DOCSLIB.ORG

From "Sanctity" to "Fairness": an Uneasy Transition in the Law of Contracts?

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
From NYLS Journal of International and Comparative Law Volume 18 Number 2 Volume 18, Number 2, 1999 Article 1 1999 FROM "SANCTITY" TO "FAIRNESS": AN UNEASY TRANSITION IN THE LAW OF CONTRACTS? K.M. Sharma Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons Recommended Citation Sharma, K.M. (1999) "FROM "SANCTITY" TO "FAIRNESS": AN UNEASY TRANSITION IN THE LAW OF CONTRACTS?," NYLS Journal of International and Comparative Law: Vol. 18 : No. 2 , Article 1. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol18/iss2/ 1 This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. FROM "SANCTITY" TO "FAIRNESS": AN UNEASY TRANSITION IN THE LAW OF CONTRACTS?' K.M. Sharma ** 1. THE CLASSICAL LAW OF CONTRACT AND THE PARADIGM OF "FREEDOM OF CONTRACT": AN INTRODUCTION The moral force behind contract as promise is autonomy: the parties are bound to their contract because they have chosen to be.I A. Sanctity of Contract: Pacta Sunt Servanda Although contract law is one of the basic and ineludable institutions of our society' (and its domain has been incredibly vast, complex, and * This Article, though not in the nature of a conventional book review, owes much for its inspiration-and exploration of relevant themes-to the excellent study of Dr. Nagla Nassar on the subject. See note 68, infra. ** B.A., M.A., LL.B., LL.M. (Rajasthan); LL.M., S.J.D. (Harvard); Faculty of Law, University of New South Wales, Sydney, Australia. 1. CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION 57 (1981). For Fried, the basis of contractual obligation rests, first, on the impermissibility of violating another's autonomy by abusing a trust one has invited by promising and, second, on the duty to respect the autonomy of the promisor by enforcing obligations one has voluntarily assumed. Id. at 14, 16-17. An early example of such a normative approach was provided by Lord Mansfield who, "with his flair for rationalisation," consistently espoused the notion of moral obligation as the test of enforceability of promises. SIR DAVID HUGHES PARRY, THE SANCTITY OF CONTRACTS IN ENGLISH LAW 9 (1959). 2. E. Allan Farnsworth, The Past of Promise: An HistoricalIntroduction to Contract, 69 COLUM. L. REV. 576, 578-82 (1969); Melvin Aron Eisenberg, The Bargain Principle and Its Limits, 95 HARv. L. REV. 741, 741 (1982) (the "institution of contract is central to our social and legal systems, both as reality and as metaphor"); Dietrich A. Loeber, Plan and Contract Performance in Soviet Law, in LAW IN THE SOVIET SOCIETY 128-29 96 N.Y.L. SCH. J. INT'L & CoMP. L. [Vol. 18 diverse3), in recent years, it has undergone some significant changes.4 At the heart of these manifold changes has been the much-vaunted sanctity of individual autonomy in contracting, an offshoot of the liberal notion of freedom of contract, which was the ideological backbone for the (Wayne R. LaFave ed., 1965) (the attempt by the Soviet Union to administer the economy without the institution of contract failed); 1 E. ALLAN FARNSWORTH & VIKTOR P. MOZOLIN, CONTRACT LAW IN THE USSR AND THE UNITED STATES: HISTORY AND GENERAL CONCEPT 53-54, 56-86 (1987) (the unsuccessful Soviet experience of functioning without contract is fully explained). 3. As an illustration, see GRANT GILMORE, THE DEATH OF CONTRACT 1 (Ronald K.L. Collins ed., 2d ed. 1995), which advanced the provocative view that "contract ...is dead" and created a storm of controversy and inspired a large volume of scholarship questioning the historical, analytical and philosophical bases of the rise and fall of classical contract law. For a sampling of these, see, e.g., Richard Danzig, The Death of Contract and the Life of the Profession: Observations on the Intellectual State of Legal Academia, 29 STAN. L. REV. 1125 (1977); Gary L. Milhollin, More on the Death of Contract, 24 CATH. U. L. REV. 29 (1974) (book review); Richard E. Speidel, An Essay on the Reported Death and Continued Vitality of Contract, 27 STAN. L. REV. 1161 (1975) (book review); James R. Gordley, Book Review, 89 HARV. L. REV. 452 (1975); Morton J.Horwitz, Book Review, 42 U. CHI. L. REV. 787 (1975); Arthur T. von Mehren, Book Review, 75 COLUM. L. REV. 1404 (1975); Anthony J.Waters, Book Review, 36 MD. L. REv. 270 (1976). But see Kerry L. Macintosh, Gilmore Spoke Too Soon: ContractRises from the Ashes of the Bad Faith Tort, 27 LoY. L.A. L. REV. 483 (1994) (discussing the decline of the cause of action for tortious breach of the implied covenant of "good faith and fair dealing" in contracts); Ellen A. Peters, Grant Gilmore and the Illusion of Certainty, 92 YALE L.J. 8 (1982) (speech given at the Yale Law School memorial service for Gilmore). The various contributions in Symposium, Reconsidering Grant Gilmore's The Death of Contract, 90 Nw. U. L. REV. 1 (1995), evinces that scholarly discussion continues apace and reveals the critical importance of the concept of contract in society. For further bibliographical references, see GILMORE, supra, at 167-69, added by the editor of the second edition, Professor Ronald K.L. Collins. 