Thinking in Terms of Contract Defences
16 Pages Posted: 25 Feb 2017
Date Written: February 22, 2017
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: Suggested Citation