The aim of this chapter is to explore different possible ways of thinking about the connection between the nature of contractual agreements and the rich array of notions that comprise the structure of contract formation. It starts from one axiom regarding the nature of contracts: contractual obligations and rights are necessarily brought about by both parties’ assents (the ‘Necessity of Agreement’ axiom or ‘NOA’). It is maintained that if we adopt NOA, there are at least two different mechanisms by which contracting agents may form a contractual agreement. One is well known to anyone familiar with modern contract law: ‘offer and acceptance’. The other has been interestingly neglected by most contract lawyers and theorists: ‘contractual subscription’. The notion of contractual subscription is developed, and then discussion of the concepts of offer and acceptance. Drawing on Reinach’s idea of a ‘social act’, an account of ‘juridical acts’ is provided. Juridical acts, it is argued, are a type of social act, and contractual offers are a type of juridical act. Finally, the role of another important notion in contract formation is analyzed, that of a ‘promise’. Contrary to several contemporary writers, it is held that the act of making a promise, in its elementary form at least, is neither necessary nor sufficient for the formation of a contract. The chapter concludes by offering a thesis regarding the connection between NOA and morality of contractual enforcement.

This chapter outlines the essential characteristics of servitude, including its creation through written contracts, its binding nature on successive property owners, and the necessity of registration for enforceability against third parties.

The second section focuses on habitation rights, a form of personal servitude allowing individuals to reside in a property owned by another. It explains the creation of habitation rights through contracts and wills, highlighting the mandatory registration process to ensure these rights are recognized against third parties. The chapter examines the interaction between habitation rights and other property interests, such as mortgages and bona fide purchasers, emphasising the legal protections and potential conflicts that arise.

By providing a comprehensive overview of servitude and habitation rights, this chapter offers readers a detailed understanding of these unique property interests and their practical implications in the Chinese legal system.

The COVID-19 pandemic threatened to worsen pre-existing economic inequality in China. This chapter discusses how the Chinese party-state used distinctive “ultra-heterodox” measures to alter or nullify contractual terms in contractual disputes during the pandemic that raised serious concerns about inequality, social unrest, or systemic financial risk. Specifically, courts would refer such disputes to either mediation, insolvency, or a “macro-prudential” proceeding that involved courts collaborating with government agencies, party officials, and stakeholders of firms experiencing financial distress to negotiate and implement resolutions of disputes. These procedures allow the party-state to achieve its objectives of preventing market disruption, social unrest, and financial crisis triggered by unfair and unequal contracts. The “negotiated legality” reflected in these measures works in China because of the dominance of the party-state, widespread acceptance among contracting parties of a communitarian understanding of liability and responsibility, and the efficiency of postponing risk allocation to the enforcement stage from the contract formation stage in an emerging market.

Most of the contracts we sign are standard form consumer contracts. Also known as boilerplate or fine print agreements, these uniform “one-size-fits-all” agreements are the most common type of economic contract, used for billions of commercial transactions each year. As this chapter will highlight, experimental research has the potential to significantly inform the regulatory discourse about consumer contracts by providing evidence as to the problems that consumer contracts generate, as well as to the effectiveness of the regulatory tools currently implemented (or under consideration) in addressing these problems. This chapter reviews existing experimental scholarship on consumer contracting with the goal of elucidating its contributions to our knowledge, while at the same time highlighting what remains to be done. Its focus is on experimental studies involving three main issues: (1) consumers’ contracting realities – how consumers behave around form contracts; (2) consumer psychology – how consumers perceive form contracts and the law governing them; and (3) how different regulatory interventions could refashion these contracting realities.

The chapter discusses regulations and legal reform in medical law, in particular assisted reproductive technology (ART). A combination of Iranian state law, Shiʿi rulings, and national, medical, and clinical guidelines govern access to ART. In 2003, parliament enacted a law allowing the use of embryo donation for treating infertility in married couples. The law also implicitly recognized the permissibility of embryo-carrying and surrogacy arrangements. In comparative terms, this made Iran the most progressive country in the Muslim world regarding ART regulations and has resulted in the phenomenon of medical tourism. The chapter discusses the many ways in which Shiʿi Islamic legal rulings are mobilized to respond to medical and ethical concerns of different constituencies, illustrating the dynamism and adaptability of Shiʿi fiqh. Taking family as a legal concept, the chapter argues that Iranian family beliefs and values play a crucial role in shaping Iran’s permissive reproductive policy. Genealogical continuity and legal parenthood are central to these beliefs and values.