4. Contract law is rapidly changing. In particular, the enactment of the Uniform Commercial Code (U.C.C.) by forty-nine states in America, plus the District of Columbia, the Virgin Islands, and Louisiana (partly) has caused a major change of approach in some of the fundamental doctrines. Because much of the law of contract was also commercial law, the U.C.C. has become an important distillation of contract law. 1 JAMES J.WHITE & ROBERT S. SUMMERS, UNIFORM COMMERCIAL CODE 5-6 (4th ed. 1995). As an example, the term "contract," is in essence defined by the U.C.C. as "the total legal obligation" created by a bargain. U.C.C. §§ 1-201(11), 1-201(3) (1997). Section 1- 201(11), read in conjunction with section 1-201 (3), has a somewhat different meaning than it has in transactions not governed by the Code, since the term "bargain" as used in legal parlance includes transactions in which no promise is made, such as the immediate sale of property without warranty in exchange for cash. See RESTATEMENT (SECOND) OF CONTRACTS § 3 reporter's note (1979). Moreover, U.C.C. § 2-106(1)(1997) specifically includes sale of goods within the term "contracts." 1999] FROM "SANCTITY" TO "FAIRNESS" development of the law of contract.' Enshrined in the Biblical injunction of motzeh sfassecha tishmor or "thou shall keep thy word, "6 and in the age-old Roman adage of pacta sunt servanda ex fide bona,7 the modern concept of "freedom of contract" maintains significant roots within the lexicon of contract law, and signifies that parties to an agreement have the right and power (autonomy) to construct their own bargains8 and insist upon their 5. A step-by-step evolution of the law of contracts is beyond the scope of this paper, except to note that as England evolved from a relatively primitive backwater to a commercial center with a capitalistic ethic, the law changed with it. See generally Frederick Pollock, Contracts in Early English Law, 6 HARV. L. REV. 389 (1893); A.W. B. SIMPSON, A HISTORY OF THE COMMON LAW OF CONTRACT: THE RISE OF THE ACTION OF ASSUMPSIT (1975); P.S. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT (1979). 6. Numbers 30: 2 (King James). When a man makes an oath to obligate himself by a pledge, he must not break his word but must do everything he said he would. Id. Cf. Matthew 5: 33-37 (King James) and James 1:19-25 (King James). 7. "An abbreviated form of the rule stated in Justinian's Code 2, 3, 29 [is] an expression of the principle that undertakings and contracts must be observed and implemented." DAVID M. WALKER, THE OXFORD COMPANION TO LAW 912 (1980). For an English translation of Codex Justinianus (Code of Justinian) 2, 3, 29, see S.P. SCOTT, THE CIVIL LAW 173-74 (1932). For a historical overview, see Hans Wehberg, Pacta Sunt Servanda, 53 AM. J. INT'L L. 775 (1959); Richard Hyland, Pacta Sunt Servanda: A Meditation, 34 VA. J. INT'L L. 405 (1994). 8. Indeed, the ideology of "freedom of contract" became a rallying cry among philosophers and politicians during the eighteenth and nineteenth centuries. See Samuel Williston, Freedom of Contract, 6 CORNELL L.Q. 365, 373-74 (1921); P.S. ATIYAH, AN INTRODUCTION TO THE LAW OF CONTRACT 8 (5th ed. 1995). "[T]he shibboleths 'freedom of contract' and 'sanctity of contract' became the foundations on which the whole law of contract was built.... [Jiudges ...thought that it was just to enforce contractual duties strictly according to the letter." Id. Even today some theorists would strongly require courts to refrain from tampering with the terms of the parties' bargains. See, e.g., MILTON FRIEDMAN, CAPITALISM AND FREEDOM 13-14 (1982), but the modern views of freedom of contract recognize that the concept of "freedom" has limitations. W. DAVID SLAWSON, BINDING PROMISES: THE LATE 20TH-CENTURY REFORMATION OF CONTRACT LAW 15-16 (1996). The limitations in the form of certain rules of evidence (for example, the Statute of Frauds and parol evidence mechanism) or certain substantive rules of law (for example, contractual capacity and unconscionability) are, however, to be contrasted with limitations, the sole justification of which is the protection of the individual's own welfare.
