ABSTRACT
In the last chapter, it became evident that the exact moment an offer and an acceptance occur is not always clear, as the parties often proceed slowly towards contractual responsibility. In this chapter we move on to look at the problems caused when negotiating and contracting parties do not behave in the ways that the courts expect them to. It is clear from a range of empirical studies of the use of contract lawwithin the business community that rather than being the exception, non-compliancewith the law of contract is the norm. In this chapter, I draw attention to a series of circumstances in which the expectations of the business community and the expectations of lawyers are clearly in opposition. These include problems relating to the ‘battle of the forms’ lack of certainty, tenders, reasonable reliance and legitimate expectation; and performance during the course of the contract. It could be argued that these various case studies are more than just discrete problems at the margins of the modern development of the law of contract. Rather, they could be seen as central to suggestions that the neo-classical model of contract is lacking in legitimacy amongst the business community. One of the difficulties facing the judiciary is whether it should prescribe what the parties need to do in order for a contract to be enforceable ormerely enforcewhat seems to be standard business practice.
