Thinking in Terms of Contract Defences

16 Pages Posted: 25 Feb 2017  

Andrew D. Dyson

University of Oxford - Faculty of Law

James Goudkamp

University of Oxford - Faculty of Law

Frederick Wilmot-Smith

University of Oxford - Faculty of Law; All Souls College

Date Written: February 22, 2017

Abstract

The overarching aim of this chapter is to explore the reluctance of contract lawyers to think in terms of defences. The apparent opposition to terminology that is ubiquitous elsewhere in private law is, at least at first glance, a puzzling feature of contract law scholarship that merits attention. The analysis is in three parts. In Section II, we ask whether contract law has defences. We argue that, on three popular definitions of that term, there are defences to contract claims. This, combined with three further matters, which we canvass in Section III, explains what, specifically, is prima facie puzzling about the fact that contract lawyers do not think in terms of defences. Finally, in Section IV we address whether contract lawyers ought to speak in terms of defences. As a prelude to this analysis, we isolate a range of related questions that can be asked about defences. Considerable confusion, we believe, has flowed from a failure on the part of many theorists to be clear about the questions that they are asking. Having explained the question with which we are concerned, we offer reasons for and against using the language of defences in the contractual context.

Keywords: defence; denial; frustration; duress; limitation bar; exceptions; elements of cause of action; burden of proof; burden of pleading

JEL Classification: K12

Suggested Citation

Dyson, Andrew D. and Goudkamp, James and Wilmot-Smith, Frederick, Thinking in Terms of Contract Defences (February 22, 2017). Available at SSRN: https://ssrn.com/abstract=2922124

Andrew D. Dyson

University of Oxford - Faculty of Law ( email )

Corpus Christi College
Merton Street
Oxford, OX1 4JF
United Kingdom
447745033291 (Phone)
7745033291 (Fax)

James Goudkamp (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

Frederick Wilmot-Smith

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

All Souls College ( email )

14 High St
Oxford
United Kingdom

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