Foucault’s Pendulum: Text, Context and Good Faith in Contract Law

Speaker: Professor Gerard McMeel (University of Manchester)
Chair: The Hon. Mr Justice Leggatt (Royal Courts of Justice)
Admission: Free
Accreditation: This event is accredited with 1 CPD hour with the SRA and BSB
Series: Current Legal Problems 2016-17

About the lecture

Systems of contract law can be analysed in terms of various benchmarks. First, whether the system prefers a more textual approach to contractual undertakings – concentrating on the actual language of the parties’ documents – or inclines towards a more contextual approach, interpreting the deal in the light of the surrounding circumstances and business common sense.

Secondly, the position adopted between a wholesale commitment to good faith and fair dealing in the formation, performance and interpretation of contracts, and a stricter approach requiring exact compliance with contractual commitments. Recent case law has seen the English appellate courts changing tack on a number of fronts. The apparent embrace of contextual interpretation in the 1990s has been superseded by renewed emphasis on the centrality of the text, and scepticism about judicial ability to weigh considerations of commercial common sense. Nascent shoots advocating a greater role for good faith and fair dealing have found themselves exposed on stony ground. In contrast, rules on illegality and penalties have been re-stated in modern and rational terms.

This lecture examines the current position of English contract law, and suggests how equilibrium can be achieved.

About the speaker

Gerard McMeel is Professor of Commercial Law at the University of Manchester, where he teaches contract law, commercial law, banking law and carriage of goods by sea.

He is the author of The Construction of Contracts (Oxford University Press; 2^nd edn, 2011; 3^rd edn, 2017, forthcoming), and a co-author of The Law of Personal Property (Sweet & Maxwell; 2013; 2^nd edn, 2017, forthcoming) and McMeel and Virgo on Financial Advice and Financial Products (Oxford University Press; 3^rd edn, 2014).

He is the Regional Contributing Editor for England and Wales for the Restitution Law Review. He has authored numerous contributions in edited collections and journal articles on contract law, commercial law, financial services law and regulation, and unjust enrichment. He is also a Barrister, England and Wales.