ABSTRACT
This chapter explores theoretical writings on commercial expectations. It considers definition and sources and examines the tools available to judge, litigant and to evince commercial expectations in trial conditions. The chapter argues that justification for enforcing or taking into account commercial expectation is normative. Coulson J observed that providing too much information in an adjudication might breach a duty to cooperate: “Unless parties and their solicitors co-operated properly and complied with the TCC guide, the court would refuse to hear cases with promiscuous and unnecessary bundling.” The commercial world has changed since Stewart Macaulay first investigated the phenomenon of non-contractual relations in business. Many of the expectations revealed by the survey are core to the contract, necessary incidents of successful performance. Paul Finn says that “Judges commonly seem to regard the parties to commercial contracts as well-advised leviathans”; going on to say that for the most part neither is true.
