Chapter 9 addresses a selection of contract law issues including licensing and collaboration agreements from a practical point of view. It also engages with competition law, international trade law, and environmental law aspects of beer law. The chapter includes a section devoted to the legal issues that are associated with cross-border internet sales of beer.

Provisions in consumer contracts that deprive consumers of recourse in the event of a product failure effectively cancel the insurance that the law would otherwise provide to consumers who are injured by sellers of consumer products. This redistributes wealth from the poorest consumers to richer consumers because richer consumers can afford to self-insure against the risk of product failure whereas poorer consumers cannot. It follows that consumer sovereigntist arguments that consumer indifference to consumer-unfriendly contract terms suggests that consumers prefer the lower prices that come with such terms are misleading here. The interests of rich and poor consumers diverge with respect to these contract terms and the fact that rich consumers may carry the day in the market does not imply the consumers as a group prefer these terms. Accordingly, the European approach to consumer law, which treats democratically elected governments regulating consumer contract terms as a more authentic reflection of popular will than the purchase decisions of consumers in markets, may be more appropriate when it comes to the regulation of consumer contracts.

This chapter introduces the vision of contract law adopted in this book, based on two concentric spheres: an inner sphere encompasses an economic realm rooted in values such as freedom and sanctity of contract, reflecting a non-interventionist approach that can accommodate imbalanced transactions and an outer sphere shaped by public policy concerns, which embodies social values such as the protection of relational autonomy and human dignity. The chapter justifies the structure of the book, the choice of legal frameworks examined, as well as the relevance of this study for disability equality and contract legal research.

This chapter highlights the interconnection between economic and social values in the contractual realm, rooted in a perception of people as holder of rights and a broad interpretation of autonomy and human dignity that looks beyond individualistic values. With a focus on grossly asymmetrical contracts, it promotes an understanding of vulnerability in the contractual context based on the circumstances of the transaction, rather than on people’s medical conditions. The chapter reflects on the merits and drawbacks of the UN Convention on the Rights of Persons with Disabilities (UNCRPD) as a potential benchmark for promoting a vision of contract law that responds to both economic and social concerns and recognises the equality of all human beings. The second part considers how English contract law could be brought closer to the equality vision promoted by the UNCRPD, proposing an understanding of the contractual realm based on concentric economic and social spheres, shaped by fluid boundaries, and reflecting on the relevance of contract law as part of a broader set of measures to ensure a fairer society.

This chapter brings together the idea of bridges between economic and social concerns. The discussion reinforces the need to recognise the outer sphere of contracting in holding these connections together, recognising the role of contract law in protecting both economic values (including freedom and sanctity of contract) and social values (including relational autonomy and human dignity). A suggested path to succeed in these endeavours is to embrace the idea of complementarity in contract law, which enables us to accept the coexistence of ideas that may appear, initially, to be mutually exclusive. The idea of complementarity in contract law enables us to see economic and social values not as antagonistic, but as coexisting parts of interconnected spheres.

If English Contract Law had its own version of a ‘periodic table’, vitiating factors would form one group of elements. These include, among others, incapacity, nonest factum, mistake, misrepresentation, duress, undue influence and unconscionability. These factors could enable innocent parties, including parties who find themselves in a position of vulnerability due to absence of accessible and appropriate information, to escape the consequences of disadvantageous transactions. A narrow interpretation of these factors, focused on preserving the sanctity of contract and holding parties to their transactions, would restrict intervention solely to procedural grounds. On the other hand, a broad interpretation focused on both procedural and substantive fairness, would be closer to the values pursued by the UN Convention on the Rights of Persons with Disabilities (UNCRPD), including the protection of (individual and relational) autonomy and human dignity. This chapter calls for a broad interpretation of vitiating factors, perceiving them as ‘conduits of fairness’ in English contract law.

