Bridging the divide: an exploration of ian macneil's relational contract theory and its significance for contract scholarship and the lived world of commercial contract

• Main Author: Andrews, Cathy Joanne
• Format: Dissertation
• Language: English
• Published: ProQuest Dissertations & Theses 01-01-2010

In recent years commentators have suggested that the law of contract is experiencing something of a legitimation crisis. Whilst the classical contract paradigm remains a compelling default model underpinning contract law it is seen as increasingly remote from commercial practice. Legal scholars have variously described contract theory and doctrine as incoherent, piecemeal or in a state of flux. In spite of these issues having been well aired by academics, and the judiciary, no compelling alternative model seems to have emerged. This thesis explores these issues through a unique in-depth examination and application of lan Macneil's relational contract scholarship and the literature upon which he drew. Through a holistic reading of his opus and an innovative interrogation of his ideas in the context of the development of the classical contract model and real-life commercial contracting practice, I reveal how the outstanding explanatory force of Macneil's ideas can be applied to the widest possible range of contemporary contract problems and give doctrine a new intellectual coherence. I go on to present one of the first practical demonstrations of how relational contract ideas can be applied to contract formation and implication doctrines in the English jurisdiction by showing how a key commercial contract case could have been decided differently using relational reasoning. My research concludes that Macneil offers a distinct, robust method to analyse contract that poses a serious and credible challenge to the classical contract idea(l). In order to be conceptually unified, doctrinally consistent, and thus widely credible contract law must more effectively reflect the wide vista of commercial contract behaviour. I submit that contract law can no longer be legitimate when underpinned solely by the insignificant number of transactions that may vaguely fit discrete transactional concepts. Contract can be reunified by reconceptualising principles, doctrine, legal reasoning and contracting practice as relational.