Regulating Contracts

Using an interdisciplinary approach involving economics, sociology and law, this book explores fundamental questions about the purposes and effects of legal regulation of contractual relationships. The conclusions suggest that the law plays an insignificant role in the construction of markets.

Review from previous edition Regulating Contracts is the most innovative and important book on contract written in this country since The Rise and Fall of Freedom of Contract.

Auteur

Hugh Collins is Professor of English Law at the London School of Economics and Political Science

Texte du rabat

Using an interdisciplinary approach involving economics, sociology, and law, this book examines the purposes, efficiency, and efficacy of legal regulation of contracts and suggests how legal regulation fails and how it might be improved. The conclusions suggest that the law plays an insignificant role in the construction of markets, and that it could provide better assistance by using indeterminate regulation that permits the recontextualization of legal reasoning.

Résumé
Using an interdisciplinary approach involving economics, sociology and law, Regulating Contracts explores fundamental questions about the purposes and effects of legal regulation of contractual relationships. What kind of social relation do contracts create, or, more precisely, how do contracts govern social interaction. How are contractual relations, or more generally, markets constructed? Does the law play a significant role in particular practices, and in particular, what do lawyers, courts, and legal sanctions contribute to the contractual social order? For what distributive purposes does the law attempt regulation? The controversial conclusions of this study suggest that the law plays an insignificant role in the construction of markets, and that law and lawyers could provide better assistance by using indeterminate regulation that permits the recontextualization of legal reasoning. Legal regulation of contracts concerned with redistributive tasks, such as redressing unfairness, countering unjust power relations, and improving access to justice, is evaluated both with respect to the objectives of regulation and the search for the most efficient and efficacious form of regulation. The argument in the book is that control of unfairness is both desirable and practicable, that power relations should be modified for the sake of efficiency, and that better access to justice is unhelpful to the resolution of contractual disputes.

Contenu

• Part 1: Introduction

• 1: The Tasks for Regulating Contracts

• 2: The Meaning of Contract:- How Contract Thinks About Association; Contractualization of Social Life; Meaning of Contractual Relations; Embeddedness

• Part 2: The New Regulation

• 3: The Discourses of Legal Regulation:- Normative Complexity; Self-reference and Closure; The Doctrinal Classification System; The Collision of Private Law with Public Regulation; The Productive Disintegration of Private Law

• 4: The Capacity of Private Law:- Private Law as Regulation; Reflexive Regulation; Standard Setting; Monitoring and Enforcement; Conclusion

• Part 3: Regulation in the Construction of Markets

• 5: The Construction of Markets:- Trust and Sanctions; Markets Without a State; The Construction of Trust; The Construction of Non-legal Sanctions; The Significance of Legal Sanctions; The Adjudication Process; Conclusion

• 6: Rationality of Contractual Behaviour:- Three Frameworks of Contractual Behaviour; The Non-Use of Contracts; Relational and Discrete Contracts; Reasonable Expectations

• 7: Planning and Co-operation:- Lawyers as Engineers; Informality in Business Dealings; Incompleteness in Planning Documents; Risk; Insufficient Specificity of Self-regulation; Flexibility; Conclusion

• 8: Formalism and Efficiency:- The Form of Legal Doctrine; Closure and Expectation; Commercial Arbitration; Reasoning in the Common Law; The Virus of Formalism; A Transformation in Legal Doctrine?

• 9: Contract as Thing:- Money; Formality; Legal Pluralism; Futures Contracts; Club Markets; Self-regulating Associations

• Part 4: Distributive Tasks of Regulation

• 10: Power and Governance:- Mass Contracts; Principal and Agent; Contract and Organization; Conclusion

• 11: Unfair Contracts:- The Illusion of Unfairness; Open Texture Rules; Regulatory Backfiring; The Adequacy of Regulating Market Failure; Conclusion

• 12: Quality:- Efficient Level of Quality; Form of Standards; Monitoring and Enforcement; Conclusion

• 13: Government by Contract:- Public Services and the Market Mechanism; The Problem of Co-operation; The Problem of Quality; Quasi-Contract in Government; Conclusion

• 14: Dispute Settlement:- The Taste for Litigation; Vindication of Contractual Rights; Access to Justice; For Settlement

• 15: Conclusion

• Bibliography

• Table of Cases

• Table of Statutes

• Index