In recent litigation, insurers have argued that state laws that mandate data reporting violate their insurance contracts. While not explicitly framed in freedom of contract terms, their argument reflects a recent trend in lower courts, which see freedom of contract principles as supporting ERISA preemption claims. These courts treat state regulations infringe on the insurers’ abilities to promulgate contracts of their choosing.

This Essay argues that a better approach to considering freedom of contract should consider whether the legislation at issue addresses bargaining imbalances that undermine fair contracting. That approach reflects arguments made in the context of ERISA litigation in the 1990s, where insurers claimed that state laws that required them to accept into their network any provider that met their terms and conditions were preempted by ERISA. States responded that such laws supported freedom of contract between patients and providers, and to correct market imbalances.

In the context of data reporting laws, similarly, access to data corrects market imbalances which undermine contracting between health plans, providers, and consumers. Accordingly, ongoing Biden Administration efforts to improve data transparency should be strengthened. These proposed regulations seek voluntary submission. However, voluntary submission presents a range of problems: mandated data collection is needed precisely to maintain robust contractual arrangements in the private market.

Despite recent reforms, “balance billing” – the practice of charging patients exorbitant list prices for out-of-network or uninsured care – remains a potentially devastating feature of American healthcare. Most proposed solutions have been statutory or regulatory. But the common law offers an important intervention, consistent with private law theory, through a doctrine developed by a number of state courts and recently endorsed by the Eleventh Circuit in an adjacent area of law. Under traditional tort principles, injured plaintiffs are entitled to recover the “reasonable” costs of their medical expenses, regardless of whether they were covered by insurance. Reasoning that because, in the contemporary healthcare market, neither the amount billed by healthcare providers nor the amount paid by insurers is necessarily reasonable, these courts hold that the question of reasonable damages is for the jury, on consideration of the amount billed, the amount paid, and any other relevant evidence the parties present. A similar approach could be imported into the balance billing context, leaving to juries to determine the reasonable price of services, considering all relevant evidence. This wouldn’t solve all problems related to balancing billing, and the “reasonable price” determined by juries may still be out of reach of many patients. But unlike other judicial solutions, this proposal is thoroughly consistent with common law theory, translating basic private law principles to new contexts, rather than policy reasoning. Moreover, it may even improve the public legitimacy of the industry, ensuring that providers can never collect arbitrary post-facto amounts.

This chapter examines the role of the papacy in the history of marriage regulation in a long-term perspective. The core theme of corporeality is investigated between doctrine and practice. On the one hand, the body is a central good whose rights of use are mutually exchanged by the spouses within the framework of the marriage contract; on the other hand, it is a deadly burden, the place where the flesh manifests itself with its law that contradicts reason. In the light of this tension, the position of papal authority – in particular the power to bind and dissolve – is addressed by examining its pronouncements, especially the Decretales, conciliar legislation, and the publication of encyclicals and apostolic exhortations up to the most recent on the subject: Amoris laetitia, by Pope Francis I. Finally, some cases that have been dealt with by courts such as the Penitentiary, the Holy Office, and the Rota are examined.

Chapter 3 focuses on notarial credit. Because notaries drafted various kinds of contracts related to individuals, families, and household wealth, scholars have emphasized the exceptional access they had to a vast array of information. With such information, especially regarding creditworthiness, notaries could overcome asymmetric information, lower transaction costs, and match lenders and borrowers effectively, precluding the role of banks until the nineteenth century. Recent historiography highlights, therefore, their role as intermediaries between investors and borrowers. In rural areas, where most individuals knew each other, were related to each other, and conducted business on a daily basis with each other, this brokerage role bore another meaning. This chapter look closely at the various types of notarial contracts and their characteristics.

