Dyson, Goudkamp and Wilmot-Smith, ‘Thinking in Terms of Contract Defences’

The overarching aim of this chapter is to explore the reluctance of contract lawyers to think in terms of defences. The apparent opposition to terminology that is ubiquitous elsewhere in private law is, at least at first glance, a puzzling feature of contract law scholarship that merits attention. The analysis is in three parts. In Section II, we ask whether contract law has defences. We argue that, on three popular definitions of that term, there are defences to contract claims. This, combined with three further matters, which we canvass in Section III, explains what, specifically, is prima facie puzzling about the fact that contract lawyers do not think in terms of defences. Finally, in Section IV we address whether contract lawyers ought to speak in terms of defences. As a prelude to this analysis, we isolate a range of related questions that can be asked about defences. Considerable confusion, we believe, has flowed from a failure on the part of many theorists to be clear about the questions that they are asking. Having explained the question with which we are concerned, we offer reasons for and against using the language of defences in the contractual context.

Dyson, Andrew D and Goudkamp, James and Wilmot-Smith, Frederick, Thinking in Terms of Contract Defences (February 22, 2017).

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1 Comment to "Dyson, Goudkamp and Wilmot-Smith, ‘Thinking in Terms of Contract Defences’"

  1. haward's Gravatar haward
    27 February 2017 - 12:30 pm | Permalink

    hmmmm. This is making me rethink some of my work on cooperation in contract where, traditionally, duties to cooperate are seen as negative (prevention prohibiting) or positive (enabling). Now I have to consider whether prevention is actually a defence and do some more work. Very interesting! Luckily I had just started my writing up on remedies. Haward

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