Load more

Recommended publications
  • Building a Better Mousetrap: Patenting Biotechnology in The
    DRUZIN-FINAL FINAL (DO NOT DELETE) 10/24/2014 3:19 PM RESTRAINING THE HAND OF LAW: A CONCEPTUAL FRAMEWORK TO SHRINK THE SIZE OF LAW Bryan Druzin∗ ABSTRACT ............................................................................................... 59 I. INTRODUCTION ........................................................................................ 60 II. THE CASE FOR MINIMALISM ................................................................... 64 A. Assumptions and Starting Points ..................................................... 64 B. The Benefits of Minimalism ............................................................. 66 C. The Minimalist Approach to Economic Regulation ......................... 70 D. The Liability of Ideology—Both Left and Right ............................... 72 III. ARTICULATING A FRAMEWORK FOR LEGISLATIVE MINIMALISM ........... 73 A. Non-Interference .............................................................................. 75 B. Formalizing ...................................................................................... 77 C. Fine-Tuning ..................................................................................... 83 D. Dismantling ...................................................................................... 84 E. Concocting ....................................................................................... 85 IV. CLARIFYING THE FRAMEWORK ............................................................... 86 A. A Tabulated Comparison of the Strategies .....................................
    [Show full text]
  • Justice and Efficiency in Mega-Litigation
    Justice and Efficiency in Mega-Litigation Anna Olijnyk Thesis submitted for the degree of Doctor of Philosophy Adelaide Law School The University of Adelaide October 2014 ii CONTENTS Abstract ....................................................................................................................................... ix Declaration .................................................................................................................................. x Acknowledgments .................................................................................................................... xi Note on Referencing Conventions ......................................................................................... xii Part I: The Problem .................................................................................................................... 2 Chapter 1: Introduction ......................................................................................................... 3 I Introduction ...................................................................................................................... 3 II Significance and Limits of the Study ........................................................................... 6 III Methodology and Structure ......................................................................................... 8 Chapter 2: Justice and Efficiency as Aims of Civil Procedure ....................................... 12 I Introduction ...................................................................................................................
    [Show full text]
  • Liberty of Contract
    YALE LAW JOURNAL LIBERTY OF CONTRACT "The right of a person to sell his labor," says Mr. Justice Harlan, "upon such terms as he deems proper, is in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the ser- vices of such employee ........ In all such particulars the employer and the employee have equality of right, and any legis- lation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land." ' With this positive declaration of a lawyer, the culmination of a line of decisions now nearly twenty- five years old, a statement which a recent writer on the science of jurisprudence has deemed so fundamental as to deserve quotation and exposition at an unusual length, as compared with his treat- ment of other points, 2 let us compare the equally positive state- ment of a sociologist: "Much of the discussion about 'equal rights' is utterly hollow. All the ado made over the system of contract is surcharged with fallacy." ' To everyone acquainted at first hand with actual industrial conditions the latter statement goes without saying. Why, then do courts persist in the fallacy? Why do so many of them force upon legislation an academic theory of equality in the face of practical conditions of inequality? Why do we find a great and learned court in 19o8 taking the long step into the past of deal- ing with the relation between employer and employee in railway transportation, as if the parties were individuals-as if they were farmers haggling over the sale of a horse ? 4 Why is the legal conception of the relation of employer and employee so at variance with the common knowledge of mankind? The late Presi- ' Adair v.
