Zoe Gounari
Developing a Relational Law of Contracts: Striking a Balance between Abstraction and Contextualism
Gounari, Zoe
Authors
Abstract
Relational contract theory holds that the interpretation of a contract must take full account of the context and surrounding circumstances of the parties’ bargain so as to give effect to their respective intentions. This paper argues that if a relational treatment of contracts is to be institutionalised, in the sense of being utilised in a contract dispute to determine and give effect to the parties’ intentions, then it must operate at an abstract level. That is to say, rather than using relevant context to determine what the actual parties intended in the circumstances at hand, the contextualist enquiry should ascertain the relevant context by reference to what the parties would have agreed to in the circumstances, had they properly reflected on what their self-interest requires. I discuss the merits of this proposition by reference to a number of appellate judgments, which already endorse contextualism as a response to contractual ambiguity, and I ultimately apply it to the Supreme Court's judgment in Rainy Sky SA v Kookmin Bank.
Citation
Gounari, Z. (2021). Developing a Relational Law of Contracts: Striking a Balance between Abstraction and Contextualism. Legal Studies, 41(2), 177-193. https://doi.org/10.1017/lst.2020.23
Journal Article Type | Article |
---|---|
Acceptance Date | May 20, 2020 |
Online Publication Date | Jan 18, 2021 |
Publication Date | 2021-06 |
Deposit Date | Jul 21, 2020 |
Publicly Available Date | Jun 17, 2021 |
Journal | Legal Studies |
Print ISSN | 0261-3875 |
Electronic ISSN | 1748-121X |
Publisher | Cambridge University Press |
Peer Reviewed | Peer Reviewed |
Volume | 41 |
Issue | 2 |
Pages | 177-193 |
DOI | https://doi.org/10.1017/lst.2020.23 |
Files
Published Journal Article
(202 Kb)
PDF
Publisher Licence URL
http://creativecommons.org/licenses/by/4.0/
Copyright Statement
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Copyright © The Author(s), 2021. Published by Cambridge University Press
Downloadable Citations
About Durham Research Online (DRO)
Administrator e-mail: dro.admin@durham.ac.uk
This application uses the following open-source libraries:
SheetJS Community Edition
Apache License Version 2.0 (http://www.apache.org/licenses/)
PDF.js
Apache License Version 2.0 (http://www.apache.org/licenses/)
Font Awesome
SIL OFL 1.1 (http://scripts.sil.org/OFL)
MIT License (http://opensource.org/licenses/mit-license.html)
CC BY 3.0 ( http://creativecommons.org/licenses/by/3.0/)
Powered by Worktribe © 2024
Advanced Search