In this thesis, we explore the contractual nature of so-called "derivatives" and how they might be incorporated into existing legal concepts. This thesis takes the position that derivatives are in essence contracts to trade risk, and argues that commodity future delivery contracts fall within the legal meaning of "futures" if they are traded as notional transactions settled by cash. We also argue that derivative instruments and traditional gambling instruments are both aleatory in nature. The question then is: "How should we allocate the function between gambling and financial laws in order to control speculation?" Moreover, this thesis argues that derivative instruments in general are not traditional insurance policies. We find no convincing reason to see derivative instruments as another contract uberrimae fidei and to restrict the use of derivative instruments with an equivalent of the insurable interest test. However, whether a firm selling derivative instruments should be regulated (and furthermore, be regulated like insurance companies) may require further consideration. In addition, securities laws are constructed upon the special characteristic of "securities", which is not shared by most derivatives. Caution is required when applying rules developed in securities regulation to derivative instruments. However, we also recognise the potential for problems with insider dealing and market abuse in the derivatives market such that regulators might have to intervene. In the end, although derivatives do not fit well in existing categories, this does not mean that we need a special set of derivative contract laws: derivative instruments are based on general contract law, and without more substance, any derivative contract law is meaningless.

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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.

This thesis will examine bills of lading and their electronic equivalent offered currently to the commercial world. Accepting that electronic equivalent of bills of lading are a commercial reality, the aim of this study is to examine how these systems successfully operate on the current legal framework designed for their paper counterparts. Therefore the first part of this study is dedicated to paper bills of lading and the functions they acquired over the years, whilst the second part of this study is devoted to the examination of their electronic equivalent currently offered. Specifically, it will be examined whether and how these electronic bills of lading work within the current legal framework. However, only BOLERO and CARGODOCS will be examined in detail as they are the only systems that operate on a commercial level at present. Also, this thesis includes a brief examination of the Rotterdam Rules with regards to these electronic transport documents. The study will conclude by briefly discussing fraud issues related to traditional bills of lading and their electronic equivalent.

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No description available.

An 'agreed damages clause' is a contractual provision whereby the parties agree on the damages one party must pay if that party breaches a term. A valid agreed damages clause, known as a 'liquidated damages clause', is enforceable. An invalid agreed damages clause, known as a 'penalty clause', is not. The 'penalty rule' is the legal doctrine that discriminates between the two types of clauses. This thesis adopts a rights-based, interpretive and formalist methodology to examine the penalty rule as it has evolved, and exists today, in Anglo-Australian commercial law. The investigation proceeds in three parts. First, this thesis restates the law. It derives a principled account of the rule from the leading cases. Second, the thesis justifies the law as restated. It reveals a theory that rationally explains the penalty rule, providing good or legitimate reasons why the rule is as it is. Finally, this thesis refines the restated law in the light of its theoretical justification. It takes interpretive steps to improve the penalty rule, casting the rule in the best possible light. This thesis concludes that a penalty clause is best understood as requiring one party, upon a default, to incur a detriment that is manifestly excessive in light of the clause's legitimate function. The refined penalty rule invalidates a penalty clause by rendering it partially unenforceable. Also, this thesis illustrates that the rule encapsulates a principle of preventing consensual civil punishment, and that corrective justice norms justify that principle. As such, the penalty rule ultimately instantiates corrective justice. Further, this thesis demonstrates that a classificatory, correctivist theory scores extremely well on several criteria for evaluating private law theories. Such a rights-based theory is highly transparent, powerfully coherent, and practically beneficial. It also displays a tight fit with the current law. In short, this thesis concludes that, viewed in the best possible light, the penalty rule is certain, elegant and (correctively) just.

This thesis is about the law of mistake in the law of unjust enrichment. It argues that a particular, autonomy-based normative account explains and justifies the current substantive law of mistake, and goes on to suggest consequential resolutions for some of the remaining controversial areas of the law. The normative account is that the justification for recognising mistake as a reason for restitution - what makes the mistaken enrichment 'unjust' - is the value given to the personal autonomy of individuals in determining the terms on which their resources are disposed. That account explains why the law of unjust enrichment has an initial but not exclusive focus on the claimant's intention, including that it must be present, properly formed and properly effected; and for the law of mistake specifically, the account provides a coherent explanation for why the established or 'core' areas of the law appear the way they do. In relation to the still controversial areas of mistake, the same account suggests that: (i) a reasonable degree of uncertainty or doubt should deny an unjust enrichment action based on mistake; (ii) causative ignorance is neither a mistake nor should it be recognised as an unjust factor; (iii) voluntary dispositions should be considered unjust once causative mistake is established; and (iv) while the line between mistakes and mispredictions is blurred in certain circumstances, clear and sound resolutions can be structured on the basis of the autonomy-centred normative account.

This study focuses on the effects of a contract of events and circumstances which occurred after the contract was entered into. The study principally examines the application of the English doctrine of frustration with comparative reference to the law applicable in Saudi Arabia. The main objective is to analyse how the English doctrine and its Saudi equivalents can provide an excuse or defence in circumstances where a party is prevented from performing contractual obligations. The study proceeds as follows. First, the doctrine of frustration is described in the context of a general overview of how a contract might be discharged. The historical development of the doctrine of frustration is then outlined together with its limitation and justifications. The application of the doctrine is then discussed in the most likely circumstances where it would be applied. The next step is to consider the central issue of commercial hardship, specifically whether it is recognised in English and also in Saudi law. Then remedies available when a contract has been frustrated are examined as well as the functionally equivalent rights and liabilities arising under the frustrated contract. The evidence presented to this point is then discussed in relation to the use of force majeure clauses and in particular their relationship with the doctrine of frustration. The study concludes that, while the English doctrine of frustration has witnessed significant developments, since it emerged as a departure from the rule of strict liability, it is still applied within a very narrow remit. Thus, the best way for contracting parties to deal with supervening events is by providing for force majeure clauses. The practical consequence of this is that where reliance upon these clauses becomes increasingly significant, with a consequent lessening of the importance of the ‘default’ rule of the doctrine of frustration. In Saudi Arabia, contract law is heavily reliant on Islamic jurisprudence, which does not have a general theory of impossibility. Instead, the concept of impossibility is drawn from scattered statements and applications in the jurisprudence, which appear broader and so perhaps less rigid than the English doctrine of frustration.

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