    [Show full text]
  • Allens Contract Law Update 2015
    Allens Contract Law Update 2015 Allens is an independent partnership operating in alliance with Linklaters LLP. Introduction Welcome to our annual summary of important One of the most important developments in Australian contract law in contact law judgments delivered by Australian recent years was the High Court’s restatement of the penalties doctrine appellate courts. in the bank fees class action in 2012. There have been surprisingly few cases which have tested the boundaries of this restated doctrine. Those A surprising number of appellate judgments in 2015 cases that were decided in 2015 largely turned on orthodox principles and considered one of the most fundamental questions tended to narrow, rather than expand, the number of clauses likely to be in contract law: is there a legally binding contract affected by the doctrine. We will see whether the High Court endorses or between the parties? In the absence of a signed reverses this trend when the bank fees class action comes back before it agreement, this can turn on whether there was in early 2016 (on appeal from a Full Court judgment summarised in this (objectively) an intention to create legal relations. Update). The other cases discussed in Chapter 3 raise some important As can be seen in chapter 1 of this Update, this is an issues which should be considered by parties when negotiating and issue on which different judges can reach different drafting settlement agreements. conclusions on the same or similar facts. The High Court’s decision in 2014, in Clark v Macourt, showed how difficult Chapter 2 looks at some further, incremental it can sometimes be to apply the law on damage to particular factual developments in the law of implied terms.
    [Show full text]
  • Contracts of Adhesion-Some Thoughts About Freedom of Contract
    CONTRACTS OF ADHESION-SOME THOUGHTS ABOUT FREEDOM OF CONTRACT FRIEDRICH KESSLER With the development of a free enterprise system based on an un- heard of division of labor, capitalistic society needed a highly elastic legal institution to safeguard the exchange of goods and services on the market. Common law lawyers, responding to this social need, trans- formed "contract" from the clumsy institution that it was in the six- teenth century into a tool of almost unlimited usefulness and pliability. Contract thus became the indispensable instrument of the enterpriser, enabling him to go about his affairs in a rational way. Rational be- havior within the context of our culture is only possible if agreements will be respected. It requires that reasonable expectations created by promises receive the protection of the law or else we will suffer the fate of Montesquieu's Troglodytes, who perished because they did not ful- fill their promises. This idea permeates our whole law of contracts, the doctrines dealing with their formation, performance, impossibility and damages. Under a free enterprise system rationality of the law of contracts has still another aspect.1 To keep pace with the constant widening of the market the legal system has to place at the disposal of the members of the community an ever increasing number of typical business trans- actions and regulate their consequences. But the law cannot possibly anticipate the content of an infinite number of atypical transactions into which members of the community may need to enter. Society, therefore, has to give the parties freedom of contract; to accommodate the business community the ceremony necessary to vouch for the delib- erate nature of a transaction has to be reduced to the absolute minimum.
    [Show full text]
  • The True Lex Mercatoria: Law Beyond the State
    The True Lex Mercatoria: Law Beyond the State Ralf Michaels* Abstract Is there an anational lex mercatoria, a “global law without a state?” The debate seems infinite. Some argue that the rules, institutions, and procedures of international arbitration have now achieved a sufficient degree both of autonomy from the state and of legal charac- ter that they represent such an anational law. Others respond that whatever law merchant may exist is really state law—dependent on national norms and the freedom of contract they provide, and on the enforceability of arbitral awards by national courts. This paper suggests that the dichotomy of anational law and state law is false. Al- though an anational law merchant would be theoretically possible, the true lex merca- toria we are currently observing is not such an anational law. Rather, it is an emerging global commercial law that freely combines elements from national and non-national law. This transnational law presents a far more radical challenge to traditional state- based conceptions of law than the idea of an anational law. It makes the distinction be- tween anational law and state law that permeates the debate over law merchant simply irrelevant by transcending it. The true lex mercatoria marks the shift in global law from segmentary differentiation in different national laws to a functional differentia- tion. It is a law beyond, not without, the state. I. The New Romance of the Lex Mercatoria In 1923, Wyndham A. Bewes published The Romance of the Law Merchant.1 The enchanting title (more than the book itself) evokes the ambivalent situation be- * Professor of Law, Duke University School of Law.
