* Mandatory and Default Rules in Contract and Commercial Law

NOT YET PUBLISHED

Some legal rules governing commercial transactions operate as defaults, which can be modified or excluded by the parties, while others are mandatory, or non-excludable. This collection explores the nature of mandatory and default rules and the complicated relationship between them.

Four issues receive close attention. The first is taxonomy: the collection distinguishes between different kinds of mandatory and default rules that govern commercial transactions. The second issue is justification. Where rules are mandatory, are there clearly understood and convincing reasons for parties to be denied choice? In the case of default rules, on what basis is the default position selected? The third issue is the relationship between default rules and interpretation, and, relatedly, between default rules and contractual risk allocation. The application of default rules inevitably raises interpretive issues, and certain problems can be addressed either by way of a default rule or the identification of implicit allocations of risk. The fourth issue is the relationship between mandatory and default rules, which is revealed to be more akin to a spectrum, with shades of compulsion and optionality, rather than a binary divide.

table of content

1. Mandatory and Default Rules: Issues and Themes

Katy Barnett, William Day, Jonathan Morgan and Andrew Robertson

2. Default and Mandatory Rules in Contract and Commercial Law: A Judicial Perspective

Sir David Foxton

3. Default Rules, Interpretation and Risk Allocation

Andrew Robertson

4. Party Intention, Default Rules and Contract Theory

Ryan Catterwell

5. Default Rules in Contract Formation

William Day

6. Default Terms in Sale of Goods Contracts

Louise Gullifer and Louise Merrett

7. When it's Mandatory to be 'Reasonable': the Nature and Application of Reasonableness under the Unfair Contract Terms Act 1977

Devon Airey

8. Mandatory Statutory Rules, Consumer Contracts and Contractual Interpretation

Jeannie Marie Paterson

9. Frustration Dissected: Mandatory and Default Rules

Jonathan Morgan

10. Date of Breach as a Sticky Default Rule and the Role of the Court in Assessing Reasonable Mitigatory Measures

Katy Barnett

11. The Express Modification of Contract Law's Default Remedial Rules

David Winterton

12. Three Forms of Default Rules (in the Law of Unjust Enrichment)

Rory Gregson

13. Equity in Commerce: Why do we need Default Rules?

Man Yip

14. From Mandatory to Default Rules: Trusts in the 'Commercial' Context

Ying Khai Liew