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This second collection of Brian Coote's previously published
writings is for the most part a follow-up to his Contract as
Assumption (Hart Publishing, 2010). Part of the theme of that
collection was that in a bilateral contract the obligations of the
parties, both primary and secondary, are those which at formation
they have each assumed, that is, have taken upon themselves. Being
exchanged at the point of formation, these assumptions constitute
the consideration. The institution of contract provides a facility
the purpose of which is to enable the parties thereby to bind
themselves to legal (contractual) obligation. This emphasis on what
happens at formation has prompted the inclusion of several of the
papers in this collection. These focus on intention, offer and
acceptance, the qualification of primary and secondary obligations
whether express or implied, agency, and the effect of illegality on
pre-existing rights. Falling outside this group are two pieces
respectively on chance and the burden of proof and on
impecuniosity, in each case in tort as well as in contract. The
collection ends with the author's valedictory lecture, "Contract -
an Underview". In this paper, delivered on his retirement from the
University of Auckland, he summed up his thinking on Contract. It
is now for the first time given general currency.
It has many times been said that contracts involve assumptions of
obligation or liability, but what that means, and what it is that
is assumed, have not often been discussed. It is to further such
discussion that some of the author's previously published writings
around this subject have been brought together in this book. His
basic premises are that contractual obligation and liability in
this context are two sides to the same coin and that an assumption
of one is an assumption of both. Parties are bound not because
liability has been imposed upon them by law as a result of their
having entered into a contract but because, in the act of assuming,
they have imposed it upon themselves. Contract provides a facility
the purpose of which is to enable this to be done within the limits
prescribed by law. The implication of these premises are much more
significant than might be supposed when applied to such areas of
contract as formation, consideration, intention to contract,
exception clauses, privity and damages. The book concludes with a
treatment of the role of assumption in tort. Because of the
importance of its subject matter and its wide-ranging treatment,
this book should appeal not only to teachers and postgraduate
students of contract but also to practitioners in the field and to
anyone else with an interest in contract theory.
This second collection of Brian Coote's previously published
writings is for the most part a follow-up to his Contract as
Assumption (Hart Publishing, 2010). Part of the theme of that
collection was that in a bilateral contract the obligations of the
parties, both primary and secondary, are those which at formation
they have each assumed, that is, have taken upon themselves. Being
exchanged at the point of formation, these assumptions constitute
the consideration. The institution of contract provides a facility
the purpose of which is to enable the parties thereby to bind
themselves to legal (contractual) obligation. This emphasis on what
happens at formation has prompted the inclusion of several of the
papers in this collection. These focus on intention, offer and
acceptance, the qualification of primary and secondary obligations
whether express or implied, agency, and the effect of illegality on
pre-existing rights. Falling outside this group are two pieces
respectively on chance and the burden of proof and on
impecuniosity, in each case in tort as well as in contract. The
collection ends with the author's valedictory lecture, "Contract -
an Underview". In this paper, delivered on his retirement from the
University of Auckland, he summed up his thinking on Contract. It
is now for the first time given general currency.
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