    [Show full text]
  • Conscience and At-Will Employment
    Articles FIRING THOREAU: CONSCIENCE AND AT-WILL EMPLOYMENT James A. Sonne* It is a virtual axiom of the American workplace that, absent a contract or express law to the contrary, "an employer may terminate an employee at any time, for any reason or no reason at all."' Indeed, this presumption of "at-will" employment, which prevails in forty-nine states and the District of Columbia,' has been the law of the land for more than a century. Rooted in freedom of contract and private property principles, the rule is designed to yield efficiencies across a broad range of industries. Despite the prominence of at-will power, however, a growing (and potentially contradictory) trend in employment law, particularly in the health care field, is that employees should be protected in the exercise of their consciences-even if such exercise is contrary to their employers' wishes or the demands of their jobs.' This "conscience clause" movement is * Associate Professor, Ave Maria School of Law. B.A., Duke University; J.D., Harvard Law School. The author thanks George Remy and Jeffrey Melville for their research; Professors Richard Myers, Lynn Wardle, and Robert Vischer for their insights; Mary and Margaret Grace Sonne for their encouragement; and Ave Maria for its support. 1. Cynthia L. Estlund, Labor, Property, and Sovereignty After Lechmere, 46 STAN. L. REV. 305, 312 (1994). 2. See PETER 0. HUGHES, LABOR AND EMPLOYMENT LAW (MB) § 259.02 n.5 (2006) (observing "[e]mployment is presumed to be at will in ...every state" except Montana). For the District of Columbia, see Dantley v.
    [Show full text]
  • Situating Equitable Estoppel Within the Law of Obligations
    Situating Equitable Estoppel Within the Law of Obligations The expansion of the scope of equitable estoppel in recent years has raised im- portant questions about the role of the doctrine and its place within the frame- work of the law of obligations. Those theoretical questions have received surprisingly little attention in the Australian commentary. They have, how- ever, received rather more in England, and considerably more in the United States, where a substantive doctrine of promissory estoppel has played a prominent role in the law of obligations for some time.1 This article aims to examine the nature of the Australian doctrine as presently formulated and to situate it within the law of obligations. In doing so, the article will also draw together and evaluate the contending theories concerning the nature and role of equitable estoppel in Australia. The first part of the article will deal with the two most important historical theories concerning the role of a reliance-based doctrine of estoppel, classical contract theory and "death of contract" theory. The second part of the article will focus on the contemporary debate as to how equitable estoppel does and should operate, and the place of the doctrine within the law of obligations. The three contending theories are: promise theory (under which equitable estoppel is seen as a doctrine essentially concerned with the enforcement of promises which should be seen as, or adapted to become, part of the law of contract), conscience theory (which sees estoppel as a doctrine which oper- ates, or should operate, primarily by reference to the notion of unconscion- ability) and reliance theory (which is based on the notion that equitable estoppel is essentially concerned with protecting against harm resulting from reliance on the conduct of others).2 * LLM (Hons) (QW),Lecturer in Law, University of Canberra.
    [Show full text]
  • Contract Law Through the Lens of Laissez-Faire Richard A
    University of Chicago Law School Chicago Unbound Coase-Sandor Working Paper Series in Law and Coase-Sandor Institute for Law and Economics Economics 1997 Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/law_and_economics Part of the Law Commons Recommended Citation Richard A. Epstein, "Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire" (Coase-Sandor Institute for Law & Economics Working Paper No. 49, 1997). This Working Paper is brought to you for free and open access by the Coase-Sandor Institute for Law and Economics at Chicago Unbound. It has been accepted for inclusion in Coase-Sandor Working Paper Series in Law and Economics by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. Contracts Small and Contract Large: Contract Law Through the Lens of Laissez-Faire by Richard A. Epstein* Introduction: A Fallen Theory? Laissez-faire capitalism, and its associated doctrine of freedom of contract, had many stalwart defenders during the nineteenth century. But it has received a rocky reception from many legal and philosophical commentators in the twentieth century. Freedom of contract often been pronounced "dead on arrival" as an organizing principle for complex contemporary societies. That principle has been said to be insensitive to differences in wealth, status, position and power that make the exercise of contractual choice a myth for the weak and dispossessed. Within the legal literature, it has been attacked as ignoring the large concentrations of wealth that distort market processes and that trample down the rights of consumers and workers.
