ABSTRACT
The basic principle of cooperation in English contract law requires a consideration of what has to be done when “it appears to be necessary that something must be done” which requires the cooperation of both parties. This chapter considers how judges go about the process of interpretation of contracts and argues that it may be better for Courts to make reasoning more explicit and differentiate more clearly between construction and gap-filling. Clients who interfere with the activity of a certifier or otherwise prevent the proper operation of the contractual machinery, breach their duty to cooperate; Lord Thankerton observing that it was “almost unnecessary” to cite precedent and the House of Lords agreeing with this “construction”. The chapter explores how the Courts deal with so-called binary decisions or decisions to exercise absolute contractual rights. The treatment of binary decisions, making a choice between two positions, is variable and illogical.
