ABSTRACT

The basic finding of ‘critical’ or ‘contextual’, or, as I shall say here, ‘socio-legal’ contract scholarship has been that there often is a great distance between the formal provisions of a contract and the actual contracting behaviour of the parties; between the ‘paper’ and the ‘real’ deals.2 The formal provisions can get lost somewhere in this distance, and disputes are resolved in ways which evidence the ‘non-use’ of those provisions.3 The basic, implicit claim of the ‘classical’ law of contract articulated in ‘traditional’ or ‘formal’ contract scholarship is that contracting is tightly governed by the formal provisions of the contract. Non-use therefore has been very strong counter-evidence to the classical law, and, after long struggle, has proven to be the ‘death’ of it, with Stewart Macaulay, whose terms we use whenever we talk about these issues, as I have done here, being the ‘Lord High Executioner’.4