasons for non-enforcement: principle and policy
		Coherentism and reasons of principle
		Regulatory-instrumentalism and reasons of policy
	The question of non-congruence: doctrinal principles, regulatory policies and automated transactional technologies
		Technological enablement
			Networks
			Deviation from the expectation measure
			Penalties
			Payments associated with an illegal contract
		Technological disablement
			A creditor’s promise to settle for less (with any attempt to recover the balance of the debt being disabled)
			An unfair term in a consumer transaction
	Conclusion
CHAPTER 7. THE RESILIENCE OF CONTRACT LAW IN LIGHT
OF TECHNOLOGICAL CHANGE
	Introduction
		Roadmap
	Contract automation and artificial intelligence
		Some terminology
			Agents
			Autonomy
			Operators and users
		Confronting the theories
			Separation theories
			Agency theories
			Absence of intention
	Smart contracts
		The legal enforceability of ‘smart contracts’
			Expressing intention
			Consideration
		Encoding contracts
			Coding errors
			Predictability
			Encoding contracts – or obligations?
			Reducing ambiguity?
	Ubiquitous computing
		A brief reminder of the ‘past’ – the click-wrap debate
		Transactions in ubicomp
			A question of consent
			Who deserves protection?
			A question of context
	Conclusions
CHAPTER 8. A COLLISION OF CONTRACT AND PRIVACY
LAW IN A DIGITAL ENVIRONMENT—AN
ACCIDENT WAITING TO HAPPEN! A
COMPARATIVE STUDY
	Introduction
	What maketh an online contract?
		International agreement on electronic contracts
	Formation-offer?
		What does the social media platform offer, the use of the platform in exchange for PII?
	Acceptance – browse-wrap/click wrap agreements in the case of privacy agreements
		Acceptance general common law position, drawing on the experience in the United States
		Informed consent in cases of personal data protection pursuant to the EU’s general data protection regulation (GDPR), which came into force in the EU on 25 May 2018
	Protection of personal data
		The right to withdraw consent (the right to be forgotten) and contract law
	Consideration
		What amounts to consideration in common law countries – traditional views?
		Information as a form of consideration
	Other problems in taking civil action under the law of contract
		Class actions
		Standing
		The use of disclaimers
		Breach of contract
		Damages
			The position in the United States
			The position in Malaysia
			The position in the UK
	Conclusion: what is the difference between a normal contract and that relating to personal data?
CHAPTER 9. SETTING OUT A COMPREHENSIVE LEGAL
FRAMEWORK TO GOVERN EXEMPTION
CLAUSES IN MALAYSIA: LESSONS FROM THE
UNITED KINGDOM AND AUSTRALIA
	Introduction
	Background of study
	Legal framework governing exclusion clauses under common law
		Meaning and type of exclusion clauses
		Drawbacks of the rules of incorporation
		Drawbacks of the rules of construction/interpretation
	Legal framework governing exclusion clauses under the Contracts Act 1950
		Doctrine of unconscionability
		Public policy
		Agreements in restraint of legal proceedings
	Legal framework governing exclusion clauses under the Sale of Goods Act 1957
		Exclusion of implied terms
		Application of law for the states of Sabah and Sarawak
	Legal framework governing exclusion clauses under the Hire-Purchase Act 1967
	Legal framework governing exclusion clauses under the Consumer Protection Act 1999
		Inadequacy of the Consumer Protection Act
		Unfair contract terms
		Guarantees in respect of supply of goods
		Product liability
	Lessons from the United Kingdom
		Unfair Contract Terms Act 1977
		Consumer Rights Act 2015
	Lessons from Australia
		Application of common law
		Section 68 Trade Practices Act 1974 (Cth)
		Sale of Goods Act 1923 (NSW)
		Contracts Review Act 1980 (NSW)
		Australian Consumer Laws
	The way forward in setting out a proper framework to govern exclusion clauses
		Contracts Act 1950
		Sale of Goods Act 1957
		Hire-Purchase Act 1967
		Consumer Protection Act 1999
		Specific legislation
	Concluding remarks
CHAPTER 10. ECONOMIC DURESS: PRESENT STATE
AND FUTURE DEVELOPMENT IN ENGLAND,
AUSTRALIA AND MALAYSIA
	Introduction
	English law
		Illegitimate pressure
		Causation
	Australia
		Illegitimate pressure
		Causation
	Malaysia
		Section 15 Contracts Act 1950
		Section 73 Contracts Act 1950 and economic duress
		A restrictive judicial approach
	Conclusion
CHAPTER 11. THE VALIDITY OF CHOICE OF COURT
AGREEMENTS IN INTERNATIONAL
COMMERCIAL CONTRACTS UNDER THE
HAGUE CHOICE OF COURT CONVENTION
AND THE BRUSSELS IA REGULATION
	Introduction
	Concept, scope and key provisions of the Hague Convention
		Concept
		Scope
		Key provisions
	The nature and anatomy of choice of court agreements
	Formal validity and consent in choice of court agreements
	Substantive validity of choice of court agreements
	Severability of choice of court agreements
	Conclusions
CHAPTER 12. DE-IDENTIFICATION OF ISLAMIC FINANCE CONTRACTS BY THE COMMON LAW COURTS
	Introduction
	Non-interventionist approach to Islamic finance contracts
	Interventionist approach to Islamic finance contracts
		Judicial treatment of Shari’ah non-compliance
			Judicial reference of Shari’ah non-compliance to Shari’ah scholars
	The way forward
Index