The national populism of the Brexit movement builds up its political worldview on the basis of an ethnocentric myth of continuous homogeneous British nationhood. This was a construct of the imagination that included nostalgia for lost British empire. It was tightly bound up with the Brexiters’ concept of ‘the people’, which brought into their campaign rhetoric the idea of ‘the will of the people’ and ‘the mandate of the people’, as well as ideas from social contract theory. ‘The will of the people’ was a phrase that ran throughout Brexitspeak, deployed by the ex-Remainer Theresa May and ardent Leavers alike, and backed up by the populist press. Brexitspeakers knew what the people’s will was, by implication at least. And the claim that this ‘will’ gave the government an unquestionable mandate followed automatically, despite the narrow margin by which the Leavers had won, and despite the fact that before it the result had been defined as ‘advisory’ only. There was also the question of who precisely constituted ‘the people’ at the referendum, for there were important groups of potential voters who were excluded by the Brexiter-influenced Referendum Act.

Australian courts may grant ‘reasonable fee’ awards where defendants have used certain property or infringed certain rights in a tortious manner. ‘Reasonable fee’ refers to a method of calculating a monetary award for a wrong; namely, where the court awards the objectively ascertained fee that the parties would have agreed upon for permitting the defendant’s conduct. Reasonable fee awards may be made in various forms, including through an award of compensation, in an action for money had and received through ‘waiver of tort’, as ‘restitutionary damages’, or under Lord Cairns’ Act in lieu of an injunction. They are generally awarded for common law causes of action. As discussed in this chapter, the rationale for reasonable fee damages is highly contested. In previous editions of this book, we conceptualised reasonable fee awards as being gain-based and discussed them in the chapter on gain-based relief. The latest cases from the apex courts of the United Kingdom and Singapore suggest that reasonable fee awards are an instance of ‘substitutive compensation’. It remains to be seen whether Australian courts will adopt this approach.

The concept of ‘remedy’ used in this chapter encompasses a court order replicating a preexisting right, not a response to civil wrongdoing. Restitutionary remedies responding to unjust enrichment differ from remedies responding to a wrong (breach of contract, tort, or equitable wrong). As noted in Ch 1, they do not fit easily into a division between the primary right and the secondary remedy. It is for this reason that the cause of action and the remedy overlap, and they are notoriously difficult to untangle. Discussions of restitutionary remedies inevitably turn into discussions of the cause of action.

This chapter considers self-help remedies, which involve the plaintiff making good her own rights without the intervention of the judiciary. The focus of this book is on remedies that are awarded pursuant to a judicial order. However, an exclusive consideration of judicial remedies would ignore the fact that most disputes are settled outside the courts and that most parties prefer non-judicial settlements. It may be queried whether self-help remedies are really remedies in the strict sense of the word. They do not involve a court order; instead, the court gives permission to a plaintiff to act in a particular way. Nevertheless, in a broader sense, the plaintiff is allowed to redress her grievance by vindicating her own rights. By allowing a plaintiff to redress her rights in this way, the law affirms and reinforces the importance of certain interests. As noted in Ch 13, Varuhas has observed that the interests protected by vindicatory awards are often associated with the torts actionable per se.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

In this chapter, we consider exemplary damages and aggravated damages, remedies with a strong vindicatory flavour, as recognised by the High Court of Australia in Lewis v Australian Capital Territory.

Exemplary damages vindicate the plaintiff’s interests, but also explicitly punish the defendant for the wrong in question. Punishment is not commonly recognised as a central aim of private law. Some commentators have argued that it should not be part of private law. However, exemplary damages are said to validate the plaintiff’s feelings of hurt and anger arising from the contumelious nature of the defendant’s wrong. Such damages also perform a vindicatory function. The fact that the law punishes a defendant for the manner of his interference with the plaintiff’s interests signals the importance of those interests.

Chapter 11 focuses on ancient ‘contracts’, with specific reference to commerce, property and other economic activities for which there is relevant evidence. The chapter begins with urbanization in southern Mesopotamia in the fourth millennium bce, bringing together archaeological, material and written evidence in order to introduce a broad working idea of ‘contracts’. The next section moves on to a discussion of technical ancient terms and concepts, noting the ‘considerable terminological instability in the common English translations of the original terms’. The following section turns to ‘contracts’ between states, whilst the next develops a comparative analysis of ‘oaths in interpersonal agreements’. The following two sections analyse specific questions surrounding the use of writing and ’the contract of sale’, noting that there is surviving evidence for the use of (different forms of) contacts of sale across every ancient legal system. The chapter concludes by drawing together a set of generalized conceptions of ‘contract’ and briefly suggesting that long-distance trade - among other factors - may lie behind some of the similarities - for example the use of seals - evident across the extant ancient evidence.