    [Show full text]
  • Common Law Contract Elements
    Common Law Contract Elements andWell-judged fullers fragmentary. and coach-built Spiculate Vernon and thinks untransmissible while exogenetic Mitchell Tedman often clonkalcoholising some dicer her soubrette dam or garishly indistinguishably.suburbanising clemently. Giddied Porter graphitizes some miscues after Gadhelic Erich flitch In common contract than they have participated in contracts after reaching majority and understands it In boss a contract bond a legally binding agreement is two work more parties which piece it contains the elements of eight valid sale agreement is enforceable by intestine or. Common nuisance and Uniform Commercial Code Contracts. For a contract time be legally binding it outstanding include to following elements. Canadian Law Elements of gross Contract. Instead contracts must destroy certain elements in foundation to be enforced. There is bound until cure for example, but not do not perform a breach based on varied terms? Generally all legally binding contracts consist of six elements offer acceptance consideration mutuality of obligation competence and capacity. 1 Not few of gear essential elements of a contract they set forth about this instruction In blank to. Which element is not futile for several contract? The statute of frauds is instead common law something that requires written contracts for certain agreements to be binding The statute applies to land. For locke but usually award some damages, he read a traditional approach in turn to breach occurs, breaches apply to calculate what if any fraudulent inducement. Uniform Commercial Code UCC Contacts vs Common Law. Contracts must be judged to make a ride in dispute regarding oral contract element needed in those elements are thought there be completed upon.
    [Show full text]
  • For Your Consideration: Old Rules, Practical Benefit and a New Approach to Contractual Variation
    FOR YOUR CONSIDERATION: OLD RULES, PRACTICAL BENEFIT AND A NEW APPROACH TO CONTRACTUAL VARIATION Mark A. Giancaspro A thesis submitted for the degree of Doctor of Philosophy School of Law The University of Adelaide April 2014 Dedicated to Tony, my late father. I did it Dad. Hope I made you proud. Also dedicated to Leah, my beautiful sister in Heaven, and to my mother Joy who does so much for me. This one’s for you. iii iv TABLE OF CONTENTS Abstract .............................................................................................................................. ix Declaration......................................................................................................................... xi Acknowledgements ......................................................................................................... xiii Introduction ........................................................................................................................ 1 Context ............................................................................................................................. 3 Aim, Scope and Significance of the Thesis ...................................................................... 9 Overview of the Thesis .................................................................................................. 14 Chapter One: Consideration and the Existing Legal Duty Rule ................................. 17 Covenant and Debt ........................................................................................................
    [Show full text]
  • THE DOCTRINE of CONSIDERATION (The Role of Consideration in Contract Modifications)
    THE DOCTRINE OF CONSIDERATION (The role of consideration in contract modifications) by John Wilson Twyford A dissertation Submitted for the degree of Doctor of Juridical Science University of Technology, Sydney February 2002 CERTIFICATE OF AUTHORSHIP/ORIGINALITY I certify that the work in this dissertation has not previously been submitted for a degree nor has it been submitted as part of the requirements for a degree except as fully acknowledged within the text. I also certify that the dissertation has been written by me. Any help that I received in my research work and the preparation of this dissertation itself has been acknowledged. In addition, I certify that all information sources and literature used are indicated in the dissertation. John Wilson Twyford i ACKNOWLEDGEMENTS I would like to acknowledge the generous assistance given to me in the preparation of this dissertation by my Principal Supervisor Mr Geoffrey Moore and my Co-supervisor Dr David Meltz. John Wilson Twyford ii THE DOCTRINE OF CONSIDERATION (The role of consideration in contract modifications) TABLE OF CONTENTS Certificate..................................................................................................................i Acknowledgements................................................................................................. ii Table of Contents................................................................................................... iii Table of Cases.........................................................................................................vi
    [Show full text]