ABSTRACT
This chapter deals with some preliminary, but fundamental, issues which need discussion before embarking on a detailed consideration of the case law and statutes which make up the English law of contract. These issues are principally concerned with identifying what the law of contract is, and its scope. There are a number of possible approaches to this question. It might be asked, for example, what relationships the courts currently regard as being within the scope of the law of contract. Answering this relatively easy question might be of some use, particularly from the practical point of view of deciding how to deal with a dispute between A and B. The task would, however, be essentially descriptive. If we want to go further and analyse the nature of contract, or the contractual relationship, we will need to ask why some situations rather than others are dealt with as contractual, and try to find some rational basis for distinguishing between ‘contract’ and ‘non-contract’. This is an issue which has been the subject of regular academic discussion over the last 40 years.1 Moreover, even texts aimed at practitioners are unable to ignore it. Chitty on Contracts, the most well established practitioner’s text, has an introductory chapter dealing with the ‘nature of contract’. Its more recently published rival, Furmston’s The Law of Contract2 goes even further, including a lengthy first chapter on ‘General Considerations’ (written by Professor Roger Brownsword).3
