Contract: There’s Still Life in the Classical Law

Extract

The case of Carlton Communications plc and Granada Media plc v. The Football League [2002] EWHC 1650 should serve as a cautionary tale for contract scholars seeking to promote a socio-legal approach to the development of contract law at the expense of the classical model. For such scholars, the development of an alternative to the classical law is thought necessary given “the devastating empirical finding of non-use” of contract law in sociological studies of contracting behaviour (D. Campbell, “Reflexivity and Welfarism in the Modern Law of Contract” (2000) 20 O.J.L.S. 477, 480). In parts of his recent work Regulating Contracts (Oxford, 1999) Hugh Collins argues that the legal rules frequently undermine the parties’ agreement because, at least in the commercial context, “considerations of the long term business relation, the customs of the trade, and the success of the deal” (ibid. p. 271) are more important than the contractual planning documents in regulating the relationship. Quite simply, contracting parties do not start from the rules and doctrines of contract law in constructing their agreement—they start from the deal. While cases like Williams v. Roffey [1991] 1 Q.B. 1 demonstrate some judicial appreciation of this fact, Baird Textile Holdings v. Marks and Spencer plc [2001] EWCA Civ 274, [2000] 1 All E.R. (Comm) 737 reminds us that agreements (in that case lasting some thirty years) may still falter for want of a (legal) contract. Carlton Communications is another reminder of what the socio-legal vision is up against.