Dr Paul Macmahon CKK 6.23

This course is available on the Executive Master of Laws (ELLM). This course is not available as an outside option.

Available to Executive LLM students only. This course will be offered on the Executive LLM during the four year degree period. The Department of Law will not offer all Executive LLM courses every year, although some of the more popular courses may be offered in each year, or more than once each year. Please note that whilst it is the Department of Law's intention to offer all Executive LLM courses, its ability to do so will depend on the availability of the staff member in question. For more information please refer to the Department of Law website.

This course in Anglo-American Contract Law has two main aims. First, it acquaints students with the fundamental ideas in the common law of contracts. Second, students learn how these common-law ideas have developed differently in England and the United States. The course’s main themes include: freedom of contract and its limits; the tension between documentary certainty and tacit understandings; the relevance of extracontractual notions of fairness; and the nature of the judicial role in contractual dispute resolution. We will explore these themes by working through both hypothetical and real cases. Students learn to apply, compare, and evaluate English and American contract law.

We cover the following topics:

• Contract Law in England and the United States: Institutional Comparison
• The Core Requirements for Binding Contracts in English and U.S. law
• Precontractual Liability
• Unconscionability and Standard Form Contracts
• Interpretation of Contracts: Formalism and Contextualism
• Implied Terms and the (Limited) Role of Good Faith
• Variation of Contracts: Relational Norms vs. Neoformalism
• Change of Circumstances: Frustration and Impracticability
• The Theory and Practice of Efficient Breach of Contract
• Contract Law as a Product on the Global Market for Dispute Resolution: London vs. New York vs. the rest

Our coverage is necessarily selective. The topics have been chosen according to three criteria. First, though some historical understanding is crucial, the emphasis is on issues with contemporary practical importance. Second, we  focus on ideas that are peculiar to the common law of contracts and otherwise inaccessible to students from a civil law background. Third, we pay special attention to areas where English and American law have diverged.  Along the way, students become familiar with the distinctive styles of legal reasoning on display in each country. Students may benefit especially by gaining an understanding of how the United States’ complex and opaque system of judicial federalism works in private law cases.

24-26 hours of contact time. 

Students have the option of producing a formative essay or answer to a problem question (max. 2000 words) to be delivered one month from the end of the module’s teaching session by email.

Essential readings will include excerpts from judicial decisions, and also from the following secondary sources:

• Ewan McKendrick, Contract Law (14th edn, Red Globe Press 2021)
• Randy E. Barnett, Oxford Introductions to U.S. Law: Contracts (Oxford University Press 2010)
• Margaret Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Harvard University Press, 2014)
• Lon Fuller, Consideration and Form, 41 Colum. L. Rev. 799 (1941)
• Geoffrey P. Miller, Bargains Bicoastal: New Light on Contract Theory, 31 Cardozo L. Rev. 1475 (2010)
• Gregory Klass, Intent to Contract, 95 Virginia L. Rev. 1437 (2009)
• John Cartwright, An Introduction to the English Law of Contract for the Civil Lawyer (3rd edition, Bloomsbury, 2016)
• Richard A. Posner, Law and Legal Theory in England and the United States (Oxford University Press, 1997)
• Guenter Teubner, Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences, 61 Modern L. Rev. 11 (1998)

The common law of contracts has developed mainly through case law, so a large proportion of the readings consists of excerpts from judicial decisions. 

Assessment path 1
Essay (100%, 8000 words).

Assessment path 2
Take-home assessment (100%).