Tracing Trajectories in Contract Law Theory: Form in Anglo-New Zealand Law, Substance in Japan and the United States

Abstract

This article presents a detailed comparative history of 20th century contract law theory development primarily across four countries, drawing implications for recent law reform initiatives. It extends the framework initially proposed by Atiyah and Summers, which emphasised how the English legal system prefers greater formal reasoning in legal doctrine as well as various supporting institutions, compared to the more open-textured substantive reasoning patterns and institutions characteristic of the United States. New Zealand arguably retains strong affinities with England, whereas Japan shares many similarities with the US – in contract law theory development generally, as well as in discrete areas of contract law (analysed in other specific studies). This persistent disjuncture helps explain why England still refuses to accede to the United Nations Convention on Contracts for the International Sales of Goods (adopted by all other major trading nations, including the US and Japan), and why practitioners in other countries that have adopted the Convention – yet which follow the English law tradition, such as New Zealand but also Australia – still experience greater difficulty in applying the Convention. In addition, large-scale contract law reform including a closer alignment with such international instruments, as tentatively proposed by the Australian federal government in April 2012, faces greater obstacles in the Anglo-Commonwealth legal tradition compared to comprehensive reform initiatives that are already well advanced in Japan. More generally, the different trajectories in contract law theory development highlighted in this article call for caution about the prospects for world-wide or even regional unification or harmonisation of contract law.

Keywords: contract law, legal theory, comparative law, Asian law, Commonwealth law, law reform

JEL Classification: K10, K12, K30