Contract, conflict and cooperation : a critical analysis of the common law approach to the breakdown of modern, complex, symbiotic contracts
Saved in:
| Title: | Contract, conflict and cooperation : a critical analysis of the common law approach to the breakdown of modern, complex, symbiotic contracts |
|---|---|
| Authors: | Soper, Charles Haward |
| Committee Members: | du Bois, Francois; Peyer, Sebastian; Craven, Richard |
| Summary: | The springboard of a real-world, doctrinal, and theoretical investigation of the role played by cooperation in complex modern contracts allows me to articulate and justify a deep and concrete Transcendent Duty to Cooperate (TDTC) for these contracts. The source of the TDTC is the express words and/or the background of such contracts, the commercial expectations of the parties; which reveal that successful performance re-quires cooperation. The inevitable inference from this is that parties implicitly agree to cooperate. As the duty is implicit, it follows, I argue, that there are no gaps to be filled; merely meaning to be unearthed from the words and/or the background (construction). In doctrinal work, I review cases in categories (prevention, facilitation, defect-rectification, communication, decision-making, and active cooperation), showing that the law is far from coherent but also far from incoherent. Shifting from judicial policy making and gap-filling to context/purpose based contract construction, using evidence, is possible and would provide coherence. I create a clear and enforceable definition of cooperation through analysing the opinions of around five-hundred commercial experts and synthesising those with doctrine and theory. My empirical work analyses experts’ views; collected by interview, an online survey and workshops, using vignettes developed from adjudicated/real-life cases including opinion on what cooperation is and how it is achieved. The findings of my survey are compared with others. At an abstract level, it aligns with comparable surveys and at a detailed level, it is unique. In theoretical work, I show that basing the TDTC on construction is superior and more efficient, brings coherence to the law and that it is underpinned by shared, normative, “community” values. I test the TDTC against various “hard” cases, analysing remedial issues, showing that it would not decrease certainty in English Commercial Law, and is defensible by an appeal for coherence. |
| URL: | https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.745882 |
| Database: | OpenDissertations |
| FullText | Text: Availability: 0 |
|---|---|
| Header | DbId: ddu DbLabel: OpenDissertations An: ddu.oai.ethos.bl.uk.745882 AccessLevel: 6 PubType: Dissertation/ Thesis PubTypeId: dissertation PreciseRelevancyScore: 0 |
| IllustrationInfo | |
| Items | – Name: Title Label: Title Group: Ti Data: Contract, conflict and cooperation : a critical analysis of the common law approach to the breakdown of modern, complex, symbiotic contracts – Name: Author Label: Authors Group: Au Data: <searchLink fieldCode="AR" term="%22Soper%2C+Charles+Haward%22">Soper, Charles Haward</searchLink> – Name: Author Label: Committee Members Group: Au Data: <searchLink fieldCode="CO" term="%22du+Bois%2C+Francois%22">du Bois, Francois</searchLink>; <searchLink fieldCode="CO" term="%22Peyer%2C+Sebastian%22">Peyer, Sebastian</searchLink>; <searchLink fieldCode="CO" term="%22Craven%2C+Richard%22">Craven, Richard</searchLink> – Name: Abstract Label: Summary Group: Ab Data: The springboard of a real-world, doctrinal, and theoretical investigation of the role played by cooperation in complex modern contracts allows me to articulate and justify a deep and concrete Transcendent Duty to Cooperate (TDTC) for these contracts. The source of the TDTC is the express words and/or the background of such contracts, the commercial expectations of the parties; which reveal that successful performance re-quires cooperation. The inevitable inference from this is that parties implicitly agree to cooperate. As the duty is implicit, it follows, I argue, that there are no gaps to be filled; merely meaning to be unearthed from the words and/or the background (construction). In doctrinal work, I review cases in categories (prevention, facilitation, defect-rectification, communication, decision-making, and active cooperation), showing that the law is far from coherent but also far from incoherent. Shifting from judicial policy making and gap-filling to context/purpose based contract construction, using evidence, is possible and would provide coherence. I create a clear and enforceable definition of cooperation through analysing the opinions of around five-hundred commercial experts and synthesising those with doctrine and theory. My empirical work analyses experts’ views; collected by interview, an online survey and workshops, using vignettes developed from adjudicated/real-life cases including opinion on what cooperation is and how it is achieved. The findings of my survey are compared with others. At an abstract level, it aligns with comparable surveys and at a detailed level, it is unique. In theoretical work, I show that basing the TDTC on construction is superior and more efficient, brings coherence to the law and that it is underpinned by shared, normative, “community” values. I test the TDTC against various “hard” cases, analysing remedial issues, showing that it would not decrease certainty in English Commercial Law, and is defensible by an appeal for coherence. – Name: URL Label: URL Group: URL Data: <link linkTarget="URL" linkTerm="https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.745882" linkWindow="_blank">https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.745882</link> |
| PLink | https://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=ddu&AN=ddu.oai.ethos.bl.uk.745882 |
| RecordInfo | BibRecord: BibEntity: Languages: – Code: eng Text: English Subjects: – SubjectFull: 340 Type: general Titles: – TitleFull: Contract, conflict and cooperation : a critical analysis of the common law approach to the breakdown of modern, complex, symbiotic contracts Type: main BibRelationships: HasContributorRelationships: – PersonEntity: Name: NameFull: Soper, Charles Haward IsPartOfRelationships: – BibEntity: Dates: – D: 01 M: 01 Type: published Y: 2018 |
| ResultId | 1 |