The third bridge is explored in chapter five and focuses on the connection between constitutional values and private law. The analysis concentrates on the values of autonomy and human dignity and their interplay with the principle of freedom of contract in English contract law. The discussion also reflects on the link between the UNCRPD, the European Convention on Human Rights (ECHR), the Human Rights Act (HRA) 1998, and English contract law, and suggests that rather than looking for a seamless bridge that links the UNCRPD directly with English contract law, we should look for steppingstones connecting the UNCRPD, the ECHR, the HRA and domestic private law. This chapter also discusses the values of participation and inclusion, with a focus on the idea of influence vulnerability explored in the previous chapter, and reflects on the need to enhance the influence of persons with disabilities and DDPOs in shaping legislative developments in English law, including consumer contract law.

Does contract law have any role to play in tackling economic inequality, one of the most pressing problems of our time? The orthodox answer to this question is no: contract law should promote autonomy, efficiency, and/or justice in exchange, while distributive objectives should be dealt with exclusively through the fiscal system. Critics of this orthodoxy struggle with the prevailing understanding that contract law around the world has converged on doctrines that are insensitive to distributive considerations. This chapter contributes to this debate by showing how courts in South Africa, Brazil and Colombia prominent Global South countries from different legal traditions – have recently diverged from orthodoxy to embrace the task of using contract law to address inequality. The emergence of contract law heterodoxy in Global South countries draws attention to the existing, if more limited, instances of heterodoxy in the contract laws of the United States and Europe and to the stakes of contract law more generally. This analysis highlights how mounting inequality may increase the appeal of contract law heterodoxy and suggests that the present reign of contract law orthodoxy is neither universal nor inevitable.

Legal technologies using AI-augmented algorithms to translate the purpose of a law into a specific legal directive can be used to produce self-driving contracts, that is, a contract which instead of relying on a human referee to fill gaps, update, or reform the provisions of the contract, uses data-driven predictive algorithms to do so instead. Self-driving contracts are not simply science fiction; not only are self-driving contracts possible, they are in fact already with us.

AI has the potential to overcome problems concerning the existing approaches to contract drafting, management and implementation, whilst also having the potential to exacerbate these problems. To deal with this risk and to create AI which is trustworthy in relation to contracting, such systems require channelling in a new direction, termed ‘transactional responsibility’. Legal regulation must be structured around the entirety of the socio-technical system which underpins AI.

This chapter responds to leading arguments about contract remedies, including the theory of efficient breach, contract interpretation, rules of disclosure (or permitting nondisclosure), consideration, and other topics in contract law. It shows how little progress the law-and-economics movement has made in understanding most areas of contract law, despite the obvious connections between contracts and economics.

This chapter aims to identify and analyze Western influences – French, German and English – that played into the conception of contractual consent emanating from the PRC CC provisions on contracts. Looking to the Chinese treatment of contract formation, contract interpretation, mistake as to present or future facts, good faith and abuse of rights, contractual fairness in the context of standard form contracts and some aspects of contract remedies, it is determined that the Chinese code provisions on contract on the whole clearly motion to a continental (French/German) rather than English model, the only exception perhaps being with respect to the duty to inform, which the Chinese code refrains from explicitly endorsing. As between French and German influences, moreover, the PRC CC seems more heavily suffused with the latter, it coming closest to French law only with respect to mistake as to present facts and certain aspects of good faith – at least insofar as the Chinese conception of delictual liability can be analogized to the French, which remains to be seen.

This chapter explores why Swiss law is very frequently chosen as the law applicable to international commercial contracts. This chapter reviews the statistics of the ICC and the Swiss Arbitration Centre as well as surveys carried out of international commercial actors confirming that Swiss law is one of the most popular laws chosen to govern the parties’ contract. This chapter then goes on to analyse the reasons cited for the popularity of Swiss law as the law governing the parties’ contract, namely the parties’ freedom to agree on the rights and obligations in their contractual relationship, the perceived neutrality of Swiss contract law, the suitability of Swiss law to cross-cultural relationships, its commonalities with laws of several Civil law jurisdictions, namely French and German law, the fact that the Swiss Code of Obligations is concise and easily accessible and the attractiveness of Switzerland as a seat of arbitration.