LS452S: HISTORY OF CONTRACT LAW THEORY (2023-2024)

Course Aims: This course will build on the doctrinal understanding of modern Scots contract law that students will have gained in Contract (LS1520). It will focus on how the basic theoretical concepts underpinning contract law - such as consensus, offer, acceptance, and the just price - have been developed historically, with reference to both common law jurisdictions such as England and the Civilian legal tradition. Students will be shown how the historical development of these concepts continues to influence contemporary debates on contract law, such as the place of relational contracts and the extent to which courts should intervene in unequal exchanges.

Structure: The first half of the course will examine the development of European contract law theory up to the widespread adoption of the “classical model” of contract in the 18th-19th centuries. The latter half of the course will explore contemporary developments in contract law theory, taking in various challenges to the “classical model” which arose in the 20th- 21st centuries. Seminar One (The Roman Contracts) will ask to what extent a unified theory of contract can be found in the Roman juristic literature. This will include discussion of the stipulatory contracts, contracts bona fidei and the requirement of consensus ad idem. Seminar Two (Aristotelianism) will discuss the natural legal theory which predominated in the medieval and Renaissance periods, fusing together the Roman juristic literature with Christian theology and an Aristotelian theory of commutative justice, or justice in exchange. Seminar Three (The Classical Model) will examine the development, rise and eventual dominance of will theory and the “classical model” of contract, with reference to its enduring formulation of the concepts of offer, acceptance, and the corresponding rights and duties of the parties. Seminar Four (Economic Analysis of Contract) will provide a basic overview of economic analysis to contract law. Seminars Four (Relational Contract Theory) will assess the theory of relational contract and contractual trust as developed by Ian Macneil and its linkage to the English law implied term of good faith. Seminar Six (Contractual Ideologies) will discuss various alternative 20th century approaches, including welfarism and critical legal studies, before concluding with Hogg’s reassertion of the classical model.

Information on contact teaching time is available from the course guide.

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