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Landmark Cases in the Law of Contract

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Landmark Cases in the Law of Contract
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PrefaceThe essays in this collection,like the essays in the companion volume,Landmark Cases in the Law of Restitution (2006),grew out of papers presentedat a symposium held at the School of Law,King's College London.We grate-fully acknowledge the School's financial assistance.As with the earlier collection,we gave authors a free choice of case,and com-plete freedom of method in how to approach their material.The results are pre-dictably diverse:the cases range from the early 18th-to the late 20th-centuries,and deal with an array of contractual doctrines.Some of them call for their caseto be stripped of its landmark status (Smith v Hugbes),whilst others argue thatit has more to offer than we have previously appreciated (Suisse Atlantique,among others).But the essays also,perhaps surprisingly,share several common themes.Thus,mundane factual situations have frequently triggered elaborate legalresponses (as,for instance,in Coggs v Barnard,Pillans v Van Meirop andJobnson v Agnew).Similarly,other wise unremarkable transactions such as tak-ing out an insurance policy (Carter v Boehm),hiring a theatre (Taylor vCaldwell),or a boat (The Diana Prosperity)can be thrust into the legal spotlightby external events.There is no need for the parties to be trying to achieve some-thing novel for their contract to become the start of a landmark case.Another striking theme is the influence of judicial personality and technique.In several cases,what made the decision a landmark was that individual judgeshad chosen to go beyond the arguments of counsel and develop the law as theyfelt appropriate.They might carry their brethren along with them (as inHochster v De La Tour)or they might not (Coggs v Barnard).There was also asimilarity about the kind of arguments used as catalysts for change.Appeals toreason'have flourished,perhaps inspired by Lord Mansfield's example,as haveinvocations of the Civil law (Taylor v Caldwell),even if they did not make it tothe final draft of the judgment (Coggs v Barnard).A further recurrent and fundamental argument,which has not been univer-sally successful,concerns the role of contract law in facilitating commercialtransactions.Some of our cases expressly acknowledge that contract law shouldfit commercial expectations:Lord Mansfield was probably the most famousexponent of this view (Pillans v Van Mierop,Carter v Boehm,Da Costa vJones),but Lord Campbell,inspired by Mansfield,took the same line (Hochsterv De La Tour).On the other hand,Lord Mansfield's innovative approach inPillans v Van Mierop was short-lived,and the House of Lords in Foakes v Beeracknowledged that its decision was at odds with commercial expectations.TheCourt of Appeal's decision in The Hongkong Fir prioritised justice overvi Prefacecertainty,despite the commercial preference for the latter.On this fundamentalquestion of policy the judges have been,and,we expect,shall continue to be,fundamentally divided.There can be little doubt that,as the courts continue towrestle with this problem,the contract landscape will continue to change,andnew landmarks will appear.CHARLES MITCHELLPAUL MITCHELLContributorsMichael Bridge is a Professor of Law at the London School of Economics andPolitical Science.Roger Brownsword is a Professor of Law at King's College London.David Ibbetson is Regius Professor of Civil Law at the University of Cambridge.Michael Lobban is Professor of Legal History at Queen Mary University ofLondon.Catharine MacMillan is a Senior Lecturer in Law at Queen Mary University ofLondon.Gerard McMeel is a Professor of Law at the University of Bristol.Charles Mitchell is a Professor of Law at King's College London.Paul Mitchell is a Reader in Law at King's College London.Donal Nolan is a Fellow in Law at Worcester College Oxford.John Phillips is Professor of English Law at King's College London.Warren Swain is a Lecturer in Law at the University of Durham.Stephen Watterson is a Senior Lecturer in Law at the University of Bristol
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